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Home My WebLink AboutReso 123-10 Positano Long Term Encroach C-1RESOLUTION NO. 123 - 10 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8036, NEIGHBORHOOD C-1 POSITANO/ FALLON VILLAGE WHEREAS, a Vesting Tentative Map for Tract 7586 for Fallon Village was approved by Planning Commission Resolution 05-61 on November 22, 2005, with Conditions of Approval; and WHEREAS, said Conditions of Approvaf required the developer to construct project- related landscape features within the public rights-of-ways; and WHEREAS, said Conditions of Approval required the developer to enter into an "Agreement for Long-Term Encroachment" for the maintenance of the landscape features; and WHEREAS, the developer has executed and filed with the City of Dublin a Tract Improvement Agreement to improve 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 with Tract 8036, Neighborhood C-1, Positano/Fallon Village, 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 17th day of August, 2010, by the following vote: AYES: Councilmembers Biddle, Hart, Hildenbrand, Scholz, and Mayor Sbranti NOES: None ABSENT: None ABSTAIN: None ~ ~ ~ -~'" _. ,v~-.r ~~~~ ~,,~"` ATTEST: Mayor ,2Z ~ ~~ p >~ City Clerk Reso No. 123-10, Adopted 8-17-10, Item 4.10 Page 1 of 1 ~ ~~ ~~ AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITHIN TRACT 8036, NEIGHBORHOOD Gl, POSITANO/ FALLON VILLAGE THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITHIN TRACT 8036 ("Agreement") is made between the City of Dublin ("City") and K. Hovnanian at Positano LLC, a California Limited Liability Company ("Owner"). 1. Pro e : The subject property is Tract 8036 as filed in Book of Maps at Pages , in the Official Records of the County of Alameda, State of California. 2. Developer: Owner is the owner of Tract 8036, Neighborhood C-1 (Livorno), Positano/ Fallon Village, ("Project"). 3.. Landscane Features: Owner, as part of the Project, anticipates the constn~ction of Project related landscape features within the City's rights of ways on the following streets in Tract 8036: Salerno Drive, Revello Way, Cipriani Way, and Amantea Way (collectively, the "Landscape Features"). The specific location and description of these Project related Landscape Features with regard to Tract 8036 are shown on the attached Exhibit A. Construction details for these Landscape Features are shown on the Landscape Plans for Fallon Ranch prepared by Gates and Associates, dated Jnly 2010, approved by the City for Tract 8036.. 4. Encroachment Permit: Owners 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. 5. Ownership: Owners shall own all special Landscape Features, including but not limited to fountains, arches, monuments, etc., as provided in Exhibit A. 6. Onerations and Maintenance• Owners shall maintain and repair all the Landscape Features improvements, including all frontage, median and island landscape plantings, and irrigation, sidewalks and decorative 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. Ovvners will be responsible at its sole cost to replace or repair any Landscape Feature, including decorative pavement, damaged or removed during the maintenance or repair of sewer, water, drainage or utility w~-~~SO~3 I EXHIBIT To ~ the Resolution a3~~ a~~ improvements by the City, Dublin San Ramon Service 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 Service 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 and any other features in the public right of way outside of the areas designated as Landscape Features on Exhibit A. 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 I,andscape Features are relocated, the City and Owners wi11 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: Owners 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 Landscap~ Features improvements and shall name the City as an additional named insured. 9. Indemnification: Owners 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 Feature and the rights appurtenant thereto as set forth in this Agreement shall exist in perpetuity, and are appurtenant to the Property. 11. Ri~ht to Assi~n: Owners may assign any or all rights, interests and obligations of Owners arising under this Agreement to the Homeowners' Association for Fallon Ranch or to a successor in interest of Owners with respect to all or a portion of the Project; provided, however, that no such assignment of Owners' 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. 12. Successors and Assi ns: Each reference to the "City" in this Agreement shall be deemed to refer to and include the City ar~d all successors and assigns of City. All references to the "Owner" in this Agreement shall be deemed to refer to and include K. Hovnanian at Positano, LLC and all successors and assigns of K. Hovnanian at Positano, LLC,I including but not limited to the Fallon Village Owner's Association. 2 wc-115073 - ~ ~ ~ 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 whozn 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: K.Hovnanian at Positano LLC, A California Limited Liability Company 1375 Exposition Bouievard, #300 Sacramento, CA 95815 Attn. Richard Balesteri Phone No. 916-920-0200 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 Invaliditv. 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 ~~ay 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. 16. Entire A~reement. This Agreement contains the entire agreement and understanding of the parties with respect to the subj ect matter hereof and cannot be amended ar modified except by a written agreement, executed by each of the parties hereto. 17. Counternarts. 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. wc-115073 a~~~~~ ~~ Dated this day of , 2010. CITY: Owners: THE CITY OF DUBLIN, a municipai corporation By: _ Name: Title: OWNERS: K. Hovnanian at Positano LLC A Califomia limited liability company By: Tlt1e RICHARD 1. B TRERI draft. doc G: IDEVELOPMENT, PRIP,qTEIFallon Village (EDPO) lLong Term Encroachment AgreementlLong Terrrr Encroachment Agree Tracts 8036 wc-115073 4 FALLON VII.LAGE Dublin Cdif -------~ ~ O ,--. ~ m D~ m ~ m m ~ ~ nmex~ _ E (AREA . ~ ~1,7~s.7F1 anu~ E fME~ . t0.I1WeF1 TIL1C1'8036 LNORNO LONG-7ERM ENCROACHh¢'N'[ [~f-IIBII' ir' ~ ~ I nuqur~seors '""' ~,,.~ - 1 OF 1 v ~ ~ r~ v~