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HomeMy WebLinkAboutReso 44-23 Approving the First Amendment to the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin Reso. No. 44-23, Item 4.2, Adopted 06/06/2023 Page 1 of 1 RESOLUTION NO. 44 – 23 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE FIRST AMENDMENT TO THE AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8460, AVALON WEST DUBLIN WHEREAS, on October 19, 2021, the City Council adopted Resolution No. 121-21 approving the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin (“Agreement”), with Avalon West Dublin, L.P., a Delaware limited partnership (“Owner”); and WHEREAS, the City of Dublin and the Owner desire to amend the Agreement to add the maintenance of public art and various decorative features within the public street right-of-way of St. Patrick Way to the Landscape Features listed in the Agreement. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the First Amendment to the Agreement for Long Term Encroachment for Landscape Features with Tract 8460, Avalon West Dublin, 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 6th day of June 2023, by the following vote: AYES: Councilmembers Hu, Josey, McCorriston, Qaadri and Mayor Hernandez NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: _________________________________ City Clerk DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030 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 FIRST AMENDMENT TO AGREEMENT FOR LONG TERM ENCROACHMENT FOR LANDSCAPE FEATURES WITH TRACT 8460, AVALON WEST DUBLIN This First Amendment is made and entered into this ____ day of _____, 2023, by and between the City of Dublin, a municipal corporation (“City”) and Avalon West Dublin, L.P., a Delaware limited partnership (“Owner”). A.City and Owner are parties to that certain “Agreement for Long Term Encroachment for Landscape Features with Tract 8460 (“Agreement”), approved by City Council Resolution No. 121-21 on October 19, 2021. B.By this Amendment, the parties desire to add the maintenance of public art and various decorative and special features at St. Patrick Way to the Landscape Features listed in the Agreement. C.City and Owner entered into a separate Public Art Installation Agreement to memorialize the process for City’s approval of the public art and outline the terms and conditions of Developer’s installation of the Public Art. D.This Amendment and performance of the associated obligations contained herein are intended to fully satisfy the condition to the approval of Vesting Tentative Map No. 10809 and the Site Development Review Permit for the Project that obligates City and Owner to enter into an agreement setting forth ownership, maintenance responsibilities and insurance coverage for the public art project to be installed in St. Patrick Way. NOW, THEREFORE, in the consideration of the of the mutual promises, conditions and covenants herein contained, the parties agree as follows: Section 1. Section 3 of the Agreement is amended and restated to read as follows: Landscape Features: Owner, as part of the Project, anticipates the construction of Project related landscape features within the City’s rights of ways on the following streets with Tract 8460; St. Patrick Way (collectively, the “Landscape Features”). Construction details for these Landscape Features are shown on the following plans: Exhibit A DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030 2 a. Landscape Plan – St. Patrick Way, prepared by The Guzzardo Partnership, approved by the City Engineer on 9/28/2021, and all approved revisions; and b. Improvement Plan – St. Patrick Way, prepared by CBG Civil Engineers, approved by the City Engineer on 9/28/2021, and all approved revisions; and c. Norie Sato Artwall Feature, Dublin, CA, prepared by Zahner. (the “Public Art”). The scope of the improvements covered under the agreement is shown on the attached Exhibit “A”. Section 2. Section 6 of the Agreement is amended and restated to read as follows: Operations and Maintenance. 6.1 Owners shall maintain and repair all the Landscape Features, including all frontage landscape plantings, irrigation, sidewalks, stormwater treatment areas, seat walls, decorative sidewalk medallions, decorative benches, bike racks, string light poles, decorative/stamped pavement, and street trees with tree grates 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. Owner 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. 6.2. The following provisions shall apply specifically to the Public Art: (a) Following the City’s approval of the Public Art in accordance with Section 1.1 of the Public Art Installation Agreement, Owner shall own the Public Art and shall maintain the Public Art, in a safe and clean manner consistent with the approved plans to the reasonable satisfaction of the City all at Owner’s sole cost and expense, including electric power, water, and other utilities cost. Owner will use reasonable efforts to maintain the Public Art in good repair and condition. Owner will be responsible at its sole cost to replace or repair the artwork should it be 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. If the Public Art suffers deterioration due to any cause other than Owner’s failure to maintain the Art, Owner and City shall meet and confer in good faith to determine whether to replace any portion of the Public Art or translate any component into new media, or whether to restore the Public Art. The anticipated life span of the Public Art is 25 years from the date of approval by the City, as DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030 3 set forth in Section 1.1 above. After that time, Owner may, in consultation with City, re- evaluate the Public Art to determine if it retains its identity as a work of art and, if not, whether to take appropriate action, including the possibility of destroying the Public Art. In the event that the Owner, in consultation with City, determines that the Public Art does not retain its identity as a work of art and Owner wishes to destroy the Public Art, the Owner must replace the Public Art with art of similar value, adjusted for inflation (“Replacement Art”). Any proposed Replacement Art must be approved by the City prior to the destruction of the Public Art. Owner is solely responsible for ensuring that any destruction or removal of the Public Art complies with the Visual Artists Rights Act of 1990 (“VARA”) and the California Artists Preservation Act (“CAPA”) to the extent applicable and Owner is solely responsible for obtaining any necessary releases or permission from the artist pursuant to the aforementioned statutes. (b) In the event that Owner fails to maintain the Public Art in accordance with this Agreement, City shall provide written notice of such condition to both the Owner and the Artist. In the event that Owner fails to cure or commence to cure the condition within thirty (30) days following receipt of such notice, the City shall have the right, but not the obligation, to perform all acts necessary to cure such condition (or to pursue such other remedy available to the City), including without limitation the right to access the Public Art, and charge the Owner the City’s costs for such action. (c) Modifications; Relocation. Owner intends to display the Public Art as originally created by Artist at the locations set forth on Exhibit [__]. Notwithstanding the foregoing, Owner may make minor modifications to the Public Art and/or relocate the Public Art with the consent of the Director of Parks and Community Services, which shall not be unreasonably withheld, conditioned or delayed. Owner is solely responsible for ensuring that any modification or relocation of the Public Art complies with VARA and CAPA to the extent applicable and Owner is solely responsible for obtaining any necessary releases or permission from the artist pursuant to the aforementioned statutes. (d) Visual Barriers. The Parties agree that no structures or visual barriers of any kind that impair or impede the public’s ability to view the Public Art shall be constructed or maintained on or adjacent to the Public Work, nor shall the Parties do anything that shall prevent, impair, or discourage the public’s ability to view the Public Art. Notwithstanding the foregoing, the City may install temporary structures or visual barriers to the extent necessary to protect public health and safety in the event of an emergency or in furtherance of a City project or repair to adjacent public structures or improvements. Section 3. Section 7 of the Agreement is amended and restated to read as follows: 7. Removal or Relocation: If future improvements or future plans 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 Owners 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 DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030 4 Landscape Features. Owner is solely responsible for obtaining all necessary waivers, releases, and/or permission from the artist to permit City to relocate or remove the Public Art elements of the Landscape Features in compliance with the Visual Artists Rights Act of 1990 (“VARA”) and the California Artists Preservation Act (“CAPA”) to the extent applicable. Section 4. Section 8 of the Agreement is amended and restated to read as follows: 8. Insurance 8.1. Throughout the installation, fabrication, and maintenance of the Landscape Features, including the Public Art, as contemplated by this Agreement, Owner is required to secure and maintain commercial general liability and automobile liability policies covering personal injury or property damage associated with the Landscape Features and the installation, fabrication and maintenance thereof, such insurance shall include a combined single limit policy of liability insurance not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate. 8.2. All insurance policies contemplated by this Section shall be placed with insurers with a Bests’ rating of no less than A-:VII and shall name the City and its officers, officials, employees and volunteers as an additional insured on all such policies. Endorsements must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. Any failure of Owner to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers. Owner shall notify City within 14 days of notification from Owner’s insurer if such coverage is suspended, voided or reduced in coverage or in limits. In the event that any policy contemplated in this Section includes a self-insured retention payment of which is limited to the named insured, such policy will be modified by special endorsement to allow for payment of the self-insured retention by additional insureds. Section 5. Section 9 of the Agreement is amended and restated to read as follows: 9. Indemnification: Owner shall hold harmless, indemnify and, at the City’s request, defend City (with counsel reasonably acceptable to City), its officers, employees, authorized agents, boards and commissions, whether elected or appointed, from and against all third party claims, demands, actions, causes of action, losses, damages, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees or obligations, (i) for or in connection with any claim that the Artist’s rights under VARA or CAPA have been violated, and (ii) in connection with any claim related to personal injury (including, but not limited to, death) or damage to property (both real and personal) to the extent arising out of or connected with the negligent act, error or omission of Owner, its agents, contractors, subcontractors, or employees in connection with the performance of this Agreement, including the construction, maintenance or operation of the Landscape DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030 5 Features, unless caused by the negligence, gross negligence or willful misconduct of the City, its agents, contractors or employees. The foregoing hold harmless statement of Owner shall apply to all damages and claims for damages of every kind suffered or alleged to have been suffered by reason of the activities undertaken pursuant to this Agreement, regardless of whether or not City has approved the plans or specifications for the Landscape Features and regardless of whether or not insurance policies have been determined to be applicable to any such damages or claims for damages. Section 6. Section 11 of the Agreement is hereby amended by deleting the following language: “or to a successor in interest of Owners with respect to all or a portion of the Project”. Section 7. Section 12 of the Agreement is amended and restated to read as follows: 12. Successors and Assigns: Covenants Intended to Run with the Land: 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 as owners of St. Patrick’s Way. All references to the “Owner” in this Agreement shall be deemed to refer to and include Owner and all successors and assigns of Owner as owners of all or a portion of the Property. This Agreement is intended to be a covenant running with the land and binding upon successor owners of St. Patrick’s Way and the Property. Section 8. This Amendment shall be recorded in the Official Records of the County of Alameda, State of California. Section 9. Exhibit “1” to this Amendment is hereby attached to the Agreement as a new Exhibit “A”. Section 10. Except as amended herein, all other provisions of the Agreement shall be unchanged and remain in full force and effect. SIGNATURES ON FOLLOWING PAGE DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030  'DWHGWKLVBBBBBGD\RIBBBBB CITY:   7+(&,7<2)'8%/,1    DPXQLFLSDOFRUSRUDWLRQ   %\BBBBBBBBBBBBBBBBBBBBBB /LQGD6PLWK &LW\0DQDJHU       OWNER:  $9$/21:(67'8%/,1/3D'HODZDUHOLPLWHGSDUWQHUVKLS  %\$YDORQ:HVW'XEOLQ*3//&LWVJHQHUDOSDUWQHU   %\$YDORQ:HVW'XEOLQ456//&LWVVROHPHPEHU %\$YDORQ%D\&RPPXQLWLHV,QFLWVVROHPHPEHU  %\BBBBBBBBBBBBBBBBBBBBBBBBBB -RH.LUFKRIHU 6HQLRU9LFH3UHVLGHQW'HYHORSPHQW       DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030 1 1 L.T.E.A EXHIBIT 1 ST. PATRICK WAY CITY OF DUBLIN ALAMEDA COUNTY CALIFORNIA DATE: MAY 22, 2023 SCALE: 1" = 100' F:\2763-000\ACAD\EXHIBITS\XB-098-LTEA EXHIBIT-1_2023-05-22.DWG CIVIL ENGINEERS SURVEYORS PLANNERS SAN RAMON WWW.CBANDG.COM ROSEVILLE (925) 866-0322 (916)788-4456 LEGEND: DocuSign Envelope ID: 91E18C8B-6332-4E18-B969-926165A93030