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HomeMy WebLinkAbout4.7 Agreement for Long Term Encroachment for Landscape Features Within Public Street Rights-of-Way Within the Boulevard Development (2)STAFF REPORT CITY COUNCIL Page 1 of 2 Agenda Item 4.7 DATE:January 12, 2021 TO:Honorable Mayor and City Councilmembers FROM:Linda Smith, City Manager SUBJECT:Agreement for Long Term Encroachment for Landscape Features Within Public Street Rights-of-Way Within the Boulevard Development Prepared by: Laurie Sucgang, City Engineer EXECUTIVE SUMMARY: The City Council will consider approving the Amended and Restated Agreement for Long Term Encroachment for Landscape Features Within Public Street Rights-of-Way Within the Boulevard Development, as required by the project conditions of approval. STAFF RECOMMENDATION: Adopt the Resolution Approving the Amended and Restated Agreement for Long Term Encroachment for Landscape Features Within Public Street Rights-of-Way Within the Boulevard Development. FINANCIAL IMPACT: There is no impact to the General Fund to prepare and approve the agreement. All Staff time and costs to prepare the agreement are borne by the developer. DESCRIPTION: The Agreement for Long Term Encroachment for Landscape Features provides for the Homeowners’ Association to maintain project-related landscape and decorative features within the public street rights-of-way within and along the development, including storm water bio- retention areas, Silva Cells, trash capture devices, low flow inlets, decorative paving, decorative pavers, decorative stamped asphalt concrete, trail, landscape plantings, groundcover, trees, irrigation, sidewalk, theme walls, retaining walls, and concrete headwalls. The project conditions of approval require this agreement as a condition of the final map for each neighborhood. This Amended and Restated Agreement for Long Term Encroachment for Landscape Features within Public Street Rights-of-Way within the Boulevard Development amends, restates, and 109 Page 2 of 2 replaces in entirety those certain Agreements for Long Term Encroachment for Landscape Features which were previously recorded. The prior agreements are as follows: 1.Agreement for Long Term Encroachment for Landscape Features within Tract 8150 Boulevard Phase 1A, recorded on October 24, 2016 as series number 2016276628; and 2.Agreement for Long Term Encroachment for Landscape Features within Tract 8309 Fillmore at Boulevard and Sunset at Boulevard Phase 1B, recorded on November 27, 2017 as series number 2017260053. STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: The City Council Agenda was posted. ATTACHMENTS: 1) Resolution Approving the Amended and Restated Agreement for Long Term Encroachment for Landscape Features within Public Street Rights-of-Way within the Boulevard Development 2) Exhibit A to Resolution - Amended and Restated Agreement for Long Term Encroachment for Landscape Features within Public Street Rights-of-Way within the Boulevard Development 110 Attachment 1 Reso. No. XX-21, Item X.X, Adopted 01/12/21 Page 1 of 2 RESOLUTION NO. XX – 21 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE AMENDED AND RESTATED AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITHIN PUBLIC STREET RIGHTS-OF- WAY WITHIN THE BOULEVARD DEVELOPMENT WHEREAS,on March 25, 2014, the Planning Commission adopted Resolution No. 14-14 approving the vesting tentative map 8150 for the Boulevard (formerly Dublin Crossing) project to subdivide 189 acres into five master parcels to coincide with the five phases of development; and WHEREAS,vesting tentative map condition of approval number 54 requires the developer to enter into an agreement for long term encroachment to allow the Master Homeowners’ Association to maintain landscape and decorative features within public street rights-of-way; and WHEREAS,two agreements for Tract 8150 Phase 1A and Tract 8309 Phase 1B were previously approved and recorded on October 24, 2016 (Alameda County Recorder Series No. 2016276628) and November 27, 2017 (Alameda County Recorder Series No. 2017260053), respectively, with the associated final maps and are hereby amended and restated with the Amended and Restated Agreement for Long Term Encroachment for Landscape Features Within Public Street Rights-of-Way Within the Boulevard Development, attached hereto as Exhibit A. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin approves the Amended and Restated Agreement for Long Term Encroachment for Landscape Features Within Public Street Rights-of-way Within the Boulevard Development. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Amended and Restated Agreement for Long Term Encroachment for Landscape Features Within Public Street Rights-of-Way Within the Boulevard Development, attached hereto as Exhibit A,and make any necessary, non-substantive changes to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 12th day of January 2021, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: _________________________________ 111 Reso. No. XX-21, Item X.X, Adopted 01/12/21 Page 2 of 2 City Clerk 112 1 Recording Requested By: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 AMENDED AND RESTATED AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITHIN PUBLIC STREET RIGHTS-OF-WAY WITHIN THE BOULEVARD DEVELOPMENT THIS AMENDED AND RESTATED AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITHIN PUBLIC STREET RIGHTS OF WAY WITHIN THE BOULEVARD DEVELOPMENT (“Agreement”) is made between the City of Dublin (“City”) and Dublin Crossing, LLC, the master developer managing real property shown on Exhibit A of this Agreement (“Master Developer”). 1.Landscape Features: Master Developer, as part of the Boulevard Development, anticipates the construction of landscape features within the City’s rights of ways on the following streets (listed alphabetically): •Arnold Road, •Cascade Street, •Central Parkway, •Columbus Street, •Dublin Boulevard, •El Dorado Lane, •Horizon Parkway, •Iron Horse Parkway, •Nugget Way, and •Sterling Street. Construction details for these landscape features are shown on the various landscape improvement plans approved with each Tract or Off-site Improvement Plan Set, on file with the Public Works Department. The scope of the landscape improvements covered under this Agreement is shown on Exhibit B, and is generally described as storm water bio-retention areas, Silva Cells, trash capture devices, low flow inlets, decorative paving, decorative pavers, decorative stamped asphalt concrete, trail, landscape plantings, groundcover, trees, irrigation, sidewalk, theme walls, retaining walls, and concrete headwalls (collectively, the “Landscape Features”). Landscape Features shall also include all improvements situated within the “Licensed Areas” as defined in the “Maintenance Agreement between the City of Dublin and Dublin Crossing, LLC as Relating to the Licensed Areas” (“Maintenance Agreement”). Attachment 2 113 2 2. Encroachment Permit: This Agreement shall provide the Master Developer with an on-going encroachment permit for the maintenance and inspection activities required within City rights-of-way per the terms of this Agreement. Master Developer shall notify the City 48-hours in advance whenever maintenance work is to be performed within the City rights-of-way and the scope of work reviewed by the City. The Master Developer shall obtain an individual encroachment permit for maintenance work that involves construction activities within City rights-of-way that necessitate the temporary closure of lanes or sidewalks requiring the review and approval of a traffic control plan. The City must grant the encroachment permit for all maintenance required under this Agreement and all the conditions imposed by the City must be consistent with the provisions of this Agreement. If there is a conflict between any provisions of this Agreement and the encroachment permit, the provisions of this Agreement shall prevail over the conditions of the encroachment permit. 3. Ownership: Master Developer shall own all Landscape Features, as described above, excluding certain Landscape Features that Master Developer is obligated to maintain pursuant to the Maintenance Agreement. Master Developer formed the Boulevard Master Owners Association (“Master Association”), a California nonprofit mutual benefit corporation. The Master Declaration of Covenants, Conditions, and Restrictions of Boulevard (“Master Declaration”) assigned responsibility for the maintenance of Landscape Features, irrespective of where they are located, to the Master Association. 4. Operations and Maintenance: Master Developer shall maintain and repair all Landscape Features, within the designated areas, in a safe manner consistent with the various landscape improvement plans to the reasonable satisfaction of the City at its sole cost and expense, including electric power and water cost. Master Developer shall perform all obligations as required by the Maintenance Agreement. Master Developer will be responsible at its sole cost to replace or repair any Landscape Feature damaged or removed during the maintenance or repair of sewer, water, drainage or utility improvements by the City, Dublin San Ramon Services District or utility company, unless such damage or removal is caused by the negligence, gross negligence or willful misconduct of the City, Dublin San Ramon Services District or utility company. 5. Removal or Relocation: If future improvements proposed by the City conflict with any of the Landscape Features, the City may remove or reasonably relocate the Landscape Feature at its sole cost. If any of the Landscape Features are relocated, the City and Master Developer will execute a modification to this Agreement to reflect the maintenance and operations at its new location, provided, however, that the City is under no obligation to relocate any of the Landscape Features. 6. Insurance: Master Developer shall obtain and maintain in effect a combined single limit policy of liability insurance not less than one million dollars 114 3 ($1,000,000) covering the Landscape Features and shall name the City and the Community Facilities District as additional insureds. 7. Indemnification: Master Developer shall indemnify, defend and hold the City harmless from and against any and all loss, claims, liability damage or expense or cost the City may incur or become liable for or for which a claim is made by a third party, due to or arising out of Master Developer’s construction, maintenance or operations of the Landscape Features unless caused by the negligence, gross negligence or willful misconduct of the City, its agents, contractors or employees. 8. Permanent: The Landscape Features and the rights appurtenant thereto as set forth in this Agreement shall exist in perpetuity and are appurtenant to the Boulevard Development. 9. Right to Assign: The Master Association shall perform all obligations set forth in this Agreement which are applicable to Landscape Features situated on property owned or maintained by the Master Association as provided in the Master Declaration, on City property adjacent to such property or on property owned by Alameda County Flood Control and Water Conservation District (“Zone 7”). Upon delivery of written notice by Master Developer to the City pursuant to Section 11 that Master Developer has provided notice to the Master Association that the Master Association is obligated to perform all obligations set forth in this Agreement, this Agreement shall be deemed fully assigned by Master Developer to the Master Association and the Master Developer shall be released from all obligations pursuant to this Agreement which arise after such notice. In addition to assignment as provided in the preceding provisions of this Section 9, Master Developer may assign any or all rights, interests and obligations of Master Developer arising under this Agreement to a successor in interest of Master Developer with respect to all or a portion of the Landscape Features; provided, however, that no such assignment of Master Developer’s rights, interests and obligations under this Agreement shall occur without prior written notice to the City and written approval by the City Manager, which approval shall not be unreasonably withheld, conditioned or delayed. The City Manager shall consider and decide on any assignment within ten (10) days after Master Developer’s notice thereof, provided all necessary documents and other information are provided to the City Manager to enable the City Manager to assess the assignment. Upon receipt of a request by the City to Master Developer of a request to complete the notice of assignment to the Master Association as provided in this Section 9, Master Developer shall promptly notify the Master Association and thereby complete the assignment to the Master Association. 10. Successors and Assigns: Each reference to the “City” in this Agreement shall be deemed to refer to and include the City and all successors and assigns of City. All references to the “Master Developer” in this Agreement shall be deemed to refer to Dublin Crossing, LLC and include all successors and assigns of Dublin Crossing, LLC. 115 4 Notices: Any notices, requests, demands or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of delivery if delivered personally to the party to whom notice is to be given (including messenger or recognized delivery or courier service) or on the second day after mailing, if mailed to the party to whom notice is to be given, by first-class mail, postage prepaid, and properly addressed as follows: City: City of Dublin 100 Civic Plaza Dublin, California 94568 Fax No. (925) 833-6651 Attn: City Manager Master Developer: Dublin Crossing, LLC 500 La Gonda Way Suite 100 Danville, CA 94526 11. Exhibits: All exhibits attached to this Agreement are incorporated herein as though they were set forth in full body of this Agreement. 12. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect and shall in no way be impaired or invalidated, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. 13. Entire Agreement. This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and cannot be amended or modified except by a written agreement, executed by each of the parties hereto. 14. Restatement of Original Agreements. This Agreement amends, restates, and replaces in entirety those certain Agreements for Long Term Encroachment for Landscape Features which were recorded in the Official Records of Alameda County, California (the “Prior Agreements”). The Prior Agreements are: 116 5 a. Agreement for Long Term Encroachment for Landscape Features within Tract 8150 Boulevard Phase 1A, recorded on October 24, 2016 as series number 2016276628; and b. Agreement for Long Term Encroachment for Landscape Features within Tract 8309 Fillmore at Boulevard and Sunset at Boulevard Phase 1B, recorded on November 27, 2017 as series number 2017260053. 15. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for all purposes, be deemed an original and all such counterparts, taken together, shall constitute one and the same instrument. Dated this ___________ day of ______________________, 202_. CITY: THE CITY OF DUBLIN, a municipal corporation By: ______________________ Linda Smith City Manager MASTER DEVELOPER: Dublin Crossing, LLC By: __________________________ Name:________________________ Title:_________________________ By: __________________________ Name:________________________ Title:_________________________ 117 118 119 120