HomeMy WebLinkAboutReso 75-24 Approving the Agreement for Long Term Encroachment for Landscape Features with Tract 8646
Reso. No. 75-24, Item 5.4, Adopted 07/16/2024 Page 1 of 1
RESOLUTION NO. 75 – 24
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE
FEATURES WITH TRACT 8646, FRANCIS RANCH
WHEREAS, a Vesting Tentative Map for Tract 8563, Francis Ranch was approved by City
Council Resolution No. 140-21 on December 7, 2021, with Conditions of Approval; and
WHEREAS, said Conditions of Approval required the developer to construct project-related
landscape features within the public street rights-of-way; and
WHEREAS, said Conditions of Approval required the developer to enter into an Agreement
for Long Term Encroachments for the maintenance of said landscape features; and
WHEREAS, the developer has executed and filed with the City of Dublin a Tract
Improvement Agreement to construct the required Tract improvements, including said landscape
features; and
WHEREAS, the developer has executed and filed with the City of Dublin an Agreement for
Long Term Encroachment for Landscape Features for Tract 8646, Francis Ranch, attached hereto
as Exhibit A, which will be recorded against the property concurrently with the Tract 8646 Final
Map.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the Agreement for Long Term Encroachment for Landscape Features for Tract
8646, Francis Ranch, attached hereto as Exhibit A to this Resolution.
BE IT FURTHER RESOLVED that the City Manager, or designee, is authorized to execute
Exhibit A and make any necessary, non-substantive changes to Exhibit A to carry out the intent
of this Resolution.
PASSED, APPROVED AND ADOPTED this 16th day of July 2024, by the following vote:
AYES: Councilmembers Hu, Josey, Qaadri, Thalblum and Mayor McCorriston
NOES:
ABSENT:
ABSTAIN:
______________________________________
Mayor
ATTEST:
____________________________________
City Clerk
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Recording Requested By:
CITY OF DUBLIN
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waived per GC 27383
AGREEMENT FOR LONG TERM ENCROACHMENT
FOR LANDSCAPE FEATURES WITH TRACT 8646,
Francis Ranch
THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE
FEATURES WITH TRACT 8646 (“Agreement”) is made between the City of Dublin (“City”)
on the one hand, and TH East Ranch Dublin LLC, a California limited liability company (the
“Contractor”), and Arroyo Cap IV-3, LLC, a Delaware limited liability company (the “Owner”),
on the other hand.
1.Property: The subject property is Tract 8646 as filed in Book ____ of Maps at
Pages _________, in the Official Records of the County of Alameda, State of
California (“Property”).
2.Owner: Owner is the owner of Tract 8646, Francis Ranch (“Project”).
3.Contractor: Owner has contracted with Contractor to construct various
infrastructure and related improvements consistent with Vesting Tentative Map
and Improvement Plans for Francis Ranch Tract 8646, including the Landscape
Features (as defined below).
4.Landscape Features: Owner or Contractor, as part of the Project, anticipates the
construction of Project related landscape features within the City’s rights of ways
on the following streets within Tract 8646: Ingalls Way, Mary Way, Muir Road,
Whitney Avenue, and Williamson Street (collectively, the “Landscape Features”).
Construction details for these Landscape Features are shown on the following
plans:
a.Improvement Plans for Francis Ranch, Tract 8646 Neighborhood 2 West,
prepared by MacKay & Somps, approved by the City Engineer on _________;
and
b.Landscape Plans for East Ranch Tract 8646 Neighborhood 2 Production
Home Typicals, prepared by Gates +Associates, approved by the City
Engineer on _________.
Exhibit A
Docusign Envelope ID: B587DB3E-92DB-4BC8-84C5-641C427B432C
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The scope of the improvements covered under the agreement is shown on the
attached Exhibit “A”. For avoidance of doubt, the parties agree that Owner and
Contractor are each separately obligated to construct, operate and maintain the
Landscape Features in accordance with the provisions of this Agreement.
“Developer”, as used herein, is the person that actually constructs, operates and
maintains the Landscape Features.
5. Encroachment Permit: Developer shall apply to the City for an encroachment
permit for work to be performed pursuant to this Agreement. The City must grant
the encroachment permit for all work to install, operate and maintain the
Landscape Features improvements and all the conditions imposed by the City
must be consistent with the provisions of this Agreement. If there is a conflict
between any provisions of this Agreement and the encroachment permit, the
provisions of this Agreement shall prevail over the conditions of the
encroachment permit.
6. Ownership: Owner shall own all special Landscape Features, including but not
limited to sidewalk, plantings, irrigation, street trees, etc.
7. Operations and Maintenance: Developer shall maintain and repair all the
Landscape Features, including all frontage landscape plantings, irrigation,
sidewalks, street trees, and decorative/stamped pavement within the designated
areas, in a safe manner consistent with the approved plans to the reasonable
satisfaction of the City at its sole cost and expense, including electric power and
water cost. Developer will be responsible at its sole cost to replace or repair any
Landscape Feature damaged or removed during the maintenance or repair of
sewer, water, drainage or utility improvements by the City, Dublin San Ramon
Services District or utility company, unless such damage or removal is caused by
the negligence, gross negligence or willful misconduct of the City, Dublin San
Ramon Services District or utility company. The City will maintain at its sole cost
all asphalt concrete pavement, concrete curb and gutter, drainage improvements,
traffic signs and striping, and streetlights in the public right of way.
8. Removal or Relocation: If future improvements proposed by the City conflict
with any of the Landscape Features, the City may remove or reasonably relocate
the Landscape Feature to another location within the Property, at its sole cost. If
any of the Landscape Features are relocated, the City, Owner, and Contractor will
execute a modification to this Agreement to reflect the maintenance and
operations at its new location. Provided, however, the City is under no obligation
to relocate any of the Landscape Features.
9. Insurance: Developer shall obtain and maintain in effect a combined single limit
policy of liability insurance not less than one million dollars ($1,000,000)
covering the Landscape Features improvements and shall name the City as an
additional insured.
Docusign Envelope ID: B587DB3E-92DB-4BC8-84C5-641C427B432C
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10. Indemnification: Developer shall indemnify, defend and hold the City harmless
from and against any and all loss, claims, liability damage or expense or cost the
City may incur or become liable for or for which a claim is made by a third party,
directly arising from the negligence, gross negligence or willful misconduct of
Developer arising out of Developer’s construction, maintenance or operations of
the Landscape Features unless caused by the negligence, gross negligence or
willful misconduct of the City, its agents, contractors or employees.
11. Permanent: The Landscape Features and the rights appurtenant thereto as set
forth in this Agreement shall exist in perpetuity and are appurtenant to the
Property.
12. Right to Assign: Following the completion of the construction and installation of
the Landscape Features, Owner and Developer may assign any or all of their
rights, interests and obligations arising under this Agreement to the Homeowners’
Association for Tract 8646 or to a successor in interest of Owner (including
Contractor) with respect to all or a portion of the Project; provided, however, that
no such assignment of the rights interests and obligations under this Agreement
shall occur without prior written notice to the City and written approval by the
City Manager, which approval shall not be unreasonably withheld, conditioned or
delayed. The City Manager shall consider and decide on any assignment within
ten (10) days after Owner’s notice thereof, provided all necessary documents and
other information are provided to the City Manager to enable the City Manager to
assess the assignment.
13. Successors and Assigns: Each reference to the “City” in this Agreement shall be
deemed to refer to and include the City and all successors and assigns of City. All
references to the “Owner” in this Agreement shall be deemed to refer to and
include any successors in ownership and title.
14. Notices: Any notices, requests, demands or other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given on the date of delivery if delivered personally to
the party to whom notice is to be given (including messenger or recognized
delivery or courier service), upon delivery if given by electronic mail (email) or
on the second day after mailing, if mailed to the party to whom notice is to be
given, by first-class mail, postage prepaid, and properly addressed as follows:
City:
City of Dublin
100 Civic Plaza
Dublin, California 94568
Fax No. (925) 833-6651
Attn: City Manager
Docusign Envelope ID: B587DB3E-92DB-4BC8-84C5-641C427B432C
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Owner:
c/o Arroyo Cap IV-3, LLC, a Delaware limited liability company
Attn: Jeffrey Brouelette
Email: jbrouelette@arroyocapital.com
18575 Jamboree Road, Suite 350
Irvine, CA 92612
Contractor:
TH East Ranch LLC
Attn: Legal Department
Email: legal.notices@trumarkco.com
3001 Bishop Dr. 3100
San Ramon, CA 94583
With a copy to:
Jackson Tidus
Attn: Sonia Lister, Esq.
2030 Main Street, 12th Floor
Irvine, CA 92614
15. Exhibits: All exhibits attached to this Agreement are incorporated herein as
though they were set forth in full body of this Agreement.
16. Partial Invalidity: If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of the
Agreement shall continue in full force and effect and shall in no way be impaired
or invalidated, and the parties agree to substitute for the invalid or unenforceable
provision a valid and enforceable provision that most closely approximates the
intent and economic effect of the invalid or unenforceable provision.
17. Entire Agreement: This Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof and cannot
be amended or modified except by a written agreement, executed by each of the
parties hereto.
18. Counterparts: This Agreement may be executed in one or more counterparts,
each of which shall, for all purposes, be deemed an original and all such
counterparts, taken together, shall constitute one and the same instrument.
Docusign Envelope ID: B587DB3E-92DB-4BC8-84C5-641C427B432C
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Dated this ___________ day of ______________________, 202__.
CITY:
THE CITY OF DUBLIN,
a municipal corporation
By: ______________________
City Manager
CONTRACTOR:
TH EAST RANCH DUBLIN LLC,
a California limited liability company
By: ______________________________
Name: ___________________________
Title: ____________________________
Dated: ___________________
OWNER:
ARROYO CAP IV-3, LLC,
a Delaware limited liability company
By: Arroyo Cap IV-2, LLC,
a Delaware limited liability company
its sole member
By: Arroyo Capital IV, LLC,
a Delaware limited liability company
its sole member
By: ___________________________
Name: ___________________________
Title: ___________________________
Dated: ___________________
Docusign Envelope ID: B587DB3E-92DB-4BC8-84C5-641C427B432C
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