Loading...
HomeMy WebLinkAboutReso 66-12 Positano Fallon Vlg Tr 8096 RESOLUTION NO. 66 - 12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8096, NEIGHBORHOOD D-2 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 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 8096, Neighborhood D-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 5th day of June, 2012, by the following vote: AYES: Councilmembers Biddle, Hart, Hildenbrand, Swalwell, and Mayor Sbranti NOES: None ABSENT: None ABSTAIN: None /\f ATT�T: Mayor��,, City Clerk Reso No. 66-12,Adopted 6-5-12, 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 8096, FALLON VILLAGE/POSITANO—NEIGHBORHOOD D-2 THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITHIN TRACT 8096("Agreement")is made between the City of Dublin("City") and K. Hovnanian at Positano LLC,a California Limited Liability Company("Owner"). 1. Property: The subject property is Tract 8096 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 8096,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 8096: 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 Calarosa at Positano,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 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 r 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 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 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 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 j Property. 11. Right to Assign: 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 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 Assigns: 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 K. Hovnanian at Positano LLC, a California Limited Liability Company and all successorsand assigns K. Hovnanian at Positano 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 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 Owner: Mike Kelterbom Director of Construction Services 1375 Exposition Boulevard,#300 K. Hovnanian Homes,Inc. i 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 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 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 Agreement. This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and cannot 3 be amended or modified except by a written agreement,executed by each of the 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 By: Joni Pattillo City Manager OWNERS: K.Hovnanian at Positano LLC, a California Limited Liability Company �7 � 1j By: krJG Mike Kelterbom Authorized Representative 1 4 • • CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California MA�4 ) County of��lf�A ) On 1141110 before me, 64-11k) r� nE ,v ie C � ,Notary Public, personally appeared, Mie e, g-Tv� Aji l� dent -ret-Cra) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),or the entity upon behalf of which the person(s)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 sal. CORM C.ELVICK a� = Comm.41972924 Notary Public•Califon i a ^ , �1 Sacramento County� : Comm.Expires Mar 23.2016 Si ,sid W Notary Public Signature (Notary Public Seal) • OPTIONAL INFORMATION THIS OPTIONAL INFORMATION SECTION IS NOT REQUIRED BY LAW BUT MAY BE BENEFICIAL TO PERSONS RELYING ON THIS NOTARrmD DOCUMENT Title or Type of Document i/i1 i ./ �._ inst. Of ' / ritouir Date of Document Number of Pages Signers(s)Other Than Named Above To order supplies contact the Academy of Notaries Public at www.AcademvofNotariesPublic.com or call(916)722-1633 . A 0 ! HI i® l H IG ir z O ID w _... ` Ii ar 0 I ! . 0 I Si o 0 Si '`0 A u u x gg _ 0111 Ii 0 iLL _ a x R A I 1.---i am . VALENTANO DRIVE VALENTAND _, DRIVE (00;' ®©C / �- BNANDINI DRIVE © a a: