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HomeMy WebLinkAbout5.14 Agreements for Long Term Encroachment – Tracts 4236 and 8133r DUBLIN CALIFORNIA STAFF REPORT CITY COUNCIL Agenda Item 5.14 DATE: August 20, 2024 TO: Honorable Mayor and City Councilmembers FROM: Linda Smith, City Manager SU B.ECT: Agreements for Long Term Encroachment - Tracts 4236 and 8133 Prepared by: Laurie Sucgang, City Engineer EXECUTIVE SUMMARY: The City Council will consider approving an Agreement for Long Term Encroachment for Landscape Features with Homeowners Association for Parcel A of Tract 4236. The City Council will also consider approving the First Amendment to the Agreement for Long Term Encroachment for Landscape Features, Stormwater Detention, Stormwater Outfall and Mitigation Plantings within Tract 8133. STAFF RECOMMENDATION: Adopt the following: 1) Resolution Approving the Agreement for Long Term Encroachment for Landscape Features with Homeowners Association for Parcel A of Tract 4236; and 2) Resolution Approving the First Amendment to the Agreement for Long Term Encroachment for Landscape Features, Stormwater Detention, Stormwater Outfall and Mitigation Plantings Within Tract 8133, Tassajara Highlands. FINANCIAL IMPACT: There is no impact to the General Fund. All costs associated with the agreements are borne by the property owners. DESCRIPTION: Tract 4236 The homeowners association for Tract 4236 constructed a retaining wall along their landscaped area on property known as Parcel A of Tract 4236, Assessor's Parcel Number 941-0114-116-00. Portions of the retaining wall are located within the public street right-of-way of Castle Drive. The homeowners association is agreeable to own and maintain the retaining wall located within the right-of-way. The proposed Agreement for Long Term Encroachment for Landscape Features provides for the homeowners association, Valley Tract 4326 Homeowners Association, to Page 1 of 2 1 maintain these features within the public street right-of-way. (Attachment 2) Tract 8133 The City and the homeowners association of Tract 8133, Tassajara Highlands, entered into an Agreement for Long Term Encroachment for Landscape Features, Stormwater Detention, Stormwater Outfall and Mitigation Plantings on August 25, 2016 (Attachment 5). Upon closeout of the development, it was determined that some constructed features were located outside of the area identified in the Agreement. The proposed First Amendment to the agreement will expand the encroachment area to provide for the homeowners association to maintain these features on City -owned property, known as Parcel E of Tract 8133, Assessor's Parcel No. 986-0055-007-00 (Attachment 4). STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: The City Council Agenda was posted. ATTACHMENTS: 1) Resolution Approving the Agreement for Long Term Encroachment for Landscape Features with Homeowners Association for Parcel A of Tract 4236 2) Exhibit A to Resolution - Agreement for Long Term Encroachment for Landscape Features with Homeowners Association for Parcel A of Tract 4236, APN 941-0114-116-00, Castle Drive, BLDG-2024-02962, PWEN-2024-00365 3) Resolution Approving the First Amendment to the Agreement for Long Term Encroachment for Landscape Features, Stormwater Detention, Stormwater Outfall and Mitigation Plantings Within Tract 8133, Tassajara Highlands 4) Exhibit A to Resolution - First Amendment to the Agreement for Long Term Encroachment for Landscape Features, Stormwater Detention, Stormwater Outfall and Mitigation Plantings within Tract 8133, Tassajara Highlands 5) Agreement for Long Term Encroachment for Landscape Features, Stormwater Detention, Stormwater Outfall and Mitigation Plantings within Tract 8133, Tassajara Highlands Page 2 of 2 2 Attachment I RESOLUTION NO. XX — 24 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH HOMEOWNERS ASSOCIATION FOR PARCEL A OF TRACT 4236 WHEREAS, the property owner for Parcel A of Tract 4236, Assessor's Parcel Number 941- 0114-116-00 applied for an encroachment permit, PWEN-2024-00365, and a building permit, BLDG-2024-02962 to install a retaining wall on Parcel A with an encroachment within the public street right-of-way of Castle Drive; and WHEREAS, the City issued PWEN-2024-00365 and BLDG-2024-2962 to the property owner and their contractor; and WHEREAS, the property owner, Valley Tract 4326 Homeowners Association and the City desire to enter into an Agreement for Long Term Encroachment for Landscape Features to provide for the property owner to own and maintain the encroaching features; and WHEREAS, the property owner has executed and filed with the City of Dublin an Agreement for Long Term Encroachment for Landscape Features for Parcel A of Tract 4236, APN 941-0114-116-00, Castle Drive, BLDG-2024-02962, PWEN-2024-00365, attached hereto as Exhibit A, which will be recorded against the property. 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 for Parcel A of Tract 4236, APN 941-0114-116-00, Castle Drive, BLDG-2024-02962, PWEN-2024-00365, 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 20th day of August 2024, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk Reso. No. XX-24, Item X.X, Adopted 08/20/24 Page 1 of 1 3 Attachment 2 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 HOMEOWNERS ASSOCIATION FOR PARCEL A OF TRACT 4236, APN 941-0114-116-00, CASTLE DRIVE BLDG-2024-02962 PWEN-2024-00365 THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 4236 ("Agreement") is made between the City of Dublin ("City") and Valley Tract 4326 Homeowners Association ("Owner"). 1. Property: The subject property is Parcel A of Tract 4236 as filed in Book 115 of Maps at Pages 38-42, in the Official Records of the County of Alameda, State of California. 2. Developer: Valley Tract 4326 Homeowners Association is the Owner of Parcel A of Tract 4236 ("Project"). 3. Landscape Features: Owner, as part of the Project, anticipates the construction of Project related landscape features within the City's rights of ways on the following streets with Tract 4236; Castle Drive (collectively, the "Landscape Features"). Construction details for these Landscape Features are shown on the Plans for BLDG-2024-02962 and PWEN-2024-00365, prepared by Vision Drafting. The scope of the improvements are generally shown on the attached Exhibit "A." 4. Encroachment Permit: Owner 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. 1 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. 12. 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 Valley Tract 4326 Homewowners Association, and all successors and assigns of Valley Tract 4326 Homewowners Association. 13. 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) 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 Owner: Valley Tract 4326 Homewowners Association P.O. Box 1216 Alameda, CA 94501-0016 14. Exhibits: All exhibits attached to this Agreement are incorporated herein as though they were set forth in full body of this Agreement. 15. 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. c$ 5. Ownership: Owner shall own all special Landscape Features, including but not limited to sidewalk, plantings, irrigation, street trees, etc. 6. Operations and Maintenance: Owner shall maintain and repair all the Landscape improvements, including all frontage landscape plantings, irrigation, sidewalks, and street trees 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. Owner 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. 7. 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 at its sole cost. If any of the Landscape Features are relocated, the City and Owners 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. 8. Insurance: Owner 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. 9. Indemnification: Owner 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, due to or arising out of Owner'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. 10. 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. 11. Right to Assign: Owner may assign any or all rights, interests and obligations of Owner arising under this Agreement to a successor in interest of Owner with respect to all or a portion of the Project; provided, however, that no such assignment of Owner's 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 ti 16. 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. 17. 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. Dated this I day of J LtA CITY: THE CITY OF DUBLIN, a municipal corporation By: City Manager OWNER: Valley Tract 4326 Homewowners Association By. Name: Cu r LA OL) 6 cfrvz aU Title: 4 00 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 . t 4» t=�.xti -ori ua 3C4 aK.tfou rim -A `•ws` EiNwatic sa ,3oo' : >=tivaue, . .it 3 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of 4/4 Al On 07 /1 7 / Z 0 2/ before me, A' g Z.A no l'i! rn m /V C'f'cr f tl, p c-f h 1 i t c._ bate Here Insert Name and Title of a Officer personally appeared G y tA Coff 1 Ladd r o G h ri'wt Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. A. REZA MOHAMMADY Notary Public • California Alameda County Commission # 2360240 My Comm. Expires Jun 7, 2025 Place Notary Seal and/or Stamp Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature /`f ' J Signature of Notary Publl OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Ert C.N_�/1� _sE � ►''-e 1n—ciJf'f" Document Date: 07 / i 0] / ZOLy Number of Pages: /,3 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — 0 Limited ❑ General ❑ Individual 0 Attorney in Fact ❑ Trustee ❑ Guardian of Conservator ❑ Other: Signer is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — 0 Limited 0 General ❑ Individual 0 Attorney in Fact ❑ Trustee 0 Guardian of Conservator ❑ Other: Signer is Representing* ©2017 National Notary Association SIGNATURE NEEDS TO BE NOTARIZED ATTACH NOTARY ACKNOWLEDGEMENT FORM(S) 5 Exhibit A General Scope of Improvements - Excerpts from BLDG-2024-02962, PWEN-2024-0365 location of work Landscape HOA area Parcel 941-114-116 Castle Dr Dublin 112 11,7 1 rT, DRAWING # 2 L C5 0.99 w m C3 TTI ff�TM1SP�'E C i4 t AO 32 Ig L ! 16] 1, BSI\-614 r I n. d. a e........: m2936 V 3 'mew (19w N0311SVO 1N3Yi33V1d3N 11VM ONINIV1313 IN1N30VIMY1 NO111/130SSV kuNnHYc0, 6ugJelp uols!, 69L0-959526 Vd 0 N RETAINING WALL REPLACE B. OCCUPANCY GROUP (R) n GNI 1 N n nr GEMENT.COM N r �1 n 111@GMAILCOM n Cr CD r N /\ 2 2 M OY4�••••••' ?99 V3•Nf1900 1N0311SV3 1N31137ald3N 1TYM ONINIV1N 1N3e13'JNNVr(NON.M00SSV A5N11111100 6uJ6e.rd UO!S!A 69L04595Z6" Id 9 III I I IIIII III II III II I I=III—III—I I I —I 11=111E I I III —I I I LLL i, L I LT =11,1! 1J L 1 L1= l I IE1 11- 111111111 '" IIII111I TrEi 1111 11=1 11=1 11=T=(I EH E HEIII-1 11=L=1 I I -I 1 I-J L-1 I N I I I-11:=111-III-I 11=1I I -I I1=1 I1 I11 I I -I 11=1 I E I I-1 I EffiE I i-=fil. 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I=1EI 11=1 11=1 11=1 11- III-11-IllEi 11=F 3 a 99St6V3'Nilffil0 3l1SYJ 117311EVRA Y1 NOW013OSStl ALN(li JIO] ES COME FROM W=J,1�21I1- !-1JL--,-1fl= ti Attachment 3 RESOLUTION NO. XX — 24 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE FIRST AMENDMENT TO THE AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES, STORMWATER DETENTION, STORMWATER OUTFALL AND MITIGATION PLANTINGS WITHIN TRACT 8133, TASSAJARA HIGHLANDS WHEREAS, on August 25, 2016, the City and the developer of Tract 8133, Tassajara Highlands entered into an Agreement for Long Term Encroachment for Landscape Features, Stormwater Detention, Stormwater Outfall and Mitigation Plantings Associated with Tract 8133, Tassajara Highlands (recorded in the Official Records of the County of Alameda on September 6, 2016, as Series No. 2016225519, hereinafter "Agreement"); and WHEREAS, upon the final inspection of the improvements located on Parcel E of Tract 8133, the City determined that certain stormwater features were located outside of the easement area identified in the Agreement; and WHEREAS, the property owner, The Enclave at Tassajara Homeowners Association, and the City desire to enter into an amendment to the Agreement to revise the encroachment area to include the stormwater features and to provide for the property owner to maintain the encroaching features on Parcel E of Tract 8133; and WHEREAS, the property owner has executed and filed with the City of Dublin the First Amendment to Agreement for Long Term Encroachment for Landscape Features, Stormwater Detention, Stormwater Outfall and Mitigation Plantings Associated with Tract 8133, Tassajara Highlands, attached hereto as Exhibit A, which will be recorded against the property. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the First Amendment to Agreement for Long Term Encroachment for Landscape Features, Stormwater Detention, Stormwater Outfall and Mitigation Plantings Associated with Tract 8133, Tassajara Highlands, attached hereto as Exhibit A to this Resolution. BE IT FURTHER RESOLVED that the City Engineer, 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. {Signatures on the following page} Reso. No. XX-24, Item X.X, Adopted 08/20/24 Page 1 of 2 18 Attachment 3 PASSED, APPROVED AND ADOPTED this 20th day of August 2024, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk Reso. No. XX-24, Item X.X, Adopted 08/20/24 Page 2 of 2 19 Attachment 4 N 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 FIRST AMENDMENT TO AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES, STORMWATER DETENTION, STORMWATER OUTFALL AND MITIGATION PLANTINGS WITHIN TRACT 8133,TASSAJARA HIGHLANDS THIS FIRST AMENDMENT TO AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES, STORMWATER DETENTION, STORMWATER OUTFALL AND MITIGATION PLANTINGS ASSOCIATED WITH TRACT 8133, TASSAJARA HIGHLANDS ("First Amendment") is made between the City of Dublin ("City") and The Enclave at Tassajara Homeowners Association, a California non-profit homeowners association ("Owner"). RECITALS A. WHEREAS, City and The Enclave, Inc., ("Prior Owner") entered into that certain Agreement for Long Term Encroachment for Landscape Features, Stormwater Detention, Stormwater Outfall and Mitigation Plantings Associated with Tract 8133, Tassajara Highlands dated August 25, 2016, and recorded in the Official Records of the County of Alameda on September 6, 2016, as Series No. 2016225519 (the "LTEA"); and B. WHEREAS, Owner has obtained the property from the Prior Owner; and C. WHEREAS, City and Owner have agreed to modify the location of the stormwater outfall that is part of the Stormwater Features described in the LTEA. NOW, THEREFORE, the City and Owner do hereby agree as follows: 1. Capitalized Terms; Incorporation of Recitals: All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the LTEA. The Recitals set forth above are N incorporated herein by this reference and made a contractual part hereof. 2. Encroachment Features: Exhibit B attached to the original LTEA is hereby deleted in its entirety and replaced with the version of Exhibit B attached hereto. Dated this day of , 2023 CITY: THE CITY OF DUBLIN, a municipal corporation By: Laurie Sucgang City Engineer OWNER: THE ENCLAVE AT TASSAJARA HOMEOWNERS ASSOCIATION a California non-profit homeowners association By: 0-0-54--ts (,JZ President of the Board of Directors PLEASE SEE ATTACHED N101/2oz3 p- 7(- L) 7/01�-2 3 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California, County of ALAMEDA On s 'tarn ooer.2(3)-3 before me, PRRITY BHUPTANI, NOTARY PUBLIC, personally appeared A N I S Ft 'a-t2 CN i k PR T C L who proved to me on the basis of satisfactory evidence to be the person{} whose name{s)(Q - - subscribed to the within instrument and acknowled ed to me that chc/they executed the same in her/their authorized capacity(icc), and that by is her/their signature¢} on the instrument the personal, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official sel. Signature y,), Seal PRRITY BHUPTANI g COMM. #2388063 Z Notary Public • California , Alameda County o M Comm, Ex.ires Jan, 1 2026 OPTIONAL Though the information in this section is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: LTL- Document Date: Identifying No.: No. of Pages: Signer(s) or Issuing Agency: Capacity Claimed by Custodian ❑ Individual ❑ Attorney ___126orporate Officer — Title: Trustee 111,18usinesPropriptor orManager er e ; d - € C 0A8 � o� S �� �.hc lave C • University or School Officer — Title: ❑ Governmental Officer or Agent — Title: ❑ Other: Custodian Is Representing: Attachment 5 Recording: Requested B � A"`e�'�'� YT4.1e... CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 2016225519 09/06/2016 08:30 AM OFFICIAL RECORDS OF ALAMEDA COUNTY STEVE MANNING RECORDING FEE: 0.00 i i i i i i i 11 i N 10 PGS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES, STORMWATER DETENTION, STORMWATER OUTFALL AND MITIGATION PLANTINGS WITHIN TRACT 8133, TASSAJARA HIGHLANDS THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES, STORMWATER DETENTION, STORMWATER OUTFALL AND MITIGATION PLANTINGS ASSOCIATED WITH TRACT 8133, TASSAJARA HIGHLANDS ("Agreement") is made between the City of Dublin ("City") and The Enclave, Inc., a California corporation ("Owner"). 1. Property: The subject property is a portion of Tract 8133, Tassajara Highlands, as filed in Book 3 43 of Maps at Pages -- q , in the Official Records of the County of Alameda, State of California. 2. Developer: Owner is the developer of Tract 8133, Tassajara Highlands ("Project"). 3. Encroachment Features: Owner, as part of the Project, anticipates the construction of (a) Project related landscape features within and adjacent to the City's right of way on Tassajara Road, including the area extending from the Tassajara Road right of way to the Trail Features (defined below) ("Landscape Features") (b) storm drain pipes, a stormwater detention basin and a stormwater outfall and related mitigation plantings ("Stormwater Features") on portions of the Property that will be transferred to the City pursuant to that certain Exchange Agreement dated August 12, 2014, as more particularly described in Exhibit A, attached hereto ("City Property") and (c) a public trail over a portion of the City Property (the "Trail Features"). The Landscape Features, the Stormwater Features and the Trail Features are referred to collectively herein as the "Encroachment Features". Construction details for these Encroachment Features are shown on the On -Site Improvement Plans and Off -Site Improvement Plans for Tract 8133 Tassajara Highlands, prepared by Wood Rodgers, with modifications as necessary for City approval. The 24 scope of the improvements covered under the agreement is shown on the attached Exhibit B. 4. Encroachment Permit: Owner 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 Encroachment 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. 5. Ownership: Owner shall own (a) all special Landscape Features, including but not limited to fountains, arches, monuments, etc.; and (b) the storm drain pipes, stormwater outfall structure, required mitigation plantings and any other landscape features associated with the outfall installation. 6. Operations and Maintenance: Owner shall irrigate, maintain and repair the Landscape Features at its sole cost and expense and in a safe manner consistent with the approved plans to the reasonable satisfaction of the City. Maintenance of the Landscape Features shall include all landscape plantings, irrigation, and sidewalks within the designated areas together with electric power and water costs. Owner shall further maintain and repair the Stormwater Features and the Trail Features at its sole cost and expense. Owner will be responsible at its sole cost to replace or repair (a) any Landscape Feature damaged or removed during the construction, maintenance or repair of sewer, water, drainage or utility improvements by the City, Dublin San Ramon Service District or other utility company and (b) any Stormwater Feature damaged or removed during the construction, maintenance or repair of the adjacent culvert facility on the City Property, unless such damage or removal is caused by the negligence, gross negligence or willful misconduct of the City or its agents, contractors or employees. The City will maintain at its sole cost all asphalt concrete pavement, concrete curb and gutter, drainage improvements, traffic signs and striping, and streetlights and any other features in the public right of way. The City shall further maintain at is sole cost the culvert installation and associated landscaping and drainage improvements constructed or to be constructed on the City Property. 7. Removal or Relocation: If future improvements proposed by the City conflict with any of the Encroachment Features, the City may relocate the Encroachment Features at its sole cost, and, with respect to the Stormwater Features, subject to receipt of approval from all applicable state and federal governmental agencies. If any of the Encroachment Features are relocated, the City and Owner will execute a modification to 25 this Agreement to reflect the maintenance and operations at the new location of the Encroachment Features. Provided, however, the City is under no obligation to relocate any of the Encroachment Features. 8. Permits, Agreements and Authorizations: Owner hereby acknowledges that maintenance and repair of the Stormwater Features may require permits, agreements and/or authorizations from state and federal regulatory agencies including, but not limited to, the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, Regional Water Quality Control Board, and California Department of Fish and Wildlife. Owner shall be responsible at its sole cost to obtain such permits, agreements and authorizations prior to any work on the Stormwater Features. 9. Insurance: Owner 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 Encroachment Features improvements and shall name the City as an additional insured. 10. Indemnification: Owner 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, due to or arising out of Owner's construction, maintenance or operation of the Encroachment Features unless caused by the negligence, gross negligence or willful misconduct of the City, its agents, contractors or employees. 11. Permanent: The Encroachment Features and the rights appurtenant thereto as set forth in this Agreement shall exist in perpetuity, and shall be appurtenant to the Property and the City Property, as applicable. 12. Right to Assign: Upon prior written notice to the City, Owner may assign any and all rights, interests and obligations of Owner arising under this Agreement to the Home Owners Association for Tract 8133. Owner may further assign its rights, interests and obligations arising under this Agreement to a successor in interest of Owner with respect to all or a portion of the Project provided Owner obtains prior written approval from the City Manager, which approval shall not be unreasonably withheld, conditioned or delayed. With respect to any assignment requiring the City's Manager's approval, the City Manager shall consider and decide on such 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 26 deemed to refer to and include TL Partners II, LP, and all successors and assigns, including but not limited to the Tract 8133 Home Owner's Association. 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) 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 Owner: The Enclave, Inc. 12667 Alcosta Blvd., Suite 170 San Ramon, CA 94583 Fax No. (925) 380-1214 Attn. James L. Meek 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. [SIGNATURES APPEAR ON FOLLOWING PAGE] 27 Dated this day of 4OG % , 2016 CITY: THE CITY OF DUBLIN, a municipal corporation By: 4144istopher L.-F.ass..., MV0/1-e-a-)C- 6f./jAitice/2._ OWNER: THE ENCLAVE, INC., a California corporation By: Name: J./Timothy Lewis Title: President AKA �0%3 1;1"•tAl, Legs 28 AUIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Alameda On August 25, 2016 before me, Taryn Gavagan Bozzo, a Notary Public, personally appeared Andrew C. Russell who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/tee subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity{ -+es}, and that by his/h-er/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person{+ acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature a TARYN GAVAGAN BOZZO Commission # 1999876 Notaryz z . sir Public - California Alameda County My Comm. Expires Dec 3, 2016 29 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Califor is County of On /7, vDJ( Date personally appeared �J L before mea (v e1 / 7�(�aJ�(�' Here Insert Name and Title of the Officer 4-2} ner who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. GUADALUPE V. POWELL Commission # 2076763 Notary Public - California Placer County My Comm. EAPires Aug 30, 2018 Place Notary Seal Above WITNESS my hand and official seal. Signatur OPTIONAL -2) Signature of Notary Public Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: _ Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: 7. Corporate Officer — Title(s): Partner — u Limited General Z. Partner — Limited Li General 7. Individual Attorney in Fact =2 Individual Attorney in Fact Trustee Guardian or Conservator I= Trustee Guardian or Conservator Other: Other: Signer Is Representing: Signer Is Representing: Signer's Name: 17 Corporate Officer — Title(s): !i{i�, ! i�� i��! :��r� :�_=� i�`�-_�. i�r! ��✓, ��c!1✓%.� ice✓ i�'��. i�'��i ice✓ : ✓ :�✓ ice✓ i��i�i��! i�`_'-_�. i� =i ��✓ �`�s�r! ��✓%-! �.�i�,: i� ��r;��...i��`_�-_i.��'!'��!'�✓,'�`=�`�✓ �: � ��✓.'�t!'��! �. �t`! - �.G _ ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 30 EXHIBIT A CITY PROPERTY Parcel E as shown on the map of Tract 8133, Tassajara Highlands, as filed on q -LI , 2016, in Book 343 of Maps at Pages 11 19 , in the Official Records of the County of Alameda, State of California. Exhibit A — Page 1 31 EXHIBIT B ENCROACHMENT FEATURES Exhibit B — Page 1 32 aa>oyy o0sagaN rid L£:£ 910Z/9t/8 6MP'VQ—SSVJ—V311—HX3\siRtlx3\L !D\VO—spuoIy6!H ssol\spuoly6!H oJofossol ZLl£\sgor\:r ENCROACHMENT AGREEMENT EXHIBIT' B" NOT TO SCALE 33