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HomeMy WebLinkAboutDublin Crossing Acquisition Agrmnt Off-Site PropAGREEMENT FOR ACQUISITION OF OFF -SITE PROPERTY PURSUANT TO GOVERNMENT CODE SECTION 66462.5. BE, THE CITY OF DUBLIN AND DUBLIN CROSSING, LLC This Agreement for acquisition of off -site property pursuant to California Government Code section 66462.5 is made and entered into as of this , 2019, by and between DUBLIN CROSSING, LLC, a Delaware limited liability company ("Developer" hereinafter) and the CITY OF DUBLIN, a municipal corporation ("City" hereinafter). Developer and City are referred to jointly below as "parties." All references to "Codes" refer to California Codes. Recitals A. Developer has submitted, and on March 25, 2014 the City approved,. applications for development of Vesting Tentative Map 8150 on that certain real property owned by Developer located, in the City of Dublin. Be To facilitate the orderly development of the proposed uses on the Developer Property, specific conditions of Vesting Tentative Map 8150 (including but not limited to conditions 64-69) required Developer to obtain right-of=way and construct complete roadway and utility improvements for the Scarlett Drive between Dougherty Road and Houston Place and the extension of Scarlett Drive from its current terminus at Houston Place to Dublin Boulevard in general conformance with design shown as Exhibit C-3.4 of the Vesting Tentative Map (the "Off -site Improvements"). While a final map has been recorded based on Vesting Tentative Map 8150, Developer has agreed that Condition 15 of Planning Commission Resolution No. 17- 06, which approved Vesting Tentative Maps 8360, 8361, 8362, 8363, 8364, 8365, 8366, 8367, and 8368 that cover the same property, incorporates all of the conditions imposed on Vesting Tentative Map 8150. C. Completion of the Off -site Improvements would require the acquisition of property owned by neither Developer or City (referred to hereinafter as "Off- site Property"). The Off -site Property is composed of 3.95 acres, not including temporary construction easements (portions of APN Nos. 941-2815-015 and 986-1-3-1). The legal description and plats of the Off - site Property are attached hereto, respectively, as Exhibits A and B, and are incorporated herein by this reference. The current record owners of the Off -site Property are as follows: APN 941- 2815-015: Helping Hands Support, Inc.; APN 9864-3-1: County of Alameda. D. Pursuant to Government Code section 66462.5, when a condition of map approval requires the installation or construction of improvements on off -site property, and title cannot be obtained by negotiated purchase, a City is required to commence proceedings to acquire off -site property by eminent domain or such off -site improvement conditions will be waived. Pursuant to said Section 66462.5, a City and subdivider may enter into an agreement to allocate the costs and responsibilities for acquisition of such Off -site Property. E. Developer will record Final Tract Map No. 8360, 8361, 8362, 8363, 8364, 8365, 8366, 8367, and 8368 (the "Final Map(s)") and, under a separate subdivision improvement agreement, will agree (and post security) to undertake and complete all required public improvements set forth in said Tentative Tract Map No. 8360, 8361, 8362, 8363, 8364, 8365, 8366, 8367, and 8368, including construction of the Off -site Improvements on the Off -site Property, following recordation of the Final Map. Developer has made a good faith effort to acquire the Off -site Property, but has been unable to do so by negotiated purchase. F. California Government Code Section 40404 and California Code of Civil Procedure Section 1230,010 ct seq., authorize City to acquire by eminent domain any and all property necessary for streets, highways and related purposes and California Government Code Section 66462.5(a) requires that the City, within 120 days after the filing of the Final Map, acquire the Off -site Property by negotiation or commence proceedings to acquire the off -site property by eminent domain, including proceedings to obtain an order for immediate possession under Code of Civil Procedure Section 1255.410. G. To facilitate the completion of all required public improvements, City and Developer now mutually desire to enter into this Agreement under Government Code Section 66462.5 concerning the Off -site Property and to allocate responsibility between the respective parties. Agreement. NOW, THEREFORE, it is hereby agreed by and between City and Developer as follows: All Recitals set forth above in Section A are incorporated herein. 2. City agrees to diligently proceed to take all actions required to complete and approve an appraisal of the Off -site Property in accordance with Government Code Section 7267.1 and to then make its statutory offer to purchase the Off -site Property to the owner of record of the Off -site Property (the "Off -site Owner") in that appraisal amount in accordance with Government Code Section 7767.2 (the "Statutory Offer"). If the Statutory Offer is accepted by the Off -site Owner within thirty (30) days after its receipt, then the City shall promptly and diligently proceed to complete the acquisition of the Off -site Property after Developer deposits with the City the full amount of the Statutory Offer and an amount which will defray all of City's actual costs incurred to complete that acquisition including but not limited to the cost of the appraisal and actual attorney's fees (the "Acquisition Costs"). If the statutory offer is not accepted by the Off- site Owner within the time specified in the offer, then the City shall promptly and diligently take all actions required under Code of Civil Procedure Section 1245.235 to hold a hearing of the City Council to consider the adoption of a Resolution of Necessity to acquire the Off -site Property by eminent domain. It is the intention of the City and Developer that the Parties will use their best efforts to complete the tasks set forth in this Paragraph 2, including taking all action required for the adoption of a Resolution of Necessity, within one hundred twenty (120) days from the date that this Agreement is approved by the City Council. 3. The parties recognize that City cannot exercise its power of eminent domain until a Resolution of Necessity has been adopted by City's legislative body pursuant to law. This Agreement is made as a requirement of Government Code Section 66462.5 for the City to acquire the Off -site Property by eminent domain. However, this Agreement is neither a commitment nor an announcement of an intent by City to adopt a Resolution of Necessity. In the event the City Council elects, in its discretion, to adopt the Resolution of Necessity and commence a condemnation action after the required public hearing on the Resolution of Necessity, then City shall, within thirty (30) days after adoption of the Resolution of Necessity, cause the eminent domain proceeding for the acquisition of any interest or interests (whether fee, leasehold, or otherwise) in and to the Off -site Property to be filed together with a motion for the issuance of an order of immediate possession of the Off -site Property under Code of Civil Procedure Section 1255.410 and diligently processed to completion by and through the use of City's power of eminent domain. Subject to performance of Paragraph 4, City shall cause the proceeding to be pursued to completion using legal counsel and consultants of City's selection. City and Developer agree that it is in their best interest to acquire only the minimum interest in the Off -site Property necessary for the construction of the Off -site Improvements by Developer and or the repair, replacement, use operation and maintenance of the Off -site improvements by City and to minimize any severance damages to the remainder parcel and agree to acquire, where feasible as determined by the City in its reasonable discretion, nonexclusive easement interests rather than a fee or other exclusive interest. 4. In the event the City commences a condemnation action, Developer shall bear all Off -site Property acquisition costs actually incurred by the City in that condemnation action (the "Condemnation Costs"), which shall include but not be limited to, the costs of title reports and/or litigation guarantees, litigation expenses, court costs, attorneys' fees, deposits necessary to take immediate possession of any such property interest, deposits reflecting verdicts as to the value of any such interest necessary to obtain any final order or orders of condemnation, any sum paid as and for a settlement of any suit filed by City pursuant to this Agreement, payments for land and improvements on the land, severance damages, fixtures and equipment payments, payments for loss of business goodwill, pre -condemnation damages, relocation expenses, abandonment damages, and Off -site Property owners' statutory costs and litigation expenses, as and to the extent authorized and required by the Eminent Domain Law, codified at Code of Civil Procedure Section 1230.010, et seq. (Eminent Domain Law), and any and all incidental expenses related to any of the foregoing items. City shall confer in good faith with Developer prior to agreeing to any settlement amount to the Off -site Owner in excess of the Deposit Amount set forth in paragraph 7 below ("Settlement Offer"). If Developer does not agree with any Settlement Offer that City has proposed to Developer in accordance with the previous sentence, City shall not accept such Settlement Offer and City shall prosecute the case through trial and any appeals at Developer's expense. City and Developer agree that any privilege that the City holds related to the condemnation action discussed herein, including but not limited to the attorney client privilege, shall extend to the Developer so that the City's legal Counsel and/or City staff can discuss the action with the Developer's representatives and legal counsel and engage in open good faith dialogue. 5. Concurrently with the execution of this Agreement, Developer has deposited with City the sum of Fifty Thousand Dollars ($50,000). City agrees to deposit said sum in a separate fund ("Separate Fund") and to use the principal sum, and any interest earned thereon, to pay for the Condemnation Costs, specified in this Agreement. Any sums not expended by City shall be promptly refunded to Developer as set forth in Paragraph 10 below. 6. City shall, on a monthly basis, or as often as deemed necessary, provide Developer with an accounting of disbursements from the Separate Fund established pursuant to Paragraph 5, above. In the event disbursements reduce the balance of the fiend to Ten Thousand Dollars ($10,000.00) or less, Developer shall, following a written request of City, promptly deposit such additional sums as necessary to maintain a balance in said Separate Fund at Twenty Thousand Dollars ($20,000.00). 7. If the Resolution of Necessity is adopted, in addition to its deposits to the Separate Fund, Developer agrees to pay to City within fifteen (15) days after adoption of the Resolution of Necessity the entire amount of the Statutory Offer and any other amounts required by the Eminent Domain Law ("Deposit Amount") to obtain immediate prejudgment possession of the Off -site Property, which amount City will deposit under Code of Civil Procedure sections 1255.010, et seq., and the City shall then proceed to obtain immediate prejudgment possession of the Off -site Property. 8. If the Resolution of Necessity is not adopted upon its presentation to the City Council, Developer may terminate this Agreement and all of the Separate Fund not yet expended shall be returned to Developer and the terms of Government Code Section 66462.5 shall apply. 9. If Developer should independently acquire all or any portion of the Off -site Property by negotiated purchase after an eminent domain proceeding is filed by the City, City shall move to abandon all or any part of the proceeding relating to the property acquired by negotiation. If a complete or partial abandonment is filed, Developer shall, subject to the terms of the acquisition agreement between Developer and Off -site Owner, bear any and all costs, expenses and/or damages related thereto, including, but not limited to, any condemnee's recoverable costs and/or recoverable attorneys' fees pursuant to Code of Civil Procedure Section 1268.610, et seq. 10. When acquisition of the Off -Site Property by the City under this Agreement is concluded or upon the earlier termination of this Agreement, City shall remit to Developer the balance of the Separate Fund within sixty (60) days after full payment of just compensation, costs and all applicable litigation expenses have been made to Off -Site Property owners. Additionally, City shall expeditiously withdraw any funds remaining on deposit with the Court and disburse the same to Developer once a final order of condemnation or a dismissal of the eminent domain proceeding is entered by the Court. 11. Any and all notices, requests or other communications required or permitted to be given under this Agreement or by reason of this Agreement shall be in writing and shall be deemed to have been given when delivered in person, or five (5) business days after mailing, by certified or registered mail, return receipt requested, to the parties at the following addresses or any such other address or addresses as the parties may, from time to time, designate in writing in the manner herein specified: 12. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to City shall be addressed as follows: To City; City of Dublin 100 Civic Plaza Dublin, CA 94568 Attention: City Manager With copies to; City of Dublin Attention: City Attorney To Developer: Dublin Crossing, LLC c/o BrookCal Dublin LLC 500 La Gonda Way, Suite 100 Danville, California 94526 Attention: Josh Roden and Dublin Crossing, LLC c/o Lennar Corporation 2603 Camino Ramon, Suite 525 San Ramon, CA 94583 Attention: Brian Olin 13. A Party may change address by giving notice in writing to the other Party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following business day or by facsimile transmission which shall be deemed given upon verification of receipt. 14. In the event either party brings any action in law or in equity in relation to this Agreement, or to declare such party's rights under this Agreement, the prevailing party in such suit or action, on trial or appeal, in addition to all other sums to which it may be entitled, may call upon the non -prevailing party to pay a reasonable sum for its attorneys' fees and to pay any and all other costs and expenses that have been incurred by the prevailing party, either directly or indirectly, in connection with said action or suit, as shall be fixed by the court. 15. Each party to this Agreement agrees to cooperate by performing any further acts and by executing and delivering any and all additional documents which may be reasonably necessary to carry out the terms and provisions of this Agreement, and each party to this Agreement agrees that it will not act in any manner whatsoever which would hinder, impede, interfere or prohibit or make more onerous or difficult the performance of the other party hereto under this Agreement. 16. No amendment to this Agreement shall be effective unless in writing and executed by the parties hereto. 17. The terms and provisions of this Agreement shall not cause the parties hereto to be construed in any manner whatsoever as partners, joint venturers, or agents of each other in the performance of their respective duties and obligations under this Agreement, or subject either party to this Agreement to any obligation, loss, charge, or expense of the other party to this Agreement. l8. Time is expressly made of the essence of each and every provision of this Agreement. 19. The provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assignees. 20. No remedy or election hereunder shall be deemed to be exclusive but shall, wherever possible, be cumulative with all other remedies at or in equity. 21. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. IN WITNESS WIiE12EOF, the Parties have caused this Agreement to be executed as of the date and year first above written. City: CITY OF D IN By: 0isto pher L. Foss, Cit ager Attest: z%/I Caroline Soto, City Clerk Approved as to form �1 i Bakk/er, City Attorney Developer: DUBLIN CROSSING, LLC, a Delaware limited liability company By: BrookCal D}rtSl9 LLC, a Delawarr/�it1YYed liability company Its: Member By: Name: regory Glenn o Its: By: Name: Gonzalo RodAuez Its: Vice Prealdent. Land and Planntng By: SPIC Dublin LLC, a Delaware limited liability company Its: Member By: CalAtlantic Group, Inc. a Delaware corporation Its: Member By: Name: Its: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfidness, accuracy, or validity of that document. State of Califoruia County of Contra Costa On,i�i7�t do iCt before me, Yvonne M. Craves, Notary Public_ Date Here Insert Name and Title of the Officer personally appeared Gregory Glenn and Gonzalo Rodrieuez Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to �e [he persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. YVONNE M: CPAVES Notary public -California € Contra Costa County Commission t 2184834 My Comm. Expires Mar 26,2021 Place Notary Seal Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and o seal. %� � Signatureuzr� �-/ � a � Signature of Notary Public OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reaftachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer Title(s): ❑ ❑ ❑ ❑ Partner — Lim'fiti ed General ❑ Individual ❑ Attorney in Fact ❑ Trustee Guardian or Conservator Other: Signer Is Representing: IN Number of Pages: Signer's Name: ❑ Corporate Officer Title(s): ❑ ❑ ❑ ❑Partner — Litlflied General ❑ individual ❑ Attorney in Fact ❑ Trustee Guardian or Conservator Other: ©2OI S National Notary Association • wwcvNationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 Developer: DUBLIN CROSSING;, LLC, a Delaware limited liability company By: "rookCal DUUII❑ LLC, a Delaware limited liability company tts: Member [3y: Name: Its: Name: IIS[ 13y: SPIC Dnbbn LLC, a Delaware limited liability eompany Its: Member By: CalAtlantic Groap, Inc., a Delaware corpora ' n Its: Mem er Name: Its: Fra.tdm� A notary public or other officer completing this certificate verifies only die identity of die individual who signed the document to which this certificate is attached, acid not the trudifidness, accuracy, or validity ofdiat document. STATE OF CALIFORNIA COUNTY OF Contra Costa On April 18, 2019 ,before me, Rachael Christine Harriss Notary Public (here insert name and title of the officer) personally appeared Bridgit Koller who proved to me on the basis of satisfactory evidence to be the persons) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. I p 1 RCHRISTINEHARPoS Notary Poublic - California r � = Contra Costa County � Commissionlf 2272936 '`� Signature oilMy Camm. Expires Dec 24, 2022 (SEAL) 2294-001691FORM11227861. I taz9na