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HomeMy WebLinkAboutReso 140-09 PM 9717 License AgmtRESOLUTION NO. 140 - 09 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING MAINTENANCE AND IRREVOCABLE LICENSE AGREEMENT RELATING TO PARCEL MAP 9717 WHEREAS, the City Council adopted Ordinance 06-00 on March 21, 2000, approving PA 98-069 for Area G of Dublin Ranch which established Stage 1 Planned Development (PD) zoning and Stage 2 Planned development Plan for the PD Village Center/Neighborhood Commercial project area (hereinafter "The Promenade"); and WHEREAS, said Stage 1 Planned Development (PD) zoning and Stage 2 Planned Development Plan permitted Owner to retain ownership over the adjacent sidewalk along the public streets and required Owner to maintain the sidewalk; and WHEREAS, City of Dublin Community Development Director Resolution No. 09-10, adopted on September 17, 2009, approved the Tentative Parcel Map 9717 for The Promenade with a condition requiring Owner to enter into a Maintenance and Irrevocable License Agreement with the City for the use of the sidewalk area; and WHEREAS, the Owner has executed and filed with the City of Dublin a Maintenance and Irrevocable License Agreement Related to Parcel Map 9717, attached hereto as Exhibit A. NOW, THEREFORE, BE IT RESOLVED that said Agreement is hereby approved. BE IT FURTHER RESOLVED that the City Manager 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 October, 2009, by the following vote AYES: Councilmembers Biddle, Hart, Hildenbrand, Scholz, and Mayor Sbranti NOES: None ABSENT: None ABSTAIN: None ATT T: - ~ ~ ~~V City Clerk V- l .~~--- Mayor Reso No. 140-09, Adopted 10-6-09, 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 Space above this line for Recorder's use MAINTENANCE AND IRREVOCABLE LICENSE AGREEMENT RELATING TO PARCEL MAP 9717 THIS MAINTENANCE AND IRREVOCABLE LICENSE AGREEMENT (hereinafter "Agreement"), is made and entered into this th day of , 2009, by and between James Tong and Mei Fong Tong (hereinafter "Owner") and the City of Dublin, a Municipal Corporation (hereinafter "City"). RECITALS WHEREAS, the City Council adopted Ordinance 06-00 on March 21, 2000 approving PA 98-069 for Area G of Dublin Ranch which established Stage 1 Planned Development (PD) zoning and Stage 2 Planned Development Plan for the PD Village Center/Neighborhood Commercial project area (hereinafter "The Promenade"); and WHEREAS, said Stage 1 Planned Development (PD) zoning and Stage 2 Planned Development Plan permitted Owner to retain ownership over the adjacent sidewalk along the public streets and required Owner to maintain the sidewalk; and WHEREAS, City of Dublin Community Development Director Resolution No. 09-10 adopted on September 17, 2009 approved the Tentative Parcel Map 9717 for The Promenade with a condition requiring Owner to enter into a maintenance and irrevocable license Agreement with the City for the use of the sidewalk area; and WHEREAS, Owner is agreeable to such use by City on the Licensed Areas and hereby grants a non-exclusive, irrevocable License for said use upon the following terms and conditions and agrees to maintain the sidewalk in exchange for being permitted to retain ownership of the Licensed Areas. NOW, THEREFORE, NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: EXHIBIT ~ 1. Permitted Use. Subject to the terms of this Agreement, City is granted an irrevocable, nonexclusive license ("License") permitting it to perform the following acts within the Licensed Areas: a. Public access -public access along a continuous pathway a minimum six feet-wide, maximum 2% cross slope, and a minimum ten-foot vertical clearance with public access from the adjacent street parking spaces to the pathway. b. Traffic Signs -installation and maintenance of traffic and parking restriction signs. c. Street Lights -installation and maintenance of street lights and appurtenances. d. Street Trees -installation and maintenance of street trees. e. Utilities -installation and maintenance of public utilities including fire hydrants. 2. Licensed Areas. The Licensed Areas are nonexclusive and shall be those depicted as Sidewalk Easement (SWE) on Parcel Map 9717 recorded , 2009, in Map Book , at Pages through ,Alameda County Records, and attached hereto as Exhibit A. 3. License Fee. This License shall not require payment of any rent or other charges to Owner by City for the use of the Licensed Areas for the purposes for which it is permitted. 4. Duration of License. This License shall be irrevocable and perpetual in duration unless the Parties mutually agree in writing to terminate it in accordance with Section 12 of this Agreement. In the event of such mutual termination, each Party agrees to execute and record such documents and to undertake such other actions as may be necessary to effectuate such termination. Upon such termination, all rights and obligations of the Parties hereunder pertaining to such terminated License shall also terminate. 5. Limitations a. This License is granted for the purpose of authorizing City to perform the actions described in Section 1 of this Agreement and to ensure public access to the Licensed Areas. b. Owner has retained all rights of use of the subject Licensed Areas including, but not limited to, the right to use for outdoor eating areas, street furniture, signs and landscaping so long as the use does not interfere with the City's Licensed uses described above. The Owner may install special poles on the City's traffic signs so long as the location, height and sign remain the same as approved by the City. 7. Maintenance by Owner. Owner shall maintain and repair, at its sole cost and expense, all improvements within the Licensed Area, except street lights, traffic signs and public utilities, in a safe manner consistent with approved plans, permits and to the reasonable satisfaction of the City. In the event that Owner fails to maintain Owner's improvements in a safe manner which results in an immediate hazard to the public health, safety, or welfare, City shall have the right after 24 hours notice to Owner to immediately repair, or cause to be repaired, any such hazard, and Owner shall pay to City on demand all costs and expense of such repair. The foregoing statement relating to hazards to health and safety shall be deemed to include either temporary or permanent repairs which may be required as determined in the sole discretion and judgment of City. Provided that City, Dublin San Ramon Service District or a utility company has given Owner written notice 10 days prior to commencing its work, makes a reasonable effort to limit activities to non business hours and provided further that City, Dublin San Ramon Service District or a utility company takes all reasonable and necessary precautions to protect Owners improvements from damage during maintenance or repair, Owner will be responsible, at its own cost, to replace or repair any decorative pavement or 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. City will maintain at its sole cost all traffic signs and streetlights and the utility companies will maintain at their cost all of their improvements. 8. Property Taxes. Owner shall be solely responsible for any possessory interest taxes that may be imposed as a result of, or related to, this License. 9. Acknowledgment of Title. It is understood and agreed that City, by the acceptance of the License and by the use or occupancy of said Licensed Areas, has not acquired and shall not acquire hereafter any property rights or interest in or to said Licensed Areas through this License, and that City may use the Licensed Areas only as herein provided. Owner shall retain the right to sell the Licensed Area so long as the Licensed Areas remain subject to the terms of this Agreement. 10. Successors In Interest. In the event that Owner transfers part or all of the Licensed Areas to any successor in interest, all of the rights, duties and responsibilities contained herein shall likewise be transferred to said successor. In the event that Owner transfers the License and maintenance obligations contained herein to any Community Association or other entity created to govern the operation of the Licensed Areas (hereafter "Community Association") and the surrounding property, and prior to such transfer becoming effective, Owner shall furnish City with evidence that the recorded Declaration of Covenants, Conditions and Restrictions (or associated documents such as a Declaration of Annexation) include provisions requiring the Community Association created by said Declaration to abide by the obligations of this Agreement, that the costs of any maintenance, repair and construction required herein shall be paid by the imposition of an assessment on any property subject to the Declaration. The Declaration shall further provide that all the provisions described hereinabove may not be amended without prior written approval of the City. Until the Declaration becomes effective, Owner shall be responsible for ensuring compliance with the terms of this Agreement. 11. Notice. Any demand or notice which either party shall be required, or may desire to make upon or give to the other shall be in writing and shall be delivered personally upon the other or be sent by prepaid certified mail to the respective parties as follows: OWNER: James Tong and Mei Fong Tong 4690 Chabot Drive, Suite 100 Pleasanton, CA 94588 CITY: City Manager City of Dublin P.O. Box 520 Dublin, CA 94588 Either party may, from time to time, designate any other address for this purpose by written notice to the other party, given with 10 business day notice. 3 12. Entire Agreement: Amendment. This Agreement constitutes the entire Agreement and understanding between the parties. Any amendment to this Agreement must be in writing and executed by both parties. 13. Severability. If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extents permitted by law. 14. 15 Governing Law. This Agreement shall be governed by the laws of the State of California. Recordation. The City shall record a copy of this Agreement against the Property within ten (10) days following execution by all parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates appearing below their respective authorized signatures. OWNER: James on a Mei Fong Tong, husban an _ i~e, as community property By: J Date: ~ I I ~'- Date: ~ (~- ~.,,~ ~ By: ~ ei Fon To g 1205076.1 CITY: City of Dublin By: Joni Pattillo City Manager, City of Dublin Date: ATTEST: Caroline Soto, City Clerk APPROVED AS TO FORM John D. Bakker, City Attorney1205076.3 G:\DEVELOPMENT, PRIVATE1Dublin Ranch\The Promenade, PM-9717\License Agreement.DOC 4