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HomeMy WebLinkAboutReso 201-11 Positano Tr 8083 Long Term Encroa RESOLUTION NO. 201 - 11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8083, NEIGHBORHOOD D-3 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 8083, Neighborhood 0-3, 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 6th day of December, 2011, by the following vote: AYES: Councilmembers Biddle, Hart, Hildenbrand, Swalwell, and Mayor Sbranti NOES: None ABSENT: None ABSTAIN: None ~~ Mayor AT~T: [ .' ~~ cf~ City Clerk Reso No. 201-11, Adopted 12-6-11, Item '4.2 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 FEATURES WITHIN TRACT 8083, FALLON VILLAGE/ POSIT ANO - NEIGHBORHOOD D-3 THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITHIN TRACT 8083 ("Agreement") is made between the City of Dublin ("City") and D. R. Horton BAY, Inc ("Owner"). 1. Property: The subject property is Tract 8083 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 8083, Fallon Village/ Positano Neighborhood D-3 , ("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 8083: Avanti Avenue, Contrada Court, Fortezza Court, Montese Court, and Palazzo Drive (collectively, the "Landscape Features"). Construction details for these Landscape Features are shown on the Landscape Plans for Tract 8083, Cortona II prepared by Gates and Associates, 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 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. 1 6. Operations 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: 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 sofe 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: OWIiers 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 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 ofthe 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. . Rh!ht to Assign: Owners may assign any or all rights, interests and obligations of Owners arising under this Agreement to the Homeowners' Association for Tract 8083 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- 2 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 Assi2ns: Each reference to the "City" in this Agreement shall be deemed to refer to and include the City and all successors and assigns of City. All references to the "Owner" in this Agreement shall be deemed to refer to and . include D. R. Horton BAY, Inc and all successors and assigns D. R. Horton BAY, .Inc including but not limited to the Tract 8083 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 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 whom 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 Dean K. Mills, Assistant Vice President D. R. Horton BAY, Inc. 6630 Owens Drive Pleasanton, CA 94588 (925)-225-7400 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 Invalidity. If any provision ofthis 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 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 provision. 16. Entire A2reement. This Ag~eement contains the entire agreement and understanding of the parties with respect tothe subject matter hereof and cannot be amended or modified except by a written agreement, executed by each of the parties hereto. 3 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. day of , 2011. Dated this CITY: THE CITY OF DUBLIN, a municipal corporation By: Joni Pattillo City Manager OWNERS: D. R. Horton BAY, Inc By: Dean K. Mills Authorized Representative 4