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HomeMy WebLinkAboutItem 4.07 Dougherty Road Improvementsor 19 82 /ii � 111 DATE: TO: FROM: SUBJECT STAFF REPORT CITY COUNCIL October 20, 2015 Honorable Mayor and City Councilmembers CITY CLERK File #600 -30 Christopher L. Foss, City Manager " Agreement with Collier Creek Mitigation Land, LLC. For the Purchase of Mitigation Lands for the Dougherty Road Improvements, Project No. ST0911. Prepared by Michael eoitnott, Senior Civil Engineer EXECUTIVE SUMMARY: The City Council will consider approving an agreement with Collier Creek Mitigation Land, LLC for the purchase of a mitigation easement for the Dougherty Road Improvement project. The City Council, at its February 19, 2013 meeting, approved the project environmental document, a Mitigated Negative Declaration. The declaration required that the project mitigate several environmental issues and obtain all necessary regulatory permits. As part of the permitting process it was identified that three Federal and /or California endangered species habitats may be impacted by the project improvements. To obtain permits from the California Department of Fish and Wildlife and from the U.S. Fish and Wildlife Service, habitat mitigation needs to be completed. To mitigate the impact and obtain permits, it is proposed that the City purchase 22.05 acres of permanent conservation easement at the Eagle Ridge Preserve North located within Alameda County. FINANCIAL IMPACT: The proposed agreement with Collier Creek Mitigation Land, LLC has a purchase price of $749,700 for 22.05 acres of permanent conservation easement. The amount is within the projected budgeted amount for land and right of way within the CIP Project Budget. RECOMMENDATION: Staff recommends that the City Council adopt the Resolution Approving an Agreement with Collier Creek Mitigation Land, LLC for the purchase of a permanent conservation easement for mitigation lands for the Dougherty Road Improvements, Project No. ST0911. "ubmitted By Public Works Director \ Reviewed By Assistant City Manager Page 1 of 3 ITEM NO. 4.7 DESCRIPTION: The Dougherty Road Improvements Project consists of multi -modal improvements to Dougherty Road, including new and improved bicycle and pedestrian facilities, new bus stops and bus pull- outs, and roadway widening. These improvements will address traffic congestion and multi - modal circulation issues for commuters traveling Dougherty Road, including improved access to the Dublin /Pleasanton BART station. The proposed improvements to Dougherty Road have been long- planned. The Circulation Element of the City's General Plan (adopted 1985) called for the expansion of Dougherty Road to a six -lane arterial. Subsequent updates to the Circulation Element called for the addition of on- street ( "Class II ") bicycle lanes to the entire length of Dougherty Road. The City previously expanded the roadway to a divided six -lane facility south of Sierra Lane. However, the portion of Dougherty Road between Sierra Lane and the City limits to the north has generally remained at four lanes with no median or on- street bicycle lanes provided. The Project will improve pedestrian and bicycle facilities along a 1.9 mile long section of Dougherty Road, from the intersection of Sierra Lane to the north city limit line (with roadway and median conforms extending approximately 800 feet into the City of San Ramon). Improvements will include adding Class II bicycle lanes in both directions of travel, and reconstructing or resurfacing the existing eight- foot -wide bicycle and pedestrian path on the east side of the roadway. The project will also widen the roadway from a four -lane facility into a six -lane divided roadway, with raised landscaped medians and left -turn pockets at several road intersections. On February 19, 2013, the City Council determined that there is no substantial evidence that the project as mitigated will have a significant effect on the environment and adopted Resolution No. 19 -13 adopting the Mitigated Negative Declaration. Regulatory Agency Permitting As part of the permitting process required by the adopted Mitigated Negative Declaration, habitat for the California Red Legged Frog, California Tiger Salamander and the San Joaquin Kit Fox, was found within the project limits. All three species are listed as endangered, either federally or by California, and the species may be impacted by the project improvements. To mitigate this impact and obtain permits from the California Department of Fish and Wildlife and the U.S. Fish and Wildlife Service, the Project team recommends acquisition of mitigation habitat at the Eagle Ridge Preserve North located within Alameda County. The Eagle Ridge Preserve North is a 95.85 acre facility that will provide an environmentally sensitive area and features needed to allow these animals to thrive. The project would obtain 22.05 acres of permanent conservation easement at the facility to provide a protected habitat for the California Red Legged Frog, California Tiger Salamander, and San Joaquin Kit Fox. The size and location of the conservation easement is consistent with the East Alameda County Conservation Strategy, which the City Council accepted by Resolution 146 -12 on August 21, 2012, as guidance for environmental permitting of public projects. The size of the conservation easement is three times larger than the project impact area of approximately seven acres, which is shown on Attachment 3. As part of this purchase agreement, the Eagle Ridge Preserve North will submit a Mitigation Proposal and Resource Management Plan to the appropriate jurisdictions for review and approval. Once those are approved, the conservation easement can then be recorded at the facility specifically for the Dougherty Road Improvement Project. The purchase price for the Page 2 of 3 easement is $34,000 per acre which equates to $749,700 plus escrow and filing fees. The Agreement, which outlines the purchase of the conservation easement, is shown as Exhibit A to the Resolution. Upon recording of the conservation easement the City will then be allowed to obtain the necessary permits from the California Department of Fish and Wildlife and the U.S. Fish and Wildlife Service. NOTICING REQUIREMENTS /PUBLIC OUTREACH: A copy of the Staff Report was sent to Collier Creek Mitigation Land, LLC ATTACHMENTS: 1. Resolution Approving an Agreement with Collier Creek Mitigation Land, LLC for the purchase of a permanent conservation easement for mitigation lands for the Dougherty Road Improvements 2. Exhibit A to Resolution — Agreement with Collier Creek Mitigation Land, LLC 3. Dougherty Road Improvements, CIP ST0911, Conservation Easement Vicinity Map and Project Habitat Impact Area Plan Page 3 of 3 RESOLUTION NO. XX - 15 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * ** APPROVING AN AGREEMENT WITH COLLIER CREEK MITIGATION LAND, LLC, FOR THE PURCHASE OF MITIGATION LANDS FOR THE DOUGHERTY ROAD IMPROVEMENTS WHEREAS, it is necessary for the City of Dublin to widen and improve Dougherty Road from Sierra Lane to the City limits as part of Capital Improvement Program Project No. ST0911, Dougherty Road Improvements; and WHEREAS, the City Council of the City of Dublin adopted the project Mitigated Negative Declaration in accordance with California Environmental Quality Act (CEQA) on February 19, 2013 which identified habitats for the California Red Legged Frog, California Tiger Salamander and the San Joaquin Kit Fox be mitigated; and WHEREAS, the City Council of the City of Dublin adopted the East Alameda County Conservation Strategy (EACCS) on August 21, 2012 for guidance on environmental permitting of public projects; and WHEREAS, in order to accomplish this goal, it is necessary for the City to acquire a conservation easement located at the Eagle Ridge Preserve North; and NOW, THEREFORE, the City Council of the City of Dublin does RESOLVE to approve the Agreement with Collier Creek Mitigation Land, LLC., attached hereto and authorize the City Manager to execute the Agreement as approved by City Council. PASSED, APPROVED AND ADOPTED this 20th day of October 2015, by the following vote: AYES- NOES- ABSENT- ABSTAIN- ATTEST- City Clerk Mayor ATTACHMENT 2 PROJECT SPECIFIC AGREEMENT FOR PURCHASE AND SALE OF MITIGATION VALUES This Agreement of Purchase and Sale ( "Agreement ") is entered into as of October , 2015 ( "Effective Date ") by and between the CITY OF DUBLIN, a Municipal Corporation ( "Buyer "), and COLLIER CREEK MITIGATION LAND, LLC a California limited liability company ( "Owner "). In consideration of the mutual covenants and agreements hereinafter set forth, Owner and Buyer hereby agree as follows: ARTICLE 1. BACKGROUND AND PURPOSE 1.01. Owner Property. Owner is the owner of that certain real property (the "Owner Property ") in Alameda County, California, commonly known as "Eagle Ridge Preserve North." The Owner Property consists of approximately 95.85 acres, and is legally described on Exhibit A attached hereto and incorporated herein. 1.02. Mitigation Propert y. Approximately 22.05 acres within the Owner Property and shown on attached Exhibit B (the "Mitigation Property ") will be made subject by Owner to a conservation easement (the "Conservation Easement ") to preserve in perpetuity certain environmentally sensitive features of the Mitigation Property, including approximately 22.05 acres of habitat for California Red Legged Frog, California Tiger Salamander, and San Joaquin Kit Fox, which are all listed species under the Federal Endangered Species Act and/or California Endangered Species Act (the "Preservation Action "). Owner expects that the Preservation Action will result in a net increase in the environmental functions and values present on or exhibited by the Mitigation Property (collectively, the "Net Environmental Values "). 1.03. Development Property. Buyer is the owner of that certain real property (the "Development Property ") in Alameda County, California, commonly known as the "Dougherty Road Widening Project." The Development Property consists of approximately 23.36 acres, and is legally described on Exhibit C attached hereto and incorporated herein. 1.04. Development Project. Buyer has secured or intends to secure certain approvals from the City of Dublin for the construction of a road widening project to be located on the Development Property, as well as certain off -site infrastructure required in connection therewith (the "Project "). Buyer has determined that development of the Project may result in the incidental take of California Red Legged Frog, California Tiger Salamander, and San Joaquin Kit Fox due to the conversion of approximately 7.02 acres of the habitat of such species (collectively, the "Development Impacts "), and has applied to one or more of the following U.S. Army Corps of Engineers; U.S. Fish and Wildlife Service; California Department of Fish and Wildlife; Regional Water Quality Control Board (collectively, the "Resource Agencies "), as appropriate, for authorizations to cause the Development Impacts. 1.05. Mitigation Values. Buyer expects that the permits it is seeking from the Resource Agencies (collectively, the "Permits ") will, when issued, collectively require Buyer to provide compensatory mitigation for the Development Impacts in the form of preservation of habitat for 60611 \152883v2 California Red Legged Frog, California Tiger Salamander, and San Joaquin Kit Fox (collectively, the "Compensatory Mitigation "), all in amounts roughly equivalent to the Net Environmental Values. Buyer therefore desires to purchase from Owner and Owner desires to sell to Buyer, the right to identify the Net Environmental Values as the Compensatory Mitigation required by the Permits. For the purposes of this Agreement, said purchase and sale shall be described by Owner and Buyer as a sale of "Mitigation Values" in an amount equal to the Net Environmental Values. ARTICLE 2. PURCHASE AND SALE OF MITIGATION VALUES 2.01. Purchase and Sale. Owner shall sell to Buyer and Buyer shall purchase from Owner the Mitigation Values on terms and conditions specified in this Agreement. 2.02. Escrow. A. Opening. The purchase and sale of the Mitigation Values shall be consummated by means of an escrow (the "Escrow ") which is to be opened at First American Title Company, 1506 H Street, Modesto, CA 95354, Escrow No. Attn: Laura Flood ( "Escrow Holder "), on the Effective Date. B. Escrow Instructions. The escrow instructions given to Escrow Holder shall be consistent with the terms of this Agreement and, as between the parties, the terms of this Agreement shall prevail if there is any inconsistency, unless the typewritten rather than printed portion of the instructions specifically provides to the contrary. 2.03. Purchase Price. The purchase price ( "Purchase Price ") for the Mitigation Values shall be $749,700, which is the product of 22.05 acres of species habitat multiplied by $34,000 per acre. The Purchase Price shall include all costs related to the Conservation Easement (including any endowment fund related thereto), and costs related to performing the Owner obligations identified in this Agreement. In the event the final Compensatory Mitigation required is less or more than as described above, the Purchase Price shall be reduced or increased in proportion to such change in Compensatory Mitigation. 2.04. Payment. A. Initial Deposit. Buyer shall deposit with Escrow Holder an amount of $120,000 (the "Initial Deposit ") within 3 days after the Effective Date. The Initial Deposit shall be immediately released to Owner. The Initial Deposit shall be nonrefundable except in the event that Closing does not occur due to a default of Owner under this Agreement. B. Additional Deposits Based Upon Specified Milestones. Buyer shall deposit with Escrow Holder additional deposit amounts based upon reaching specified milestones as described in this Section 2.04(B). Each such payment shall be considered an "Additional Deposit" hereunder. Each Additional Deposit shall be immediately released to Owner, and shall be nonrefundable except in the event that Closing does not occur due to a default of Owner under this Agreement. The Initial Deposit and the Additional Deposits are hereinafter referred to collectively as the "Deposit." Additional Deposits shall be made as follows: 60611 \152883v2 2 (1) Within five (5) business days after Buyer receives acceptance of the Conceptual Mitigation Proposal by the applicable Resource Agencies, which may be in the form of a verbal, email or other written communication, Buyer shall deposit with Escrow Holder an Additional Deposit in the amount of $60,000. (2) Within five (5) business days after Buyer receives approval of the Resource Management Plan from the applicable Resource Agencies, which may be in the form of a verbal, email or other written communication, Buyer shall deposit with Escrow Holder an Additional Deposit in the amount of $60,000. (3) Within five (5) business days after Buyer receives approval of the Conservation Easement from the applicable Resource Agencies, which may be in the form of a verbal, email or other written communication, Buyer shall deposit with Escrow Holder an Additional Deposit in the amount of $60,000. C. Balance. Buyer shall deposit the remainder of the Purchase Price (i.e., the total Purchase Price minus the amount of the Initial Deposit, or the "Purchase Price Balance ") with Escrow Holder in cash or by cashiers check or by wire transfer or by any other cash equivalent on or before the Closing Date, as defined below. Escrow Holder shall disburse the remainder of the Purchase Price to Owner on the Closing Date. 2.05. Close. For the purposes of this Agreement, the "Closing Date" shall be the date 10 business days after the closing conditions set forth below in Section 2.05 are satisfied, but no later than April 15, 2016 (the "Outside Closing Date "): A. Acceptance of the Conceptual Mitigation Proposal by the applicable Resource Agencies, which may be in the form of a verbal, email or other written communication; and B. Approval of the Resource Management Plan from the applicable Resource Agencies, which may be in the form of a verbal, email or other written communication; and C. Approval of the Conservation Easement from the applicable Resource Agencies, which may be in the form of a verbal, email or other written communication. On the Closing Date (or, if the Conservation Easement is being combined with other conservation easements on the Owner Property to be recorded as a single conservation easement, which shall not delay the issuance of the Permits, then no later than ten (10) business days after final approval of the combined single conservation easement and, if applicable, the acceptance of the completion of any Mitigation Work within the single conservation easement area by the applicable Resource Agencies), Owner shall cause the Conservation Easement to be recorded. 60611 \152883v2 3 2.06. Closing Deliverables. The parties shall deposit the following with Escrow Holder prior to the Closing Date: A. Buyer's Deliveries. Buyer shall deposit (a) the Purchase Price Balance, and (b) Buyer's share of closing costs and prorations. B. Owner's Deliveries. Owner shall deposit (a) Owner's share of closing costs and prorations, if any, (b) a Bill of Sale in the form of Exhibit D attached hereto and incorporated herein by this reference (the "Bill of Sale "), executed by Owner, evidencing the sale of the Mitigation Values to Buyer, and (c) an original of the Conservation Easement, executed by Owner. C. Additional Instruments. Owner and Buyer shall each deposit such other instruments as are reasonably required by Escrow Holder or otherwise required to proceed to the close of escrow and to carry out the purpose and intent of this Agreement. 2.07. Closing Costs. A. Borne by Owner. Owner shall pay its own legal and professional fees and fees of other consultants incurred with regard to this transaction. B. Borne by Buyer. Buyer shall bear the costs of any escrow fees and any other such fees and miscellaneous costs. Buyer shall pay its own legal and professional fees and fees of other consultants incurred with regard to this transaction. 2.08. Limitation on Buyer Remedies. Notwithstanding any other provision of this Agreement to the contrary, should the transaction contemplated by this Agreement fail to be consummated according to the terms of this Agreement because the Mitigation Property does not provide all of the Net Environmental Values described in Section 1.02 above, Buyer's sole and exclusive remedy shall be to terminate this Agreement and receive a full refund of the Deposit. 2.09. Liquidated Damages. SHOULD THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT FAIL TO BE CONSUMMATED ACCORDING TO THE TERMS OF THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER, THEN IN SUCH EVENT OWNER SHALL BE RELIEVED OF ANY OBLIGATION TO SELL THE MITIGATION VALUES TO BUYER, THE DEPOSIT AND ANY AND ALL INTEREST THEREON SHALL BE RETAINED BY OWNER AS LIQUIDATED DAMAGES PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677 AND AS CONSIDERATION FOR OWNER KEEPING THE MITIGATION VALUES OFF OF THE MARKET FOR SALE TO OTHERS. BUYER AND OWNER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES THAT OWNER MIGHT SUFFER IN THE EVENT OF BUYER'S DEFAULT HEREUNDER. UPON ANY SUCH BREACH OR DEFAULT BY BUYER HEREUNDER, THIS AGREEMENT SHALL BE TERMINATED AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF OWNER TO RETAIN SUCH LIQUIDATED DAMAGES. EXCEPT AS PROVIDED FOR ABOVE, RECEIPT AND RETENTION OF THE DEPOSIT SHALL BE THE SOLE, LIQUIDATED DAMAGES OF OWNER IN THE EVENT OF ANY BREACH OR DEFAULT BY BUYER HEREUNDER. THE PAYMENT AND RETENTION OF SUCH 60611 \152883v2 4 AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369. Buyer's Initial Owner's Initial ARTICLE 3. OBLIGATIONS WITH RESPECT TO MITIGATION VALUES 3.01. Owner Obligations Re Mitigation Property Approvals. Owner, at Owner's expense, shall: (a) prepare a Conceptual Mitigation Proposal for the Project and assist Buyer in obtaining acceptance of the Conceptual Mitigation Proposal by the applicable Resource Agencies; (b) prepare a Resource Management Plan (the "RMP ") for the Preservation Action on the Mitigation Property and assist Buyer in obtaining approval of the RMP by the Resource Agencies; (c) prepare the Conservation Easement for the Mitigation Property, and assist Buyer in obtaining approval of the Conservation Easement by the applicable Resource Agencies and cause the recordation of the Conservation Easement in the Official Records of Alameda County; and (d) establish an endowment fund required for the Preservation Action for the perpetual maintenance of the Mitigation Property in accordance with the requirements of the applicable Resource Agencies (collectively, the "Owner Mitigation Property Approvals "). 3.02. Buyer Obligations Re Qualification of Mitigation Property. Buyer shall, at Buyer's expense, take such actions as are reasonably necessary to ensure that the Permits identify the Net Environmental Values as the Compensatory Mitigation for the Development Impacts. 3.03. Exclusivity. Owner shall not sell or assign to any third party the Mitigation Values with respect to the Mitigation Property before or after the Closing Date unless Buyer or Owner has rightfully terminated this Agreement prior to the Closing Date. 3.04. Cooperation. Buyer shall, at no material additional cost to Buyer, reasonably cooperate with Owner and Owner's designated environmental consultants for the Mitigation Property as may be reasonably necessary to complete this transaction in accordance with the intent of the parties, and to facilitate the issuance of the Owner Mitigation Property Approvals. Owner shall, at no material additional cost to Owner, reasonably cooperate with Buyer and Buyer's designated environmental consultant for the Project as may be reasonably necessary to complete this transaction in accordance with the intent of the parties, and to facilitate the issuance of the Permits that identify the Net Environmental Values as the Compensatory Mitigation for the Development Impacts. The obligations under this Section 3.04 shall survive the Closing Date. ARTICLE 4. REPRESENTATIONS, WARRANTIES AND COVENANTS 4.01. Owner's Representations and Warranties. In consideration of Buyer entering into this Agreement and as an inducement to Buyer to buy the Mitigation Values from Owner, Owner 60611 \152883v2 5 makes the following representations and warranties (which representations, warranties and covenants shall survive the Closing Date for a period of two years), each of which is material and is being relied upon by Buyer (the continuing truth and accuracy of which shall constitute a condition precedent to Buyer's obligation hereunder): A. Owner has the legal right, power and authority to enter into this Agreement and to consummate the transaction contemplated hereby and the execution, delivery and performance of this Agreement have been duly authorized and no other action by Owner is requisite to be valid and binding execution, delivery and performance of this Agreement. 4.02. Buyer's Representations, Warranties and Covenants. In consideration of Owner entering into this Agreement and as an inducement to Owner to sell the Mitigation Values to Buyer, Buyer makes the following representations, warranties and covenants (which representations, warranties and covenants shall survive the Closing Date for a period of two years), each of which is material and is being relied upon by Owner (the continued truth and accuracy of which shall constitute a condition precedent to Owner's obligations hereunder): A. Buyer has the legal right, power and authority to enter into this Agreement and to consummate the transaction contemplated hereby, and the execution, delivery and performance of this Agreement have been duly authorized and no other action by Buyer is requisite to the valid and binding execution, delivery and performance of this Agreement. 4.03. Limitation on Liability. Notwithstanding any other provision of this Agreement, in no event will Owner or Buyer be liable to the other party for any indirect, special, consequential or incidental damages, or loss of profits or loss of goodwill, regardless of whether the Owner or Buyer has been informed of the possibility of such damages or is negligent, and whether or not such damages were reasonably foreseeable. 4.04. Attorneys' Fees. Buyer and Owner agree that if, by reason of any act or omission on its part rt, the other party is involuntarily joined in any litigation or other proceeding concerning this Agreement or the Owner Property, such other party shall hold the other party harmless from any and all liability therefore, including reasonable attorneys' fees and costs incurred in such proceeding. If Buyer or Owner brings an action to enforce or interpret any of the terms or conditions of this Agreement, the losing party will pay the prevailing party's costs and expenses, including without limitation, reasonable attorneys' fees, incurred in connection with such action, in an amount determined by the court. ARTICLE 5. MISCELLANEOUS 5.01. Captions. All section captions used in this Agreement are for reference only and shall not be considered in interpreting the provisions of this Agreement. 5.02. Time of Essence. Time is of the essence of this Agreement and of the sale provided for herein. 5.03. Integration. This Agreement contains the entire agreement of Buyer and Owner, superseding any and all prior written or oral agreements between them concerning the subject matter contained herein, and Buyer and Owner hereby release each other from any and all rights, obligations and claims under such prior agreements. 60611 \152883v2 6 5.04. Additional Documents. From time to time prior to and after the Closing Date, Buyer and Owner shall execute and deliver such instruments of transfer and other documents as may be reasonably requested by the other party to carry out the purpose and intent of this Agreement. 5.05. Notice. All notices, demands, requests, elections, approvals, disapprovals, consents or other communications which this Agreement contemplates, requires or permits either Buyer or Owner to give to the other shall be in writing and shall be personally delivered, transmitted via email, or sent by first class, or certified mail, return receipt requested, addressed to the respective parties, as follows: Buyer: City of Dublin 100 Civic Plaza Dublin, CA 94568 Attn: Gary Huisingh, Public Works Director Email: Gary.Huisingh @dublin.ca.gov Owner: Collier Creek Mitigation Land, LLC 3170 Crow Canyon Place, Suite 260 San Ramon, CA 94583 Attn: Mark Dawson Email: mdawson @waterholeland.com or to such other address or email as Buyer or Owner may from time to time designate by notice to the other party given in accordance with this section. Personally delivered notice shall be deemed delivered upon the delivery thereof, notice transmitted by email shall be deemed delivered upon sending provided that the sender has a confirmation of such transmission and deposits in the United States mail on the same day a copy of such notice by first -class mail, otherwise upon the receiving party's receipt of such mailing; and mailed notice shall be deemed delivered upon the earlier of (i) receipt or (ii) 72 hours after deposit thereof in the United States mail. 5.06. No Recordation. Buyer and Owner agree that neither this Agreement nor any memorandum thereof shall be recorded by either party. 5.07. Assignment or Subsequent Transfers. Neither party shall assign, transfer or convey such party's rights and /or obligations under this Agreement without the prior written approval of the non - assigning party, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party shall have the right without consent of the other party to assign its rights and obligations hereunder to a party that controls, is controlled by, or is under common control with the assigning party. Further notwithstanding the foregoing, in no event shall Buyer have the right to apply the Mitigation Values to any property or project other than the Development Property without the prior written consent of Owner, which consent may be granted or withheld in Owner's sole and absolute discretion. Any attempted assignment which is subject to approval and which is not approved shall be void and the assigning party shall be deemed in default hereunder. 5.08. Binding Effect. ffect. This Agreement shall be binding upon and inure to the benefit of the respective heirs, personal representatives, successors and assigns of Buyer and Owner. 60611 \152883v2 7 5.09. Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect. 5.10. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 5.11. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future right to enforce such provision or any other provision hereof. 5.12. Governing Law. This Agreement shall be construed in accordance with, and be governed by, the laws of the State of California. 5.13. Construction. Buyer and Owner hereby acknowledge and agree that (a) each party to this Agreement is of equal bargaining strength, (b) each such party has actively participated in the drafting, preparation and negotiation of this Agreement, (c) each such party has consulted or has had the opportunity to consult with such party's own independent counsel, and such other professionals as such party deems appropriate relative to any and all matters contemplated under this Agreement, (d) each such party and such party's counsel and advisors have reviewed the Agreement and following such review each party agrees to enter into this Agreement, and (e) any rule of construction to the effect that ambiguities are to be resolved against the drafting party(ies) shall not apply in the interpretation of this Agreement, or any portions hereof or any amendments hereto. 5.14. No Obligations to Third Parties. No party shall be deemed to be a third party beneficiary of this Agreement, nor shall this Agreement confer any rights upon, nor obligate any of the parties hereto, to any person or entity other than the parties to this Agreement. 5.15. Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed by Buyer or Owner to create a relationship of principal and agent, partnership, joint venture or any other association between Buyer and Owner. 5.16. Exhibits. All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement. IN WITNESS WHEREOF, Buyer and Owner have executed this Agreement as of the date first set forth above. BUYER: City of Dublin, a Municipal Corporation By: _ Name Title: 60611 \152883v2 8 Christopher L. Foss City Manager OWNER: COLLIER CREEK MITIGATION LAND, LLC, a California limited liability company Name: Mark Dawson Its: Managing Member 60611 \152883v2 EXHIBIT A LEGAL DESCRIPTION OF OWNER PROPERTY (Attached) 60611 \152883v2 A -1 EXHIBIT A THE PROPERTY LEGAL DESCRIPTION Real property in the unincorporated area of the County of Alameda, State of California, described as follows: PARCEL ONE: BEGINNING AT THE CORNER COMMON TO SECTIONS 13 AND 24, IN TOWNSHIP 2 SOUTH, IN RANGE 1 EAST; AND SECTIONS 18 AND 19 IN TOWNSHIP 2 SOUTH, RANGE 2 EAST; OF THE MOUNT DIABLO BASE AND MERIDIAN AND RUNNING THENCE NORTH 880 48' EAST, 1415.4 FEET; THENCE NORTH 70 50' WEST, 350.7 FEET; THENCE NORTH 230 57' WEST, 385 FEET; THENCE NORTH 420 17' WEST, 237 FEET TO THE TRUE POINT OF BEGINNING OF THE LAND HEREIN DESCRIBED; THENCE NORTH 170 05' EAST 698 FEET; THENCE ALONG A LINE DRAWN NORTH 30 EAST, TO THE POINT OF INTERSECTION THEREOF WITH THE LINE DIVIDING CONTRA COSTA COUNTY FROM ALAMEDA COUNTY; THENCE SOUTHWESTERLY ALONG SAID LINE TO THE POINT OF INTERSECTION THEREOF, WITH A LINE DRAWN NORTH 420 17' WEST FROM THE TRUE POINT OF BEGINNING; THENCE ALONG SAID LINE SO DRAWN, SOUTH 420 17' EAST TO THE SAID POINT OF BEGINNING. ALSO SHOWN AS PARCEL 1 IN THE CERTIFICATE OF COMPLIANCE RECORDED JUNE 2, 2006 AS INSTRUMENT NO. 2006 - 296863 OF OFFICIAL RECORDS. PARCEL TWO: BEGINNING AT THE CORNER COMMON TO SECTIONS 13 AND 24, IN TOWNSHIP 2 SOUTH, IN RANGE 1 EAST, AND SECTIONS 18 AND 19, IN TOWNSHIP 2 SOUTH, IN RANGE 2 EAST; OF THE MOUNT DIABLO BASE AND MERIDIAN; AND RUNNING THENCE NORTH 880 48' EAST 1415.4 FEET; THENCE NORTH 70 50' WEST, 350.7 FEET; THENCE NORTH 230 57' WEST, 385 FEET; THENCE ALONG A LINE DRAWN NORTH 420 17' WEST TO THE POINT OF INTERSECTION THEREOF, WITH THE LINE DIVIDED CONTRA COSTA COUNTY FROM ALAMEDA COUNTY; THENCE SOUTHWESTERLY ALONG SAID LINE TO THE POINT OF INTERSECTION THEREOF, WITH THE EASTERN LINE OF THE COUNTY ROAD LEADING FROM TASSAJARA TO LIVERMORE AS SAME EXISTED ON FEBRUARY 27, 1939; THENCE ALONG SAID LINE OF SAID COUNTY ROAD SOUTH 160 18' EAST TO THE POINT OF INTERSECTION THEREOF WITH A LINE DRAWN SOUTH 890 57' WEST FROM THE POINT OF BEGINNING; THENCE ALONG SAID LINE SO DRAWN, NORTH 890 57' EAST, 1946.44 FEET, MORE OR LESS, TO THE POINT OF BEGINNING. APN: 903 - 0002 -004 AND 905 - 0005 -007 EXHIBIT B DEPICTION OF MITIGATION PROPERTY (Attached) 60611 \152883v2 B -1 193 Blue Ravine Road, Ste. 165 Figure 3: Aerial Map Folsom, CA 95630 Eagle Ridge Preserve and Phone: (916) 985 -1188 Eagle Ridge Preserve North Aerial Imagery Source and Date: Bing; 1110512010 EXHIBIT C LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY (ATTACHED) 60611 \152883v2 C -1 P I, pr i s s s s s s s s y rrrrrrrrrrrrrr .o + � 4. -Airrr O � rrrrrrrr rrrrrrrrrr r t a ✓� rrrrrrrr trrrrr rrrrrrrrrrr rrrrrr `,} �., % r rrrvrrrrrrrr {.� d 6, f t1 HI H o � r ?i r� z m 9.mA 0 Mg jqg IX C 2 =F a q e ° w may® G) -ry CD a L a z A A 'Ai� A N y D C Ci TGyJ A Ay (7 m O~ N Cy S l J r y) 0 r> p m y 0 C) m Z U O C) m C) a D A w N ime 9 9 F P P P P G) LJ S D N O p Y 0 y L (AAJ 0 n 0 -mi ro FOAA L Z 2 ;f1 A i D_ Zm -.~0 L G T- U) 2� fl C Vd — _ — �) o,A -uc ciao > m G) 3-0 0 D 0= O L) 0 z Z �# ea r o z o z m - z p N �' o mom 'nr �gg BRo3^ r MAX N 3m�"�pH ✓ 1// 1 \ r b _ o r. ) llll D r m �� ooucaQe ono 1 I 1 l o \. ON I II s n m / J =o m��a ch amSox 00 o C1 �� nom <_ u- � _ N > oz _� 00 m EXHIBIT D FORM OF BILL OF SALE In consideration of Seven Hundred Forty -Nine Thousand Seven Hundred and No /100ths Dollars ($749,700), receipt of which is hereby acknowledged, Collier Creek Mitigation Land, LLC, a California limited liability company ( "Owner "), does hereby bargain, sell and transfer to the City of Dublin, a ( "Buyer "), the following mitigation values ( "Mitigation Values ") from the Eagle Ridge Preserve Site: Mitigation Site Impacts Acreage Cost per Total Cost Mitigated Mitigation Value Acre Eagle Ridge Habitat for 22.05 Acres $34,000 $749,700 Preserve North California Tiger Mitigation Site Salamander, California Red Legged Frog and San Joaquin Kit Fox Purchase Price $749,700 Owner represents and warrants that it has good title to the Mitigation Values and the property thereon, has good right to sell the same, and they are free and clear of all claims, liens, or encumbrances. Owner covenants and agrees with Buyer to warrant and defend the sale of the Mitigation Values hereinbefore described against all and every person and persons whomsoever lawfully claiming or to claim the same. Date: Collier Creek Mitigation Land, LLC, a California limited liability company By: Mark Dawson Its: Managing Member 60611 \152883v2 D -1 YEE �� ll �i El El l 1 /o �I I \ I �I I I _ I �I 1� o I - „..s,a,..3,a�