HomeMy WebLinkAboutReso 191-11 Long Term Encroach Tr 8082
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RESOLUTION NO. 191 - 11
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROVING AGREEMENT FOR LONG TERM ENCROACHMENT
FOR LANDSCAPE FEATURES WITH TRACT 8082,
NEIGHBORHOOD D-2 POSITANOI 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 Approval 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 8082, Neighborhood 0-2, 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 15th day of November, 2011, by the following
vote:
AYES: Councilmembers Biddle, Hart, Hildenbrand, Swalwell, and Mayor Sbranti
NOES: None
ABSENT: None
ABSTAIN: None
L~,
Mayor
ATT~ ~
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City Clerk
Reso No. 191-11, Adopted 11-15-11, Item 4.5
Page 2 of 2
Recording Requested By:
CITY OF DUBLIN
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Wa/vedper GC 27383
AGREEMENT FOR LONG TERM ENCROACHMENT
FOR LANDSCAPE FEATURES WITHIN TRACT 8082,
FALLON VILLAGEI POSITANO - NEIGHBORHOOD D-2
THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE
FEATURES WITHIN TRACT 8082 ("Agreement") is made between the City of Dublin ("City")
and K. Hovnanian at PositanoLLC, a California Limited Liability Company ("Owner").
1.
Property:
Pages
California.
The subject property is Tract 8082 as filed in Book _ of Maps at
, in the Official Records of the County of Alameda, State of
2. Developer: Owner is the owner of Tract 8082, Fallon Village/ Positano
Neighborhood D-2 , ("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 in Tract 8082: Avanti Avenue, Forino Drive, Brandini Drive,
Montiano Court, , and Valentano Drive (collectively, the "Landscape Features").
Construction details for these Landscape Features are shown on the Landscape
Plans for Tract 8082, Fallon Crossings prepared by the MTW Group, approved by
the City. The scope of the improvements covered under-the agreement is shown
on the attached Exhibit A.
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 impfovetnents 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.
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"EXHIBIT. A,;'
To the Resolution
6. Overations and Maintenance: Owners shall maintain and repair all the
Landscape improvements, including all frontage and island landscape plantings,
irrigation, and sidewalks 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 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:
7. Removal or Relocation: Iffuture 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: Owners shall obtain and maintain in effect a combined single limit
policy ofliability 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: 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. Rieht to Assien: Owners may assign any or all rights, interests and obligations
of Owners arising under this -Agreement to the Homeowners' Association for
Tract 8082 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. The City Manager shall
consider and decide on any assignment within ten (10) days after Owner's notice
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. . 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 Assil!Ds: Each reference tothe "City" in this Agreement shall be
deemed to refer to and include the City arid 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, a California Limited Liability Company
and all successorsand assigns K. Hovnanian atPositano LLC, a California>
Limited Liability Company including but not limited to the Tract 8082 Home
Owner's Association. .
13. Notices: Any notices, requests, demands or other communications required or
permitted to be given Under this Agreement shall be in wqting 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 recogn!zed
delivery or courier service) or on the second day after mailing, if mailed to the
party to whom notice is to be given, by frrst:-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: Mike Kelterborn
Vice President, Construction
K. Hovnanian Homes, Inc.
Sacramento, CA 95815
(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 shan 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 provisi~n.
16. Entire Agreement. This' Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof and cannot
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be amended or modified except by a written agreement, execu1ed by eachofthe
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
day of
,2011.
CITY:
THE CITY OF DUBLIN,
a municipal corporation
r
,
By:
loniPattillo
City Manager
OWNERS:
K. Rovnanian at Positano LLC, a California Limited. Liability Company
By:
Mike Kelterborn
. Authorized Representative
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