HomeMy WebLinkAbout4.07 Dougherty Road Improvementsor
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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
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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:
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(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.
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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
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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
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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.
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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:
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Christopher L. Foss
City Manager
OWNER:
COLLIER CREEK MITIGATION LAND, LLC,
a California limited liability company
Name: Mark Dawson
Its: Managing Member
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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)
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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
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