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Home My WebLink About4.07 Positano Pkwy Finance Acquis Land CITY CLERK File # D~~~-~~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: June 5, 2007 SUBJECT: Approval of "Agreement Regarding Financing of Acquisition of Land for Construction ofPositano Parkway (aka Upper Loop Road) and Storm Drains and Sewer Lines Between City of Dublin and Dublin RE Investors, LLC (aka Braddock & Logan)." Report Prepared by: Elizabeth H. Silver, City Attorney ATTACHMENTS: "Agreement Regarding Financing of Acquisition of Land for Construction ofPositano Parkway and Storm Drains and Sewer Lines Between City of Dublin and Dublin RE Investors, LLC (aka Braddock & Logan." FINANCIAL STATEMENT: Dublin RE Investors, LLC, will be responsible for paying all the costs of acquisition ofland from the Jordan Trust needed for Positano Parkway and storm drains and sewer lines. RECOMMENDATION: ~ Approve Agreement. DESCRIPTION: When the Planning Commission approved the tentative map for Fallon village in November, 2005, the approval was conditioned on, among other things, the developer (Dublin RE Investors, or "Braddock & Logan") building Upper Loop Road (now known as Positano Parkway). (Condition 44 oftentative map 7586.) The map showed the majority ofPositano Parkway located on land owned by the developer, with a 20-foot portion of it located on land owned by the First American Title Guaranty Company (also known as the "Jordan Trust"). If Braddock & Logan fails to meet tentative map Condition 44 because it or the City does not have sufficient title or interest to permit the road to be built, Government Code section 66462.5 requires the City to either waive the condition, or to acquire sufficient title by negotiation or eminent domain proceedings within 120 days of the filing of the final map. COPY TO: ITEM NO. 4-.7 ~ Page 1 of2 At the December 6, 2005 City Council meeting, the City adopted Resolution 223-05, approving the associated Development Agreement and requesting that the location ofPositano Parkway be shifted approximately 25 feet to the southeast, so that even more of the road would be constructed on land owned by the Jordan Trust. In a letter presented at that meeting, Braddock & Logan agreed to build the road in the new location on the condition that the City assist Braddock & Logan in acquiring the necessary right of way. Since that time, Braddock & Logan has offered to purchase from the Jordan Trust that portion ofthe land it needs to construct Positano Parkway in the new location, but has not been able to negotiate a deal. Braddock & Logan is continuing to make efforts to purchase the property. If these efforts are not successful, Government Code section 66462.5, as noted above, requires the City either to waive the condition requiring Braddock & Logan to build the road, or to acquire the property using its power of eminent domain within 120 days ofthe filing of the final map. The attached agreement is necessary to ensure that if the City must condemn the property, Braddock & Logan will pay for the fair market value of the property, and all other related costs the City incurs in exercising its power of eminent domain, including, for example, attorneys' fees and appraisal costs. The agreement also provides that Braddock & Logan will pay for all rights of way and temporary construction easements required to construct the storm drains and sewer lines that will serve the new development. Recommendation It is recommended that the Council approve the agreement and authorize and direct the Mayor to sign the agreement. ~~~ It lJ AGREEMENT REGARDING FINANCING OF ACQUISITION OF LAND FOR CONSTRUCTION OF POSITANO PARKWAY (AKA UPPER LOOP ROAD) AND STORM DRAINS AND SEWER LINES BETWEEN CITY OF DUBLIN AND DUBLIN RE INVESTORS, LLC (AKA BRADDOCK & LOGAN) THIS AGREEMENT is made and entered in the City of Dublin on this 5th day of June, 2007, by and between the City of Dublin, a Municipal Corporation ("City") and Dublin RE Investors, LLC (aka Braddock & Logan), a California limited liability company ("Developer"). City and Developer are, from time to time, individually referred to in this Agreement as a "Party," and are collectively referred to as "Parties." RECITALS A. Developer is the owner of certain lands within Eastern Dublin that Developer desires to develop with residential housing. B. In conjunction with said development, Developer is required to construct a road, known as Positano Parkway, also known as Upper Loop Road ("Positano Parkway") as well as storm drains and sewer lines ("Sewers") serving the new development. Positano Parkway and Sewers are collectively referred to as the "Improvements." C. Positano Parkway is shown on the approved tentative map, the General Plan map, and the Eastern Dublin Specific Plan, and is mentioned in Implementing Policy L.6. D. The Improvements are to be constructed on lands owned by Developer and by the Jordan Trust. E. In order to complete the Improvements, Developer will need to obtain the rights, including rights of way and temporary construction easements, to construct the Improvements on the lands owned by the Jordan Trust. F. If Developer is unable to obtain the necessary rights from the Jordan Trust through negotiations, and provided such efforts are funded entirely by Developer, City is willing to exercise its power of eminent domain to obtain any rights from the Jordan Trust necessary to construct the Improvements. G. The City and Developer, by this Agreement, desire to set forth their respective agreements to exercise the power of eminent domain to acquire the rights necessary to construct the Improvements and to fund the costs of such acquisition inasmuch as the City does not have an adopted fee that would be applicable in such situation. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, City and Developer agree as follows: Agreement with Braddock Logan to pay for acquisition of upper loop road (3) 114 258 1 ~-5-07 '17 ,qif-aUt~ 1- b?OVU AGREEMENT Section 1. Payment of Funds for Acquisition of Riqht of Way for Construction of the Improvements. a. Initial Payment. Upon 20 days' written notice from City, Developer will pay to City the amount of $25,000 ("the Initial Payment") to be used by City to acquire the necessary right-of-way, temporary construction easements, or other rights necessary for the construction by Developer of the Improvements ("the Right of Way"). City agrees that it will use such monies to acquire the Right of Way as expeditiously as possible. The monies will be used by City for all expenses associated with the acquisition of the Right of Way, including but not limited to legal descriptions, appraisal fees, title reports, environmental review and documentation, preparation of all documents for adoption of a resolution of necessity and convenience, court costs (including, but not limited to, fees for preparation of transcripts), costs of litigation, trial and appeal, including document preparation, expert-witne'ss fees and attorneys' fees and costs, the fair market value of the land (as mutually agreed upon or as determined by the court), and any award made by the court to the defendants (including but not limited to market value, severance damages, attorneys' fees, appraisers' fees, expert-witness fees, and all other costs) (collectively, "Acquisition Costs"), whether or not the eminent domain action results in the acquisition of the real property sought to be condemned. b. Additional Payment(s). Upon written request or requests from City and 20 days' notice, Developer will pay to City any Acquisition Costs in addition to the Initial Payment that City determines are necessary to acquire the Right of Way. Section 2. Reportinq on and Accountinq of Acquisition Costs. a. Reporting on Negotiations. City will keep Developer apprised of any negotiations for acquisition of the rights of way and, provided such disclosures do not require City to waive the attorney-client privilege, will provide Developer the opportunity to participate in the negotiations. Prior to entering into any agreement with the owner(s) of the land to be acquired, City will consult with Developer regarding the amount of any proposed payment and whether settlement or trial is preferable in Developer's opinion. However, City retains. the right to determine the amount of any such payment in its sole discretion. b. Quarterly Accounting. On a quarterly basis, City shall provide Developer with an accounting of the Acquisition Costs incurred by City. Section 3. Final Accountinq and Refund of Excess Funds. Within 90 days' of acquiring the Right of Way pursuant to a settlement or of obtaining a final judgment of condemnation, City shall prepare a final accounting of the final Acquisition Costs. Any monies paid by Developer pursuant to this Agreement Agreement with Braddock Logan to pay for acquisition of upper loop road (3) 1l4~58 2 31; IJ that are not needed by City to acquire the Right of Way shall be refunded to Developer within 90 days' following final judgment of condemnation. Section 4. Miscellaneous. a. Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. b. Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the Parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void, or unenforceable, either City or Developer may (in their sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other party. c. Other Necessary Act. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Project Approvals, Subsequent Approvals, and this Agreement and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder, including but not limited to any and all such instruments as may be necessary to grant Developer a reasonable right of access across any City-owned property so that Developer may construct Positano Parkway. d. Construction. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. e. California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. f. Attorneys' Fees. In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Agreement, the prevailing party is entitled to reasonable attorneys' fees and any other costs incurred in that proceeding in addition to any other relief to which it is entitled. g. Notices. All notices required or provided for under this Agreement shall be in writing. Such notices shall be given to the Parties at their addresses set forth below: Agreement with Braddock Logan to pay for acquisition of upper loop road (3) 114_258 3 t-f~u If to Developer, to: Richard C. Ambrose City Manager City of Dublin 100 Civic Plaza Dublin, CA 94569 Telephone: (925) 833-6650 Facsimile: (925) 833-6651 Dublin RE Investors, LLC c/o Braddock & Logan Services, Inc. 4155 Blackhawk Plaza Circle, Suite 201 Danville, CA 94506 Attn: Robert Miller/Jeff Lawrence Facsimile: (925) 648-5700 If to City, to: A party may change its address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of forty-eight (48) hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. h. Counterparts. This Agreement may be executed in multiple counterparts and counterpart signature pages may be assembled to form a single original document. i. Entire Agreement. This Agreement consists of 5 pages and no exhibits which constitute in full, the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements of the Parties with respect to all or any part of the subject matter of this Agreement. j. Waivers. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of City and the Developer. k. Legal Authority. Each individual executing this Agreement on behalf of Developer hereby represents and warrants that has full power and authority under the entity's governing documents to execute and deliver this Agreement in the name of and on behalf of the company and to cause the entity to perform its obligations under this Agreement. SIGNATURES ON NEXT PAGE Agreement with Braddock Logan to pay for acquisition of upper loop road (3) 114_258 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. DEVELOPER: DUBLIN RE INVESTORS, LLC, A California limited liability company By: Braddock & Logan Services, Inc., A California Corporation Its: Manager By" -J'~ , i 'l " ,L -",J .~.~~"-->-... Its: 'V'~:J CITY: CITY OF DUBLIN By Its: Agreement with Braddock Logan to pay for acquisition of upper loop road (3) 114_258 '-......... 81; (j 5 lPIfb ~ CALIFORNIA ALLaPURPOSE ACKNOWLEDGMENT ~~~~~~ State of California County of CDt-l--r'R.,A On 5!;J...q/ 0 7 Date e...c c -rA before me, rl.p, fJ 8/-1C. personally appeared j~~~ lipersonally known to me o (or proved to me on the basis of satisfactory evidence) J"-'--~--~~~-~~ ~ NANCVE. EMBREY - Commission # 1578043 J i,,; Notary Public - Cantom/Q f i Contra Costa County f _ _ _ ~ .:omm. ExpIres Jun 8, 2009 -----------....- to be the person{$) whose name~) isfare subscribed to the within instrument and acknowledged to me that he/~ executed the same in hisltlQI:tlldr authorized capacity(~), and that by his/her/their signature(~ on the instrument the person(S), or the entity upon behalf of which the personOO acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above u,'-. . ~ I ( S ~ ....,.. QY\... Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: o Individual o Corporate Officer - Title{s): o Partner - 0 Limited 0 General o Attorney in Fact o Trustee o Guardian or Conservator o Other: Top of thumb here Signer's Name: o Individual o Corporate Officer - Title{s): o Partner - 0 Limited 0 General o Attorney in Fact o Trustee o Guardian or Conservator o Other: . Top of thumb here RIGHT THUMBPRINT OF SIGNER Signer Is Representing: Signer Is Representing: ~~~~~~~~~~~~~~~~~~~~~~~~~.:~~~~~~~~~~ @2006 National Notary Association' 9350 De Solo Ave.. PO. Box 2402 . Chatsworth, CA 91313.2402 Item No. 5907 Reorder: Call Toll-Free 1.800.876.6827