HomeMy WebLinkAboutReso 35-13 Fallon Vlg Long Term Encroach RESOLUTION NO. 35 - 13
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AGREEMENT FOR LONG TERM ENCROACHMENT
FOR LANDSCAPE FEATURES WITH TRACT 8109,
NEIGHBORHOOD E-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 8, 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 8109, Neighborhood E-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 19th day of March, 2013, by the following vote:
AYES: Councilmembers Gupta, Hart, Haubert, and Mayor Pro Tem Biddle
NOES: None
ABSENT: Mayor Sbranti
ABSTAIN: None /7
Mayor Pro Tem Biddle
ATTES •
City Clerk
Reso No. 35-13,Adopted 3-19-13, Item 4.6 Page 1 of 1
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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 8109,
FALLON VILLAGE/POSITANO —NEIGHBORHOOD E-2 ,
THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE
FEATURES WITHIN TRACT 8109("Agreement")is made between the City of Dublin ("City")
and KB Home South Bay,Inc. ("Owner").
1. Property: The subject property is Tract 8109 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 8109,Fallon Village/Positano
Neighborhood E-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 8109: South Terracina Drive,Tramonti Drive,
Travertino Street, Vasari Street, and Volterra Drive(collectively, the"Landscape
Features"). Construction details for these Landscape Features are shown on the
"The Heights at Positano Production Landscaping," prepared by HWA
Landscape Architects, dated ,2013, with
modifications as necessary for City approval. 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.
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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 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 Features and the rights appurtenant thereto as set
forth in this Agreement shall exist in perpetuity, and are appurtenant to the
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 8109 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 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 KB Home South Bay, Inc., and all successors and assigns, including but
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not limited to the Tract 8109 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
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Fax No. (925) 833-6651
Attn: City Manager
Owner: KB Home South Bay, Inc.
5000 Executive Parkway, Suite 125
San Ramon, CA 94583
(925)-983-4500
Attn. Forward Planning
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
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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
be amended or modified except by a written agreement, executed by each of the
parties hereto.
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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 , 2013.
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CITY:
THE CITY OP DUBLIN,
a municipal corporation
By:
Joni Pattillo
City Manager
OWNERS:
KB Home Sout ty, Inc.
By' - -- - — -___ —_
Ray Panek
Authorized Representative
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California
County of Contra Costa
On March 1, 2013 before me, Sara L. Robbins, Notary
Public, personally appeared Ray Panek who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s)
is/ace 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 seal. -<. AL..ROastns
�..._. _1 Commiss}o &2002128
�j'ri-` Notary Public • California
v1'ajg Conire Costa County
�"" M Comm.Ex Res Jan 22.2017
Sara L. Robbins