Loading...
HomeMy WebLinkAboutItem 4.07 TollCADubRnATr7252TDA C 'TY CLERK File # AGENDA STATEMENT CITY COUNCIL MEETING DATE: December 3, 2002 SUBJECT: Amendment to Tract Developer Agreements, Tract 7252, Dublin Ranch Area A (Toll CA, L.P.) to Extend Completion Date Report Prepared by: Lee S. Thompson, Public Works Director ATTACHMENTS: 1) Resolution Amending the Tract Developer Agreements for Tract 7252, together with Exhibit "A" of Resolution 2) Original Tract Developer Agreement with Toll CA, L.P. for Fallon Road Extension and Signal Hill Drive Improvements 3) Original Tract Developer Agreement with Toll CA, L.P. for Fallon Road Landscaping 4) Original Tract Developer Agreement with Toll CA, L.P. for Tract 7252 Traffic Signals at Turnberry Drive, Kingsmill Terrace, and Signal Interconnect 5) Location Map RECOMMENDATION: ,,~AR>K~ Adopt Resolution extending the completion date of the Tract Developer Agreements for Tract 7252 one additional year or until  December 4, 2003 FINANCIAL STATEMENT: Toll CA, L.P. has provided a Performance Bond and a Labor and Materials Bond to guarantee construction of Fallon Road extension improvements, and landscaping, and traffic signals, and will pay the costs of associated construction inspection. Once these improvements have been constructed and accepted, the City will incur maintenance costs for the public street improvements. DESCRIPTION: On December 4, 2001, the City Council authorized the Mayor via Resolution No. 206-01 to execute three separate Tract Developer Agreements with Toll CA, L.P. for public right-of-way improvements associated with Tract 7252. These agreements govern the installation of Fallon Road and Signal Hill Drive extension improvements, Fallon Road landscaping, and traffic signals at the Turnberry Drive and Kingsmill Terrace intersections on Fallon Road. The Tract 7252 map conveyed the right-of-way for Fallon Road, north of Antone Way, created a parcel that was subsequently subdivided for Neighborhood A-1 (Tract 7136), created parcels for the golf course clubhouse and recreation facility, and included land that is now occupied by an 18-hole golf course. The original Agreements allowed the developer 365 calendar days to complete the improvements. Although the improvements are nearing completion in accordance with the approved plans and COPIES TO: Jon Paynter, Toll CA, L.P. ITEM NO. G:kDEVELOP\Dublin RanchkAreas A-EkArea A Tract 7252\agst amend tr dev agmt.doc speCifications, certain improvements will not be finished prior to the Agreements' expiration date on December 4, 2002. The street portion of the improvements has been installed, the traffic signals are in place but not yet activated, and there is still work to be completed on the median landscaping. After evaluating the status of construction, the City Engineer has determined that it is in the best interest of the City to extend the term of the Agreements for one additional year. The improvements will continue to be guaranteed by the original Performance Bonds and Labor and Materials Bonds, and the Developer's insurance will remain in effect as required by the original Agreements. Staff therefore recommends that the City Council adopt the Resolution extending the term of the three Tract Developer Agreements for Tract 7252 by one year, or until December 4, 2003. Page 2 vff ~ RESOLUTION NO. - 02 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AN AMENDMENT TO THE TRACT DEVELOPER AGREEMENTS FOR TRACT 7252, DUBLIN RANCH AREA A (TOLL CA, L.P.) WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and Toll CA, L.P., a California Limited Parmership (hereinafter referred to as "DEVELOPER"), entered into three Tract Developer Agreements for Fallon Road Extension and Signal Hill Drive Improvements, for Fallon Road Landscaping, and for Traffic Signals at Turnberry Drive, Kingsmill Terrace, and Signal Interconnect, (hereinafter referred to as "AGREEMENTS") on December 4, 2001; and WHEREAS, Section 1 of the AGREEMENTS states that DEVELOPER shall complete all improvements governed by AGREEMENTS not later than 365 days following the date of execution; and WHEREAS, since the improvements will not be complete within the timeframe anticipated in the original AGREEMENTS, it is in the best interest of the CITY to extend the completion date of the AGREEMENTS by one year, or until December 4, 2003; and WHEREAS, this Amendment hereby incorporates by reference all terms and conditions set forth in the AGREEMENTS, and all terms and conditions which are not specifically modified by this Amendment shall remain in full force and effect; NOW, THEREFORE, BE IT RESOLVED that the Amendment (Exhibit "A" of this Resolution) to the following AGREEMENTS for Tract 7252 are hereby approved: Tract Developer Agreement for Fallon Road Extension and Signal Hill Drive Improvement Tract Developer Agreement for Fallon Road Landscape Tract Developer Agreement for Traffic Signals at Tumberry Drive, Kingsmill Terrace and Signal Interconnect BE IT FURTHER RESOLVED that the Mayor is authorized ~o execute the amendment. PASSED, APPROVED AND ADOPTED this 3rd day of December, 2002. AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk GSDEVELOP'~Dublin Ranch'~reas A-EXekrea A Tract 7252~reso amend tr dev agmt.doc EXHIBIT "A" OF RESOLUTION NO. -02 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN AMENDMENT TO TRACT DEVELOPER AGREEMENTS FOR DUBLIN RANCH AREA A, TRACT 7252 BETWEEN CITY OF DUBLIN AND TOLL CA L.P., CALIFORNIA LIMITED PARTNERSHIP WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and Toll CA L.P., a California Limited Partnership (hereinafter referred to as "DEVELOPER"), entered into three Tract Developer Agreements for Traffic Signals at Turnberry Drive, Kingsmill Terrace, and Signal Interconnect, for Fallon Road Extension and Signal Hill Drive Improvements, and for Fallon Road Landscaping (hereinafter referred to as "AGREEMENTS") on December 4, 2001; and WHEREAS, Section 1 of the AGREEMENTS states that DEVELOPER shall complete all improvements governed by thc AGREEMENTS not later than 365 days following the date of execution; and WHEREAS, it is in the best interest of the CITY to extend the completion date of the AGREEMENTS by one year, or until December 4, 2003; and WI~REAS, this Amendment hereby incorporates by reference all terms and conditions set forth in the AGREEMENTS, and all terms and conditions which are not specifically modified by this Amendment shall remain in full force and effect; NOW, THEREFORE, the parties hereto agree as follows: Completion time for the improvement work governed by the AGREEMENTS is hereby extended one year or until December 4, 2003 for the following: Tract Developer Agreement for Fallon Road Extension and Signal Hill Drive Improvement Tract Developer Agreement for Fallon Road Landscape Tract Developer Agreement for Traffic Signals at Turnberry Drive, Kingsmill Terrace and Signal Interconnect CITY OF DUBLIN: Janet Lockhart, Mayor TOLL CA, L.P., a California Limited Partnership By: ATTEST: TOLL CA GP Corp., a California Corporation, General Partner City Clerk B~ ffon Paynter, Assistant Secretary Date: //. G:kDEVELOP'~Dublin RanchkAreas A-EX3.rea A Tract 7252\Ex 'A' reso amend tr dev agmt.doc CITY .OF DUBLIN TRACT DEVELOPER AGREEMENT q'his agreement is made and entered into this day of ., 2001, by and between .the CITY of. DUblin, a municipal corporation, hereinafter referred to as "CITY", and Toll .Brothers, Inc. hereinafter referred to as ,"DEVELOPER". RECI. TALS WHEREAS, it has been determined by the CITY COuncil of the CITY of Dublin; 'State of California, that DEVELOPER, the subdivider'of Tract Map 7252 desires to improve and dedicate those, public improvements (hereafter 'q'he Improvements") required by'City of Dublin Planning Commission ResolutiOn No. 00-36 adopted on July 25th, 2000 in accordance with the requirements and conditions set forth in said resolution, the requirements of the'Subdivision Map Act of the State of California, the Subdivision Ordinance of-the CITY, 'and those certain plans and specifications for said development approved by CiTY.on May 4,.2001 for Fallon Road Extension and signal Hill Drive Improvement Plans of Dublin Ranch, Area A-l, Tract 7252 submitted by Mackay & Somps, and now on file in the office of the Public Works Director/City Engineer, which are hereby referred to.for a more definite and distinct description Of the work to' be performed under this Agreement as though set forth at.length herein; and WHEREAS, DEVELOPER intends to satisfactorily complete The improvements within the time· hereinafter specified~ and CiTY intends to accept'DEVELOPER's 'offer(s) of dedication of The Improvements in consideration for DEVELOPER's satisfactory performance of the terms and conditions of this Agreement: NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the .parties agree as follows: 1. Completion Time. DEVELOPER will commence construction of The Improvements within ninety ·(90) days following the date on whiCh CITY executes this-Agreement. DEVELOPER shall complete said work not later than one year following said date of execution. Time is of the esSence in this Agreement. Upon comPletion, DEVELOPER shall furnish CITY with .a c~mplete and reproducible set of final as-built plans of 'Fhe Improvements, including .any authorized modifications. G:~DEVELO~DubI'm Ranch~reas A.E~-I MasterT-7252V~ac{ ~_.52 bactdevagr, doc "~ 2. Estimated Cost of Improvements. 'The' estimated cost of conStructing The Improvements required'by this agreement as adjusted for inflation is agreed to be $1,548,435. Said amount includes costs and reasonable expenseS and fees which may be incurred in enforcing the obligation secured'. 3. Bonds Furnished. Concurrently with the eXecution of this Agreement, DEVELOPER shall furnish CITY with the following security in a form satisfactory to. the CITY Attorney: A. Faithful Performance Either a cash deposit, a corporate surety' bond issued by a company.duly and legally licensed to conduct a general surety business in the State of California, or an instrument of credit equivalent to one hundred per Cent (100%) of the. estimate set'forth in. Paragraph 2 and sufficient to assure'CITY that The. Improvements· will be satisfactorily completed., B. Labor and Materials. Either a cash deposit,, a corporate surety bond issued by a company duly and legally licensed.to conduct a general surety business in the State of California, or an instrument of credit equivalent to one-hundred per cent (100%) of the estimate set forth in Paragraph 2 and sufficient to assure CITY that DEVELOPER'S contractors, subcontractors, and other persons fumishing labor; materials, or equipment shall be paid therefor. '. C. If required by CITY, a cash 'deposit, corporate surety bond, or instrument of credit sufficient to assure CITY that the surface water drainage of the subdivision shall not 'interfere with the use'of neighboring property, including public streets and. highways. CITY shall be the sole indemnitee named on any instrument required 'by this Agreement. Any instrument' or deposit-required herein shall conform with the provisions of Chapter 5 of the SubdiviSion Map Act. .. . '4. Insurance Required. Concurrently with the execution t~ereof, DEVELOPER shall obtain or caUse .to be obtained and filed With the CITY, all insurance required under this Paragraph, and such insurance shall have been approved by the Administrative Services Director of CITY,. or his designee, as to form, amount and carrier. Prior to the commencement of work under this Agreement, DEVELOPER's general contractor shall obtain-or cause to be obtained and filed with the Administrative Services Director, all insurance required under this paragraph, and such insuranCe shall have been approved·by :the Administrative Services Director of CITY, as to form, amount and carrier. DEVELOPER shall not allow any contractor or subcontractor to commence work on this contract' or subcontract' until ali 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 dntil the completion of work under this Agreement and the final acceptance thereof by CITY. All requirements herein provided shall aPpea~ either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carder. G:~DEVELORDubrm Rand~',Areas A-~A:I MasterT.7252'dract 7252 traotdevagr, doc ~ ~ ' 2 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 Sen/ices Office form number .CA 0001 (Ed. 1/78) covedng 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 LimEs of Insurance. DEVELOPER shall maintain limits-no less than:' 1) General Liability:. $1,000,000 combined single limit' per Occurrence for bodily injury, personal injury and property damage. If commemial 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-lnsuranCe Retentions. Any deductibles or self- insured retentions must be declared to and approved by the CITY. At the option of the CITY, either the in'sUrer 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 Covera.qes~ 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 (~:~EVELOPC)ublin P, anc~reas A-E~A-1 MasterT-7252~trac~ 7252 tractdevag~.doc .'.' 3 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, em ployees or volunteers. d) The DEVELOPER's insurance' shall apply separately to each insured against whom claim is .made or suit is brought, except with respect to the limits of the insurer's liability. 2) Workers' Compensation and Employers Liability Covera.qe. 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 dght 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 G:~DEVELORDublin Ranch~Areas A-EV~-I Masta~-7252~act 7252 tmctdevagr, d(~c · 4 "· 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 neg!ectl 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, orotherwise delivered to CITY as a part of the work pursuant to. the Agreement, to be free of all defects of workmanship and materials for a period of one (1) year after initial acceptance of the entire work by CITY. DEVELOPER shall repair Or replace any or all such work or material, together with all or anY other Work or materials which may be displaced, or damaged in so doing, that may prove defective in workmanship or material within said one- year guarantee period without expense or charge· of any nature whatsoever to CITY. .DEVELOPER further covenants and agrees that when' defects in design, workmanship and .materials actually appear dUring the one,year guarantee period., and have been corrected, the gUarantee period shall automatically be extended for an additional year to insure that . such defects have actually been corrected.. .. In the event the DEVELOPER shall fail to. comply with the conditions of 'the foregoing guarantee within thirty (30) days time, after being notified of the defect in writing, CiTY shall have the right, but. shall not be obligated, tO repair or obtain the repair, of' the defect, and DEVELOPER shall pay to CITY on demand all costs and expense of such repair. Notwithstanding anything iierein tothe 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 'ali .costs and expense of such repair. The foregoing statement ~elating 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. J 6. Inspection of the Work. '' 'DEVELOPER shall guarantee free access to CITY through its Public Works Director/City Engineer and his designated 'representative for the safe and convenient inspection of the Work throughout its construction. Said CITY representative shall have the . authority to reject all materialS and' workmanship which are not in accordance with the plans and'specificationS, and all sUch materials and or work shall be removed prOmptly by DEVELOPER and replaced to the satisfaction of CITY Without any expense to CITY in strict accordance with the improvement plans and specifications. G:IDEVELOP/Dublin Rar~'~lAreas A-E~-~ MasterT-72521~act 7252 tractdevagr, dec ' ,5 7. A,qreement Assi,qnment. This Agreement shall. not be assigned by DEVELOPER without the written consent of 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 th'e 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 bener~t of DEVELOPER's creditors, or if a receiver should be a. ppointed, or if DEVELOPER, or any of DEVELOPER's contractors, subcontractors, agentS or employees should violate any 'of the provisions of this Agreement, the CITY through, its Public Works Director may serve written notice on DEVELOPER and DEVELOPER's surety or holder of other security of breach of this Agreement, or of any portion, thereof, and default of DEVELOPER. in the event of any such notice of breach Of this Agreement, DEVELOPER's surety shall .have the 'duty to. take over and complete The Improvements herein speCified; provided, 'however, .that if the surety, Within thirty (30) days after the serving upon it. of such' notice 'of breach, does not give. CITy written notice of its intention to take over the performance of the' contract, and does not commence performance thereof within thirty .(30) days after notice to CITY of sUCh election, CITY may take over the work and prosecute the same to completion, by contract or by any .other method CITY may deem advisable, for the account and at the expense of DEVELOPER .and DEVELOPER's surety shall be liable to CITY fo.r 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. All 'notices herein required shall be in writing, and delivered in person or sent by. registered mail, postage .prepaid. Notices required to be given to CITY shall be addressed as follows: City Manager · City of Dublin .' 100 Civic Plaza 'Dublin, CA 94568 Notices required to be given to DEVELOPER shall be addressed as followS': GSDEVEL~blin Ranoh~Arees'A-E~-I MasterT-7~ 7252 tr-'~evagr.do¢ 6 Toll. Brothers, inc '100 Park Place, Suite 140 San' Ramon, CA 94583 Notices required ~o'be given surety of DEVELOPER shall be addressed as follows: T°ll Brothers, Inc. t00 Park Place, Suite 140 San Ramon, CA 94583· Any party or the surety may change such address by notice in writing to the other party and thereafter notices· Shall be addressed and transmitted to the new address.. Concurrently with the execution of this'Agreement, DEVELOPER has exeCuted and. .has caused to be acknoWledged an abstract of thii~ Agreement. DEVELOPER agrees. CITY may record said abstract in the Official Records of Alameda County.' ' · 9. 'Use of Streets or Improvements. At all times pdor to the final acceptance of the work by CITY, the use of anyor all streets and improvements within the work to. be performed under· this Agreement shall be at the sOle and ·exclusive dsk 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. 10. Safety Devices. DEVELOPER shall provide' and maintain such guards, watchmen, fences, barriers, regulatOry signs, warning lights, and other safety devices adjacentto 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 ordedy. . 11. Acceptance of Work. Upon notice of the' completion of ali tract work and the delivery of a set of final as-built' plans to CITY by DEVELOPER, CITY, through its City Engineer or..his designated representative, shall examine the tract work without delay, and, if.found to be in accordance with said plans and specifications' and this Agreement, shall recommend acceptance of the work to the City Council and, upon Such acceptance, .shall notify' DEVELOPER. or. ihis designated agents of such acceptance. G:~DEVELOP~Dublin Ranch~Areas A-E~A-1 Mas~rT-7252~tract 7252 lmctdevagr, d0c "' 7 12. Patent and Copyd.qht Costs. In the event that said .plans and specifications 'require the use of any material, process or publication which is subject to a duly registered patent or copYright, DEVELOPER shall be liable for, and shall indemnify CITY from any fees, costs or litigation expenses, including attorneys' fees and court costs, which may result from the use of said patented or copyrighted material, process or publiCation. · ' 13. Alterations in J=lans 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 s~reties from liability on any bond or ·bonds attached hereto and made a part hereof, and consent to make such alterations is hereby given, and the sureties to said bonds hereby waive the. prOvisions of Section 2819'of the Civil Code of the State of California. 14. LiabiliW. 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: 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 th'e 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. G:~DEVELOP~Dublin RanCh~,reas A-E~I MasterT-725~ 7252 tractdevagndoc 8 Desi.qn 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 imp.air 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 Faithfu! Performance and Labor and Materials Bonds shall be liable to the cITY for the corrective work required. 3) Liti.qation 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 enfome 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 aiso. be entitled to. recover, its. attorney's fees and costs in' any.. actiOn against DEVELOPER's surety on the bonds provided under paragraph 3. 15. Recitals. The foregoing Recitals are true and correct and are made a part hereof. ' IN WITNESS WHEREOF, the parties hereto have executed this Agreement in ', duplicate at Dublin, California, the daY and year first above wdtten. clTY/C~F DUBLIN ../. /Mayor DEVELOPER iL~ Toll Brothers, Inc. Type or Print Rame By: ' Type or Print Name G:~,DEVELOFOJblin RandnV~reas A-E~A-I MasterT-7252~tract 7252tractdevagr. d0c ' " 9 CITY OF DUBLIN TRACT DEVELOPER AGREEMENT This agreement is made and entered into this ay.of . ; 2001, by and between the CiTY of Dublin, a municipal corporation, hereinafter referred to as "CITY", and' TOLL CA II, L.P., a California Limited Partnership, hereinafter referred to as "DEVELOPER". RECITALS wHEREAS, it has been determined by Me CITY Council of the CITY of Dublin, State of California, that DEVELOPER, the subdividei- of Tract No: 7252, desires to'improve and .' 'dedicate and impr°ve those landsCape public improvements (hereafter "The Improvements") for the stream corridOr required by City of Dublin Planning Commission Resolution No. 00-36 adopted on' 25th day of July, 2000 in accordance with the requirements and conditions set forth in said resolution, the requirements Of the Subdivision Map Act of the State of California, the .Subdivision Ordinance of the CITY, and those certain plans and specifications for said · development approved by CITY on 18th day of December, 2000, prepared by MacKay & Setups, titled, AreaA - Tract 7252 for landscape, and now on file in the office of the Public. Works Director/City Engineer, which are hereby referred to for a more definite and distinct description of the Work to be performed under this .Agreement as. though set forth at .length .herein; and WHEREAS, DEVELOPER intends to satisfactorily complete .The Improvements Within the time hereinafter specified, and CITY intends to acceptDEVELOPER'soffer(s)of .- · dedication of The Improvements in consideration for DEVELOPER's satisfactory performance of the terms and. conditions of this Agreement: NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the parties agree as follows: 1. · Completion Time DEVELOPER will commence construction of The Improvements within, thirty (30) days following the date on which CITY executes this Agreement. DEVELOPER shall.complete · said work not later than three hundred sixtyTflve (365) days following said date of exeCution. Time is of the essence in this Agreement. Upon completion, DEVELOPER shall furnish CITY with a complete and. reproducible set of final as-built plans of The Improvements, including .any authorized modifiCations. 2. Estimated CoStof Improvements. - The estimated cost of constructing. The Improvements required by this agreement as adjusted for inflation, is agreed to be $1,094,300. 'Said amount includes Costs and reasonable expenses and fees which may be incurred in enforcing the. obligation secured. - 3. Bonds Furnished~ ConCurrently with the execution of this Agreement, DEVELOPER shall furnish CITY. with the following security, in a form satisfactory to the CITY.Attorney: A. Faithful Performance. Either a cash deposit, a corporate surety bond issued by a company duly apd legally licensed to conduct a general surety business in the State of Cal.ifornia, 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 Materialsl 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, oran 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, orequipment shall be paid therefore. C. If required by CITY, a Cash deposit, corporate surety bond, or instrument of credit sufficient to assure CITY that the surface water drainage of the subdivisiOn shall not interfere with the use of neighboring property, including public streets and highways. CITY shall be the sole indemnitee named on any instrument required by this. Agreement.. Any instrument or deposit required herein shall conform with the provisions of Chapter 5 of the Subdivision Map'Act. 4. Insurance Required'. Concurrently With the execution hereof, DEVELOPER shall obtain or cause to be obtained and filed.with the CITY, all insurance required under this paragraph, and such insurance shall have been approved by the Administrative Services Director of CITY, or his designee, as to form, amount and carrier.. Prior to the commencement of work under this Agreement., DEVELOPER's general contractor shall obtain or cause to be obtained and filed with the Administrative Services Director, all insurance required under this paragraph, and such insurance shall have been approved, by the Administrative Services Director of CITY,. as to form, amount and carrier. DEVELOPER shall not allow any contractor or subcontractor to commence work on this contract or subcontract until all insurance required for DEVELOPER and DEVELOPER's general contractor shall have been so Obtained and apPrOved. Said insurance shall be maintained in full force and effect until the completion of work under this Agreement and the final acceptance thereof by CITY. Ali requirements herein, provided ·shall appear either in the body of the insurance policies or as endorsements and shall Specifically bind the insurance carrier. G,'IDEVELCi~D~ R~.*l~,Are~ A-EV~sa A Tra~ 725~T-7252 Umd~pe T.Oe~'.A~rn~do~ 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 Liabiiity coverage ("occurrence" form CG 0001.) · 2) Insurance Services Office form number CA 0001 (Ed, 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. 3) Workers' Compensation insurance as required by the Labor Code of the State of California and EmployerS Liability Insurance. B. Minimum. Limits of Insurance. DEvELoPER shall maintain limits no less than: " 1) General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a 'general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the. general aggregate limit shall be twice tiie requi'red 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 Covera,qes. 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 or0n behalf of the DEVELOPER; products and completed operations of the DE ..VELOPER; - 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. 2) Workers' compensation and Employers Liabilib/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 exceptafter 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 Covera,qe. DEVELOPER shall furnish CITY with'. certificates 0f 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 othei'wise 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 matedal within said one- 'year guarantee period without'expense or charge of any nature' whatsoever to CITY. DEVELOPER further covenants and agrees that when defects in design, workmanShip and. materials actually appear during the one-year guarantee pedod, and have been corrected, the guarantee Pedod shall aUtomatically be extended for an additional year to insure that such defects ,have actually been corrected. In the event the DEVELOPER shall fail to comply with the conditions of the foregoing guarantee within thirty (30) days time, after being notified of the defect in writing, CITY shall have the right, but shall not be obligated, to repair or obtain the repair of the defect, and DEVELOPER.shall pay to CITY on demand all costs and expense of such repair. NOtwithstanding 'anything herein to the contrary, in the event that any defect in workmanship or material covered by the foregoing guarantee results ina 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 so.le discretion and'judgment of CITY. If CITY, at its sole option, makes or causes to be made the necessary repairs or replacement~s or performS the necessary Work, DEVELOPER shall, pay, in addition to a~tual costs and expenses of such repair or work, fifty percent (50%).of such costs and expenses for overhead and interest at the maximum rate of interest permitted by law accruing thirty (30) days from the date of billing for such work or repairs. 6. Inspection of the Work. DEVELOPER shall guarantee free access to CITY through its Public Works . Director/City Engineer 'and his designated representative for the safe and 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 ail 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 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 thework, 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, 0r if a receiver should be appointed, or if DEVELOPER, or any of DEVELOpER's contractors, subcontractors, agents or employees should violate any of the provisions of this Agreement, the CITY through its Public Works Director. may serve written notice on DEVELOPER and DEVELOPER's surety or holder of other security of breach of this. Agreement, or of any portion, thereof, and default of DEVELOPER. tn 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; speC!fled; provided, however, that if the surety, within thirty (30) daYs after the serving upon it of such notice of breach, does not give CITY written notice of its intention to take over the: performance of the · contract, and does not commence perfOrmance thereof within thirty.(30)~days after notice to 'CITY of such election, CITY may take over the work and prosecute the same to completion, by contract or by any other method CITY may deem advisable, for the account and at the expense of DEVELOPER and DEVELOPER's surety shall be liable to CITY for any damages and/or reasonable and documented excess costs occasioned by CITY .thereby; and, in 'such event, CITY, without liability for so doing, may take possession of, and utilize in completing the work, such materials, appliances, plant and other prOperty belonging to DEVELOPER as may be on the site of the work and necessary therefor. All notices herein required shall be in writing,' and delivered in person or sent by registered mail, postage prepaid. Notices reqUired'to be giVen tO CITY shall be addressed as follows: , City of Dublin 100 Civic Plaza Dublin, CA 94568 Attn: Lee-Thompson. Notices required to be given to DEVELOPER shall be addressed as follows: Toll Brothers, Inc. 100 Park Plaza #140 San Ramon, CA 94583 Attn: J0n Paynter NOtices required to be given surety of DEVELOPER shall be addressed as followS: .. Continental 1101 Market Street P.O. Box 8206 Philadelphia, Pennsylvania 19101 Any party,or the surety may change such address by notice in wdting to the other party and thereafter notices shall be addressed and. transmitted to the new address; COncurrently With the execution of this Agreement, DEVELOPER has executed and has caused to be acknowledged an abstract of this Agreement.' DEVELOPER agrees CiTY may record said abstract in the Official Records of Alameda County. 9.' Use of Streets or Improvements. Atall 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 o.r ali 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 detr. imentally affect public health and. safety, -1.0.' Safety Devices. " DEVELOPER shall provide and maintain Such guards, watchmen, fences, barriers, regulatory signs, warning lights, and other safety devices adjacent to and on the tract site as. maY be necessary to prevent accidents to the public and'damage to the property. DEVELOPER shall furnish, place, and maintain such lights as may be necessary for illuminating the said fences, barriers, signs, and other safety devicesl 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. 1t. Acceptance of Work. · Upon notice of the completion of all tract work and the delivery of a set.of final as-built plans to cITY by. DEVELOPER, CITY, through its City Engineer or his designated representative, shall examine the.tract work without delay, and, if found to be in accordance. with said plans and specifications and this Agreement, shall recommend acceptance of the work to the City Council'and, upon such acceptance, shall notifY DEVELOPER or his de§ignated agents of such. acceptance. 12. 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. 13. Alterations in Plans and Specifications. Any alteration Or alterations made in the plans and specifications which are a part Of . this Ag reement 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. 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: 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) Desi,qn 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 g:'~..OPtDd~ r~ P,~"~:.~'.~m~ ~ A Tra~ 72~,T-72~ Lanmcpe TJ:;ev,~mrg.doc 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 t° specifically enforce the terms of this Agreement, - and, in the event judgment is entered in said action, the prevailing party shall be entitled to recover its attorneys' fees and court cOsts. If CITY is the prevailing party, CITY shall also be entitled to recover its attorney's fees and costs in any .. action against DEVELOPER'S surety on the bonds provided under paragraph 3. 15. Recitals. " The foregoing Recitals are true and correct and are made a part hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate at Dublin, California, the day and year first above written. CITY OF DUBLIN By:,~. ~ ~. . ATTEST: DEVELOPER: AS oWNER: TOLL CA, L.P., A CALIFORNIA LIMITED PARTNERSHIP BY: TOLL CA GP CORP., A CALIFORNIA CORPORATION, GENERAL PARTNER · Type or Print Name' C ' "~/"---~ · Title g:develop~dubranch~areas A-E~tr7135 bent tree imp.doc .O:'i3EV~,i3~n ~ A-E~ A T~'t 72~T-72~ Landse~e 'CITY OF DUBLIN TRACT DEVELOPER AGREEMENT This agree~nent is made and entered into this ay of ~ 200.1, by and between the Cl]'Y of Dublin, a municipal corporation, hereinafter referred to as "CITY", and TOLL CA II, L.P., a California Limited Partnership, hereinafter referred to as "DEVELOPER". RECITALS. WHEREAS, it has been determined by the CITY Council of the CITY of Dublin, State of California, that DEVELOPER, the subdivider of Tract No. 7252, desires to improve and dedicate those traffic signal improvements' (hereafter "The Improvements") required by City of Dublin Planning Commission ResolUtion No. 00-36 adopted on 25th. 'day of July, 2000 in accordance with the requirements 'and'conditions set forth in said resolution, the requirements of the Subdivision Map Act of the State of California, the Subdivision Ordinance of the CITY, and'those certain plans and specifications for said development approved by CITY on 18th day of December, 2000, prepared by MacKay & Setups, titled, Area A - Tract 7252, Traffic Signal at Turnberry,. Kingsmill 'and signal interconneCt and now on file in the · office of the Public Works Director/City 'Engineer, which'are hereby referred to for a more definite and distinct description of the work to be performed under this Agreement as though set forth at 'length herein; and WHEREAS, DEVELOPER intends to satisfactorily complete The Improvements within the'time hereinafter specified, and CiTY intends to accept DEVELOPER's offer(s) of dedication of The Improvements in consideration for DEVELOPER's satisfactory performance of the terms and conditions of this Agreement: NOW, THEREFORE, in consideration of the mutual promises, conditions and covenants herein contained, the parties agree' as follows: 1. Completion Time. DEVELOPER will commence construction of The improvements within, thirty .(30) days following the date on which CITY executes this Agreement. DEVELOPER shall complete said work not later than three hundred sixty-five (365) days following Said date of execution. Time-is of the essence in-this Agreement. Upon completion, DEVELOPER shall furnish CITY with a. complete and reproducible set of final as-built plans of The Improvements, including any authorized modifications. 2. Estimated' Cost of Improvements. ~ ... .. · The estimated cost of conStructing The Improvements required· by this agreement as adjusted for 'inflation-is agreed .to be $31'9,000. Said amount, includes-costs 'and reasonable expense~ and fees which may be incurred in enforcing the obligation secured. ' 3.' Bonds FurniShed. Concurrently with the execution of this Agreement, DEVELOPER shall furnish CITY with the following security in a form satisfactory to the CITY Attorney: A. Faithful Performance. Either a cash deposit, a corporate surety bond issued by a company duly and legally licensed to conduct a general surety business in the State of .' California, or an instrument of credit equivalent to one hundred per cent (100%) of the estimate set forth in Paragraph 2 and sufficient to assure CITY that The Improvements will be satisfactorily .completed. B. Labor and Materials. Either a cash deposit, a corporate surety bond issUed by a company duly and legally licensed to..conducta general surety business fn the Stats 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. C, .If required by CITY, a cash deposit, corporate surety bond, or instrument of · credit sufficient to assure CITY 'that the sUrface water .drainage of the subdivision shall not interfere with the use of neighboring property, including .public .streets and highways. - CITY Shall be'the' sole indemnitee named on any instrument, required bY this Agreement. Any instrument or depOsit required herein shall conform with the provisions of Chapter 5 of the Subdivision Map Act. 4. Insurance Required. . Concurrently with the execution hereof, DEVELOPER shall obtain or cause to be obtained-and filed, with the CITY, all insurance required under this paragraph, and such . insurance 'shall have been approved by the Administrative Services Director of CITY, or his designee, as to form, amount and carrier. Prior to the commencement of work under this Agreement, DEVELOPER's general contractor shall obtain or cause to be obtained and filed with the Administrative Services Director, all insurance required under this paragraph, and such insurance shall have been approved by the Administrative Services Director of CITY, as to form, amount and carrier. DEVELOPER shall not allow any contractor or subcontractor to commence Work ·on this .contract or subcontract 'until ali 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) Workersi COmpensation insurance as required by. the Labor Code of the State of California and Employers Liability Insurance. B. Minimum Limits of Insurance. DEVELOPER shall maintain limits no less than: 1) General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage.. If commercial General LiabilitY Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2) Automobile Liability: .$1,000,000 combined single limit per accident for bodily.injury and property damage. 3) Workers' Compensation and EmPloyers Liability: Workers'. cOmpensation limits as required by the Labor Code of the State of California' and Employers.Liabili'.ty 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, leasedl .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. 2) Workers' CompensatiOn and EmPloyers Liability Covera,qe. 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 Covera.qes.. Each insurance policy required by this clause shall be endorSed to state that COverage shall not be suspended., voided, cancelled by either pai-ty, 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 G:~DEVELOF~D~ ~ ~ A T~ 72~2~T-7~ Tr~t~T.Dev. Ai~ln~x~ pOlicies or Shall obtain separate certificates and endorsements for each subContractor. All coverages for subcontractors shall b~ 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 incorpc~rated in, or attached, to the work, or otherwise delivered to CITY as a part of the work pursuant, to the Agreement, to be free of all defects of workmanship and materials for a period of one (1) year after initial acceptance of the entire work by CITY. DEVELOPER shall repair or replace any or all suCh work or material, together with all or any other work or materials Which may be .displaced or damaged in· so doing, that may prove defective in workmanship or material within said one- .year guarantee period without expense or charge, of any nature whatsoever to CITY. DEVELOPER ·further covenants and agrees that when defects in design, workmanship and materials actually appear during the oneryear guarantee period, and have been corrected, the guarantee period shall automatically be extended.for an.additional year to insure that such defects have actually been corrected. In the event the DEVEI 'OPER shall fail to ·comply with the conditions of the foregoing guarantee within thirty (30) days time, after being notified of the defect inwriting, 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 Cos'ts 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 Wor. k.. DEVELOPER shall guarantee free access to CITY through its Public Works Director/City Engineer and his designated representative for the safe and convenient · inspection of the work throughOut its const'ruction. Said CITY representative shall have the authority to reject-ali materials and workmanship Which are not in accordance with the plans and specifications; and ail 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 Assi.~nment. This Agreement shall not be assigned by DEVELOPER without the Written consent of. 8, Abandonment of Work. Neither DEVELOPER nOr any of DEVELOPER's agents or contra.ctors are or shall be considered to be agents of CITY in connection with the performance of DEVELOPER's obligations under this Agreement. If DEVELOPER refuses or fails to obtain prosecution of the work, .or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extension thereof, or fails to obtain completion of said work within Such time, or if DEVELOPER should be. adjudged as bankrupt, or should make'a general assignment for the benefit 'Of.DEVELOPER's creditors, or if a receiver should be appointed, or if DEVELOPER,. or any of DEVELOPER's Contractors, subcontractors, agents or employees should violate any of the provisions of this Agreement, the CITY through its Public Works Director may. .. serve written notice on DEVELOPER and DEVELOPER's suretY or holder of'other security of' breach of this Agreement, or of any portion, thereof, and default of DEVELOPER. In the event of any such notice of breach of this Agreement, DEVELOPER's suretY shall have the duty to take over and complete The .Improvements herein specified; provided,' howeVer, that if the suretY, within thirty (30) days after the serving upon. it of such .notice of breach, does not. give CITY written notice of its intention to take over the performance of tl'ie 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 excesscosts 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. 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 of Dublin 100 Civic Plaza Dublin, CA 94568 At[n: Lee Thompson Notices required to be given to DEVELOPER shall be addressed, as follows: Toll Brothers, inc. 100 Park Plaza #140 San Ramon, CA 94583 Attn: Jon Paynter Notices reguired to be given surety of DEVELOPER shall be addressed as follows: Continental 1.101 Market Street P.O. Box 8206 Philadelphia, Pennsylvania 19101 Any party or the surety may change such address by notice in writing to the other party and thereafter notices shall, be addressed and transmitted 'to the new address. Concurrently with the execution of this .Agreement, DEVELOPER has. ex.ecuted and has caused to be acknowledged an abstract of this Agreement. DEVELOPER agrees CITY may record said abstract in th'e Official Records of Alameda County. 9. Use of Streets or Improvements. At all times prior to the final acceptance of the work by CITY, the use of any or all streets and improvements within the work to be performed under this Agreement shall be at the sole and exclusive risk of DEVELOPER. The issuance of any building or.occupancy permit'by CITY for dwellings located within the tract shall not be construed in any manner to constitute a partial or final acceptance or approval of any or all such improvements by CITY. DEVELOPER agrees that CITY's Building Official may withhOld. the issuance of building or occupancy permits, when the work or its progress may substantially and/or detrimentally affect public health and safety. 10. Safety Devices. DEVELOPER shall provide and m~intain such guards, watchmen, fences, barriers, regulatory signs, Warning lights, and other safety devices adjacent to and on the tract site as may-be necessary to prevent accidents-to the public and damage .to the property. DEVELOPER shall furnish, place, and maintain such lights as may be necessary for illuminating'the said fences, barriers, signs, and other safety devices. At the end of all work to be performed under this Agreement, all fences, barriers, regulatory signs, warning lights, and other safety devices (except such safety items as may be shown on the plans and included in the items of work) shall be removed from site of the work by the DEVELOPER, and the entire site. left clean and orderly. 11. Acceptance of Work. ' Upon notice of the COmpletion of all tract work and the de ivery of a set of final as-built plans to CITY by DEVELOPER, CITY, through its City Engineer or his designated representative, shall examine the.tract work without delay., and; if found to be in accordance with said plans and specifications and this Agreement, shall recommend acceptance of the work to the City..Council and, upon such acceptance,' shall notify DEVELOPER or his designated agents of such acceptance. G:~OEVELOP'Z~bln ~ A-~Ama A Tra~ 7'~T.72~ Tml~T.De,'..agn~d~ 12. Patentand 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. 13. Alterations in Plans and Specifications. Any alteration or alterations made in. the plans and speCifications-which are a part Of this Agreement.or any provision of this Agreement shall not operate to release any surety or sureties from liability on any bond or bonds attaChed hereto and made a part hereof, and consent to make suCh alterationS is hereby given, and the sureties to said bonds hereby waive the provisions of Section 2819 of the Civil Code of the State of California. 14...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 contracto.rs in connection with DEVELOPER'S actions and obligations hereunder; proVided as follows: 1) That C1TY 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 describe, d 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 ~g.OP~ I:~ehVs~ A,EC~e A Tr~:~ ~T-72~ Tm~Yr~x~,~Ldc~ 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 pa~ty shall be entitled' to recover its attorneys' fees and court costs. If CITY is the' prevailing party; CITY shall also be entitled to recover its attorney's fees and' costs in any action against DEVELOPER's surety on the bonds .provided under paragraph 3. 15. Recitals. The foregoing RecitalS are true and correct and are made a part.hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate at Dublin, California, the day and year'first above written. ~ Mayor ATTEST: - Cl'~lerk ~_. DEVELOPER: AS OWNER:' TOLL CA, L.P., A CALIFORNIA LIMITED PARTNERSHIP BY: TOLL CA GP CORP., A CALIFORNIA CORPORATION, GENERAL PARTNER Type or Print Name /~,~ >I"- ~"~_._C.... Title g:develop~,dubranch~reas A-E\tE135 bent tree imp.doc G.-',O E',,~].O~:~l~ ~ A-e,A.-ea A Tmet ','2~T-72S2 Tra~'.O~v./,g'mtdoe :' TRACT ,.. ,~ 72'52 - ~"~" ~"~- a~,.., ~ CI~ 0F' DUBLIN :/, I .... ~ ~/]/,/' . AUGUSTt 2001 KINGSMILL TR TRAFFIC SIGNAL SIGNAL HILL DR IMPROVEMENTS~ P~L TURNBERRY DR TRAFFIC SIGNAL ~=~='='~ ~ '~~ FALLON RD IMPROVEMENTS ~ ~ ~H ~A~S ~ ~