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Home My WebLink AboutReso 102-24 Approving the Agreement for Long Term Encroachment for Landscape Features with Tract 8649, Francis RanchDocusign Envelope ID: 2D3AB85C-5D8B-4DCD-BCO2-C911 D1 FBA1AA RESOLUTION NO. 102 — 24 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8649, FRANCIS RANCH WHEREAS, a Vesting Tentative Map for Tract 8563, Francis Ranch was approved by City Council Resolution No. 140-21 on December 7, 2021, with Conditions of Approval; and WHEREAS, said Conditions of Approval required the developer to construct project -related landscape features within the public street rights -of -way; and WHEREAS, said Conditions of Approval required the developer to enter into an Agreement for Long Term Encroachment for the maintenance of said landscape features; and WHEREAS, the developer has executed and filed with the City of Dublin a Tract Improvement Agreement to construct the required Tract improvements, including said landscape features; and WHEREAS, the developer has executed and filed with the City of Dublin an Agreement for Long Term Encroachment for Landscape Features for Tract 8649, Francis Ranch, attached hereto as Exhibit A, which will be recorded against the property concurrently with the Tract 8649 Final Map. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Agreement for Long Term Encroachment for Landscape Features for Tract 8649, Francis Ranch, attached hereto as Exhibit A to this Resolution. BE IT FURTHER RESOLVED that the City Manager, or designee, is authorized to execute Exhibit A and make any necessary, non -substantive changes to Exhibit A to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 17th day of September 2024, by the following vote: AYES: Councilmembers Hu, Josey, Qaadri, Thalblum and Mayor McCorriston NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Reso. No. 102-24, Item 5.3, Adopted 09/17/2024 Page 1 of 1 ,—DocuSigned by: "—Signed by: (& d atl, 4tiL(Ca vt Sfok, e6sEM.2,, mAuw5 Mayor Docusign Envelope ID: 2D3AB85C-5D8B-4DCD-BCO2-C911 D1 FBA1AA Exhibit A 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 AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8649, Francis Ranch THIS AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8649 ("Agreement") is made between the City of Dublin ("City") on the one hand, and TH East Ranch Dublin LLC, a California limited liability company (the "Contractor"), and Arroyo Cap IV-3, LLC, a Delaware limited liability company (the "Owner"), on the other hand. 1. Property: The subject property is Tract 8649 as filed in Book of Maps at Pages , in the Official Records of the County of Alameda, State of California ("Property"). 2. Owner: Owner is the owner of Tract 8649, Francis Ranch ("Project"). 3. Contractor: Owner has contracted with Contractor to construct various infrastructure and related improvements consistent with Vesting Tentative Map and Improvement Plans for Francis Ranch Tract 8649, including the Landscape Features (as defined below). 4. Landscape Features: Owner or Contractor, as part of the Project, anticipates the construction of Project related landscape features within the City's rights of ways on the following streets within Tract 8649: Holstein Avenue, Shorthorn Street, Kinzel Way, Hereford Road, Gallagher Lane, (collectively, the "Landscape Features"). Construction details for these Landscape Features are shown on the following plans: a. Improvement Plans for Francis Ranch, Tract 8649 Neighborhood 5, prepared by MacKay & Somps, approved by the City Engineer on ; and b. East Ranch — Tract 8649 — Neighborhood 5 Production Home Landscape Plans , prepared by Gates +Associates, approved by the City Engineer on ; and 1 Docusign Envelope ID: 2D3AB85C-5D8B-4DCD-BCO2-C911 D1 FBA1AA The scope of the improvements covered under the agreement is shown on the attached Exhibit "A". For avoidance of doubt, the parties agree that Owner and Contractor are each separately obligated to construct, operate and maintain the Landscape Features in accordance with the provisions of this Agreement. "Developer", as used herein, is the person that actually constructs, operates and maintains the Landscape Features. 5. Encroachment Permit: Developer shall apply to the City for an encroachment permit for work to be performed pursuant to this Agreement. The City must grant the encroachment permit for all work to install, operate and maintain the Landscape Features improvements 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. 6. Ownership: Owner shall own all special Landscape Features, including but not limited to sidewalk, plantings, irrigation, street trees, etc. 7. Operations and Maintenance: Developer shall maintain and repair all the Landscape Features, including all frontage landscape plantings, irrigation, sidewalks, street trees, and decorative/stamped pavement within the designated areas, in a safe manner consistent with the approved plans to the reasonable satisfaction of the City at its sole cost and expense, including electric power and water cost. 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. The City will maintain at its sole cost all asphalt concrete pavement, concrete curb and gutter, drainage improvements, traffic signs and striping, and streetlights in the public right of way. 8. 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 to another location within the Property, at its sole cost. If any of the Landscape Features are relocated, the City, Owner, and Contractor will execute a modification to this Agreement to reflect the maintenance and operations at its new location. Provided, however, the City is under no obligation to relocate any of the Landscape Features. 9. Insurance: Developer shall obtain and maintain in effect a combined single limit policy of liability insurance not less than one million dollars ($1,000,000) covering the Landscape Features improvements and shall name the City as an additional insured. 2 Docusign Envelope ID: 2D3AB85C-5D8B-4DCD-BCO2-C911 D1 FBA1AA 10. Indemnification: 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, directly arising from the negligence, gross negligence or willful misconduct of Developer arising out of 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. 11. Permanent: The Landscape Features and the rights appurtenant thereto as set forth in this Agreement shall exist in perpetuity and are appurtenant to the Property. 12. Right to Assign: Following the completion of the construction and installation of the Landscape Features, Owner and Developer may assign any or all of their rights, interests and obligations arising under this Agreement to the Homeowners' Association for Tract 8649 or to a successor in interest of Owner (including Contractor) with respect to all or a portion of the Project; provided, however, that no such assignment of the 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 Owner'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. 13. 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 "Owner" in this Agreement shall be deemed to refer to and include any successors in ownership and title. 14. 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), upon delivery if given by electronic mail (email) 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 3 Docusign Envelope ID: 2D3AB85C-5D8B-4DCD-BCO2-C911 D1 FBA1AA Owner: c/o Arroyo Cap IV-3, LLC, a Delaware limited liability company Attn: Jeffrey Brouelette Email: jrouelette@arroyocapital.com 18575 Jamboree Road, Suite 350 Irvine, CA 92612 Contractor: TH East Ranch LLC Attn: Legal Department Email: legal.notices@trumarkco.com 3001 Bishop Dr. 3100 San Ramon, CA 94583 With a copy to: Jackson Tidus Attn: Sonia Lister, Esq. 2030 Main Street, 12th Floor Irvine, CA 92614 15. Exhibits: All exhibits attached to this Agreement are incorporated herein as though they were set forth in full body of this Agreement. 16. 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. 17. 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. 18. 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. 4 Docusign Envelope ID: 2D3AB85C-5D8B-4DCD-BCO2-C911 D1 FBA1AA Dated this day of , 2024. CITY: THE CITY OF DUBLIN, a municipal corporation By: City Manager CONTRACTOR: By: TH EAST RANCH DUBLIN LLC, a California limited liability company !7 SbWSdi Tony BUSUWSI Name: Title: Authorized Agent Dated: 08/21/24 I 4:22 PM PDT OWNER: ARROYO CAP IV-3, LLC, a Delaware limited liability company By: Arroyo Cap IV-2, LLC, a Delaware limited liability company its sole member By: Arroyo Capital IV, LLC, a Delaware limited liability company its sole member By: Jeffrey BroueleLLe Name: Title: President Dated: 08/22/24 1 8:44 AM PDT 5 Docusign Envelope ID: 2D3AB85C-5D8B-4DCD-BCO2-C911 D1 FBA1AA NORTH4 0 300 600 1200 SCALE: 1 "=600' MACKAY& 50MPS FRANCIS RANCH - TRACT 8649 LONG TERM ENCROACH IBIT AMENT AGREEMENT EXH ENGINEERS PLANNERS SURVEYORS DUBLIN, CALIFORNIA PLEASANTON, CA (925)225-0690 DRAWN BY: MB JOB NO:19343.NH5 DATE: 5-29-24 LEGEND: - CITY OWNED AND MASTER HOA MAINTAINED HARDSCAPE (AREA =13,836± SF) — - - — TRACT BOUNDARY SHEET 1 of 2 05-29-2024 11:37am Mike Brill P:\19343—T\DES\OVERALL EXHIBITS \D—EXH — LONG TERM ENCROACHMENT — NH5 — 2024-05-29.DWG Docusign Envelope ID: 2D3AB85C-5D8B-4DCD-BCO2-C91 1 D1 FBA1AA LEGEND: CITY OWNED AND MASTER HOA MAINTAINED HARDSCAPE (AREA =13,836± SF) — - - — TRACT BOUNDARY NORTH 0 100 200 400 SCALE: 1 "=200' 47 MACKAY & somps ENGINEERS PLANNERS SURVEYORS PLEASANTON, CA (925)225-0690 FRANCIS RANCH - TRACT 8649 LONG TERM ENCROACHMENT AGREEMENT EXHIBIT A DUBLIN, CALIFORNIA DRAWN BY: MB JOB NO:19343.NH5 DATE: 5-29-24 Y 7 SHEET 2 of 2 05-29-2024 11:37am Mike Brill P:\19343—T\DES\OVERALL EXHIBITS \D—EXH — LONG TERM ENCROACHMENT — NH5 — 2024-05-29.DWG