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Home My WebLink AboutReso 134-13 Dublin Transit Ctr Long Term Encroach RESOLUTION NO. 134 - 13 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN . . . . . . . . . APPROVING AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 7929, DUBLIN TRANSIT CENTER, SITE C WHEREAS, a Vesting Tentative Map for Tract 7929 and Site Development Review for Avalon Bay Communities, Site C, Dublin Transit Center was approved by Planning Commission Resolution No. 11-09 on March 22, 2011, 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 7929, Dublin Transit Station Site C, 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 20th day of August, 2013 by the following vote: AYES: Councilmembers Biddle, Gupta, Hart, Haubert, and Mayor Sbranti NOES: None ABSENT: None ABSTAIN: None ATTE Mayor fiCt City Clerk Reso No. 134-13,Adopted 8-20-13, Item 4.2 Page 1 of 1 AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 7929, AVALON TRANSIT CENTER SITE C2 THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 7929 ("Agreement")is made between the City of Dublin("City") and Avalon Dublin Station H,L.P,A Delaware Limited Partnership("Owner"). 1. Property: The subject property is Tract 7929 as filed in Book of Maps at Pages ,in the Official Records of the County of Alameda,State of California. 2. Developer:, Developer is the Owner of Tract 7929, AvalonBay Dublin Station Tract 7929 Site C2, ("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 with Tract 7929;Iron Horse Parkway and DeMarcus Boulevard (collectively,the"Landscape Features"). Construction details for these Landscape Features are shown on the Landscape Plans for Tract 7929,Avalon Dublin Station Site C,prepared by The Guzzardo Partnership,Inc., approved by the City, and AvalonBay Dublin Station, TM 7929 Lots 2, 3 and 4, Site C2 Improvement Plans, prepared by BKF Engineers, 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 sidewalk,plantings,irrigation,etc. 6. Operations and Maintenance: Owners shall maintain and repair all the Landscape improvements,including all frontage 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 1 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 Set-vice 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 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 patty, 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 7929 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 • 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 Avalon Dublin Station I1, L.P.,A Delaware Limited Partnership and all 2 successors and assigns Avalon Dublin Station II,L.P.,A Delaware Limited Partnership. 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: Avalon Dublin Station II, L.P., A Delaware Limited Partnership 400 Race Street, Suite 200 San Jose, CA 95126 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 he 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 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. 3 Dated this day of ,2013. CITY: THE CITY OF DUBLIN, a municipal corporation By: City Manager OWNER: Avalon Dublin Station II,L.P., A Delaware Limited Partnership By: Name: Title: 1509818.1 4 OdD seco-to-ova �t0�l� V4YN0lf7YJ /1N(� vaBrc'TV Nf SnQ !3 llq VG xnma� imam @ 361Hd NOLLVlS MIBflQ n 'OM flS W3 AVBNOIVAV ,Z _! Si " —=- ala� I — I- : ,s __ __ , , /- i mp 3 �E p a t,� J \ 6 ei -� y t� "I �y._L /t I_ - � .- -r7�j -, = ft, 11, �1 , . yv ��, /r ,/i �, FtiAE - ' ---171{1 ' l rt 1 \ / / f } ti 3- -r� ! , 'goy L rTL1 9 ii( � y�� C \ 1:114 o / k.,k yg C roe 1 ___$ f it -1 -� �iC�'L� °jr��r '/y\f 3J�f�4 xa \ \�� Itl ' ,I fr ),....1*.,L„,-,;,.---L.J.,.- 11 Nrr'''')/4:::"<lt;rk*,..)) ,,,,-: \. \ \■\ r, CD I_� y9 F_ .rN " ,,, ii ."welt!". 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