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Home My WebLink AboutReso 03-09 Sonata Long Term EncrRESOLUTION N0.3- 09 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE MAINTENANCE AT SONATA, TRACT 7282 WHEREAS, the Developer, Lennar Homes of California, Inc., a California Corporation, has installed landscape improvements within the public rights-of--ways in accordance with the approved plans for Tract 7282; and WHEREAS, the Developer is required to maintain these landscape improvements; and WHEREAS, the Developer has executed and filed with the City of Dublin an Agreement for Long Term Encroachment for Landscape Maintenance at Sonata, Tract 7282, attached hereto as Exhibit A. NOW, THEREFORE, BE IT RESOLVED that said Agreement is hereby approved. BE IT FURTHER RESOLVED that the Mayor is hereby authorized by the City Council to execute the Agreement. BE IT FURTHER RESOLVED that the Clerk of this City Council is hereby directed to transmit said Agreement to the County Recorder for filing. PASSED, APPROVED AND ADOPTED this 6th day of January, 2009, by the following vote: AYES: Councilmembers Biddle, Hart, Hildenbrand, Scholz, and Mayor Sbranti NOES: None ABSENT: None ABSTAIN: None ATTEST: City Clerk ~~ ~~ Mayor Reso No. 3-09, Adopted I-6-09, Item 4.5 Page 1 of 1 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 MAINTENANCE AT SONATA, TRACT 7282 This AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE MAINTENANCE AT SONATA, TRACT 7282 ("Agreemeizt") is made between the City of Dublin ("City") and Lennar Homes of California, Inc., a California corporation ("Lennar"). 1. Property:, The subject property in the City of Dublin, Alameda County, California is described as follows: Parcels A through E of Tract 7282 as filed in Book 287 of Maps at Pages 78 through 85, in the Official Records of the County of Alameda; and Parcel 2 of Tract 7281, as shown on a subdivision map filed in Book 27 of Maps, at Pages 82 through 88, in the Office of the Alameda County Recorder. 2. Developer: Lennar is the current developer of Tract 7282, known as the "Sonata" planned residential project in the Dublin Ranch master planned community (the "Project"). 3. Landscape Features: Lennar, as part of developing the Project, has constructed or will construct landscaping (turf, ground cover, shrubs and trees) and irrigation equipment within street-side parkways, and within a median, on portions of the following City public street rights-of--way: a. Brannigan Street -abutting Parcels A and E of Tract 7282. b. Kohnen Way -abutting Parcels A, B, C and D of Tract 7282 and the Kohnen Way median extending westerly from Grafton Street. c. Grafton Street- abutting Parcel D of Tract 7282 and Parcel 2 of Tract 7281. d. Gleason Drive -abutting Parcels D and E of Tract 7282. These landscaping and irrigation improvements are collectively referred to as the "Landscape Features". The specific .location and design of these Landscape Features are described on the Project Landscape Plans for Tract 7282 prepared by Ralph J. Alexander & Associates, including revisions, as approved by the City. -1- EXH i B IT 4. .Encroachment Permit: Lennar has applied or will apply to City for an encroachment permit for the construction, operation and long-term maintenance of the Landscape Features. City must grant the encroachment permit for all work to install, operate and maintain the Landscape Features. All the conditions imposed by City in the encroachment permit 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: City will own the Landscape Features. 6. Operations and Maintenance: Lennar will maintain and repair, at its sole cost and expense, all elements of the Landscape Features in a safe manner consistent with the approved plans and to the reasonable satisfaction of the City, including the costs of electric power and water. Provided that the City, Dublin San Ramon Service District or a utility company has given Lennar written notice 10 days prior to commencing its work, Lennar 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 City, Dublin San Ramon Service District or a utility company, unless such damage or removal is caused by the negligence, gross negligence or willful misconduct of the City, Dublin San Ramon Service District or a utility company, or by the criminal conduct of third parties. City will maintain at its sole cost all asphalt concrete pavement, concrete curb and gutter, concrete sidewalks, drainage improvements, traffic signs and striping, and streetlights. 7. Removal or Reioeation: If future improvements proposed by City conflict with any Landscape Feature, City may reasonably remove or relocate the Landscape Feature at its sole cost. If any of the Landscape Features are relocated, City and ,Lennar will execute a modification to this Agreement to reflect the maintenance and operations of the relocated Landscape Features; provided, however, City is under no obligation to relocate any of the Landscape Features. 8. Insurance: Lennar must obtain and maintain in effect a combined single limit policy of liability insurance of not less than one million dollars which covers the Landscape Features and identifies City as an additional. named insured. 9. Indemnification: Lennar must indemnify, defend and hold City harmless from any and all loss, claims, liability, damage or expense (collectively, "Costs") City may incur or become liable for, or for which a claim is made by a third party, due to or arising out of Lennar's construction, maintenance or operations of the Landscape Features, unless such Costs are due to or arising out of the negligence, gross negligence or willful misconduct of the City, its agents, contractors or employees, or the criminal conduct of third parties. Any assignment by Lennar of its rights and obligations under this Agreement pursuant to the assignment provisions below, will not include an assignment to the Sonata Homeowners Association of Lennar's -2- obligation to indemnify the City for Costs arising from Lennar's construction of the Landscape Features. 10. Run With The Land: The rights and obligations of the parties set forth in this Agreement shall run with and burden the Property, and be binding on and for the benefit of the Property and all persons or entities acquiring any interest in the Property. 11. Rights to Assign: Lennar will assign some or all of its rights and obligations for the operation and maintenance of the Landscape Features under this Agreement to the Sonata Homeowners Association, the existing California nonprofit corporation in good standing that was formed to manage the Project, and City now acknowledges and approves such assignment. Lennar may also assign some or all of its rights and obligations for the construction of the Landscape Features under this Agreement to a third party (excluding the Sonata Homeowners Association), but no such assignment may occur without priorwritten notice to City and approval by the City... Manager, which approval may not be unreasonably withheld, conditioned or delayed. 12. Successors and Assigns: Each reference to the "City" in this Agreement is deemed to refer to and include the City and all successors and assignees of City. Except as otherwise provided, all references to "Lennar" in this Agreement are deemed to refer to and include Lennar and all successors and assignees of Lennar including the Sonata Homeowners Association. 13. Notices: Any notices, requests, demands or other communications required or permitted to be given under this Agreement must be in writing and will 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 Attn: City Manager 100 Civic Plaza Dublin, California 94568 Fax No. (925) 833-6651 Lennar: Lennar Homes of California, Inc. 6121 Bollinger Canyon Road, Suite 500 San Ramon, California 94583 Fax No. (925) 242-0811 -3- and Sonata Homeowners Association c/o The Helsing Group 2000 Crow Canyon Place, Suite 380 San Ramon, CA 94583 Fax No. (925) 355-9600 Any party may change its address for notices and consents by giving notice to the other parties. 14. 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 will continue in full effect and will not be impaired, and the parties agree to substitute for the invalid or unenforceable provision a binding provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. 15. 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. 16. Counterparts: This Agreement may be executed in counterparts, each of which is, for all purposes, deemed an original and all such counterparts, taken together, constitute one instrument. Dated this day of CITY: THE CITY OF DUBLIN, a municipal corporation By: Mayor Name: 2008. LENNAR: Lennar Homes of California, Inc., a California corporation _ r Name: ~-~-~~~ ATTEST: City Clerk Title: V 1G~~-~ (~~~ NOTARIAL ACKNOWLEDGMENT ON FOLLOWING PACE G:\DEVELOPMENT, PRNATE\Dublin RanchlArea F-North\Tract 7282\L.ong Term Encroachment Agreement.DOC -4- STATE OF CALIFORNIA COUNTY OF C®~`r~ 47,4 On I~~bVEM~F~. 13 ,2tx~ ,before me,~ATµ~.~.1 ~. ~`'~,4R-T~*~~ No'C,~~~ ~c.~.i3uc. (here insert name and title of the officer) personally appeared ~~~ ~t Lly who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/~e-executed the same in hisfhe~ authorized capacity, and that by hisfhcr signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Califonlia that the foregoing paragraph is true and correct. WITNESS my ha d and official seal. Signature: ~ tt-,c~,~1-~ KATFiLE~N E. MARTIN Commission ~ 16349'66 • Notory Pubnc,- CaNloeya CorMra care CovMy MY Comm. Jan 6, 20' -5- STATE OF CALIFORNIA COUNTY OF On ,before me, (here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person 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 seal. Signature: (SEAL) -6- ~~ ~ e ~ N E"~ U a $ H ~ i U ~ ~~ ~ I °~ pAgEp, D m ~~ w W~ U L` oz~ I~ ~~ w z W~ U ~.,, A~ a i x 9 U O w t d N a e x 0 N