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HomeMy WebLinkAboutItem 4.02 Acceptance of Private Vehicle Accessway (2) 6 OO-3O AGENDA STATEMENT CITY COUNCIL MEETING DATE: August 12 , 1985 SUBJECT : Acceptance of Private Vehicle Accessway Maintenance Agreements for the Arbor Creek Project (Tract 5131/PA 82-033 . 1 (R) EXHIBITS ATTACHED: Resolution; Copy of Agreement RECOMMENDATION: Adopt Resolution accepting agreement and directing City Clerk to execute same. FINANCIAL STATEMENT: No financial costs to the City are anticipated to be incurred as a result of accepting and executing these maintenance agreements . Costs incurred from road maintenance, if necessary, are retrievable as outlined in Article V of the document . DESCRIPTION: The Planned Development Rezoning Ordinance adopted by the City for the Arbor Creek Project (PA 82-033 . 1 (R) ) provides under General Provision 36 ( e ) , that a recorded contract to run with the land shall be established providng the City with the authority to repair and/or maintain the private vehicle accessways , in the event the developer or the Homeowner ' s Association fails to so maintain the accessways . The developer has previously submitted a draft agreement for review by the Planning Staff as regards to format . The document has been resubmitted in its final form and carries the Developer ' s notarized signature . In order to consumate the referenced condition of approval, it is necessary for the City Council to adopt a Resolution accepting the agreements and directing the City Clerk to record the documents . ITEM NO. COPIES TO: Joseph Higgins JMH, Inc. PA 82-033 . 1 (R) I RESOLUTION NO A RESOLUTION OF THE CITY COUNCIL OF. THE CITY OF DUBLIN ACCEPTING AND DIRECTING. THE CITY CLERK TO EXECUTE'PRIVATE VEHICLE ACCESSWAY AGREEMENTS FOR THE ARBOR CREEK PROJECT (TRACT 5131 ) SUBDIVIDED IN CONJUNCTION. ;WITH PA 82-033. 1 (R) PLANNED DEVELOPMENT REZONING) WHEREAS, the Planned Development Rezoning Ordinance adopted by the City of the Arbor Creek project ( PA 582-033 . 1 ( R) provides under General Provisions 36 ( e) that a recorded contract to run with the land shall be established providing the City with the authority to repair and/or maintain the private vehicle accessways in the event the developer or the Homeowner ' s Association fails to so maintain the accessways ; and WHEREAS, the developers of the project, J .M.H . , ' Inc. , has prepared and executed the uted a copy of th required agreement and submitted it to the City for execution and subsequent recordation ;. and WHEREAS, the agreement has been reviewed by Staff has been determined to satisfactorily meet the intent and requirements of General Provision 36 ( e ) of the . Planned Development Rezoning Ordinance covering the subject property. NOW, THEREFORE , BE IT RESOLVED THAT the Dublin City . Council does hereby acknowledge acceptance of the Private Vehicle , Accessway Maintenance Agreement for the Arbor Creek Project and - directs the City Clerk to execute and record said agreement . PASSED, APPROVED AND ADOPTED, this th day of , 1985 . AYES : NOES : ABSENT : Mayor . ATTEST : City Clerk _ . . . , . . . .. . . . . .. :. _ . . . . . . • • ' ' . . . • . . , . . . . . .' • • . . . - . PRIVATE VEHICLE ACCESSWAY MAINTENANCE AGREEMENT . . . . : . , • . - • ..- ARBOR CREEK . . . . • . . . . DUBLIN, CALIFORNIA , . . . . . . . . • . This Private Vehicle Accessway Maintenance Agreement, executed as of the day of , 1985, by and between J.M.H., Inc. , - A California Corporation (Owner) and- the City. of Dublin (City) is entered into with reference to the recitals set forth in Article I below, and con- stitutes a contract which will enable the City to provide certain mainte- nance services on the private vehicle accessways described in Exhibit "A", under certain conditions as set forth herein. • . . ARTICLE I . . . , . . . . . . RECITALS . . . , 1.1 Owner is the owner of the real property described in the attached - Exhibit "A", which includes private vehicle' accesawayS as shown on the map of Tract 5131 as Arbor Creek Circle. / ' 1.2 Owner shall record a Declaration of Covenants, Conditions and Restric- tions of Arbor Creek (Declaration) . The Declaration provides in para- graph 3.13 -as follows: "The City is hereby granted a right of entry upon the Project to maintain and/or repair (i) the wall and Landscape , . Easement; (ii) the easterly wall and the landscaping within the public . . . ' xight-of-way and/or (iii) the private vehicle accessways, if conditions . so require and in accordance with the provisions of Sections. 10.3 of this. Declaration." • . . 1.3 The private vehicular accessways described above are project common area and-are subject to the provision of said paragraph 3.8.. - .. , 1.4 The planned unit development ordinance adopted by the City of Dublin as . ' "Plan Development Rezoning PA 82-033.1(R) , Arbor Creek" provides -under General Provision 36(e) that a recorded contract to run with the land shall be established providing the City with the authority to repair and/or maintain the private vehicle accessways, in the event the developer or the Homeowners' Association fails to so maintain them. . • , - ' . . ARTICLE II ' ' . . . . , • MAINTENANCE - . . . . - • 2.1 Pursuant to the Declaration; it is the obligation of Owner or the Arbor , . Creek Circle Owners Association to maintain the private vehicle accessways within Tract 5131. Owner shall maintain them in a manner such that ad- • equate access by vehicular traffic is provided at all 'times, so that . . fire, police, health and sanitation vehicles and public utility vehicles can service the properties contiguous or adjacent thereto, and so that said vehicles would have adequate turning areas. All such maintenance , shall be.performed by Owner or the Association at no expense to the City of Dublin. • - . . . 2.2 In the event Owner or Association refuses or fails to so maintain the private vehicle accessways, the City of Dublin shall have the right, not the obligation, to perform said-maintenance on behalf of the' Owner or Association. In futherance of City's right to perform the maintenance, City may enter upon the property for the purpose ofaccomplishing'such maintenance. • •. , . . . . . . . . • . . . . . . . . . . . . • . . . . . . . -1- • . . . . . . • • _ • . • . . . . . , . . " . . . . . . . • . . . • - . . .- . . _2_ . ARTICLE III • . ACCESS . - 3.1 Owner hereby grants to the City an irrevocable right of access to the ' vehicle accessways for the purpose of performing maintenance as provided above. This right of access shall be restricted to the City's maintenance responsiblilities pursuant to this. contract, and shall not create an ease- ment on behalf of the public or the City for any purposes other than to provide such maintenance. Said right of access shall be terminated if an offer of dedication of the access area shall be accepted by the City. ARTICLE IV . PROTECTION. OF PROPERTY '& INDEMNIFICATION 4.1 In exercising City's rights to maintain, City shall take all reasonable precautions to protect the vehicle accessways and all other private . . property located within Tract 5131. • 4.2 All maintenance, construction and reconstruction performed-by the.City shall be done in accordance with the plans and specifications for Tract 5131, prepared by MacKay & Somps Engineers, and in accordance with all • applicable Alameda County. specifications. The provisions of this Para- graph shall not obligate the City to correct any defective workmanship . or otherwise reconstruct or repair the private vehicle accessways, except as is necessary to meet the requirements under 2.1 above. • 4.3 City agrees to indemnify and hold Owner and/or Association harmless from all loss, liability., claim, or other damage caused by or_ relating to City's repair or reconstruction work on the property. . ARTICLE V • ASSESSMENTS 5.1 All reasonable costs expended by the City for labor, materials, equipment, and direct on-site supervision of repairs and/or reconstruction performed under the terms of this contract -shall be borne by the Owner and/.or the Association. City shall .so notify the Owner and/or Association of all costs incurred by the City in performing. such work. 5.2 In the event following a request by the City for payment, Owner and/or . 'Association 'cannot or will not pay such reasonable costs, City shall . . . have the power to assess on an equal basis each condominium unit and planned development lot on the property for reimbursement of such direct and reasonable costs. Any assessment so levied by the City shall be in- cluded at the City's option, on the next succeeding Alameda County'pro- perty tax bill. Such cost distributed equally to each iof the condominium units and planned development lots shall be shown as a separate assessment • along with the County ad valorem taxes' and other assessments. • . ARTICLE VI NOTICE ' . 6.1 City's. right to enter upon the property to perform such maintenance shall be subject to the following requirements of Notice and Rights to Cure: ' (a) In the event of an emergency which threatens life or property, City shall have the right to enter upon the property to perform maintenance immediately upon giving notice to the Owner or the Association. - { • EXHIBIT "A" The land is situated in the State of California, County of Alameda, and is described as follows: City of Dublin Lot 1 to 49, inclusive; and Parcel A; Tract 5131, filed December 31, 1984,. in Map Book 150 Pages 14 to 16, inclusive, Alameda County Records and as amended by that certain "Certificate of Correction" recorded February 25, 1985, Series No. 85-39442, Alameda County Official Records. • • • • • • • PRIVATE VEHICLE ACCESSWAY MAINTENANCE AGREEMENT. • ARBOR CREEK j DUBLIN,`'CALIFORNIA This Private Vehicle Accessway. Maintenance Agreement, executed as of the day of , 1985,. by and-between J.M.H. , .Inc., A California Corporation (Owner) and the City of Dublin (City) is entered into with reference to the recitals set forth in Article 'I below, and con- - stitutes a contract which will enable the City to provide certain mainte- nance services on the private vehicle accessways described in Exhibit "A", . under certain conditions as set forth herein. " ARTICLE I RECITALS • 1..1 Owner is the owner of the real property described in the attached Exhibit "A", which includes private vehicle accessways as shown ''' on the map of Tract 5131 as Arbor Creek Circle 1.2 '_.Owner shall record a Declaration of Covenants, Conditions and Restric tions of Arbor Creek- (Declaration) . --The Declaration provides in para- graph 3.8 as follows: "The. City is hereby granted a right of entry. upon the Project to maintain and/or repair (i) the wall. and Landscape - V Easement; (ii) the easterly wall and the landscaping within the public right-of-way and/or (iii) the private vehicle accessways, if conditions so require and in accordance with the provisions of Sections 10.3 of this Declaration." 1.3 - The private vehicular accessways described above are project common area and are subject to the provision of said paragraph 3.8. 1.4 The planned unit development ordinance-adopted by the City of Dublin as "Plan Development Rezoning PA 82-033.1(R) , Arbor Creek" provides under General Provision 36(e) -that a' recorded contract to run with the land ` shall be established .providing the City with -the authority to repair and/or maintain the private vehicle accessways, in the event the developer or the Homeowners' Association fails to so maintain them. ARTICLE. II MAINTENANCE 2.1 Pursuant' to -the Declaration, it is the obligation of Owner or the Arbor Creek Circle Owners Association to maintain the private vehicle accessways .` within Tract 5131,. Owner shall maintain them in a manner such that ad- equate access by vehicular traffic is provided at all -times, so that . fire, police, health and sanitation vehicles and public utility vehicles can service the properties .contiguous or adjacent thereto, and so that said vehicles would have adequate turning areas. All such maintenance shall be performed by Owner or the Association at no expense to the City' of Dublin. 2.2 In the event Owner1or Association refuses or fails to so maintain the private vehicle accessways, the City of Dublin shall have the right, , - not the obligation, to perform said maintenance' on behalf of the Owner or. Association. In futherance' of City's right to perform the maintenance, City may enter upon the property for the purpose of _accomplishing such maintenance. -2 ARTICLE III ACCESS 3.1 Owner hereby grants to the City an irrevocable right of access to the vehicle accessways for the purpose of performing maintenance as provided, above. This right of access shall be restricted to the City's maintenance responsiblilities pursuant to this contract, and shall not create an ease- ment on behalf of the public or the City for any purposes other than to provide such maintenance. Said right of access shall be terminated if an • offer of dedication of the access area shall be accepted by the City. ARTICLE IV PROTECTION OF PROPERTY & INDEMNIFICATION 4:1 In exercising City's rights to maintain, City shall take.alh reasonable t. precautions to protect the vehicle•accessways .and•all other private property located within Tract 5131.. ,: 4.2 All maintenance, construction and reconstruction performed by the City shall be done incaccordance with the plans and specifications for Tract 5131, prepared by MacKay'' & Somps Engineers, and in accordance with all applicable Alameda County specifications. The provisions of this .para- graph shall not obligate the City to correct any defective workmanship or otherwise reconstruct or repair the private vehicle accessways, except as is necessary to meet the requirements under 2.1 above. 4.3 City agrees to indemnify and hold Owner and/or Association harmless from all loss, liability, claim, or other damage caused by or relating to City's repair or reconstruction work on the property. ARTICLE V ASSESSMENTS 5.1. All reasonable,costs expended by the City for labor, materials, equipment,..; . and direct on-site supervision of repairs and/or reconstruction performed under the terms of this contract shall be borne by the Owner and/or the Association. City shall- so notify the Owner .and/or Association of all • costs incurred by the City in performing such work. . 5.2 In the event following -a request by the(.,City 'for payment, Owner and/or ' Association cannot or will not pay such reasonable costs, City shall have the power to assess on an equal basis each condominium unit and planned development lot on the property for reimbursement of such direct and reasonable costs. Any assessment so levied by the City shall be in- cluded at the City's option, on the next succeeding Alameda County pro- perty tax bill. Such cost ,distributed equally to each of the condominium . units and planned development lots shall be shown as a separate assessment along with the County ad valorem taxes and other assessments. ARTICLE VI ' . NOTICE 6.1 , City's right to enter upon the property to perform such maintenance shall be subject to the following requirements of Notice and Rights to Cure: (a) In the event of an emergency which threatens life or property, City shall .have the right to enter upon the property to perform maintenance immediately upon giving notice to the Owner or the.Association. • -3- (b) Where there is no Immediate danger to life or. property, City shall give 10 days' written notice to the Owner or Association of its intention to perform maintenance: Owner and/or Association shall have, three days following receipt of such notice to commence such maintenance repair and/or reconstruction and such work shall be completed within 30 days of receipt of such ,notice. . (c). In the event that such maintenance work cannot be 'reasonably completed within the 30-day, period, the period 'for completion shall be extended for so .long as Owner and Association are diligently pursuing corrective measures on the property. 6.2 Where notice is required, it shall be deemed to have been properly given three days following mailing by post paid registered or certified letter . to the Owner and/or Association at the address indicated below: f J.M.H. , .Inc. The Towers, Suite 1525 1901 S. Bascom Ave. Campbell, Ca. 95008 ARTICLE VII MISCELLANEOUS • 7.1 In the event of any controversy, claim, litigation, dispute or arbitration of any action between the parties arising oat of or. resulting' from this Agreement, the prevailing party shall be entitled to recover from 'the' non prevailing party its reasonable• expenses and court costs, including with- out limitation,. attorneys' fees and costs, 7.2 Each paragraph and provision of this Agreement is severable, and if one portion is determined to. be invalid, the remaining. portions shall, never- theless, remain in full force and effect. 7.3 This Agreement and any documents referred to.herein contain the entire agreement between the parties relating to the subject matter hereof and may not be modified-or,amended except by written document signed' by both parties. 7.4 This Agreement shall be governed by the law of the State of California,. and any legal action instituted pursuant to this Agreement shall be ' brought in the California State ,.Courts in Alameda. County. 7.5 All rights and obligations under this agreement may be assigned by owner to Arbor Creek Circle' Owners Association, a California nonprofit mutual benefit, corporation. J.M.H. , INC. , CITY OF DUBLIN A Califo'iia torpor., ion By: - -'j By 7 PLEASE NOTE All signatures to this instrument must be acknowledged by a Notary Public. • EXHIBIT "A" '._ The land is situated in the State of California, County of Alameda, and is described as follows: City of'Dublin Lot 1 to 49, inclusive; and Parcel A; Tract 5131, filed December 31, 1984, in Map Book 150 Pages 14 to 16, inclusive, Alameda County Records and as amended by that certain "Certificate of Correction" recorded February 25, 1985, Series No. 85-39442, Alameda County Official Records. • {• • • •