HomeMy WebLinkAboutMINUTES - 11152005 - C17 TO: BOARD OF SUPERVISORS
FROM: MAETRICE M. SHIV,;FLTBLIC WORK
DIRECTOR
DATE: November 15, 2005
SUBJECT: Approving and Authorizing Execution of an Amendment to Subdivision Agreement, Subdivision
04-08839,Martinez area. District'
SPECIFIC REQUEST(S)OP RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION(S):
ADOPT Resolution No. 2005/ ( for Subdivision 04-08839, approving and authorizing execution of an
amendment to Subdivision Agreement,for project'being developed by Davni H Development,LLC,Martinez area.
(District II)
FISCAL.IMPACT:
None.
BACKGROUND/REASON(S)FOR RECOMMENDATION(S):
The developer has provided a surety bond as security guaranteeing completion of all improvements as required in the
subdivision agreement to substitute the existing cash bond.
CONSEQUENCES OF NEGATIVE ACTIONS
The surety bond will not replace the cash security and the cash bond will not be refunded.
Continued on Attachment: SIGNATURE:^"
COMMENDATION OF COUNTY ADMINISTRATOR
RECOMMENDATION OF BOARD COMMITTEE
,-APPROVE OTHER
r
SI NATURES
ACTION OF BOA"ON 0_e,V3 +,a°' APPROVED AS RECOMMENDED V OTHER
V
OF SUPERVISORS ,�,/' I hereby certify that this is a;true and correct
UNANIMOUS(ABSENT
AYES: NOES: copy of an action taken and entered on the
ASSENT: ABSTAIN. minutes of the Board of Supervisors on the
date shown.
JD:rm
G:1GrpDatalEngSvc1BO12005111-15\SD 04-08839 BO-23.doc ,/
Originator: Public Works(ES) ATTESTED;/ ��Z
Ori �,�'(,r� "�✓��'
sJOHN SWEETEN, Clerk of the Bo d of
Contact: Kevin Emigh{313-2233}
Tax LD.552-13-2960 Supervisors and County Administrator
cc: Director of Community Development
Public Works -Accounting
:. -Construction
Engineerinj
Davni 11 Development,LLC,Attn-.David Margen By 'Deputy
18 Hillside Court,Berkeley,CA 94704
Indemnity Company of California,Attu:Robin S.Westfall
2999 Oak Road,Suite 420,Walnut Creek,CA 94597
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Resolution on November 15,2005 by the following vote:
AYES: Gioia,Piepho,DeSauln}er,Glover and Uitkema
NOES: Norte
Ali§kN None
ABSTAIN: None ,r
RESOLUTION NO, 2005/ 1`"
SUBJECT: Approving and Authorizing Execution of an Amendment to Subdivision Agreement,
Subdivision 04-08839,Martinez area. (District II)
The following substitute security to guarantee the road and drainage improvements as required by Title
9 of the County Ordinance Code was presented for Board approval this date
Security with Davni'B Development,LLC,as principal,in the form of a corporate surety bond(Bond
No.7203380 dated September 21,2005, and issued by Indemnity Company of California in the amount of
$358,875.00 for faithful performance and$181',250.00 for labor and materials.
NOW THEREFORE BE IT RESOLVED that the above-mentioned corporate surety bond may be
substituted in place of a portion of the cash security provided by Davni II Development, LLC, as required
under the Subdivision Agreement approved by the Board on June 7, 2005.
BE IT FURTHER RESOLVED that the First Amendment to Subdivision Agreement("Amendment")
is hereby APPROVED, and the Public Works Director or his designee is AUTHORIZED to execute the
Amendment,to allow substitutionof the above-mentioned corporate surety bond in accordance with the terms
and conditions set forth in the Amendment.
BE IT FURTHER RESOLVED that the Public Works Director is AUTHORIZED to refund a total of
$489,3 75.00 of the cash deposit(Auditor's Deposit Permit No.444714,dated May 19,2005,in the amount of
$543,750),retaining$54,375 as the cash deposit,plus interest in accordance with Government Code Section
53079, if appropriate,to Davni II Development, LLC.
All deposit permits are on file with the Public Works Department.
I hereby certify that this is a true and correct copy of an
Ga:""
G:tGrpData\EngSu6B012045a11-15\SD 04-U8839 B0-23,doc
action taken and entered on the minutes of the Board:of
Supervisors on the date shown.:'
Originator: Public Works(ES)
Contact: Kevin Emigh(313-2233)
Tax T.D.552-13-2960
cc: Director of Community Development ATTESTED:!''E` e-7P74 e*7/
Public Works -Accounting
Vt
-Construction JOHN SWEETEN,Clerk of the Board of Supervisors and
-Engineering County Administrator
Davni 11 Development,LLC,Attn:David Margen'
I8 Hillside Court,Berkeley,CA 94704
Indemnity Company of California,Attn:Robin S.Westfall
2999 Oak Roast,Suite 420,Walnut Creek,CA 94597 By. ,Deputy
RESOLUTION NO.2005/
FIRST AMENDMENT TO SUBDIVISION AGREEMENT
:Effective November1511`',2005,Contra Costa County("County")and'Davni HDevelopment,LLC("Subdivider"}�collectively"Parties"hereinafter)mutually agree as follows:
I. Amendment The Subdivision Agreement for subdivision SD 04-08839,entered into by ;
and between the Parties on or about June 7,2005,is hereby amended by replacing Paragraph 3 o
the Subdivision Agreement as follows;
A. For Performance and Guarantee: $54,375.00 cash;
plus additional security in the amount of
$358,875.00. Such additional security is presented'
in the form:of an acceptable corporate isurety bond.
B. For Payment: security in the amount of
$181,250.00. Said security is presented in the form
of an acceptable corporate surety bond.
With this security,Subdivider guarantees payment to the
contractor,to its subcontractors and to persons renting
equipment or furnishing labor or materials to them or to the
Subdivider.
Upon acceptance of the Work as complete by the Board of
Supervisors,and upon written request of Subdivider,
$50,750 of the cash security shall be released to the
Subdivider. Six months after acceptance of the work as
complete,the$181,250.00 payment bond maybe reduced
in accordance with Section 94-4;408 of the Ordinance
Code. The$358,875.00 performance bond shall not be
reduced and shall remain in effect throughout the warranty
period.
Subdivider,on behalf of itself and its members,successors
and assigns,hereby releases and holds Countyharmless
from any and all claims,demands,causes of action,
obligations,damages and liabilities which Subdivider now
has or could assert in any manner arising from or related to
the form,amount,reduction,substitution:or retention of the
security referenced herein. Subdivider expressly waives all
rights'provided by section 1542 of the California Civil
Code,which 1provides as follows:
Page 1=of 2
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES`NOTE NOW
OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE,WHICH IF
KNOWN BY HILI MUST HAVE MATERIALLY'
AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
2. Sig& . These signatures attest the'Parties' agreement hereto:
CONTRA COSTA COUNTY SUBbIVl7JER
By
aurice M. Shin avi
.Hargan
Public Works Director gy Member
R.econunendcd for Approval:
Print'Nazzze
Title
Engines &. .......i Division
Approved as to Form:
Silvana►B. Marches
County Counsel
By.
Deputy County Counsel
Page 2 of 2
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COU TY"4F CONTRA COSTA
On before me, LISA A. DALZIEL, Notary Public, personally
4
appeared!
El Personally known to m
Provedto me on the basis of satisfactory evidence
To be the person{ whose name� 0
Ols
a subscribed to the within instrument and
acknowledged to me that he :11executed the same' in /h)r/f r authorized
capacity{1 ), and thatby is sIgnature46 on the Instrument the person
or the entity upon behalf of which the"person(acted, executed the Instrument.
................_
i
WITNE S=my hand and official seal.
c i �
i
i LISA A,DALZI L +'
i Cornmisslon# 1377110 i
i Notary public - California
i Centra Costa County r Signior dry ublic
i My Comm.�a MSep2E i
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Subdivision; 1839
Bond No.:, 7203385 ..
Premium; $7,61.3.00
IMPROVEMENT SECURITY BOND
FOR Si.TBIJrI sioN AGREEMENT
(Performance,Guarantee and Payment)'
(California Government Code §§ 66499-66499.10)
1. RECrrAL'OF SUBI MIS ON AG 6MEN'r. The developer(principal)has executed a subdivision agreement
with the County of Contrwit8sta to install and pay for street, drainage and other improvements in
Subdivision 8839 , as specified in the subdivision agreement and to complete said work within
the time specified for completion in the subdivision agreement,all in accordance with State and local laws
and rulings thereunder in order to satisfy conditions 'for filing of a final map or parcel map for said
subdivision.
2. C,1BLIGAIIMM: Davni II Development, LLC (A CA Limited Liability Company) asprincipal>and
Indemnity Com an of CUifornia , a corporation organized and
existing under the laws of the State of California and authorized to transact surety
business in California, as surety, ''hereby jointly and severally bind ourselves, our heirs, executors,
administrators,successors and assigns to the County of Contra Costa, California to pay as follows:
A. Performance and Guaran.fte:1 Three hundred fifty eight thous t d eight hundred seventy
five Dollars( 358 875.0 7 for Contra Costa County or any city assignee under
the above County Subdivision Agreement.
B. Payment::" " e hundred eighty one thousand two hundred= fiftyDollars
($ mj5,0.00 to secure the claims to which reference is made in Title XV
(commencing with Section 3082) of Part 4 of Division III of the Civil Code of the State of
California.
3. CONDITION'
A. TheCondition of this obligation as to Section(2.A.)above is such that if the above bonded principal,
or principal's heirs,executors,administrators,successors or assigns,shall in all things stand to and
abide by and well and truly keep and perform the covenants,,conditions and provisions in the said
agreement and any alteration thereof made as therein provided; on it or its part, to be kept and
performed at the time and in the manner thereinspecified and in all respects according to their true
intent. and meaning and shall indemnify and save harmless the County of Centra Costa (or city
assignee)its officers,'agents and employees,as therein stipulated,then this obligation shall become`
null and void,otherwise it shall be and remain in full force and effect.
As part of the obligation secured hereby and in addition to the face amount specified therefore,there
shall be included reasonable costs,;,expenses and fees,including reasonable attorney's fees,incurred
by the County of Contra Costa(or city assignee)in successfully enforcing such obligation, all to be
taxed as costs and included in any judgement rendered.
B. The condition of this obligation as to Section (23.) above, is such that said principal and`the
undersigned, as"corporate surety, are held firmly bound unto the County of Contra Costa and all
contractors, subcontractors, laborers,material men and other persons employed in the performance
of the aforesaid subdivisionagreement and referred to in the aforesaid Civil Code, for materials
furnished, labor of any kind, or for amounts due under the Unemployment insurance Act with
respect to such work or labor and that said surety'will pay the same in an amount not exceeding the
amount herein above set forth and also, incase suit is brought upon this bond, will pay, in addition
to the fact amount thereof,reasonable costs, expenses and fees, including reasonable attorney's fees,
incurred by the County of Contra Costa(or city assignee) in successfully enforcing such obligation,
to be awarded and fixed by the court, all to be taxed as costs and to be included in the judgement
therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all
persons,companies and corporations entitled to file claims under Title 15 (commencing with Section
3082)of Part 4 of Division 3 of the Civil Code,so as to give a right of action to them or their assigns
in any suit brought upon this bond.
Should the work under conditions of this bond be fully performed,then this obligation shall became
null and void;otherwise it shall be and remain in full force and effect.
C. No alteration of said subdivision agreement or any plan or specification of said work agreed to by
the principal and the County of Contra Costa(or city assignee)shall relieveithe surety from liability
on this bond;and consent is hereby given to make such alteration without further notice to or consent
by the surety;and the surety hereby waives the provisions of California Civil Code Section 2819'and
holds itself bound without regard to and independently of any action against the principal whenever
taken.
SIGNED AND SEALED on September 21 2005'
PRINCIPAL: Davni II Development, LLC SURETY: Indemnity Co%pany of California
Address: 18 Hillside Court Address: 2999 Oak Road, Suite 420
City: Berkeley Zip: '94704' City: Walnut Creek Zip:`94597
C
$y: w
By:
Print Name: David S. MarizePrint Name: Robin S. West ll
Title: Managing Member Title: Attorney-in-Fact
)D{mW.lap
GAGrpData\EngSvc\FomtstBN WORMBN-12.doc
Rev.November 28,2000
STATE OF California
SS.
COUNTYOF Contra Costa»>
On September 21,2005 before me, Gregory M.Pribyl, Notary Public
PERSONALLY APPEARED` Robin S.Westfall
personally known to me(or proved to me on the basis of satisfactory
evidence)to be the personA whose name(,{)islaoe subscribed to the
within instrument and acknowledgedto me that hW!helilwa executed
the same in�a/herltAwk authorized capacity(ku,4,and that byAi61her1*eir ��®'
GREGORY M.PRIBYL
signatures on the instrument the Person6e,or the entity upon behalf beha
_ f 11. Coinmisslon#i 39ri1436514
0�
of'which the person acted,executed the instrument. , z Notary Public-Calibrnla
Contra Coats county
WITNESS my hand and official seal. My Comm.E)pkwAug 15,2009
Signature
Gregory M.Pribyl,No ary This area for Official Notarial Seal
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
❑ CORPORATE OFFICER Bond#7203385
TITLE OF TYPE OF DOCUMENT
TITLE{S)
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL;
® ATTORNEY-IN-FACT NUMBER OF PAGES
❑ TRUSTEE(S)
❑
GUARDIAN/CONSERVATOR
❑ OTHER. September 21,2005
DATE OF DOCUMENT
SIGNER IS R'EPRESENTING':
NAME OF PERSONjS)OR ENTITY{IES)
Indemnity Company of California
David S.Margen
SIGNERS OTHER THAN NAMED ABOVE
)a-1232 tpEV.5/01i ALL-PURPOSE ACKNOWLEDGEMENT
in %cam
o
DISCLOSURE RIDER
Terrorism''Risk Insurance Act of 2002
The Terrorism Risk Insurance Act of 2002 created a three-year program under which the
Federal Government will share in the payment of covered losses caused by certain. events of
international terrorism. The Act requires that we notify you of certain components of the Act,and
the effect, if any,the Act will have on the premium charged for this bond.
Under this program, the FederalGovernment will cover 90% of the amount of covered
losses caused by certified acts of terrorism,as defined'by the Act. The coverage is available only
when aggregate losses resulting from a certified act of terrorism exceed$5,000,000.00. Insurance
carriers must also meet a variable deductible established by the Act. The Act also establishes a
cap of'$100 billion for which the Federal Government or an insurer can be responsible.
Participation in the program is mandatory for specified lines of property and casualty`
insurance, including surety insurance. The Act does not, however, create coverage in excess of
the amount of the bond, nor does,it provide coverage for any losses that are otherwise excluded
by the terms of the bond,or by operation of law.
No additional premium has been charged for the terrorism coverage required by the Act.'
Developers Surety and Indemnity Company,
Indemnity Company of California
17780 Fitch,Shite 200
Irvine,CA 92814
(949)`283 3300
www.insr oOico.com
ID-1498(Rev.5/03)
POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
INDEMNITY COMPANY OF CALIFORNIA
PO BOX 19725,IRVINE,CA 92623 (949)263-3300
KNOW ALL MEN BY THESE PRESENTS,that except as expressly limited,DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY
COMPANY OF CALIFORNIA,do each,hereby make,constitute and appoint:
***Robin S. Westfall, Gregory M. Pribyl, Daniel Livsey, Stephen G. Roddie,jointly or severally***
as their true and lawful Attortey(s)-in-Fact,to make,execute,deliver and acknowledge,for and on behalf of said corporations,as sureties,bonds,undertakings
and contracts of suretyship giving and granting unto said Attorneys)-in-Fact full power and authority to do and to perform every act necessary,requisite or proper
to be done in connection therewith as each of said corporations could do,but reserving to cacti of said corporations full power of substitution and revocation,and
all of the acts of said Attorney(s)-iii-Fact,pursuant to these presents,are hereby ratified and confinnled,
This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Board of Directors of
DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,effective as of November 1,2000:
RESOLVED,that the Chairman of the Board,the President and any Vice President of the corporation be,and that cacti of them hereby is,authorized to
execute Powers of Attorney,qualifying the attomey(s)named in the Powers of Attorney to execute,on behalf of the corporations,bonds,undertakings and contracts
of suretyship;and that the Secretary or any Assistant Secretary of the corporations be,and each of them hereby is,authorized to attest the execution of any such
Power of Attorney;
RESOLVED,FURTHER,that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by
facsimile,and any such Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporation when so affixed and in
the future with respect to any bond,undertaking or contract of suretyship to which it is attached.
IN WITNESS WHEREOF,DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused
these presents to be signed by their respective Executive Vice President and attested by their respective Secretary this 1 st day of February,2005.
BY:_._. —.._�� _ ______.�_ ++o+�.�i AND � ,, 1,,,
David H.Rhodes,Executive Vice-President 'p DR eta bpPOp4
` OCT. 1= OCT.5
ZUJ■ 1fi 2i
1967 X
BY:
Walter A.Crowell,Secretary A'_eA W__ µ 1936 pt
7�� /D�yp......as,` 41 FO O
STATE OF CALIFORNIA }
)SS.
COUNTY OF ORANGE
On February 1,2005,before me,Nita G.Hiffmcycr,personally appeared David H.Rhodes and Walter A.Crowell,personally known to me(or proved
to me on the basis of satisfactory evidence)to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the
same in their authorized capacities,and that by their signatures on the instrument the entity upon behalf of which the persons acted,executed the instrument.
WITNESS my hand and official seal.
FIrTA
G.HIFEMEYER
COMM.IIt
NOTARY PU8t1G CALIFORNIACAIIFO
Signature ORANGE COUNTY
g —r� My cnm.wires Jen.10,2009
CERTIFICATE
The undersigned,as Executive Vicc-President,of DEVELOPERS SURETY AND iND:EMNITY COMPANY and INDEMNITY COMPANY OF
CALIFORNIA,does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked,and furthermore,that the provisions of
the resolutions of the respective Boards of Directors of said corporations set forth in the Power of Attorney,are in force as ofthe date'of this Certificate.
This Certificate is executed in the City of Irvine;California, 1st ia,tine day of September 2005
BY __ s
David L.Kerrigan,Executive Vice-President
ID-1380(Rev.2105)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
On 1a before me, LISA A. DALZIEL, Notary Public, personally
appeared
-* I SL
❑ Personally known to me
Proved to me on the basis of satisfactory evidence
To be the person whose name( 1s subscribed to the 'within instrument and
acknowledged to me that '
executed the same in is r#/fir authorized
capacity(ii , and that by hist r/thelir signature on the instrument the person,
or the en ity upon behalf of'which the person' "j acted, executed the instrument.
------------------------------------------
WIT SS i my hand d official seal.; �
i
i LISA A.DALZIEL '
i
Commission'# 1377110
i z " Notary'Public - California !
i Conga Costa County ! IVA
Slgna of Notary ubhc
i My Comm.Expires Sep 28 2006/
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