HomeMy WebLinkAbout6.3 First Western Dev Appeal r i ,
CITY OF DUBLIN 1
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: November 14, 1988
SUBJECT: Public Hearing on the Appeal of Planning
Commission Action Denying PA 87-159.2 First
Western Development Parcel Map and Variance,
7450 Amador Valley Boulevard
EXHIBITS ATTACHED: Exhibit A: Parcel Map dated received
November 9, 1988
Exhibit B: Resolution Approving Negative
Declaration for PA 87-159.2
Exhibit C: Resolution Approving Variance for PA
87-159.2
Exhibit D: Resolution Approving Tentative
Parcel Map 5364 PA 87-159.2
Background Attachments:
Attachment 1: Planning Commission Resolution of
Denial
Attachment 2: Letter dated received July 1,
1988
Attachment 3: Location Map
Attachment 4: Letter dated received September
29, 1988
RECOMMENDATIONS: 1) Open public hearing and hear Staff
presentation.
2) Take testimony from Applicant and the
public.
3) Question Staff, Applicant and the public.
f \ 4) Close public hearing and deliberate.
5) Adopt Resolution approving minor subdivision
111 ttl and variance request subject to Conditions
of Approval, or continue the item and give
Staff and the Applicant direction.
DESCRIPTION:
PROJECT: Request to subdivide an existing parcel into two
lots creating one substandard parcel. Variance
request to allow lot with insufficient lot
frontage.
APPLICANT/REPRESENTATIVE: Rick Hess
First Western Development
3470 Mt. Diablo Blvd. , Suite A-150
Lafayette, CA 94549
PROPERTY OWNER: Metropolitan Life Insurance Company
Western Office
Metropolitan Plaza, 6th Floor
101 Lincoln Center Drive
Foster City, CA 94404
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COPIES TO: Applicant
Owner
ITEM NO. C(J r File PA 87-159.2
LOCATION: 7450 Amador Valley Boulevard
Dublin, CA 94568
ASSESSOR PARCEL NUMBER: 941-305-8
PARCEL SIZE: Existing - 7+ acres
Proposed: Parcel A - 5.91+ acres
Parcel B - 1.09 acres
GENERAL PLAN
DESIGNATION: Retail/Office
EXISTING ZONING
AND LAND USE: C-1 Retail Business District
Commercial Retail Development (Circuit
City/T. J. Maxx and Oshman's)
DOWNTOWN SPECIFIC PLAN
DESIGNATION: The site is located within Development Zone 8,
Restaurant and Specialty Retail.
BACKGROUND:
The City Council continued this item from the October 10, 1988 City Council
Meeting at the request of the Applicant.
In October, 1987, the Planning Commission denied the Applicant's previous
subdivision request to create two parcels including one landlocked parcel and
denied without prejudice the Site Development Review for construction of a
10,000 sq. ft. commercial building (PA 87-096) . This action allowed the
Applicant to apply for a substantially different subdivision and apply for a
Site Development Review within a one year period. The Applicant subsequently
applied for a new Site Development Review, a subdivision to create two parcels
including 1.09+ acre flag lot and a Variance for substandard effective lot
frontage on the flag lot.
Staff provided the Applicant with a list of comments and corrections on the
project in March, 1988. At that time Staff informed the Applicant that Staff
would have difficulty recommending approval of the Subdivision and Variance
request as proposed, but would likely recommend approval of the Site
Development Review provided the corrections were incorporated into the revised
plans.
In April, 1988 the Applicant requested Staff to process the Site Development
Review application separately from the parcel map and Variance request.
On June 27, 1988, the Planning Director approved the Applicant's Site
Development Review request to construct a 10,000 sq. ft. commercial retail
building on the existing parcel currently developed with Circuit City, TJ Maxx
and Oshmans.
On September 6, 1988, the Planning Commission held a Public Hearing and denied
the Applicant's Subdivision request and Variance request.
On September 15, 1988, the Applicant appealed the Planning Commission action.
ANALYSIS:
The Applicant is requesting approval of a minor subdivision and Variance to
create two parcels of land from one existing 7+ acre parcel.
Parcel A would consist of 5.91+ acres, currently developed with the 57,680
square foot Circuit City/TJ Maxx building and the 12,000+ square foot Oshman's.
Sporting Goods building and approximately 287 parking spaces. Parcel A would
have approximately 690+ foot frontage on Amador Plaza Road and a 391+ foot
frontage along Amador Valley Boulevard and 170+ foot frontage adjacent to the
flood control channel.
Parcel B would consist of a 1.09+ acre flag lot within the existing eastern
parking lot area between the Circuit City/TJ Maxx building and the Oshmans
building located on Parcel A. This area, although currently supporting
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parking and drive aisles, will eventually be developed with the 10,000 sq. ft.
retail commercial building and approximately 51 parking spaces previously
approved (PA 87-159.1) . Approval of the Applicant's proposed subdivision
would result in the creation of a parcel (Parcel B) with substandard effective
lot frontage necessitating approval of a variance.
The City' s Zoning Ordinance requires the effective lot frontage of all new
building sites to equal one-half (1/2) of the median lot width, either actual
or required, whichever is greater.
The median lot width for the proposed Parcel B is 150 feet. A 75 foot wide
effective lot frontage is required. The Applicant proposes a 25 foot wide
effective lot frontage.
The subdivision ordinance establishes provisions for granting variances from
the effective lot frontage requirements, if warranted by 1) topographic
limitations or soil or geological conditions, 2) the opportunity for more
effective and desirable land utilization, or 3) the showing that under the
particular circumstances an alternate standard would meet or surpass the
intent of the requirement (see Attachment 2 for Applicant's position on
granting Variance request) .
Major concerns associated with the Applicant's subdivision and variance
proposal are:
1. Future Development - Approval of a parcel with substandard effective
lot frontage may adversely affect future 'development on the site, in that each
separate property owner would not have the same interest or control over the
adjacent development. In a worst case situation, having a substandard
effective lot frontage without proprietary interest in development of the
entire site could result in surrounding development effectively blocking
visability on the flag lot development from the adjacent streets.
2. Easements - Obtaining cross access easements within the Downtown has
proven to be a lengthy and cumbersome process for the City, property owners
and tenants involved. Compliance with the effective lot frontage requirement
reduces the need for cross access easements.
3. Signage - The City's sign ordinance allows one freestanding sign per
parcel with the exception of large parcels four acres or greater located
adjacent to I-580 or I-680, or the Flood Control Channel, in which case a
second freestanding sign may be permitted subject to approval of a Conditional
Use Permit. The existing site currently has one freestanding sign and is
entitled to apply for a second freestanding sign. Under the Applicant's
proposal it would be possible for the site to contain three freestanding
signs.
The Applicant' s attorney suggests that the issues of future development,
easements and signage identified by Staff can be addressed through the
Conditions of Approval for the project and through proposed Declaration of
Encumbrances to be recorded for the property. The Applicant has indicated
that the T J Maxx lease requires maintenance of the common area parking lot
for parking purposes with the exception of a maximum 10,000+ square foot
building (the proposed First Western Development building) and a maximum
3,000+ square foot building. From a City Planning and Zoning perspective,
deed restrictions and lease agreements are difficult to monitor and enforce as
the City is not a part of the agreements between property owners. Agreements
can be entered into, broken or modified without the City's knowledge or
approval.
The Applicant's attorney proposed language for Conditions of Approval in
response to Staff's three primary concerns (see Attachment 4) . The City
Attorney's office has reviewed the information submitted by the Applicant's
attorney and indicates that the proposed Declaration of Encumbrances does not
give the City land use controls equivalent to a Planned Development zoning
district. Without a PD zoning district a Site Development Review would be the
planning mechanism for review of any new development on the site. The City's
ability to impose regulations on future development is more limited under the
Site Development Review process than with a PD Rezoning. Additionally, the
City Attorney's office indicates approval of the Variance could be conditioned
to require approval of a Planned Development rezoning request for Parcel A and
B.
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The restrictions and limitations necessary to insure proprietary interest
present under a single ownership can be accomplished through approval and
establishment of a Planned Development. Development standards would be
established through the regulations of the Planned Development, maintenance of
the common areas would be regulated through both Conditions of Approval and
Declaration of Encumbrances subject to review and approval of the City
Attorney and Planning Director. '
Staff recommends the City Council approve the Subdivision and Variance request
including a condition requiring the Applicant/Property Owner to submit a
request for Planned Development rezoning of Parcel A and B.
-4-
RESOLUTION NO. - 88
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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ADOPTING THE NEGATIVE DECLARATION FOR PA 87-159.2 FIRST WESTERN DEVELOPMENT
MINOR SUBDIVISION, TENTATIVE PARCEL MAP 5364 AND VARIANCE REQUEST
WHEREAS, First Western Development submitted an application for a
Minor Subdivision request to subdivide an existing 7.002 acre site into two
separate sites (Parcel A containing 5.908 acres and Parcel B containing 1.094
acres) and a Variance request to allow a substandard parcel (Parcel B) ; and
WHEREAS, the California Environmental Quality Act (CEQA) , together
with the State guidelines and City environmental regulations, require that
certain projects be reviewed for environmental impact and that environmental
documents be prepared; and
WHEREAS, an Initial Study was conducted finding that the project,
as proposed, would not have a significant effect on the environment; and
WHEREAS, a Negative Declaration has been prepared for this
application; and
WHEREAS, the City Council reviewed and considered the Negative
Declaration at a public hearing on November 14, 1988; and
WHEREAS, notice of said Public Hearing was provided in all respects
as required by State Law.
NOW, THEREFORE, BE IT RESOLVED THAT THE Dublin Planning Commission
does hereby find:
1. That the project will not have a significant effect on the
environment.
2. That the Negative Declaration has been prepared and processed in
accordance with State and local environmental laws and guideline regulations.
3. That the Negative Declaration is complete and adequate.
BE IT FURTHER RESOLVED THAT THE Dublin City Council does hereby
adopt the Negative Declaration for PA 87-159.2 First Western Development Minor
Subdivision, Tentative Parcel Map 5364, and Variance request.
PASSED, APPROVED AND ADOPTED this 14th day of November, 1988.
AYES:
NOES:
ABSENT:
Mayor
ATTEST:
City Clerk
t
19 A_fA"L I r4 7 T—ne.-cr t.1PGTYIPiL1
RESOLUTION NO. - 88
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROVING PA 87-159.2 FIRST WESTERN DEVELOPMENT VARIANCE REQUEST TO ALLOW A
SUBSTANDARD PARCEL WITH INSUFFICIENT EFFECTIVE LOT FRONTAGE AT 7450 AMADOR
VALLEY BOULEVARD SUBJECT TO CONDITIONS OF APPROVAL
WHEREAS, First Western Development filed an application for a
Minor Subdivision request to subdivide an existing 7.002 acre site into two
separate sites (Parcel A containing 5.908 acres and Parcel B containing 1.094
acres) and a Variance request to allow a substandard parcel (Parcel B) ; and
WHEREAS, this application has been reviewed in accordance with the
provisions of the California Environmental Quality Act (CEQA) and a Negative
Declaration of Environmental Significance has been prepared for this project as
it will not have a significant effect on the environment.
WHEREAS, the Planning Commission held a public hearing on said
application on August 15, 1988 and September 6, 1988; and
WHEREAS, proper notice of said public hearing was given in all
respects as required by law; and
WHEREAS, the Planning Commission did hear and consider all reports,
recommendations and testimony hereinabove set forth; and
WHEREAS, on September 6, 1988, the Planning Commission denied PA
87-159.2 First Wedstern Development Minor Subdivision and Variance request; and
WHEREAS, on September 15, 1988, the Applicant appealed the Planning
Commission action; and
WHEREAS, the City Council held a public hearing on said appeal on
October 10, 1988 and November 14, 1988; and
WHEREAS, proper notice of said hearing was given in all respects as
required by law; and
WHEREAS, a Staff Report was submitted recommending that PA 87-159.2
First Westsern Development Subdivision and Variance be approved subject to
conditions of approval; and
WHEREAS, the City Council did hear and consider all reports,
recommendations and testimony as hereinabove set forth.
NOW, THEREFORE, BE IT RESOLVED THAT THE Dublin City Council does
hereby find that:
1. The granting of this Variance for PA 87-159.2 as conditioned
is consistent with the intent of the applicable subdivision regulations and
City Zoning Ordinance.
2. Granting this -Variance from effective lot frontage subject to
the Conditions of Approval provides an opportunity for a more effective or
desirable land utilization as the Condition of Approval requiring approval of a
Planned Development rezoning would eliminate or minimize the problems which
could arise with future expansion of development on the site, obtaining access
easements, location and placement of freestanding signage.
3. There are particular circumstances in which the granting of
the Variance would meet or exceed the intent of the effective lot frontage
requirement, as the regulations to be established in the required Planned
Development will meet the intent of the effective lot frontage by including
general provisions relating to future development, access and signage.
x(40, 7- IS1.. 9 hrz<-rWe n
BE IT FURTHER RESOLVED THAT THE City Council does hereby approve
PA 87-159.2 First Western Development Variance request for substandard
effective lot frontage on Parcel B as generally depicted on Exhibit A on file
with the Dublin Planning Department and subject to the Conditions of Approval
established in Resolution No. , PA 87-159.2 Tentative Parcel Map 5364 and
subject to the following Conditions of Approval:
- 1. Prior to approval of the Final Map, the Applicant/Property
Owner shall submit a complete application requesting a Planned Development
rezoning for Parcel A and Parcel B of Tentative Parcel Map 5364 as one
comprehensive Planned Development Zoning District. Said request shall be
irrevocable. Any new restaurant, enlargement to existing or approved
buildings, or other new land use entitlement shall be either 1) included in the
PD application or 2) subject to a new PD application covering both Parcels A
and Parcel B of Tentative Parcel Map 5364.
2. The Applicant shall comply with all applicable building, fire
and zoning regulations.
3. At any time during the effectiveness of this approval, the
approval shall be revocable for cause in accordance with Section 8-90.3 of the
Dublin Zoning Ordinance.
PASSED, APPROVED AND ADOPTED this 14th day of November, 1988.
AYES:
NOES:
ABSENT:
Mayor
ATTEST:
City Clerk
-2-
RESOLUTION NO. - 88
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROVING PA 87-159.2 FIRST WESTERN DEVELOPMENT
TENTATIVE PARCEL MAP 5364
WHEREAS, First Western Development filed an application for a
Minor Subdivision request to subdivide an existing 7.002 acre site into two
separate sites (Parcel A containing 5.908 acres and Parcel B containing 1.094
acres) and a Variance request to allow a substandard parcel (Parcel B) ; and
WHEREAS, the State of California Subdivision Map Act and the
adopted City of Dublin Subdivision Regulations require that no real property
may be divided into two or more parcels for the purposes of sale, lease or
financing unless a Tentative Parcel Map is acted upon and a Final Parcel Map is
approved consistent with the Subdivision Map Act, and City of Dublin
Subdivision Regulations; and
WHEREAS, this application has been reviewed in accordance with the
provisions of the California Environmental Quality Act (CEQA) and a Negative
Declaration of Environmental Significance has been prepared for this project as
it will not have a significant effect on .'the environment; and
WHEREAS, the Planning Commission held a public hearing on said
application on August 15, 1988 and September 6, 1988; and
WHEREAS, proper notice of said public hearing was given in all
respects as required by law; and
WHEREAS, the Planning Commission did hear and consider all reports,
recommendations and testimony hereinabove set forth; and
WHEREAS, on September 6, 1988, the Planning Commission denied PA
87-159.2 First Western Development Minor Subdivision and Variance request; and
WHEREAS, on September 15, 1988, the Applicant appealed the Planning
Commission action; and
WHEREAS, the City Council held a public hearing on said appeal on
October 10, 1988 and November 14, 1988; and
WHEREAS, proper notice of said hearing was given in all respects as
required by law; and
WHEREAS, a Staff Report was submitted recommending that PA 87-159.2
First Westsern Development Subdivision and Variance be approved subject to
conditions of approval; and
WHEREAS, the City Council did hear and consider all reports,
recommendations and testimony as hereinabove set forth.
NOW, THEREFORE, BE IT RESOLVED THAT THE Dublin City Council does
hereby find that:
1. PA 87-159.2 Tentative Parcel Map 5364 is consistent with the
intent of applicable subdivisidn regulations and City Zoning and related
Ordinances.
2. The proposed Tentative Parcel Map is consistent with the
City's General Plan and Zoning Ordinance.
3. The Tentative Parcel Map will not have a significant
environmental impact.
4. The Tentative Parcel Map will not have substantial adverse
effects on health or safety, or be substantially detrimental to the public
welfare, or be injurious to property or public improvements.
(H `1517-2 fifr
5. The site is physically suitable for the proposed development,
in that a soils investigation report ios required to include recommendations to
insure site will be suitable for residential development.
6. The site is physically suitable for the proposed density of
development in that the design and improvements are consistent with those of
similar existing developments which have proven to be satisfactory. -
7. This project will not cause serious public health problems in
that all necessary utilities are, or will be, required to be available and
Zoning and Building control the type of development and the operation of the
uses to prevent health problems after development.
BE IT FURTHER RESOLVED THAT THE City Council does hereby approve
PA 87-159.2 First Western Development Tentative Map 5364, subject to the
Conditions of Approval established in Resolution No. 87-159.2 Variance request
and subject to the following conditions:
Unless otherwise specified, the following conditions shall be complied with
prior to the recordation of the Final Map. Each item is subject to review and
approval by the Planning Department unless otherwise specified.
1. The design and improvements of Tentative Parcel Map 5364 shall be in
conformance with the design and improvements indicated on the map labeled
Exhibit "A" prepared by Altamont Land Surveyors, Inc. dated received
November 9, 1988, on file with the Dublin Planning Department.
2. Prior to approval of the Final Map, the Applicant/Property Owner shall
submit a complete application requesting a Planned Development Rezoning
for Parcel A and Parcel B of Tentative Parcel Map 5364 as one
comprehensive Planned Development Zoning District. Said request shall be
irrevocable. Any new restaurant, enlargement to existing or approved
buildings, or other new land use entitlement shall be either 1) included
in the PD application or 2) subject to a new PD application covering both
Parcel A and Parcel B of Tentative Parcel Map 5364.
3. Prior to approval of the Final Map, a soils investigation report shall be
prepared, including recommendations to make the building pads suitable
for future development.
4. Prior to issuance of building permits, the recommendations outlined in
the soils investigation report shall be completed under the constant
inspection of the soils engineer and are certified by the soils engineer
as suitable for foundations.
5. An encroachment permit shall be obtained for any driveways for the lot.
6. Address numbers for all development shall be visible from the street per
DSRSD Fire Department requirement.
7. The Applicant shall provide DSRSD with plans showing the water and sewer
services to the lots.
8. If, during construction, archaeological remains are encountered,
construction in the vicinity shall be halted, an archaeologist consulted,
and the City Planning Department notified. If, in the opinion of the
archaeologist, the remains are significant, measures, as may be required
by the Plananing Director, shall be taken to protect them.
9. Each lot shall be so graded as not to drain on any other lot or adjoining
property prior to being Ilicked up by an approved drainage system.
10. Roof drains shall empty onto paved areas, concrete swales, or other
approved dissipating devices.
11. Under-sidewalk drains shall be provided to allow on-site drainage to be
tied in, and/or a storm drain system shall be provided for this purpose.
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DEBRIS
12. Measures shall be taken to contain all trash, construction debris, and
materials on-site until disposal off-site can be arranged. The
subdivider shall be responsible for corrective measures at no expense to
the City of Dublin.
DEDICATIONS AND PUBLIC IMPROVEMENTS
13. Any relocation of improvements or public facilities shall be accomplished
at no expense to the City.
14. All improvement plans shall be prepared by a civil engineer registered in
the State of California.
DUST
15. Areas undergoing grading, and all other construction activities, shall be
watered, or other dust-pallative measures used to prevent dust, as
conditions warrant.
16. Dust control measures, as approved by the City Engineer, shall be
followed at all times during grading and construction operations.
EASEMENTS
17. Existing and proposed access and utility easements shall be submitted for
review and approval by the City Engineer prior to Final Map approval.
These easements shall allow for practical vehicular and utility service
access for all areas.
18. All existing easements shall be shown on the Final Map unless evidence is
furnished to the City showing that all parties having a right, title, or
interest in a specific easement agree to its abandonment.
GRADING
19. The developer shall keep adjoining public streets free and clean of
project dirt, mud, materials, and debris during the construction period,
as is found necessary by the City Engineer.
20. All improvements within the public right-of-way, including curb gutter,
sidewalks, driveways, paving, and utilities, must be constructed in
accordance with approved standards and/or plans.
MISCELLANEOUS
21. Copies of the Final Map and improvement plans, indicating all lots,
streets, and drainage facilities within the subdivision shall be
submitted at 1" = 400 feet scale and 1" = 200 feet scale for City mapping
purposes, one mylar copy and one blackline copy of the Final Map shall be
delivered to the City after the map has been recorded. Three copies of
the signed improvement plans shall be delivered to the City for
inspection purposes. One reproducible and one blackline print of the
improvement plans shall be delivered after "as-built" conditions have
been incorporated.
22. The subdivider/developer shall be responsible for controlling any rodent,
mosquito, or other pest problem due to construction activities.
23. Comply with all zoning provisions, including Zoning Ordinance and
rezoning Conditions of Approval.
UTILITIES
24. Electrical, gas, telephone, and Cable TV services shall be provided
underground to each lot in accordance with the City policies and existing
ordinances. All utilities shall be located and provided within public
utility easements, sized to meet utility company standards.
-3-
25. Prior to the filing of the Final Map, the subdivider shall furnish the
City Engineer with a letter from Dublin San Ramon Services District
stating that the District has agreed to furnish water and sewer service
to the subdivision.
WATER
26. Water facilities must be connected to the DSRSD system, and must be
installed at the expense of the developer, in accordance with District
standards and specifications. All material and workmanship for water
mains, and appurtenances thereto, must conform with all of the
requirements of the officially adopted Water Code of the District and
will be subject to field inspection by the District.
27. Zone 7 is responsible for enforcement of the Groundwater Protection
Ordinance. Known water wells without a documented intent of future use,
filed with Zone 7, are to be destroyed prior to any demolition or
construction activity in accordance with a well destruction permit
obtained from Zone 7. Other wells encountered prior to or during
construction are to be treated similarly.
PASSED, APPROVED AND ADOPTED this 14th day of November, 1988.
AYES:
NOES:
ABSENT:
Mayor
ATTEST:
City Clerk
-4-
RESOLUTION NO. 88 - 051
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
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1) DENYING PA 87-159.2 FIRST WESTERN DEVELOPMENT MINOR SUBDIVISION REQUEST TO
SUBDIVIDE AN EXISTING 7.002 ACRE SITE INTO TWO SEPARATE SITES (PARCEL A
CONTAINING 5.908 ACRES AND PARCEL B CONTAINING 1.094 ACRES) AT 7450 AMADOR
VALLEY BOULEVARD;
AND
2) DENYING PA 87-159.2 FIRST WESTERN DEVELOPMENT VARIANCE REQUEST TO ALLOW A
SUBSTANDARD PARCEL WITH INSUFFICIENT EFFECTIVE LOT FRONTAGE AT 7450 AMADOR
VALLEY BOULEVARD
WHEREAS, First Western Development filed an application for a
Minor Subdivision request to subdivide an existing 7.002 acre site into two
separate sites (Parcel A containing 5.908 acres and Parcel B containing 1.094
acres) and a Variance request to allow a substandard parcel (Parcel B) ; and
WHEREAS, the provisions of the California Environmental Quality Act
need not be fulfilled as Staff is recommending denial of the Subdivision
request and denial without prejudice of the Variance request; and
WHEREAS, the Planning Commission held a public hearing on said
application on August 15, 1988 and September 6, 1988; and
WHEREAS, proper notice of said public hearing was given in all
respects as required by law; and
WHEREAS, a Staff Report was submitted recommending that the
Subdivision request be denied and the Variance request be denied without
prejudice; and
WHEREAS, the Planning Commission did hear and consider all said
reports, recommendations and testimony as hereianbove set forth;
NOW, THEREFORE, BE IT RESOLVED THAT THE Dublin Planning Commission
does hereby find that PA 87-159.2 First Western Development Minor Subdivision
and Variance request is inconsistent with the intent of the applicable
Subdivision regulations and City Zoning Ordinance in that:
1. The subdivision would result in a parcel that would not have
the required effective lot frontage as defined in Section 8-60.13 of the Dublin
Zoning Ordinance;
2. There are no topographic limitations or soil or geological
conditions which would warrant granting a Variance from the effective lot
frontage requirements as the lot is a relatively flat site.
3. Granting of a Variance from effective lot frontage does not
provide an opportunity for a more effective or desirable land utilization as
development of the existing site "is possible without subdivision of the site
into separate parcels. From' a planning perspective, it is more desirable and
effective for the site to deve�op as one parcel, functioning as a single retail
center under one ownershp or proprietary interest. Development of the site
under one parcel would eliminate or minimize the problems which could arise
with future expansion of development on the site, obtaining access easements,
location and placement of freestanding signage.
4. There are no particular circumstances in which the granting
of the Variance would meet or exceed the intent of the effective lot frontage
requirement. The primary intent of the effective lot frontage requirement is
to provide adequate street frontage for pacels, thereby enhancing visability
from adjacent streets and promoting uniformity and compatibility of lot sizes
and development within a zoning district.
87-159.2 First Western
Planning Commission
����11� Resolution of Denial
t`� :.a �V y � i1 ii'i r 1u�11
BE IT FURTHER RESOLVED THAT THE Planning Commission does hereby
deny PA 87-159.2 First Western Development minor Subdivision and Variance
request for substandard effective lot frontage on Parcel B.
PASSED, APPROVED AND ADOPTED this 6th day of September, 1988.
AYES: Commissioners Barnes, Mack, and Zika
NOES: Commissioner Burnham
ABSENT: Commissioner Tempel
Planning Commission Chairperson
ATTEST:
*Planning Direct r
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GEOFFREY J. ETNIRE 6140 STONERIDGE MALL ROAD, SUITE 500
EDWARD W. POLSO//
PLEASAINTOZ`, CALIFORNIA 94566-8097
G. JUDSON SCOTT, JR.
JAMES J. PHILLIPS TELEPHONE: 94151 463-3800
STEVEN H. LAVE
(A%: (4151 463-3110
JOHN CLIFTON ELSTEAD
JAMES R. LANGFORD III
ROBERT L. TAYLOR
HOLLY HELMUTH
JAMES H. GULSETH
ROBERT S. HAYES
MICHAEL J. SAN SOUCI'
DWIGHT M. WILLARD
June 3 0, 1988
Ms. Maureen O'Halloran
Planning Department
City of Dublin DUBLIN PLANNING
6500 Dublin Blvd.
Dublin, California 94568
Re: Minor Subdivision Request
Circuit City Specialty Shops Parcel
S.W.C. Amador Plaza Road and
Amador valley Boulevard
Dear Ms . O'Halloran:
First Western Development (FWD) has requested that I
supplement their minor subdivision request, as referenced above,
with a brief narrative, including brief discussions concerning
the variance issue and reciprocal easement agreements.
It is the wish of FWD that the contents of this letter be
considered by the staff in the drafting of its recommendations on
this minor subdivision request.
General Comments Re Subdivision Application.
The present request by FWD for a minor subdivision differs
markedly from the request submitted by FwD submitted in 1987.
The staff report recommended denial of the 1987 proposed
subdivision for the following reasons:
( 1) A landlocked parcel would be created.
( 2 ) There would be no frontage on a public street.
( 3 ) Concerns about the 'adequacy of a reciprocal easement
agreement.
( 4 ) Site Development lReview concerns, such as:
87-159.2 First Nester
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,� Letter dated j++ s ted received
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Ms. Maureen O'Halloran
June 30, 1988
Page 2
(a) Failure to comply with on-site parking
requirements.
(b) Failure to comply with maximum floor area ratio of
thirty percent (300) .
(c) Failure to meet design criteria, such as
landscaping, pedestrian amenities, and special
design features.
In response to the staff report on the first request and
directions from the Planning Commission, FWD has come in with a
request for a different subdivision, addressing head-on each
concern expressed by the Planning Department and the Planning
Commission. Specifically, the 'request for the new minor
subdivision addresses the above concerns as follows:
( 1) No landlocked parcels are created.
( 2) The parcel to be created does have both actual and
"effective" lot frontage.
( 3 ) A reciprocal easement agreement has been proposed
following guidelines established by the City Attorney
for Dublin.
( 4) The Site Development Review has already been completed
and approval given.
FWD deliberately separated its request for Site Development
Review approval and its request for a minor subdivision approval.
The reason for this separation was simply that Site Development
Review disposes of most of the site development issues, which
isolates and narrows the factors that need to be considered with
regard to the subdivision request. That is, the fact that FWD
has satisfied parking requirements, circulation concerns, floor
area ratios , and special design concerns means that Planning
Commission may address the narrow subdivision issue with the
confidence and knowledge that, should the subdivision be granted,
the site design criteria have already been met.
In reviewing the subdivision request, it will be important
for the Planning Commission to keep in mind that the Planning
Director has already made the following findings in the Site
Development Review:
( 1) "Consistent with Section 8-85.0, this project will
promote orderly,- , attractive, and harmonious
development, recognize environmental limitations on
development; stab line land values and investments; and
promote the general welfare by preventing establishment
of uses or erection of structures having qualities
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Ms. Maureen O'Halloran
June 30, 1988
Page 3
which would not meet the specific intent clauses or
performance standards set forth in the Zoning Ordinance
and Downtown Specific Plan and which are not consistent
with their environmental setting.”
( 2) "The approval of the project as conditioned is in the
best interest of the public health, safety and general
welfare."
( 3 ) "General site considerations, including site layout,
orientation, and the location of buildings, vehicular
access, circulation and ` parking, setbacks, height,
public safety and similar elements have been designed
to provide a desirable environment for the
development."
( 4) "General architectural considerations, including the
character, scale and quality of the design, the
architectural relationship with the site and other
buildings, building materials and . colors, screening of
exterior appurtenances, exterior lighting, and similar
elements have been incorporated into the project in
order to insure compatibility of this development with
its design concept and the character of adjacent
buildings . "
( 5) "General project landscaping considerations including
the locations, type, size, color, texture and coverage
of plant materials and provisions for irrigation,
maintenance and protection of landscaped areas and
similar elements have been considered to insure visual
relief to complement buildings and structures and to
provide an attractive environment to the public."
( o' ) "The project is consistent with the policies contained
in the City' s General Plan and Downtown Specific Plan. "
Given the evident value to the City of this development, as
described in the above findings, the remaining question is
whether someone other than the present owner of the existing
buildings may develop the site. That is, the only issue
remaining is whether the dra�4ing of property lines, which is a
paper exercise, would have such an adverse impact on the actual
physical use of the projectithat a subdivision should be denied.
The property line question raises the issues of effective
lot frontage and reciprocal easement agreements.
A,
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Ms. Maureen O'Halloran
June 30, 1988
Page 4
Comments Re Effective Lot Frontage.
The requirement stated in Section 80-60.13 is that the
Effective Lot Frontage, however that phrase may be defined, be
equal to one-half of the Median Lot Width (one-half of 150.08
feet is 75 . 04 feet) . The new proposed minor subdivision includes
25 . 08 feet of "actual" lot frontage on Amador Valley Boulevard
and approximately 1,117 feet of "usable" or "effective" lot
frontage, through the use of an easement agreement, on Amador
Plaza Road and Amador Valley Boulevard.
FWD understands that it may have been staff's position that
the subdivision, as proposed, may lack the necessary Effective
Lot Frontage and that a variance may be required. FWD does wish
to make the argument that the proposed minor subdivision does
meet the Effective Lot Frontage requirements and does not require
a variance.
This argument is presented here for two purposes. First,
the alternative interpretation of the "Effective Lot Frontage"
requirement would mean that a variance is not necessary. Second,
if a variance is deemed to be necessary by the Planning
Department, this alternative interpretation provides an
"alternate standard" allowed by Section 8-3.11 on the granting of
variances.
The argument that a variance is not required in this
situation may seem novel, but it is the interpretation followed
by the County of Alameda (Dublin adopted the county codes
virtually verbatim in this area) and several other communities.
The argument may simply be stated as the position that "Effective
Lot Frontage" must mean something different than "actual Lot
Frontage . " That is, the phrase "Actual Lot Frontage" would have
been used had the drafters of the codes intended that the
requirement of lot frontage be taken literally. Under this
argument, the term "Effective Lot Frontage" refers to that
physical curb frontage which is, for all practical purposes ,
frontage for the parcel in question, including both actual
frontage and frontage created by cross easement agreements.
With regard to this argument, two questions immediately
occur. First, the underlying policy which generated the rule may
shed some light on which interpretation is correct. Second, is
the specific language used in the codes such that this common
sense definition of the word "effective" must be abandoned?
The policy of the provision is to limit, over a large
planning area, the ratio of actual building frontage (and,
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Ms . Maureen O'Halloran
June 30, 1988
Page 5
indirectly, floor area) to curb frontage. With regard to this
particular development, it is apparent that a total building
frontage (including the existing buildings and the proposed
building) totals less then fifty percent (500) of the actual curb
frontage of the property. It is also apparent that the proposed
building has, for all practical purposes and from the viewpoint
of potential users, substantial "frontage" on public roads. It
is also apparent that the ratio of floor area to curb is quite
small.
Section 8-60.13 provides that whenever "a new Building Site
is hereinafter created by division of an existing Lot, the
Effective Frontage of each such new Building Site shall be equal
to one-half of either the required or the actual Median Lot Width
thereof, whichever is greater. " Section 8-20.16 provides that
the term Effective Lot Frontage means whichever is smaller of the
following two specified dimensions:
(a) The length of the Front Lot Line .
(b) The least Lot Width at any point between the Front Line
of the Lot and the point at which the "Median Lot
Width" is measured.
As pointed out by the attorney for the City of Dublin (see memo
from Michael Riback dated August 26, 1987) , the above provisions
are 11vague. 11 Riback recommended amendment to this provision to
clarify the intent.
Section 8-20 . 16 defines Effective Lot Frontage, on this
particular application, as the length of the front lot line. The
question is whether that front lot line should be deemed to be
actual frontage only ( 25 . 08 feet on Amador Valley Boulevard) or
deemed to include the frontage which is, for all practical
purposes, available for use (an additional 1,117 feet) .
FWD understands that the City of Dublin may view this
argument that a variance is not required as a novel argument.
There are communities on both sides of this issue and the
intention of FWD in presenting this argument is simply to point
out that there are two reasonable interpretations of the
requirement, one of which does not require a variance. What is
clear is that custom and practice, in virtually all communities,
is that shopping centers are frequently allowed to have flag lots
and landlocked parcels, 1whether this be by variance or by an
interpretation that a variance is not necessary.
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Ms . Maureen O'Halloran
June 30, 1988
Page 6
Comments Re Reciprocal Easement Agreements.
If a reciprocal easement agreement can be drawn which
answers the concerns of the City of Dublin with regard to ingress
and egress and future planning control, then ownership and
development of this parcel by FWD is no different than ownership
and development of this land by the present owner of the larger
parcel.
In a memorandum dated August 10, 1987 Rod Barger, who was
then Senior Planner and assigned to this project, presented the
following question to Michael Nave: •
"Second, by creating this landlocked parcel,' there is
also a need to create reciprocal easements for parking,
ingress, egress and utilities between the two
properties. Staff ' s experience indicates that .
agreements of this nature can be cumbersome, difficult
to enforce, unfairly binding and difficult to revise.
In an effort not to duplicate similar problems in the
downtown area, Staff has asked the Applicant to submit
a reciprocal easement agreement that contains a clause
which gives the City the authority to revise the
agreement at any time in the future if found necessary
(in order avert or intervene problematic issues) .”
"Can the City require a clause o-f this nature as a
condition of approval of the subdivision?"
Michael Riback responded on behalf of Nave, indicating as
follows :
"You ask whether with respect to the creation of
reciprocal easements for parking, ingress, egress and
utilities between the two proposed lots, the City may
require that the developer and its successor in
interest comply with any conditions the City may find
necessary to impose upon the properties in the future
in order to alleviate any problems that may arise with
respect to the creation of a landlocked. parcel."*
"It is my opiniop that the City may impose such a
requirement and-that such a requirement should be set
forth as part of the documentation approving the
I
1 *Note: The original subdivision request was for a
landlocked parcel.
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Ms . Maureen O'Halloran
June 30, 1988
Page 7
subdivision and recorded with the County Recorder. If,
in the future, conditions are necessary to impose and
the-then property owners refuse to comply with those
conditions, the City could record a notice of non-
compliance against the property and refuse to issue any
building permits or other zoning approvals thereafter
applied for. Additionally, such a notice of non-
compliance would make it difficult for the owners to
either sell or lease the property or to obtain any
loans using the property as collateral. "
Mr. Riback has indicated that other cities, including San
Leandro, have successfully used the type of provision he is
recommending. Mr. Riback has indicated that this can be
accomplished by using a standard Reciprocal Easement Agreement
and adding a provision similar to the following:
If problems arise within five years from completion of
the structure which is presently planned for the
subject parcel and these problems are attributable to
the subdivision approval, the City of Dublin may impose
such additional reasonable requirements as may be
necessary to mitigate those problems.
Given that a Reciprocal Easement Agreement may be drafted
which meets the reeds of the City, the final planning concerns of
ingress and egress and future control by the City have been met.
Grantina of Variance .
Should the interpretation of the City of Dublin be that a
variance must be granted, rW-D respectfully requests that the
Staff recommend the granting of that variance. The recuirements
of the granting of a variance are easily met in this matter:
( 1) That there are special circumstances including size,
shape, topography, location or surroundings, applicable
to the property which deprive the property of
privileges enjoyed by other property in the vicinity
under the identical zoning classification. Section 8-
93 . 0 ( a) .
Each of the special cizcumstances cited in this requirement is
met with regard to this application. With reference to size, the
subject parcel is quitet large and, ccm ared to neighboring
parcels , substantially underdeveloped. The total floor area
ratio of the two existing buildings and the proposed building
does not even approach the thirty percent (300) maximum. With
1' ; •lit!;
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Ms. Maureen O'Halloran
June 30, 1988
Page 8
i
reference to shape, this parcel is a corner lot, providing it
with a great deal more effective street frontage than neighboring
parcels. The ratios of total building frontage to curb frontage
and total floor area to curb frontage is extremely high. With
reference to location, there are several special considerations.
The back line of the property is contiguous to a flood control
district and Highway 680, with a result that there is not the
normal access to surface streets at the rear of the property.
The proposed parcel is contiguous to the location of important
destination retail outlets (Circuit City and T. J. Maxx) , making
small satellite retail stores a substantial convenience for the
public. Placing the building at the rear of the property would
be a better planning decision than putting it at the front of the
property, where it would have sufficient actual lot frontage, but
where it would also block access to an exposure of the large
retail outlets. It is the planning staff's desire to have this
i new building located at the rear of the property rather than the
front and the rear lot line is, in fact, the ordinary location of
retail outlets in most shopping centers.
That this "special circumstances" requirement is met by this
application when one reviews the actions of the City with regard
to the application of Bedford properties to subdivide property it
owned so that each building would be on a separate parcel. The
reason for the request was internal to Bedford (it had to do
entirely with the financing of the property) . The subdivision in
that case was, as is this case, entirely a paper exercise, with
no visible signs of the subdivision to the public and to users of
the property. The Planning Commission made the following
findings:
There are special circumstances, including the site' s
existing building locations, zoning boundaries, and
existing lot lines, that make it extremely difficult to
subdivide the land in a reasonable and economic manner,
without the granting of a side and rear yard variance
for Lot C, and an effective lot frontage variance for
Lot E. Section 8-93 . 0 (a) .
In the FWD application, as in the Bedford application, the
"site ' s existing building location, zoning boundaries, and
existing lot lines . . . make it extremely difficult to subdivide
the land in a reasonable and/ economic manner without the granting
of . . . an effective lot frontage variance."
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Ms . Maureen O'Halloran
June 30, 1988
Page 9
( 2) That the granting of the application will not
constitute a grant of special privileges inconsistent
with limitations upon other properties in the vicinity
and zone.
It is clear that the granting of this subdivision would not
constitute a grant of special privileges to this property
inconsistent with the limitations on properties in the vicinity
and in the zone. The proposed subdivision and development- meet
or exceed the requirements for floor area ratio, on-site parking,
pedestrian amenities , traffic , circulation, and design
considerations. Similarly, the 'Planning Commission in the
Bedford application found that this requirement number two was
met "given that adequate access, parking, and circulation is
available, and the adjacent future and existing uses on
neighboring properties should not be constrained by the granting
of the variance.
( 3 ) That the granting of the application will not be
detrimental to persons or property in the neighborhood
or to the public welfare.
The findings of the Site Development Review clearly indicate that
the welfare of the neighborhood and the ceneral public is best
served by the allowance of this subdivision and development.
( 4) The advisory agency may, in the exercise of reasonable
judgment, grant variances to the requirements . . . of
. - ' effective lot frontage . . . as is determined
warranted by to7cocra-ohic limitations or soil or
geological conditions, the op-cortunitv for more
effective and —desirable land utilization, or the
showing that under the particular circumstances an
alternate standard would meet cr surDass the intent of
the civen reauirement. Section 8-3 .11. (Emphasis
added]
This requirement number 4 is actualiv a very important
modification of the preceding three requirements. That is, this
provision instructs the Planning Commission that the "special
circumstances" requirement is met if there is a finding of either
( a) opportunity for more effective and desirable land utilization
or (b)- that under the circumstances an alternative standard would
meet or surpass the intent of the given ( "Effective Lot
Frontage" ) requirement. The FWD application meets both of these
conditions . With regard to condition (a) , this parcel of land is
certainly more effectively and desirably utilized in the event
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Ms. Maureen O'Halloran
June 30, 1988
Page 10
that the shopping center is completed. The finds of the Site
Development Review included findings that "this project will
promote orderly, attractive and harmonious development, recognize
environmental limitations on development; stabilize land values
and investments; and promote the general welfare by preventing
establishment of uses or erection of structures having qualities
which would not meet the specific intent clauses or performance
standards set forth in the Zoning Ordinance and Downtown Specific
Plan and which are not consistent with their environmental
setting. " The findings also included the statement that "general
site considerations, including site layout, orientation, and the
location of buildings, vehicular access, circulation and parking,
setbacks, height, public safety and similar elements have been
designed to provide a desirable environment for the development."
As stated above, the destination retail outlets would draw many
citizens and users who will be well served by specialty retail
stores located nearby (without additional driving) .
With regard to condition (b) , this particular location is a
prime example of particular circumstances where there is an
alternative standard which would meet the intention of the
"Effective Lot Frontage" requirement. One alternative standard
might be, as discussed above, the alternative definition of
effective lot frontage to include all usable frontage (actual
frontage plus frontage which is there for all practical purposes
pursuant to easement agreements) . Other alterative standards
would be such established standards as floor area ratio (which
limits to ( 300) the building footprints on both the new and old
parcels) , parking requirements, traffic circulation requirements,
and the like. That the alternative standards of floor area
ratios , on-site parking, and traffic circulation are met is a
specific finding of the Site Development Review. The point here
is that other established standards are sufficient to protect
quality of this development and that it is not necessary to
rigidly enforce the "Effective Lot Frontage" requirement.
Conclusion.
The bottom line here is that the Planning Department has
concluded that the project is proper and desirable from the point
of view of the City.
The only remaining question is whether the subdivision
(which is necessary to al-low 'the development in the first place) ,
because of its shortage of actual lot frontage, cause such
substantial problems with the use of the development that the FWD
application should be denied.
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i�;('�/ .N J:)i�.t..✓,1/�' •.f !� /. 't .t�,.�%. i•/"..f�Y,%''I'.r/�'. ��.��.(r^}'''F�/i.:J �! ..(�j. .f 'f=��l.'f'�'7 �.t Ie!�/,•' .-//� i� r�-'
,r l.. t�b/ .fiVl L:N..4 �r.. v,' r; :'llgf ...rf3fo// !^%/.�.<Yi11•�'' J,�� Y,..+.. .!�;r �'7� •'!1':/.✓//�. .J1 'r."`i ;, .�1' .n'•L . ,�.
J�;,t ��� i,r. / 'l � [��j,/;,��j1 1r.�r ;.✓./,�•'+ o Irf / ) r✓��,�/d�'/.,r )�yw/Y�""�y1 y,� �jl�°�y%,�' r/ •Y 1:' /• " '
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Ms. Maureen O'Halloran
June 30, 1988
Page 11
The City can certainly justify the £ granting of the FWD
application and the variance on the grounds that the three
standard conditions of variances have been met and on the ground
"opportunity for more effective and
the application provides the
desirable land utilization." There is no possible source of
criticism for the granting of this application.
There is simply no technical barrier to the granting of this
application. The City of Dublin may approve and have this
development if it wishes to have this development. The findings
of the Site Development Review include findings that the project
meets the standards of the Downtown Specific Plan and that it is
in the best interest of the public health, safety, and general
welfare.
Sincerely,
SMITH, ETNIRE, POLSON & SCOTT
A Professional Law Corporation
Geoffrey J.Ltnire
GJE/jf
cc: First Western Development Company
t
•/. _ ',\. '\ .,1.•., .\'
r � '..r� •�'", �"•3r-' ..i"\ `r-;✓•i�11 :v•t�� ,fit •�r, i�-.,\,,y�/ .L, �1; •/
Gr�.1.1 1 1�• "1 1- 1.•"{.`'J < � ti'•./�7 "`�`�).ti �-*\. �\ ,\\\ \\ `>;,!�''.J•\�.y'�. .1 I11_
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< ����� \ C \ i•', �' � �---. t ' y'\ - \ \..'
0.1••x,/
" \\ 87-159.2 First Western
�� 01 t""r-z? '?� 'e Location Map
SMITH, ET.IRE, POLSON & SCOTT
A OPOFESSIOIIAL LAW COPPOOATIO'I
STONERIOGE CCPPORATE PLAZA
LAWRENCE G. SMITH -
8140 STONEaIOGE MALL ROAD, SUITE 500
GEOFFREY J. ETNIPE
E.^,WARD W. POLSON PLEASANTON, CALIFORNIA 94366-8097
G. JUDSON SCOTT, JR.
TELEPHONE: 14151 463.3600
JAMES J. PHILLIPS
STEVEN H. LAVE FAX. (415) 463-3110
JOHN CLIFTON ELSTEAO
JAMES R. LANGFORD
ROBERT L. TAYLOR
HOLLY HELMUTH
JAMES H. GULSETH
ROBERT S. MAYES
MICHAEL J. SAN SCUCI'
C'WIGHT M. WILLARD
c.•cr�c[rco TO rcou—coup
September 29, 1988
C
Laurence L. Tong
Planning Director
City of Dublin
6500 Dublin Boulevard J
Dublin, California 94568
Re: PA-87-159.2
First Western Development
Parcel Map and Variance
7450 Amador Valley Boulevard
Dear Mr. Tong:
Q) Q)
As a result of your report and negative recommendation an( �
the subsequent action of the Planning Commission, I went back tc 3 u Oc
the drawing board to determine if a solution to your expresses (1) ^
concerns could be structured. vC
P
M s�
The heart of your concern appears to be that the granting o-,
the subdivision would adversely affect the control and power o a; E
the Citv of Dublin with regard to the future development an(
ul O U
continued operation of that property. I had attempted, prior tc a
the issuance of your staff report, to address that concern. Pari
of that solution was to include language in the Conditions c
Approval suggested by Michael Riback of the city attorney' !
office. Another part of the solution was to prohibit the
installation of a free-standing sign on Parcel B, the Firsi \�
Western Development parcel. The third part of the solution wa!
to prohibit First Western Development from blocking future
development by Metropolitan Life which was approved by the City =�
of Dublin.
Those solutions, apRarently, fell short of satisfying your
concerns. Following the-
-Planning Commission hearing, I consulter
with Mr. Pete MacDonald, tie former city attorney of Pleasanton, i
who is now in private ipractice. While the cross-easement r. _..
situations are not looked upon in Pleasanton the same way the,
are looked upon in Dublin, Pete did have occasion as the cit;
attorney to be concerned about Declarations of Encumbrances
including their future modification and enforcement. Pete
F"'
Laurence Tong
September 29 , 1988
Page 2
suggested a technique which he has used and which he has seen
others use that may be of some assistance in our situation.
Adding this suggestion to some of my own thoughts, I would like
to propose the following:
(1) The application will include a copy of the specific
Declaration of Encumbrances to -be recorded against both parcels.
( 2) The Conditions of Approval and the Declaration of
Encumbrances will include the language suggested by Michael
Riback, concerning the power of the city to impose in the future
such additional requirements as may be necessary to alleviate any
problems which might be created by the creation of a subdivision
(as distinguished from merely the site development) .
( 3) The Conditions of Approval and the Declaration of
Encumbrances include a prohibition on the construction of any
free-standing sign on Parcel B, the parcel retained by First
. Western Development.
~( 4) The Conditions of Approval require and the Declaration
of Encumbrances provide that the Declaration Hof Encumbrances may
not be amended or modified without the written consent of the
City of Dublin, which written consent would be attached to any
purported amendment. Any purported amendment not attaching such
written consent would be deemed null and void.
( 5) The Conditions of Approval require and the Declaration
of Encumbrances provide that the City of Dublin may enforce the
terms of the Declaration of Encumbrances relating to easements,
maintenance, and repairs.
( 6 ) The Conditions of Approval require and the Declaration
of Encumbrances provide that the power of the City to approve or
disapprove of, amendments and to enforce provisions of the
Declaration of Encumbrances shall be stated in a separately
recorded document (so that the powers of the City would be noted
on any future preliminary title report) .
It would seem that if the City of Dublin is to deny this
subdivision, that it is making a policy decision that it will
never grant flag lots and cross-easements. That is, this
application seems to have everything:
(a) The application;'�na' Declaration of Encumbrances embrace
and carry out the downtown ,specific plan.
Laurence Tong
September 29 , 1988
Page 3
r
(b) The proposed development, according to the Site
Development Review, serves the best interests of the community,
meets parking standards, meets traffic and circulation standards,
exceeds landscaping standards, and satisfies architectural
criteria.
(c) The subdivision involves a Declaration of Encumbrances,
which gives the City of Dublin the right and authority to enforce
provisions of that document relating to easements, maintenance,
repairs. This is more power than the City of Dublin has under a
single ownership and more power than the City would normally have
under condominium or planned development documents.
-- (d) The application takes care' of the- potential problem of
z' proliferation of free-standing signs.
(e) Future development of the site is defined (to be
limited to a free-standing building at the corner of Amador Plaza
Road and Amador Valley Boulevard) and all further development is
prohibited.
With regard to the last point, this application and the
Declaration of Encumbrances, in carefu}.l.y defining future
development, directly address your expressed concern with regard
to the value of single proprietorship. I believe that the
analogy that you gave us was that the City of Pleasanton had a
much easier time planning the Hacienda Business Park because it
was dealing with a unified ownership (Prudential/Callahan) . As
soon as the paper planning was accomplished, however,
Prudential/Callahan immediately began selling off building sites.
That it, the single proprietorship is helpful in the planning
process, but is not necessary thereafter. The point here is that
the planning process has , in essence, been completed on this
parcel. The Site Development Review has given very positive
grades to the construction of a 10,000 square foot specialty
retail center. The only other building that will be constructed
( and even this is subject to further review by the City) is a
3 , 000 square foot structure at the corner of Amador Valley
Boulevard and Amador Plaza Road. The completed center will
consist of those four buildings or only three buildings (if the
City does not approve the corner building) . The design of that
center has been completed. There is no reason now that the owner
of the parcel cannot now sell the parcel for the 10,000 square
foot retail center.
I have done this extY.a Bork and written this extra letter in
the hope of addressing your expressed concerns. I would
appreciate you and Maureen * .iving consideration to dropping your
Laurence Tong
September 29 , 1988
Page 4
r
opposition to this subdivision request based upon these
additional proposals.
Thank you very much for your time and consideration.
Sincerely,
SMITH, ETNIRE, POLSON & SCOTT
A Professional Law Corporation
Geoffrey J. =Etnire
GJE/jf
cc: Maureen O'Halloran
First Western Development
Michael Nave, Esq.
Elizabeth Silver, Esq
Pete MacDonald, Esq.
tt
s
Recording requested by and
when recorded mail to: y & Walker
Paul, Hasting s ,
Attn: Phillip D. Sasso, Esq.
1299 Ocean Avenue, Fifth Floor
Santa Monica, CA 90401
DECLARATION Or ENCUMBP.ANCES
THIS DECLARATION OF ENCUMBRANCES b landabetween METROPOLITAN
this __
day of 1988, Y
LIFE INSURANCE COMPANY ( 'II�ASSOCIATES,r')a General RPartnership
PROPERTIES OF CALIFORNIA I
-� ("FIRST WESTERN" )
WITNESSETH:
land
WHEREAS, METROPOLITAN is r wt ExhibitparA� lat t ached
which is more particularly des cibed on
hereto. and incorporated herein by this reference ("Parcel A" ) ;
and- -
WHEREAS ,
there are two free-standing, one-story buildings
located on Parcel A within Yheoaands denoted
ncorporated herel ,n Area"
nbythis
on Exhibit "B" attached hereto
one consisting of approximately 57 ,680 square feet and
reference, of approximately 10,000 square reef; and
the other consisting
a third free-standing building may be constructed,
WHF EREAS' within the "Building Area" denoted on
at METROPOLITAN election,
Exhibit "B'i at the corner of A.mador Plaza Road and Amador Valley
Boulevard; and
WHEREAS, FIRST WESTERN is the owner of another parcel of
land which is more particularly described on Exhibit "C" ("Parcel-
B" ) ; and -
a free-standing, one-story retail building
WHEREAS, , is to be
consisting of approximately 10 , 000 saLare feet
constructed on Parcel B within the area denoted as a "Building
Area" on Exhibit ' B and
A and Parcel B (sometimes referred to
Parcel
WHEREAS, ad'acent to one another and
collectively as the "Parcels"
) are J
are owned by different individuals or corporations; and
Pa
WHEREAS, the owners pf the Parcels recognize ev
that
and Parcel B will comprise an integrates retail
1 DECENCUM.FWD
9/26/88
WHEREAS, it is the desire of the owners of the Parcels to
fix and establish easements, covenants, restrictions, liens and
charges (hereinafter collectively referred to as "Encumbrances") ,
upon Parcel A and Parcel B; such Encumbrances shall run with the
land and shall inure to and pass with the Parcels for the benefit
of the owner( s) , occupant( s) or lessee(s) of all or a portion of
the Parcels , and shall apply to and bind the respective
successors in interest thereof, and further, such Encumbrances
are hereby imposed upon each respective Parcel as reciprocal
easements in favor of the other Parcel, and any portion thereof ,
in furtherance of a plan for the development and improvement of
the Parcels and for the purpose of enhancing and perfecting the
value, desirability and attractiveness of both Parcels.
NOW, THEREFORE, FOR VALUABLE CONSIDERATION, THE RECEIPT Or
WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO DO MUTUALLY
_
"AGREE AS FOLLOWS: -
1. BUILDING AND COMMON AREA DEVELOPMENT
A. Building Area: Except as herein provided, all
future buildings - and structures shall be placed or constructed
upon the Parcels in areas designated on Exhibit "B" as a
"Building Area" ; and further, no buildings or Structures shall be
placed or constructed on the Parcels within those areas on each
respective Parcel designated as a "Common Rr-ea" (as defined in
Paragraph 1.B below) on Exhibit "B" except for pylon and
directional signs (as provided in Paragraph 3) , bumper guards or
curbs , landscape planters, lighting standards, and applicable
controls and regulations by the City of Dublin. In addition, it
is also agreed that each of the parties hereto may construct and
locate canopies projecting from such Building Areas, including
columns or pillars supporting the same, and normal foundations
and doors for ingress and egress may project from such Building
Areas . all the foregoing must comply with all applicable laws,
rules, ordinances and regulations of the City of Dublin or other
applicable local governmental authority.
B. Common Area: The aforementioned Common Area is
hereby defined to be those areas on Parcel A and Parcel B which
are designated as the "Common Area" br_ Exhibit "B." The Common
Area is to be used for vehicular driving, parking and pedestrian
traffic (which area also includes al_, sidewalks, walkways ,
driveways and landscaping) and as specified in Paragraph 2 below.
Unless required by the City of Dublin, the location and size of
anyDand all sidewalks , parking stalls, walkways , driveways and
landscaping in the Common Area shall not be changed except by the
mutual consent of METROPOLITAN and FIRST WESTErcv. If
METROPOLITAN and FIRST WESTERN agree to any material charge in
the Common Area, then a ntt ' Exhibit B will be recorded as a
amendment to this Declaration of Encumbrances.
2 DECENCUM.FWD
9/26/88
C. Design and Remodel or Euildinct: Prior to the
construction, reconstruction or remodeling of any building
changes, alterations or modifications of any building on Parcel
B, the party who desires to construct such building or buildings
or make such major exterior changes, alterations or modifications
shall submit to the owner of Parcel A all plans, specifications,
drawings and other pertinent information necessary for the owner
of Parcel A to adequately review all structural changes together
with the exterior design, color and elevations (including signs)
that are proposed for the building, and thereupon either approve
or disapprove of the same. The owner of Parcel A shall not
arbitrarily or unreasonably withhold its approval of such plans
and specifications. It shall not be unreasonable for the owner
of Parcel A to withhold its consent should such plans and
specifications be architecturally or aesthetically incompatible
with the buildings on Parcel A. If the plans and specifications
are disapproved as provided herein_, alternate plans and
specifications may be submitted, :which alternate proposal shall
be handled in the same manner as the initial proposal.
Subject to the foregoing Paragraph, any party who
desires to construct a building(s) or to make major exterior
changes, alterations or modifications thereto, shall be pe=itted
to do so, provided that: (1) all such construction, alteration
or modification is performed at the sole expense of that party;
(2) such construction, alteration or codification does not
unreasonably interfere with the parking, -ingress and egress tc
the other Parcel; and (3) the party performing such construction,
alteration or modification shall inder:nify and hold the owner of
the other Parcel harmless from any claims, costs, expenses,
damages or injuries to person or property resulting from suc:,
construction, alteration or codification.
D. Si nQ aae: FIRST WESTERN and its successors in
interest shall not be permitted to erect a free-standing sign on
Parcel B.
2 . EASEMENTS
A. Inaress and Earess: The owners of the Parcels
hereby agree that any c:vner(s) , lessee(s) or licensee(s) of all
or any portion of the Parcels and its (or their) respective
customers, agents, tenants, employees and suppliers, shall have
the right of mutual , reciprocal and nonexclusive ingress and
egress by vehicular and pedestrian traffic and vehicular parking,
upon, over, and across the Common Area, except where any signs,
landscape planters, lights or other parking lot improvements nav
be located; and the parties hereto shall not do any act or acmes
which will prevent or. hiri'der such ingress, egress and parking,
except such work as " ;nay be required from time to time for
3 DECENCUM.FWD
9/26/SS
. . maintenance and repair of the Common Area, or as otherwise
specifically provided herein.
B. Utility Lines: The owners of the Parcels do hereby
establish and create (for the benefit of all or any portion of
Parcel A and Parcel B, mutual and reciprocal non-
exclusive easements under, over, through and across the Common
Area of the Parcels for water drainage systems, water mains,
sewers, water sprinkler system lines, telephones or electrical
conduits or systems, gas mains, and any other public utilities
needed to service said properties. All such systems, structures,
mains, sewers, conduits, lines and other public utilities shall
be installed and maintained below the ground level or surface of
such easements. In the event it is necessary for any party
hereto to cause the installation or relocation of a utility line
or sewer across the Common Area subsequent to the initial paving
and improving thereof, the owner of the other Parcel hereby
_ grants an easement to such party for the exclusive purpose of
installing, relocating, replacing or enlarging a utility or sewer
line across the Common Area, subject to the following conditions
and requirements:
(i) Such installation, relocation or modification
shall not interfere with, or increase the cost of, or
diminish the other Parcel owner's utility and/or sewer
services ;
(ii) The party performing Bch work shall give the
other Parcel owner at least ten (10) days prier written
notice, together with notification of the nature and extent
of such work, the proposed area of such work, and the
anticipated starting date of such work; provided, however,
if the work involved is emergency repair work, only such
advance notice, written or oral , as is reasonably
practicable need be given;
(iii) After such work is completed, the pipes or
lines in auestion shall be underground and not beneath or
within five feet (5, ) cf any "Building Area" located on the
other Parcel ;
(iv) After the completion of such work, the party
performing such work shall restore the portion of the other
owner's Parcel and improvements located thereon and the
Common Area to the same or as geed condition as existed
immediately before the commencement of such work; and
(v) Any work performed under this Paragraph 2 .B,
including the restoration of the other owner's Parcel and
the Common Area after such work is completed, shall be done
at the sole cost of "the party undertaking the same and shall
be performed in such a manner as not to cause any
4 DECENCUTM.FWD
9/2o/SS
interruption of or undue interference -with -the business
conducted on the other owner's Parcel. To the extent
possible, no such work shall be performed on weekends or
during holiday seasons.
3 . OPERATION OF CO?2.401T AREA
A. Emplovee Parking: Those areas to be used for
motor vehicle parking purposes by employees of the occupants of
the Parcels may be designated from time to time by the owner of
Parcel A.
B. maintenance and Repairs: In consideration of the
mutual, reciprocal and non-exclusive easements herein granted and
as a condition precedent to the use and enjoyment thereof, each
and every tenant or occupant of any part of the Parcels shall pay
for its share of the cost associated with repairing and
_ maintaining in good order the Common Area so that the same shall
- -" be kept in a clean, attractive and slightly condition, and may be
conveniently used for its intended purposes. Such maintenance
and repair shall include, without limitation, resurfacing of the
Common Area, maintenance of the lights and lighting standards,
landscaping, cleaning and janitorial work, repair and replacement
of utility and drainage facilities as the same are all included
within the respective tenants, or occupants, portion of the
Parcels . Notwithstanding anything herein to the contrary, the
parties hereto agree that any and all businesses en the Parcels
shall be conducted in accordance with sotnd business cractices,
and the respective tenant or occupant of each such business shall
at all times, at its own cost and expense, repair and -aintain in
good order and condition the building in which its husiness is
located, including the periodic repainting of the exterior c-
such building.
C. Maintenance Director: FIRST w7-S7-ERN hereby
approves of METROPOLITAN (and its successors) assuming a position
as Maintenance Director of the Common Area perpetually from and
after the date hereof. Anything to the contrary notwithstanding,
METROPOLITAN shall have the right, at its option, and Lpcn giving
ninety (90) days, prior written notice to FIRST W_STERN, to .
terminate its position as Maintenance Director; whereupon a ne:a
Maintenance Director shall then be appointed by METROPOLITAN with
full right and authority cf operation, control and :maintenance of
the entire Common Area.
D. Insurance: The Maintenance Director shall provide
a public liability policy insuring the owners of to Parcels
arainst all claims for personal injury, death or property damage
occurring in, upon or about the Common Area. The owner of Parcel
A shall be the insured. and the owner of Parcel B shall be named
on the liability insurance policy as an additional insured
thereof, with limits of liability not less than $3, 000, 000 . 00
5 DECENCUM.FWD
9/26/SS
•
combined single limit for bodily -injury or death and for damage
to property. Nothing in this Paragraph 3.D shall prevent the
Managing Director from taking out public liability insurance for
the Common Area of such kind and in such amount as the Managing
Director, in its -sole discretion, deers reasonable, or from
carrying the same under a blanket insurance policy or policies
covering other properties as well as the Common Area.
E. Common Area Maintenance and Insurance Expenses
Allocation: METROPOLITAN as the Maintenance Director, is hereby
authorized to contract for and pay for all of the items
enumerated above as repair, maintenance and insurance expenses
and METROPOLITAN agrees to operate on a non-profit basis with an
end to keeping such expenses at a reasonable minimum.
METROPOLITAN shall bill FIRST WESTERN not more frequently than
quarterly and not less frequently than yearly for its pro rata
share of the said expenses, plus 15% of said expenses to cover
_ administration costs. The proportionate share of the total
Common Area expenses to borne by METROPOLITAN and FIRST
WESTERN for any year shall be based upon the relative percentage
ownership of square footage of building(s) built on each party's
Parcel.
4 . TAXES
Each party hereto and its respective successor and
assigns shall pay direct to the tax collector when due, the real
property taxes and other special taxes and assessments assessed
against the property owned by said party, including the portion
of the Common Area owned by said party.
5 . USE RESTRICTIONS
A. Audio Visual . Stereos. Hcme Appliances and Consumer.
Electronics: So long as METROPOLITAN operates a store on Parcel
A for the retail sale of stereos, hcme entertainment, audio
visual, consumer electronics or home appliances, no portion of
Parcel B shall be used for the retail sale of similar coeds as
are sold by METROPOLITAN unless the prior written consent of
METROPOLITAN is obtained.
B. Men's . Wo:; en's and Children's Apparel: So long as
TJX Companies, Inc. operates a T.J. liaxx store on Parcel A for
the retail sale of men's, women's and children's apparel and
accessories related thereto, no portion of Parcel B shall be used
for the retail sale of such similar gccds as are sold under the
trade name of T.J. Maxx, unless the prior written consent cf TJX
Companies, Inc. is obtained.
C. Sporting. Gccds and Athletic Apparel : So long as
Oshman's Sporting Gocds CO. , California, operates an Oshman's
Sporting Goods store on PParcel A for the retail sale of sporting
6 DECENCUM.FWD
9/26/SS
'
goods, athletic apparel and related .accessories, and such other-
items as are from time to time sold in similar Oshman's Sporting
Goods stores, no portion of Parcel B shall ever be used for the
retail sale of similar goods, unless the prior written consent of
Oshman's Sporting Goods Co. , California is obtained.
D. The foregoing restrictions are imposed herein for
the exclusive benefit of 1ETROPOLITAN and are not for the benefit
of METROPOLITAN's tenants or subtenants. No tenant or subtenant
of METROPOLITAN shall have any rights as a third party
beneficiary or otherwise to enforce the foregoing provisions or
any other provision of this Declaration of Encumbrances.
6 . MODIFICATION
Neither this Agreement nor any term or provision
hereof, may be changed, waived, discharged, amended, mcdified or
terminated orally, or in any manner other than by an instrument
in writing signed by the party against which the enfcrcement of
the change , waiver, discharge, an,endmaent, modification or
termination is sought. No consent of any tenant of an owner oJL
either Parcel shall be required to mcdify, amend or terminate
this Agreement.
No document amending this Agreement or affecting the
substance of its provisions shall be effective and no such
document shall be recorded without the consent and approval of
the City of Dublin. Any such document '"shall be effective and
shall be recorded only if a letter from the City of Dublin is
attached as an exhibit to the document, which letter shall
specifically state that the amendment or modification is not
inconsistent with zoning and other regulations of the City of
Dublin.
Any document, whether recorded or unrecorded, which purports
to amend or modify this Agreement and which does not comply with
this provision shall be deemed null and void_ The requirement
that a modification or amendment of this Agreement is effective
only upon city approval shall be stated in a separate document to
be recorded in the Official Records of Alameda County and which
shall -be in substantially the same form as the document attached
as E=xhibit "D."
If problems arise within five years from the creation of the
subdivision and these problems are attributable to the
subdivision approval (as distinguished from mere site
development) , the City of Dublin may impose such additional
reasonable requirements as may be necessary 'to mitigate those
problems. This condition shall be reflected by the Declaration
of Encumbrances, attac)aed, hereto as Exhibit "A" (see section 6 on
page 7 of Exhibit "A") .
7 DECENCUM.FWD
9/26/SS
7. ENFORCEMENT BY CITY OF DUBLIN F
It is specifically agreed that the City of Dublin shall have
the right to enforce the provisions of this Agreement relating to
easements, maintenance, and repairs. This right to enforce shall
be stated in a separate document, to be recorded in the Official
Records of the County of Alameda in which shall be substantially
in the same form as that document attached hereto as Exhibit "D."
r3. GENERAL PP.OVISIOITS
A. Covenants Run with the Land: Each easement,
restriction, and covenant over Parcels A and B shall be
appurtenant to and for the benefit of the other Parcel and each
part thereof. Each covenant, restriction and undertaking as to
Parcel A and Parcel B shall be a burden thereon for the benefit
of the other Parcel and each part thereof, and shall run with the
-.. land. This Declaration of Encumbrances shall inure to the
benefit of and be binding upon the parties hereto and their
successors and assigns.
B. Duration: This Declaration of ( Encumbrances, and
the Encumbrances created and established hereunder (including all
benefits and burdens) , shall be perpetual and run with the land,
until terminated by the mutual consent of the owners of the
Parcels.
C. Injunctive Relief: In the"event of any violation
or threatened violation by any owner, lessee, or occupant of any
portion of Parcel A or Parcel B of any of the te=Ls, covenants
and conditions herein contained, in addition to the other
remedies herein provided, the owners of the Parcels and the
lessee (s) shall have the right to enjoin such violation or
threatened violation in a court of competent jurisdiction.
D. Attorneys , Fees: Any of the parties nav enforce
this instrument by aooropriate action and should a party prevail
in such action, it shall recover as part of its costs reasonable
attorneys, fees.
E. Breach Shall Not Permit Terminaticn: It is
expressly agreed that no breach of this Declaration c=
Encumbrances shall entitle any of the parties hereto to cancel,
rescind or otherwise to terminate this Declaration of
Encumbrances, but such limitation shall not affect in any manner,
any other rights or remedies which the parties hereto may have
hereunder by reason of any breach of this Declaration of
Encumbrances . Any breach of anv of said covenants or
restrictions, however, shall not defeat or render invalid the
lien of any mortgage, o'. ' deed of trust made in good faith for
value, but such covenants or restrictions shall be binding upon
and effective against ;suc:. owner or owners of the Parcels, or any
S DECENCUIN1.FWD
9/26/SS
, v T
portion thereof, . whose, title thereto is acquired by foreclosure,
trust deed sale, or otherwise.
F. Severability: If any clause, sentence or other
portion of this Declaration of Encumbrances shall become illegal,
null or void for any reason, or shall be held by any court of
competent jurisdiction to be so, the remaining portions thereof
shall remain in full force and effect.
G. Construction: The rule of strict construction does
not apply to this grant. This grant shall be given a reasonable
construction so that the intention of the parties to confer a
commercially usable right of enjoyment on the grantees is carried
out.
H. Counterparts: This Declaration of Encumbrances may
be executed in several counterparts and all such executed
-. --� counterparts shall constitute one (1) agreement, binding on all
of the parties hereto notwithstanding that all of the parties
hereto are not signatories to the original or to the same
counterpart.
IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals the year and date first above written.
FIRST WESTERN PROPERTIES OF
CALIFORNIA I�ASSOCIATES
Date: Ev:
JOHN T. HESS,
Managing General Partner
METROPOLITAN LIFE INSURANCE COM'DINTV
Date: Ev:
Vice President
�t
9 DECENCUM.FWD
9/26/SS
STATE OF )
ss.
COUNTY OF )
On this day of , 1933, before me,
the undersigned Notary Public, personally appeared JOHN T. HESS,
known to me personally (or proved to me on the basis of
satisfactory evidence) , to be the person who executed the within
instrument on behalf of the partnership, and acknowledged to me
that the partnership executed it. WITNESS my hand an official
seal.
_ -
Notary Public
STATE OF ) �'
ss.
COUNTY OF )
On this day of 1988 , before me
personally appeared known to me personally
(or proved to me on the basis of satisfactory evidence) , who,
being by me duly sworn, did for himself say that he is the
of METROPOLITAN LIFE INSURANCE COMPANY the
corporation named in and which executed the within instrument,
and that said instrument was signed in behalf of the corporation
by authority of its board of directors, and
acknowledged before me said instrument to be the free act and
deed of said corporation.
Notary Public
10 DECENCUM.FWD
9/26/00^S
PROPOSED LANGUAGE
RE
CONDITIONS OF DEVELOPMENT APPROVAL
Approval of the requested minor subdivision shall be granted
on the following conditions (among others) :
( 1) This prohibition shall be contained in the Declaration
of Encumbrances, to be recorded against title to the property, a
copy of which is attached hereto as Exhibit "A" ( see section J.D.
-
. on on page 3) . _
( 2) A cross-easement for ingress, egress and parking by and
between First Western Properties of California I Associates, a
general partnership, and Metropolitan Life Insurance Company
shall be recorded against the title of each of the two parcels .
The Declaration of Encumbrances to be recorded against title to
the property, a copy of which is attached hereto as Exhibit "A. "
Significant provisions of the proposed Declaration of
Encumbrances shall include, but not necessarily be limited to,
the following:
(a) Future development on Parcel A, the parcel
retained by Metropolitan Life Insurance Company, shall not
be permitted, except as is specifically approved by the City
of Dublin and except as is permitted by the Declaration of
Encumbrances, a copy of which is attached hereto as Exhibit
"A" (allowing a free-standing building at the corner of
Amador Plaza Road and Amador Valley Boulevard) .
(b) The Declaration of Encumbrances may not be amended
without the approval of the City of Dublin (see section 6 on
page 7 of Exhibit "A" ) •
(c) The City of Dublin shall have the right to enforce
the provisions of the Declaration of Encumbrances relating
to easements, maintenance and repairs (see section 7 on page
7 of Exhibit "A" ) .
(d) The power of the City to approve amendments to the
Declaration of Encumbrances and the power of the City to
enforce the Declaration- of Encumbrances shall be enforced in
a separatly recorded documents (see Exhibit "B" to Exhibit
"All )
1 FWD.AGR
9126/88
(3) If problems arise within five years from the creation -
of the subdivision and these problems are attributable to the
subdivision approval (as distinguished from mere site
development) , the iCity of Dublin may impose such additional
"reasonable requirements as may be necessary to mitigate those
problems.
(4) These conditions shall be included in a Declaration of
Encumbrances, in substantially the same form as is attached
hereto as Exhibit "A."
2 FWD.AGR
9/26/SS
Recording requested by and
when recorded mail to:
Paul , Hastings, Janofsky & Walker
Attn: Phillip D. Sasso, Esq.
1299 Ocean Avenue, Fifth Floor
Santa Monica, CA 90401
DECLP-.?:.TIOid OF ENCUM13M.A:dCES
THIS DECLARATION OF ENCUMBRANCES is made and entered into
this day of , 198 8, by and between METROPOLITAN
LIFE INSURANCE COMPANY (";METROPO LIT"N") and FIRST WESTERN
PROPERTIES OF CALIFORNIA I ASSOCIATES, a General Partnership
("FIRST WESTERN") .
WITNESSETH:
WHEREAS, METROPOLIT.A?t is the owner of the parcel of land
which is more particularly described on Exhibit attached
hereto and incorporated herein by this reference ("Parcel A") ;
and
,vHEREAS, there are two free-standing, one-story buildings
located on Parcel A within the areas denoted as a "Building Area"
on Exhibit "B" attached hereto and incorporated herein by this
reference, one consisting cf approximately 57 , 650 square feet and
the other consisting of apprcximately 10, 000 square feet; and
WHEREAS , a third free-standing building may be ccnstructed,
at METROPOLITAN election, within the "Building Area" denoted on
Exhibit "B" at the corner of A:nador Plaza Road and !- ader Vallev
Boulevard; and
;v EREAS , FIRST WEST ERN is the owner of another parcel c`
land which is more particularly described on Exhibit "C" ("Parcel
B") ; and +
W;ir-REAS , a free-standina, one-story retail buildina
consisting of apnroximately 10, 000 square feet is to be
constructed on Parcel B within the area denoted as a "Building
Area" on Exhibit "B" ; and
WHEREAS , Parcel A and Parcel B (sometimes referred to
collectively as the "Parcels") are adjacent to one another and
are owned by different individuals or ccrorations; and
WHEREAS, the ownzYs 'ef the Parcels recognize that Parcel A
and Parcel B will comprilp an intearated retail development; and
1
DECENCUM.FWD
9/2o'/SS
E\HIBIT "A"
WHEREAS , it is the desire of the owners of the Parcels to
fix and establish easements, covenants, restrictions, liens and
charges (hereinafter collectively referred to as "Encumbrances") ,
upon Parcel A and Parcel B; such Encumbrances shall run with the
land and shall inure to and pass with the Parcels for the benefit
of the owner(s) , occupants) or lessee(s) 'of all or a portion of
the Parcels, and shall apply to and bind the respective
successors in interest thereof, and further, such Encumbrances
are hereby imposed upon each respective Parcel as reciprocal
easements in favor of the other Parcel, and any portion thereof,
in furtherance of a plan for cr the development and imarovement of
the Parcels and for the purpose of enhancing and perfecting the
value, desirability and attractiveness of both Parcels.
NOW, THEREFORE, FOR VALUABLE CONSIDEP-TION, THE RECEIPT O:
WHICH IS HEREBY ACKNO;vLEDGED, THE PARTIES HERETO DO MUTUALLY
: --- AGREE AS FOLLOWS: _
1. BUILDING AND CO?-!?•'ON AREA DEVELO MIENT
A. Building Area: Except as herein provided, all
future buildings and structures shall be placed or constructed
upon the Parcels in areas designated on Exhibit "B" as a
"Building Area" ; and further, no buildings or Structures shall be
placed or constructed on the Parcels within those areas on each
respective Parcel desicnated as a "Ce:iW- , Areal' (as defined in
Paragraph 1 .B below) on Exhibit 3except for pylon and directional
signs (as provided in Paragraph 3) , bu-cer guard=_ er curbs,
landscape planters, lichting standards, and apDlicable controls
and regulations by the - of Dublin. In addition, 1t is also
agreed that each of the parties hereto may construct and locate
canopies projecting fro::, such Build-inc Areas, including columns
or pillars supporting the same, and normial foundations and doers
for ingress and egress rmay project frcr, such Buildina Areas. All
the foregoing nust co:::ply with all applicable laws, rules,
ordinances and regulations of the City of Dublin cr other
applicable local govern:-ental authority.
B. Common =-e=• The afcre-entioned Co oion Area is
hereby defined to be' t1-Ic=e areas on,.Parcel A and Parcel B which
are deSigna�ed a5 the "."o:u: on Area" cn Ex`_libit. "B." Tile Coiamon
Area is to be used Lc= yenicular driving, parking and pedestrian
traffic (which area also includes all sidewalks, walk:aays ,
driveways and landscapinr_.) and as specified in Paragraph 2 belc:a.
Unless required by the City of Dublin, the location and size of
anv and all sidewalk's, parking stalls, walkways, driveways and-
landscaping in the ccmmcn Area shall not be changed except by the
mutual consent of METROPOLITAN and FIRST WESTER-N. If
METROPOLITAN and FIRS.. jvEST:.RN agree to any material change in
the Common area, then a new Exhibit B will be recorded as a
amendment to this Declagation of Encumbrances.
2 DECENCUM.FWD
9/26/SS
C. DPsian and Remodel or Building: Prior to the
construction, reconstruction or remodeling of any building
changes, alterations or modifications of any building on Parcel
B, the party who desires to construct such building or buildings
or make such major exterior changes, alterations or modifications
shall submit to the owner cf, Parcel A all plans, specifications,
drawings and other pertinent information necessary for the owner
of Parcel A to adequately review all structural changes together
with the exterior design, color and elevations (including signs)
that are proposed for the building, and thereupon either approve
or disapprove of the same. The owner of Parcel A shall not
arbitrarily or unreasonably withhold its approval of such plans
and specifications. It shall not be unreasonable for the owner
of Parcel A to withhold its consent should such plans and
specifications be architecturally or aesthetically incompatible
with the buildings on Parcel A. 'If the plans and specifications
In are disapproved as provided herein, alternate plans and
=�
specifications may be submit_ed, which alternate proposal shall
be handled in the same manner as the initial proposal.
Subject to the foregoing Paragraph, any party who
desires to construct a building(s) or to make major exterior
chances, alterations or modifications thereto, shall be permitted
to, do so, provided that: (1) all such construction, alteration
or modification is performed at the sole expense of that party;
(2) such construction, alteration or ziri-odificatien does not
unreasonably interfere with the parking, ingress and egress to
the other Parcel ; and (3) the party performing such construction,
alteration or modification shall indernify and hold the owner of
the other Parcel harmless from any claims, costs, expenses,
damages or injuries to person or property resulting from such
construction, alteration er :codification.
D. Sianaae: FIRST WESTERN and its successors in
interest shall not be permitted to erect a free-standing sign on
Parcel B.
2 . E?SE',!ENTS
A. Inaress and _cress: The owners of the Parcels
hereby agree that any cwner(s) , lessee (s) or licensee(s) of all
or any portion of the Parcels and its (or their) respective
�
CL15tQ;�erS, agents, tenants, employees and suppliers, shall have
the right o7l mutual, reolprocal and nc—nexcluslve ingress and
egress by vehicular and pe^es`rlan traffic and vehicular parking,
Upon, ever, and across the Common area, except where anv signs,
landscape planters, lights' or other parking lot improvements may
be located; and the parties hereto shall not do any act or acts
which will prevent e r]r,irder such ingress, egress and parking,
except such work as ray be required from time to time for
3 DECENCUM.FWD
9/2o/SS
maintenance and repair of the Common " 'Area, 'or as otherwise
specifically provided herein.
B. Utility Lines: The owners of the Parcels do hereby
establish and create (for the benefit of all or any portion of
Parcel A and Parcel B, mutual and reciprocal non-
exclusive easements under, over, through and across the Common
Area of the Parcels for water drainage systems, water mains,
severs, water sprinkler system lines, telephones or electrical
conduits or systems, gas ;:rains, and any other public utilities
needed to service said pre_erties. All such systems, structures,
mains, sewers, conduits, lines and other public utilities shall
be installed and maintained below the ground level or surface of
such easements. In the event it is necessary for any party
hereto to cause the installation or relocation of a utility
line
or sewer across the Common Area subsequent to the initial paving
and improving thereof, the owner of the other Parcel hereby
- . grants an easement to such party for -the exclusive purpose of
installing, relocating, replacing or enlarging a utility or sewer line across the Common Area, subject to the following conditions
and requirements:
. (i) Such installation, relocation or mcdification
shall not interfere with, or increase the cost of, or
diminish the Other Parcel owner's utility and/or server
services;
(ii) The party performing such work s::all cive the
other Parcel owner at least. ten (10) days prior wrZtten
notice, together wit: notification of the nature and extent
of such work, the proposed area of such work, and the
anticipated starting Date of such work; provided, however,
if the work involved is emergency repair work, only such
advance notice , written or oral , as is reasonably
practicable need he given;
(iii) zfter such work is completed, the pipes or
lines in cuestion shall be underground and not beneath or
within five feet (-, ) of any "Building Area" located on the
other Parcel ;
(iv) After the completion ei such work, the party
performing such work shall restore the portion of the other
owner' s Parcel and innprovements lccated thereon and the
Common Area to the same or , as good condition as existed
immediately before to commencement of such work; and
(v) Any wcrk performed under this Paragraph 2 .B,
including the restoration of the other owner's Parcel and
the Common area after such work is ccmpleted, shall be done
at the sole cost eft the party undertaking the same and shall
be performed in such a manner as not to cause any
4 DECEENCU,I.FWD
S-/26/SS
Y
interruption of or undue interference with the business
conducted on the other owner's Parcel. To the extent
possible, no such work shall be performed on weekends or
during holiday seasons.
3 . OPEP.ATION OF CO'4MO'N AREA
A. Emnlovee ParRinc: Those areas to be used for
motor vehicle parking purposes by employees of the occupants of
the Parcels may be designated from time to tine by the owner of
Parcel A.
B. maintenance and Rebairs: In consideration of the
mutual, reciprocal and non-exclusive easenents herein granted and
as a condition or to the use and enjoyment thereof, each
and every tenant or occ•.:pant of any part of the Parcels shall pay
for its share of the cost associated with repairing and
- maintaining in good order t— Area so that the same shall
be kept in a clean, attractive and slightly condition, and may be
conveniently used for its intended purccses. Such maintenance
and repair shall include, without limitation, resurfacing of the
Common area, naintenance of the lights and lighting standards,
landscaping, cleaning and janitorial work, repair and replacement
of utility and drainage facilities as the same are all included
within the respective tenants, or cccupantCs, portion of the
Parcels. Notwithstanding anything herein to the cor_trarv, the
i i L
parties hereto agree �::c:. any and all bl:S.;�.^,eSSES On the Parcels
shall be conducted in accordance with sound business practices,
and the respective tenant- or cccupant of each such business shall
at all times, at its o:•;n cost and expense, repair and -aintain in
good Order and condition t-he building in which its business is
located, including the periodic repainting of the e-xterior of
such building.
C. Maintenance Director• FIRST WESTERN hereby
approves of 1-1=TROrOLITA:1 (and its successors) assuming a pcsiti cn
as Maintenance Director Of the Common `rea perpetually frcm and
after the date hereof. inv`hina to the contrary notw_tnsta::d-Jnc,
METROROLIT3N shall have t;:e right, at its option, and upon giving
ninety (90) days, pricy :written notice to FIRST tESTER`i to
terminate its position as i'1aintenance Director; w1':ereuPOn a ne-.•;
Maintenance Director shall then be apeeinted by METRO-POLITAN with
full right and authority cf, operation, ccntrol and naintenar:ce cf
the entire Cormcn area.
D. insurance: The Maintenance Director shall provide
a Public liability policy insuring the owners of ti:°_ Parcels
against all cl:'._ms for cerSOnal injury, death or property damage
occurring in, upon er �'-cqt the Common area. The owner of Parcel
A shall be the insured•= and the owner e= Parcel B shall be named
on the liability insuroance policy as an additional insured
thereof, with limits c.L4 liability not less than $3 , 000, 000. 00
5 DECENCUM. FWD
9/2o/SS
combined single limit for bodily injury or death and for damage
to property. Nothing in this Paragraph 3.D shall prevent the
Managing Director from taY,ing out public liability insurance 1anaging
the Common Area of such kind and in such amount as the
Director, in its sole discretion, deems reasonable, or from
carrying the same under a blanket insurance policy or policies
covering other properties as well as the Common Area.
E. Common Frea Maintenance and Insurance Expenses
Allocation: METROPOLITAN as the Maintenance Director, is hereby
authorized to contract for and pay for all of the items
enumerated above as repair, maintenance and insurance expenses
and METROPOLITAN agrees to operate on a ton-profit basis with an
end to keeping such expenses at a reasonable minimum.
METROPOLITAN shall bill FIRST WESTERN not more frees ently
than
quarterly and not less frequently than yearly for its pro rata
_ share of the said expenses, plus. 15% of said expenses to cover
�- administration costs. Th_e proortionate share of the total
Common Area expenses to be borne by METROPOLITAN and FIRST
year shall be
WESTER:+ for any based upon the relative percentage
ownership of square footage of building(s) built on each party's
Parcel.
4 . TAXES
Each party hereto and its respective successor and
assigns shall pay direct to the tax colleQ or when due, the real
property taxes and other specsal taxes and assessneni s assessed
against the property owned by said party, including e portion
of the Common Area owned by said party.
5 . USE RESTRICTIOiiS
A. Audio visual . Stereos . Home Anniiances and Consumer
Lro ; So long as `?E"'ROPOLITAN operates a store on Parcel
Electronics: g
A for the retail sale cf stereos, home entertain-ant, audio
visual, consur;er electronics or home appliances, no portion of
Parcel B shall be used for the retail sale of similar goods as
are sold by METROPOLI-T AN unless the prior written, consent. of
METROPOLITAN is obtained.
B. Men's , ;vcmen's and Children's Apparel: So long as
TJX Cc::,panies, Inc. operates a T.J. Max% store on Parcel A for
the retail sale of men's, women's and children's a_parel and
accessories related thereto, no portion of Parcel B sail be used
for the retail sale of such similar goods as are soles under the
trade name of T.J. Ma%., unless the prior written consent of TJX
Companies, Inc. is obtained.
C. Sporting- Gcccs and Athletic Aaoarel: So long as
Oshman's Sporting Good Co. , California, operates an Oshman's
Sporting Goods store ontParcel A for the retail sale of sporting
6 DECENCUM.FWD
4/?6/SS
goods,- athletic apparel and related 'accessories, and such other
items as are from time to time sold in si-milar Oshman's Sporting
Goods stores, no portion of Parcel B shall ever be used for the
retail sale of similar goods, unless the prior written consent of
Oshman's Sporting Goods Co. , California is obtained.
D. The foregoing restrictions are imposed herein for
the exclusive benefit cf METROPOLITAN and are not for the benefit
of METROPOLITAN's tenants or subtenants. 2+o tenant or subtenant
of 2�ETROPOLITP.N shall have any rights as a third party
beneficiary or other-dise to enforce the foregoing provisions or
any other provision of this Declaration cf Encumbrances.
6 , t?ODIFICATION
Neither this Acr eement nor any term or provis'cn
hereof, may be changed, waived, discharge, amended, cdifiur or
terminated orally, or i n any manner other than by an i nstru men
in :%ri ring signed bi the uartv against c;hick the eni arce-ient of
the change , waiver, discharge, amend ent, modi-icatiOn O^
termination 15 sought. No consent of any tenant of an owner G=
either Parcel shall be required to mcd_'_y, a=mend cr terminate
this Agreement.
. No document amending this Agreement or affecting the
substance of its provisions shall be effective and no such
document- shall be recorded without thepsent and approval of
the City of Dublin_ Any such document shall be effective and
shall be recorded only if a letter from the City of Dublin is
attached as an exhibit to the document, which letter shall
specifically state that the amendment or modification is r.o`
inconsistent with zoning and other reculations of ::le City of
Dublin.
Any document, whether recorded or unrecorded, which purports
to amend or modify this hcreeruent and which does not comply with
this provision shall be - deemed null and void_ The recrsirement
that a modification or amendment of this Agreement is effective
only upon city approval shall be stated in a separate document to
be recorded in the Official Records of Alameda County and which
shall be in substantially the same form as the document attached
as Exhibit "D."
If problems arise within five years from the creation of the
subdivision and these problems are attributable to the
subdivision approval (as distinguished from mere site
development) , the City of Dublin may impose such additional
reasonable requirements as may be necessary to mitigate those
problems. This condition; shall be reflected by the Declaration
of Encumbrances, attadrled• hereto as Exhibit "A" (see section 6 on
page 7 of Exhibit "A") • �/
7 DECENCUM.FWD
9/26/SS
r
7. EITFO F DUBLIN
It is specifically agreed that the City of Dublin shall have
the right to enforce the provisions of this Agreement relating to
easements, maintenance, and repairs. This right to enforce shall
be stated in a separate document, to be recorded in the official
Records of• the County of Alameda in which shall be substantially
in the same form as that document attached hereto as Exhibit "D."
7w3. GENERAL PROVISIONS
A. Covenants Run with the Land: Each easement,
restriction, and covenant over Parcels A and B shall be
appurtenant to and for the benefit of the other Parcel and each
part thereof. Each covenant, restriction and underta::ing as to
Parcel A and Parcel B shall be a burden thereon for the benefit
of the other Parcel and each part thereof, and shall run with the
land. This Declaration of Encumbrances shall inure to the
benefit of and be binding upon the parties hereto and their
successors and assigns.
B. Duration: This Declaration of ( Encumbrances, and
the Encumbrances created and established hereunder (including all
benefits and burdens) , shall be perpetual and run with the land,
uniil terminated by the mutual consent of the owners of the
Parcels.
zm�,.
C. In'inctive Relief: In the event of any violation
Or threatened violation by `any Owner, lessee, or occu:+ant of any
portion of Parcel A or Parcel B of any of the terms, covenants
and conditions herein contained, in addition to 'he other
remedies herein provided, the owners cf the Parcels and the
lessee(s) shall have the right to enjoin such violation or
threatened violation in a court of competent jurisdict_on.
D. Attorneys . Fees: Any of the parties -av enforce
this instrument by ap:.rcpri ate action and should a party prevail
in such action, it shall recover as part of its costs reasonable
attorneys, fees .
E. Breach Shall . Not Perni t Termination: It is
expressly agreed that . no breach cf this Declaration of
Encumbrances shall entitle any of the rarties hereto to cancel ,
rescind or otherwise to terminate this Declaration of
Encumbrances, but such linitation shall not affect in any manner,
anv other richts or remedies which the parties hereto may have
hereunder by reason of anv breach of this Declaration of
Encumbrances . Any breach of any of said covenants or
restrictions, however, sell not defeat or render
invalid the
lien of any mortgage'= or deed of trust made in good faith for
pon
value, but such covena nts or restrictions shall be '-finding u-
and effective against s-Lh owner or owners of the Parcels, or an,,,-
g D*CENCU;1.FWD
9/26/SS
d.
portion thereof, whose title thereto is acquired by foreclosure,
trust deed sale, or otherwise.
F. SeverabiIity: If any clause, sentence or other
portion of this Declaration of Encumbrances -shall become illegal,
null or void for any reason, or shall be held by any court of
competent jurisdiction to be so, the remaining portions thereof
shall remain in full force and effect.
G. Construction: The rule of strict construction does
not apply to this grant. This grant shall be given a reasonable
construction so that the intention of the parties to confer a
commercially usable right of enjoyment on the grantees is carried
out.
H. Counter-parts : This Declaration of Encumbrances may
be executed in several counterparts and all such executed
--- counterparts shall constitute one (1) agreement, binding on all
of the parties hereto notwithstanding that all of t��e parties
hereto are not signatories to the original or to the same
counterpart.
IN WITNESS WHERECF, the parties have hereunto set their
hands and seals the year and date first above written.
FIRST WESTEj� PROPERTIES OF
CALIFORNIA I ASSOCIATES
Date: By:
JOHN T. LESS,
Managing General Partner
METROPOLITAN LIFE INSURANCE-' COMPANY
Date: BV:
vice President
r
g DEECENCUM FWD
9/2e/SS
STATE OF )
ss.
COUNTY OF )
On this day of 1983, before ne,
the undersigned Notary Public, personally appeared JOH111 T. HESS,
known to me personally (or proved to me on the basis of
satisfactory evidence) , to be the person who executed the within
instrument on behalf of the partnership, and acknowledged to me
that the partnership executed it. 1d77P1-SS my hand an official
seal .
Notary Public
STATE OF )
ss .
COUNTY OF )
On this day of 19808 , befcre me
personally appeared known to me personally
(or proved to me on the basis of satisfactory evidence) , who,
being by me duly sworn, did for himself say that he is the
Of METROPOLITAN LIFE INSURANCE CO,•SPANY the
corporation named in and which executed the within instrument,
and that said instrument was signed in behalf of the corporation
by authority of its board of directors, and
acknowledged before me said instrument to be the free act and
deed of said corporation.
No--ry Public
10 DECENCUM.FWD
9/26/SS
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Recording requested by and
when recorded mail to:
PAUL, HASTINGS, JANOFSKY & WALKER
Attn: Phillip D. Sassa, Esq.
1299 Ocean Avenue, Fifth Floor
Santa Monica, CA 90401
PROHIBITION OF MODIFICATIONS TO
DECLARATION OF ENCUMBRANCES WITHOUT
APPROVAL OF CITY OF DUBLIN
and
RIGHT OF CI'T'Y OF DUBLIN TO ENFORCE
DECLARATION OF ENCUMBRANCES
c
By a Declaration of Encumbrances made and entered into on
the day of , 1988, METROPOLITAN LIFE
INSURANCE COMPANY ( "METROPOLITAN" ) and FIRST WESTERN PROPERTIES
OF CALIFORNIA I ASSOCIATES ( "FIRST WESTERN") have agreed as
follows:
1 . No document amending this Agreement or affecting its
substance of provisions shall be effective and no such document
shall be recorded without the consent and approval of the City of
Dublin. Any such document shall be effective and shall be
recorded only if a letter from the City of Dublin is attached as
an exhibit to the document, which letter shall specifically state
that the amendment or modification is not inconsistent with
zoning and other regulations of the City of Dublin.
2 . It is specifically agreed that the City of Dublin shall
have the right to enforce the provisions of this Agreement
relating to easements, maintenance, and repairs.
FIRST WESTERN PROPERTIES OF
CALIFORNIA I ASSOCIATES
Date: By•
JOHN T. HESS,
Managing General Partner
METROPOLITAN LIFE INSURANCE COMPANY
Date: /
Vice President
1 PROHIB.FWD
9/26/88
Mi
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• Y I'i- ' `ft Y f r •'
STATE OF )
ss.
COUNTY OF -)
On this day of 1933, before me,
the undersigned Notary Public, personally appeared JOHN T. HESS
known to me personally (or proved to me on the basis of
satisfactory evidence) , to be the person who executed the within
instrument on behalf of the partnership, and acknowledged to me
that the partnership executed it. WITNESS my hand an official
seal.
Notary Public
STATE OF )
ss.
COUNTY OF )
On this _ day of , 1988, before me
personally appeared p-•.known to me personally
(or proved to ne on the basis of satisfactory evidence) , who,
being by me duly sworn, did for himself say that he is the
c-f Metropolitan Life Insurance Company,
the corporation naned in and which executed the within
instrument, and that said instrument was signed in behalf of the
corporation by authority- of its beard of directors, and
acknowledged before me said instrument
to be the free act and deed of said corporation.
Notary Public
i
2 PROHIB.FWD
9/26/85
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