HomeMy WebLinkAboutItem 8.2 PA 91-099 Hansen Hill Ranch Project Dev agreementCITY OF DUBLIN
PLANNING COMMISSION
AGENDA STATEMENT/STAFF REPORT
Meeting Date: January 21, 1992
TO:
FROM:
PREPARED BY:
SUBJECT:
GENERAL INFORMATION:
PROJECT:
APPLICANT/
PROPERTY OWNER:
LOCATION:
ASSESSOR PARCEL:
PARCEL SIZE:
GENERAL PLAN
DESIGNATION:
EXISTING ZONING
AND LAND USE:
SURROUNDING LAND
USE AND ZONING:
Planning
Planning
Laurence
Commission
Staff
L. Tong, Planning Director
PA 91-099 Hansen Hill Ranch Project
Development Agreement
Development Agreement between the Bren
Company and the City of Dublin re: Hansen
Hill Ranch, a 180 unit single-family
residential project west of Silvergate Drive.
Michael Toohey
The Bren Company
6601 Owen Dr., #105
Pleasanton, CA 94568
West of Silvergate Drive
941-110-1-9; 941-110-2
147 acres
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Single-family residential;
Single-family low density residential;
Open space
Planned Development District
North:
South:
Planned Development District with
residential use; Agricultural
District with grazing use.
R-1-B-3 District with residential
use; Agricultural District with
church use; Planned Development
District with grazing use.
ITEM NO.
COPIES TO: Applicant
Owner
Address File
PAGE _ 0F
East: Planned Development District with
residential use.
West: Agricultural District with grazing
use.
ZONING HISTORY:
PA87-045: On February 27, 1989, City Council adopted General
Plan Amendment to allow Hansen Hill Ranch land use
designations and policy revisions.
PA89-115: On May 14, 1989, City Council denied General Plan
Amendment, Planned Development Prezoning, and
Tentative Map to allow 10 single family custom
lots.
PA89-062: On November 27, 1989, City Council approved
pPlanned Development Prezoning, Tentative Map, and
Annexation proposal for 180 single family unit
Hansen Hill Ranch project.
APPLICABLE REGULATIONS:
Chapter 8.12 Development Agreements establishes procedures
and requirements for the consideration of development agreements
for specific projects.
ENVIRONMENTAL REVIEW: A Negative Declaration has been prepared
pursuant to the California Environmental Quality Act (CEQA),
State CEQA Guidelines, and the City of Dublin Environmental
Guidelines. The proposed project will not have a significant
effect on the environment.
NOTIFICATION: Public Notice of the January 21, 1992 hearing was
published in the local newspaper, mailed to adjacent property
owners, and posted in public buildings.
ANALYSIS:
The Bren Company has applied for a Development Agreement for
the Hansen Hill Ranch project. The project includes 180 single
family homes on approximately 147 acres of land west of
Silvergate Drive. The land was recently annexed to the City.
A Development Agreement is a contract between the City and a
Developer that is negotiated and voluntarily entered into. The
City agrees to not change its planning and zoning laws that apply
to the development for a specified period of time. The Developer
agrees to provide specific improvements and benefits which the
City might otherwise have not been able to require from the
Developer.
-2-
PAGE a OF
The Dublin Municipal Code contains a Development Agreement
Ordinance which enables the City to enter into a Development
Agreement (see Attachment 1). The Municipal Code establishes the
following processing procedure for approval of a Development
Agreement:
1. The Planning Commission holds a public hearing, makes
certain determinations, and makes a recommendation to
the City Council regarding the proposed Development
Agreement.
2. The City Council holds a public hearing, makes certain
determinations, and decides whether to approve the
proposed Development Agreement. If the City Council
decides to approve the proposed Development Agreement,
it adopts a project specific ordinance for the proposed
Development Agreement. The City enters into the
Development Agreement 30 days after the ordinance is
adopted.
The Hansen Hill Ranch project currently has various land use
approvals including a General Plan Amendment, Planned Development
Zoning, and Tentative Map. The Planned Development Zoning is
subject to review after May 27, 1992. The Tentative Map is valid
through May 27, 1992. A Conditional Use Permit and Site
Development Review application is being processed and is
tentatively scheduled for Planning Commission action in February,
1992. Although these approvals (Conditional Use Permit and Site
Development Review) have not yet been granted and the Development
Agreement cannot be executed until they are as it is presently
drafted, the Commission is being asked to review the Development
Agreement now in order to enable the Council to take action on
the Development Agreement prior to March 1, 1992. Action by
March 1st is important in order to assure receipt of park in -lieu
fees by April 1, 1992.
Staff has been meeting with the Developer to review and
prepare the proposed Development Agreement. In summary, the
proposed Development Agreement would provide for the following:
1. The City would extend the project approval for eight
(8) years from the date the agreement is recorded.
2. The Developer would pay the City $150,000 for
affordable housing purposes, subject to reduction
should the City adopt a lower inclusionary housing in -
lieu fee. The Developer would pay a $60,000 portion at
the time the Final Map for Phase I, 72 units, is
recorded. The Developer would pay the remaining
$90,000 portion at the time the Final Map for Phase II,
108 units, is recorded, subject to Consumer Price Index
increases.
-3-
PAGE -.? OF36_
3. The Developer would pay the City $190,728 for park
dedication in -lieu fees for Phase I, 72 units, by April
1, 1992, or earlier. The Developer would pay the City
the Phase II, 108 unit, park dedication in -lieu fees
when the Final Map for Phase II is recorded.
4. The Developer would construct and dedicate to the City
a 12-foot access road along Martin Canyon Creek for
public access and maintenance purposes.
5. The Developer would gravel a portion of the existing
off -site fire/jeep trail that is adjacent to the
project's northern property line.
The complete details are contained in the proposed
Development Agreement (see Exhibit C).
The Planning Commission must make certain determinations
before it can recommend approval of the proposed Development
Agreement to the City Council. The determinations are set forth
in the Dublin Municipal Code (Sec. 8.12-080). Staff believes
that the Planning Commission can make the following
determinations regarding the proposed Development Agreement for
the following reasons:
1. Said Agreement is consistent with the objectives,
policies, general land uses and programs specified in
the General Plan in that a) the project approvals of
said Agreement include a General Plan Amendment adopted
specifically for the Hansen Hill Ranch project, and b)
said Agreement furthers the affordable housing, parks,
and open space policies of the General Plan;
2. Said Agreement is compatible with the uses authorized
in, and the regulations prescribed for, the land use
district in which the real property is located in that
the project approvals include a Planned Development
Rezoning adopted specifically for the Hansen Hill Ranch
project;
3. Said Agreement is in conformity with public
convenience, general welfare and good land use practice
in that said Agreement will provide public access to
property that was previously private and not
accessible, will provide funds for affordable housing
which will improve general welfare, and will provide
land use and access that are consistent and compatible
with adjacent land uses;
4. Said Agreement will not be detrimental to the health,
safety and general welfare in that the development will
proceed in accordance with the project's environmental
impact report and mitigation measures; and
-4-
PAGE 471 OF 3 �o
5. Said Agreement will not adversely affect the orderly
development of property or the preservation of property
values in that the development will be consistent with
the General Plan.
Staff believes that the proposed Development Agreement is
consistent with the General Plan and recommends its approval.
RECOMMENDATIONS:
FORMAT: 1) Open public hearing and hear Staff presentation.
2) Take testimony from Applicant and the public.
3) Question Staff, Applicant and the public.
4) Close public hearing and deliberate.
5) Adopt Draft Resolutions recommending City Council
approval of Negative Declaration and Development
Agreement, or give Staff and Applicant direction
and continue the matter.
ACTION: Staff recommends that the Planning Commission adopt:
1) the Draft Resolution recommending City Council
adoption of the Negative Declaration (Exhibit A), and
2) the Draft Resolution recommending City Council
approval of the Hansen Hill Ranch Project Development
Agreement (Exhibit B).
ATTACHMENTS:
Exhibit A:
Exhibit B:
Exhibit C:
Draft Resolution Re: Negative Declaration
Draft Resolution Re: Development Agreement
Draft Ordinance Approving Development Agreement
For The Hansen Hill Ranch Project
Background Attachments:
Attachment 1: Dublin Municipal Code, Chapter 8.12 Development
Agreement
-5-
PAGE 6- OF 36'
RESOLUTION NO. 92 -
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING ADOPTION OF A NEGATIVE DECLARATION FOR PA 91-099 HANSEN
HILL RANCH PROJECT DEVELOPMENT AGREEMENT
WHEREAS, The Bren Company has filed an application requesting a
Development Agreement for the Hansen Hill Ranch project; and
WHEREAS, the California Environmental Quality Act (CEQA),
together with the State guidelines and City environmental regulations
require that certain projects be reviewed for environmental impact and
that environmental documents be prepared; and
WHEREAS, an Initial Study was conducted finding that the project,
as proposed, would not have a significant effect on the environment;
and
WHEREAS, a Negative Declaration has been prepared for this
application; and
WHEREAS, the Planning Commission did review and consider the
Negative Declaration at a public hearing on January 21, 1992; and
WHEREAS, proper notice of said public hearing was given in all
respects as required by law.
NOW, THEREFORE, BE IT RESOLVED THAT THE Dublin
Commission does hereby find that:
1. The Hansen Hill Ranch Project Development
have a significant effect on the environment.
2. The Negative Declaration has been prepared and processed
accordance with State and local environmental laws and guideline
regulations.
3. The Negative Declaration is complete and adequate.
PASSED, APPROVED AND ADOPTED this 21st day of January, 1992.
AYES:
NOES:
ABSENT:
ATTEST:
Planning Director
Planning
Agreement will not
in
Planning Commission Chairperson
EXHIBIT.. A
PAGE OF :3
RESOLUTION NO. 92 -
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING APPROVAL OF PA 91-099 HANSEN HILL RANCH PROJECT
DEVELOPMENT AGREEMENT
WHEREAS, The Bren Company has filed an application requesting a
Development Agreement for the Hansen Hill Ranch project; and
WHEREAS, the Planning Commission did hold a public hearing on
said application on January 21, 1992; and
WHEREAS, proper notice of said public hearing was given in all
respects as required by law; and
WHEREAS, the application has been reviewed in accordance with the
provisions of the California Environmental Quality Act (CEQA) and a
Negative Declaration has been prepared for this project as it will not
have a significant effect on the environment; and
WHEREAS, the Staff Report was submitted recommending that the
Planning Commission recommend City Council approval of said
Development Agreement; and
WHEREAS, the Planning Commission did hear and consider all said
reports, recommendations and testimony hereinabove set forth.
NOW, THEREFORE, BE IT RESOLVED THAT THE Dublin Planning
Commission does hereby make the following determinations regarding
said proposed Development Agreement:
1. Said Agreement is consistent with the objectives, policies,
general land uses and programs specified in the General Plan
in that a) the project approvals of said Agreement include a
General Plan Amendment adopted specifically for the Hansen
Hill Ranch project, and b) said Agreement furthers the
affordable housing, parks, and open space policies of the
General Plan;
2. Said Agreement is compatible with the uses authorized in,
and the regulations prescribed for the land use district in
which the real property is located in that the project
approvals include a Planned Development Rezoning adopted
specifically for the Hansen Hill Ranch Project;
3. Said Agreement is in conformity with public convenience,
general welfare and good land use practice in that said
Agreement will provide public access to property that was
previously private and not accessible, will provide funds
for affordable housing which will improve general welfare,
and will provide land use and access that are consistent and
compatible with adjacent land use;
EXHIBIT a
PACE W OF
e
lth,
4. Said Agreement tthatdetrimental
developmenthwillaproceedfiny
and general welfare in
accordance with the project's environmental impact report
and mitigation measures; and
5. Said Agreement will not adversely affect the orderly
development of propertY or the preservation of propertY
values in that the development will be consistent with the
General Plan.
BE IT FURTHER RESOLVED THAT THE Dublin Planning eCommisA i1si9n does doesen
hereby recommend that the Dublin City Council app n
Hill Ranch Project Development Agreement.
PASSED, APPROVED AND ADOPTED this 21st day of January, 1992.
AYES:
NOES:
ABSENT:
ATTEST:
Planning Director
- 2
Planning Commission Chairperson
PACE O 3�.
CITY OF DUBLIN
Ordinance No. - 92
AN ORDINANCE APPROVING DEVELOPMENT AGREEMENT FOR
THE HANSEN HILL RANCH PROJECT
The City Council of the City of Dublin does ORDAIN as follows:
Section 1. RECITALS
A. A Development Agreement between the City of Dublin and the
Bren Company ("Development Agreement"), owner of the property commonly
known as the Hansen Hill Ranch has been presented to the City Council,
a copy of which is attached hereto as Attachment 1.
B. A public hearing on the proposed Development Agreement was
held before the Planning Commission on January 21, 1992, for which
public notice was given as provided by law.
C. The Planning Commission has made its recommendation to the
City Council for approval of the Development Agreement, which
recommendation includes the Planning Commission's determinations with
respect to the matters set forth in Section 8.12.080 of the Dublin
Municipal Code.
D. A public hearing on the proposed Development Agreement was
held before the City Council on February , 1992, for which public
notice was given as provided by law.
E. The City Council has considered the recommendation of the
Planning Commission, including the Planning Commission's reasons for
its recommendation, the staff report, all comments received in writing
and all testimony received at the public hearing.
F. The City Council has adopted a resolution approving a
Negative Declaration for the Development Agreement.
Section 2. FINDINGS AND DETERMINATIONS
Therefore, on the basis of the foregoing Recitals, the City
Council finds and determines that:
1. The Development Agreement is consistent with the objectives,
policies, general land uses and programs specified and contained in
the City's general plan.
-1
EXHIBIT C.,
2. The Development Agreement is compatible with the uses
authorized in, and the regulations prescribed for, the land use
district in which the real property is located.
3. The Development
welfareAgreement
goodslandconformity
practicewith public
convenience, general
4. The Development Agreement will not be detrimental to the
health, safety and general welfare.
5. The Development Agreement will not adversely affect the
orderly development of property or the preservation of property
values.
Section 3. APPROVAL
The City Council hereby approves the Development Agreement and
authorizes the Mayor to sign it.
Section 4. RECORDATION
Within ten days after the Development Agreement
greement to thecCountyY
a
the Mayor, the City Clerk shall submit g
Recorder for recordation.
Section 5.. EFFECTIVE DATE AND POSTING OF ORDINANCE
0)
This Ordinance shall take effect and
The City Clerkhoftthe3Cityaof
from and after the date ofpassage.
osted in at least three (3)
Dublin shall cause this Ordinance to be p
public places in the City of Dublin in accordance with Section 36933
of the Government Code of the State of California.
PASSED AND ADOPTED by the City Council of the City of Dublin on
this
dayof , 1992, by the following vote:
AYES:
NOES:
ABSENT:
ATTEST:
City Clerk
-2
Mayor
PAGE OF .34
RECORDING REQUESTED BY,
AND WHEN RECORDED RETURN TO:
City of Dublin, City Clerk
100 Civic Plaza Drive
P. O. Box 2340
Dublin, CA 94568
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
CITY OF DUBLIN
FOR THE HANSEN HILL RANCH PROJECT
THIS DEVELOPMENT AGREEMENT is made and entered in
the City of Dublin on this day of , 1992,
by and between the CITY OF DUBLIN, a Municipal Corporation
(hereinafter referred to as "City"), and BREN COMPANY, a
California corporation (hereinafter referred to as
"Developer"), pursuant to the authority of §§ 65864 et seq.
of the California Government Code and City of Dublin
Ordinance No. 8-91.
RECITALS
A. California Government Code §§ 65864 et seq.
and Dublin Ordinance No. 8-91 authorize the CITY to enter
into an Agreement for the development of real property with
any person having a legal or equitable interest in such
property in order to establish certain development rights in
such property; and
B. DEVELOPER desires to develop and holds legal
interest in certain real property consisting of
approximately 147 acres of land, located in the City of
Dublin, County of Alameda, State of California, which is
more particularly described in Exhibit A attached hereto and
incorporated herein by this reference, and which real
property is hereinafter called the "Property"; and
C. DEVELOPER proposes the development of the
Property with 180 single-family homes (the "Project"); and
HANSEN AGREEMENT 1
January 14, 1992
Attachment 1
PAGE P_ll OF 3_
D. DEVELOPER has applied for, and CITY has
approved, various land use approvals in connection with the
development of the Project, including a general plan
amendment (Res. No. 021-89), a planned development prezoning
(Res. No. 129-89), a tentative map (Res. No. 130-89), site
development review, and a conditional use permit (Planning
Commission Resolution No. -92) (collectively, together
with any approvals or permits now or hereafter issued with
respect to the Project, the "Project Approvals"); and
E. On August 27, 1990, the CITY duly ordered the
annexation of the Project, formerly located in an
unincorporated area, to the CITY's jurisdiction, which
annexation was effective on May 23, 1991.
F. CITY desires the timely, efficient, orderly
and proper development of said Project; and
G. The City Council has found that, among other
things, this Development Agreement is consistent with its
General Plan and has been reviewed and evaluated in
accordance with Dublin Ordinance No. 8-91; and
H. CITY and DEVELOPER have reached agreement and
desire to express herein a Development Agreement that will
facilitate development of the Project subject to conditions
set forth herein.
I. On , 1992, the City Council of
the City of Dublin adopted Ordinance No. approving
this Development Agreement. The ordinance took effect on
, 1992;
J. An Environmental Impact Report and Addendum
were prepared for a general plan amendment ("General Plan
EIR"), which documents were certified by the City Council of
CITY as being complete for the general plan amendment
entitled the "Hansen Hill Ranch General Plan Amendment" by
Resolution No. 19-89 on February 27, 1989. A mitigation
monitoring program covering the general plan amendment was
approved by the City Council on February 27, 1989 by
Resolution No. 20-89. On November 27, 1989, the City
Council adopted Resolution No. 127-89, approving a mitigated
negative declaration for the Project, consisting of 180
residential lots on a 147-acre site. On
1992, the City Council adopted a negative declaration for
this Development Agreement, by Resolution No. -92.
HANSEN AGREEMENT 2
January 14, 1992
PAGE h;1 OF3.
NOW, THEREFORE, with reference to the foregoing
recitals and in consideration of the mutual promises,
obligations and covenants herein contained, CITY and
DEVELOPER agree as follows:
AGREEMENT
1. Description of Property.
The Property which is the subject of this
Development Agreement is described in Exhibit A attached
hereto ("Property").
2. Interest of Developer.
The DEVELOPER has a legal or equitable interest in
the Property in that it owns the Property in fee title.
3. Relationship of City and Developer.
3.1 It is understood that this Agreement is a
contract that has been negotiated and voluntarily entered
into by CITY and DEVELOPER and that the DEVELOPER is not an
agent of CITY.
3.2 The CITY and DEVELOPER hereby renounce the
existence of any form of joint venture or partnership
between them, and agree that nothing contained herein or in
any document executed in connection herewith shall be
construed as making the CITY and DEVELOPER joint venturers
or partners.
4. Effective Date and Term.
4.1 The effective date of this Agreement shall be
the date upon which this Agreement is recorded in the Office
of the Alameda County Recorder.
4.2 The initial term of this Development Agreement
shall commence on the effective date and extend eight
(8) years thereafter, unless said term is otherwise
terminated, modified or extended by circumstances set forth
in this Agreement. This Agreement shall terminate upon
completion of construction of all 180 units and the
performance of the conditions set forth in Exhibit B. Upon
request of DEVELOPER, CITY will record a document evidencing
termination of this Agreement.
4.3 If Developer has exercised reasonable
diligence to obtain, but has been unable to obtain, water
hook-ups and sewer connections providing adequate water and
HANSEN AGREEMENT 3
January 14, 1992
PAGE 43 ar 3
sewer service to the Project by the date that is one hundred
eighty (180) days prior to the date of expiration of this
Agreement, then, so long as Developer continues to exercise
such reasonable diligence during such 180-day period, at the
conclusion of the term of this Agreement, this Agreement
shall automatically be extended one day for each additional
day that Developer is unable to obtain such adequate water
hook-ups and sewer connections, provided that in no event
shall this Agreement be extended for more than two (2)
years.
5. Use of the Property.
5.1 Developer shall have the vested right to
develop the Project on the Property in accordance with the
terms and conditions of this Agreement, the Project
Approvals (as and when issued), and any amendments to any of
them as shall, from time to time, be approved pursuant to
this Agreement.
5.2 The permitted uses of the Property, the
density and intensity of use, the maximum height, bulk and
size of proposed buildings, provisions for reservation or
dedication of land for public purposes and location and
maintenance of on -site and off -site improvements, location
of public utilities and other terms and conditions of
development applicable to the Property, shall be those set
forth in this Agreement, the Project Approvals and any
amendments to this Agreement or the Project Approvals.
5.3 Provisions for the following ("Additional
Conditions") are set forth in Exhibit B attached hereto and
incorporated herein by reference.
5.3.1 Conditions, terms, restrictions, and
requirements for subsequent discretionary actions. These
conditions do not affect Developer's responsibility to
obtain all other land use approvals required by the
ordinances of the City of Dublin.
5.3.2 Additional or modified conditions agreed
upon by the parties in order to eliminate or mitigate
adverse environmental impacts of the Project or otherwise
relating to development of the Project.
5.3.3 Provisions that the Project be
constructed in specified phases, that construction shall
commence within a specified time, and that the Project or
any phase thereof be completed within a specified time.
HANSEN AGREEMENT 4
January 14, 1992
PAGE /L CIF-3.k.
5.3.4 Terms relating to subsequent
reimbursement over time for financing of necessary public
facilities.
5.3.5 Terms relating to payment of fees.
6. Applicable Rules, Regulations and Official
Policies.
6.1 For the term of this Agreement, the City's
ordinances, resolutions, rules, regulations and official
policies governing the permitted uses of the Property,
governing density and intensity of use of the Property and
the maximum height, bulk and size of proposed buildings
shall be those in force and effect on the effective date of
this Agreement.
6.2 Unless expressly provided in Paragraphs 5
and/or 6.1 of this Agreement, the ordinances, resolutions,
rules, regulations and official policies governing design,
improvement and construction standards and specifications
applicable to the Project, including but not limited to, all
public improvements, shall be those in force and effect at
the time of the applicable permit approval.
6.3 Unless expressly provided in Paragraph 5 of
this Agreement, the Project shall be constructed in
accordance with the provisions of the Uniform Building,
Mechanical, Plumbing, and Electrical Codes and Title 24 of
the California Code of Regulations, relating to Building
Standards, in effect at the time of approval of the
appropriate building, grading, or other construction permits
for the Project.
7. Subseauentiv Enacted Rules and Reaulations.
7.1 The CITY may, hereafter, during the term of
this Agreement, apply such newer enacted or modified
ordinances, resolutions, rules, regulations and official
policies of the City which are not in conflict with those
applicable to the Property as set forth in this Agreement
and application of which would not prevent or materially
delay development of the Property as contemplated by this
Agreement and the Project Approvals.
7.2 Nothing in this Agreement shall prevent the
CITY from denying or conditionally approving any subsequent
land use permit or authorization for the Project on the
basis of such new or modified ordinances, resolutions,
rules, regulations and policies except that such subsequent
HANSEN AGREEMENT 5
January 14, 1992
'AGE/COF 34
actions shall be subject to any conditions, terms,
restrictions, and requirements expressly set forth herein.
7.3 Notwithstanding anything to the contrary
contained herein, in the event an ordinance, resolution or
other measure is enacted, whether by action of CITY, by
initiative, referendum, or otherwise, that imposes a
building moratorium which affects the Project on all or any
part of the Property, CITY agrees that such ordinance,
resolution or other measure shall not apply to the Project,
the Property, this Agreement or the Project Approvals unless
the building moratorium is imposed as part of a declaration
of a local emergency or state of emergency as defined in
Government Code § 8558.
8. Subsequently Enacted or Revised Fees and Taxes.
No fees imposed on new development, such as traffic
impact fees, fees for the provision of affordable housing,
inclusionary housing in -lieu fees, child care fees or other
similar development fees, adopted by the CITY subsequent to
the effective date of this Agreement, shall be applicable to
the Project. However, any existing application, processing
and inspection fees that are revised during the term of this
Agreement and any subsequently enacted city-wide fees or
taxes shall apply to the Project provided that: (1) such
fees or taxes have general applicability to all residential
property in the City; (2) the application of such fees or
taxes to the subject property is prospective; and (3) their
application would not prevent development in accordance with
this Agreement.
9. Amendment or Cancellation.
9.1 Modification Because of Conflict with State or,
Federal Laws.
In the event that state or federal laws or
regulations enacted after the effective date of this
Agreement prevent or preclude compliance with one or more
provisions of this Agreement or require changes in plans,
maps or permits approved by the City, the parties shall meet
and confer in good faith in a reasonable attempt to modify
this Agreement to comply with such federal or state law or
regulation. Any such amendment or suspension of the
Agreement shall be approved by the City Council in
accordance with Dublin Ordinance No. 8-91.
HANSEN AGREEMENT 6
January 14, 1992
PAGE / 6 OF -4.
9.2 Amendment by Mutual Consent.
This Agreement may be amended in writing from
time to time by mutual consent of the parties hereto and in
accordance with the provisions of Dublin Ordinance No. 8-
91. Any amendment to this Agreement which does not relate
to (1) the term, permitted uses, density or intensity of
land use, (2) conditions, terms, restrictions and
requirements relating to subsequent discretionary actions,
or (3) any conditions or covenants relating to the use of
the Property, shall not require a public hearing before the
parties may execute an amendment.
9.3 Amendment Exemptions.
Any amendment of any of the Project Approvals,
any resubdivision of the Property except a resubdivision
that increases the number of lots over 180 lots, or any
filing of an amended subdivision map that creates new legal
lots or that reflects a merger of lots shall not require an
amendment to this Agreement. Instead, any such amendment,
resubdivision (except a resubdivision that increases the
number of lots over 180 lots), or filing shall be deemed to
be incorporated into and vested under this Agreement at the
time that such amendment, resubdivision, or filing is
approved as provided in this Agreement.
9.4 Amendment of Project Approvals.
Any Project Approval may, from time to time, be
amended or modified in the following manner:
(1) Upon the written request of
Developer for an amendment or modification of a Project
Approval including, but not limited to, (a) the location of
buildings, streets and roadways and other physical
facilities, or (b) the configuration of the parcels, lots or
development areas, the Planning Director of the CITY shall
determine whether the requested amendment or modification is
minor and whether the requested amendment or modification is
consistent with this Agreement, the General Plan and
applicable provisions of the CITY's zoning and subdivision
ordinance in effect as of the effective date of this
Agreement. For purposes of this Agreement, the
determination whether such amendment or modification is
minor shall refer to whether the amendment or modification
is minor in the context of the overall Project. If the
Planning Director finds that the proposed amendment is both
minor and consistent with this Agreement, the General Plan,
and the applicable provisions of the CITY's zoning and
HANSEN AGREEMENT 7
January 14, 1992
PAGE 7 GF -31
subdivision ordinance, the Planning Director may approve the
proposed amendment without notice and public hearing.
(2) Except as provided in
subparagraph (1) above, any amendment or modification of any
Project Approval shall be subject to the applicable
substantive and procedural provisions of CITY's applicable
zoning, subdivision, and other land use ordinances.
9.5 Cancellation by Mutual Consent.
Except as otherwise permitted herein, this
Agreement may be cancelled in whole or in part only by the
mutual consent of the parties or their successors in
interest, in accordance with the provisions of Dublin
Ordinance No. 8-91. Any fees paid pursuant to Subparagraph
5.3.5 of Exhibit B of this Agreement prior to the date of
cancellation shall be retained by CITY.
10. Term of Project Approvals.
Pursuant to California Government Code
Section 66452.6(a), the term of the tentative map described
in Recital D above (the "Tentative Map"), or any
resubdivision or amendment to the Tentative Map (including
any lot line adjustment or merger of lots within the
Tentative Map), or any other tentative map filed and
approved prior to the termination of this Agreement, shall
automatically be extended for the term of this Agreement.
The term of any other Project Approval shall automatically
be extended for the term of this Agreement.
11. Annual Review Date.
11.1 The annual review date for this Agreement shall
be March 1.
11.2 The CITY's Planning Director shall initiate the
annual review, as required under Section 8.12.140 of Dublin
Ordinance No. 8-91, by giving to DEVELOPER thirty (30) days'
written notice that the CITY intends to undertake such
review. DEVELOPER shall provide evidence to the Planning
Director prior to the hearing on the annual review, as and
when reasonably determined necessary by the Planning
Director, to demonstrate good faith compliance with the
provisions of the Development Agreement. The burden of
proof by substantial evidence of compliance is upon the
DEVELOPER.
11.3 To the extent practical, CITY shall deposit in
the mail and fax to DEVELOPER a copy of all staff reports,
HANSEN AGREEMENT 8
January 14, 1992
PAGE /8. OF3
and related exhibits concerning contract performance at
least five (5) days prior to any annual review.
11.4 Costs reasonably incurred by CITY in connection
with the annual review shall be paid by DEVELOPER in
accordance with the City's schedule of fees in effect at the
time of review.
12. Default.
12.1 Upon the occurrence of an event of default, the
parties may pursue all other remedies at law or in equity
which are not otherwise provided for in this Agreement or in
City's regulations governing development agreements,
expressly including the remedy of specific performance of
this Agreement.
12.2 Upon the occurrence of an event of default by
either party, the nondefaulting party shall serve written
notice of such default upon the defaulting party. If the
default is not cured by the defaulting party within thirty
(30) days after service of such notice of default, the
nondefaulting party may then commence any legal or equitable
action to enforce its rights under this Agreement; provided,
however, that if the default cannot be cured within such
thirty (30) day period, the nondefaulting party shall
refrain from any such legal or equitable action so long as
the defaulting party begins to cure such default within such
thirty (30) day period and diligently pursues such cure to
completion. Failure to give notice shall not constitute a
waiver of any default.
13. Estoppel Certificate..
Either party may, at any time, and from time to
time, request written notice from the other party requesting
such party to certify in writing that, to the knowledge of
the certifying party, (a) this Agreement is in full force
and effect and a binding obligation of the parties, (b) this
Agreement has not been amended or modified either orally or
in writing, or if so amended, identifying the amendments,
and (c) the requesting party is not in default in the
performance of its obligations under this Agreement, or if
in default, to describe therein the nature and amount of any
such defaults. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days
following the receipt thereof, or such longer period as may
reasonably be agreed to by the parties. City Manager of
City shall be authorized to execute any certificate
requested by DEVELOPER. Failure to execute an estoppel
certificate shall not be deemed a default.
HANSEN AGREEMENT 9
January 14, 1992
PAGE .(s1 OF
14. Severability.
The unenforceability, invalidity or illegality of
any provisions, covenant, condition or term of this
Agreement shall not render the other provisions
unenforceable, invalid or illegal.
15. Attorneys' Fees and Costs.
If CITY or DEVELOPER initiates any action at law or
in equity to enforce or interpret the terms and conditions
of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs in addition to
any other relief to which it may otherwise be entitled.
If any person or entity not a party to this Agreement
initiates an action at law or in equity to challenge the
validity of any provision of this Agreement or the Project
Approvals, the parties shall cooperate in defending such
action. DEVELOPER shall bear its own costs of defense as a
real party in interest in any such action, and shall
reimburse CITY for all reasonable court costs and attorneys'
fees expended by CITY in defense of any such action or other
proceeding.
16. Transfers and Assianments.
16.1 Riaht to Assian.
DEVELOPER'S rights hereunder may be
transferred, sold or assigned in conjunction with the
transfer, sale, or assignment of all or a portion of the
Property subject hereto at any time during the term of this
Agreement, provided that no transfer, sale or assignment of
DEVELOPER's rights hereunder shall occur without the prior
written notice to CITY and approval by the City Council,
which approval shall not be unreasonably withheld or
delayed. The City Council shall consider the matter within
60 days after DEVELOPER's notice.
16.2 Release Upon Transfer.
Upon the transfer, sale, or assignment of
DEVELOPER's rights and interests hereunder pursuant to
paragraph 16.1 of this Agreement, DEVELOPER shall be
released from the obligations under this Agreement, with
respect to the Property transferred, sold, or assigned,
arising subsequent to the date of City Council approval of
such transfer, sale, or assignment; provided, however, that
if any transferee, purchaser, or assignee approved by the
City Council expressly assumes the obligations of DEVELOPER
HANSEN AGREEMENT 10
January 14, 1992
PAGES ° Or3b
under this Agreement, DEVELOPER shall be released with
respect to all such assumed obligations. In any event, the
transferee, purchaser, or assignee shall be subject to all
the provisions hereof and shall provide all necessary
documents, certifications and other necessary information
prior to City Council approval.
17. Agreement Runs with the Land.
All of the provisions, rights, terms, covenants,
and obligations contained j.n this Agreement shall be binding
upon the parties and their respective heirs, successors and
assignees, representatives, lessees, and all other persons
acquiring the Property, or any portion thereof, or any
interest therein, whether by operation of law or in any
manner whatsoever. All of the provisions of this Agreement
shall be enforceable as equitable servitudes and shall
constitute covenants running with the land pursuant to
applicable laws, including, but not limited to, Section 1468
of the Civil Code of the State of California. Each covenant
to do, or refrain from doing, some act on the Property
hereunder, or with respect to any owned property, (a) is for
the benefit of such properties and is a burden upon such
properties, (b) runs with such properties, and (c) is
binding upon each party and each successive owner during its
ownership of such properties or any portion thereof, and
shall be a benefit to and a burden upon each party and its
property hereunder and each other person succeeding to an
interest in such properties. Notwithstanding the foregoing,
this Agreement shall cease to be binding upon any parcel in
the Project (i.e., any of Lots 1 through 180) when such
parcel is acquired by a person or persons with the intent to
reside in the home constructed or to be constructed upon
such parcel or by a person or persons for the benefit of a
family member intending to reside in such home (provided,
however, that the benefits of this Agreement shall continue
to accrue to any such parcel until the City has issued a
certificate of occupancy for such parcel).
18. Bankruptcy.
The obligations of this Agreement shall not be
dischargeable in bankruptcy.
19. Indemnification.
DEVELOPER agrees to indemnify and hold harmless
CITY, and its elected and appointed councils, boards,
commissions, officers, agents, employees, and
representatives from any and all claims, costs and liability
for any personal injury or property damage which may arise
HANSEN AGREEMENT 11
January 14, 1992
PAGE "1 / OP4k
directly or indirectly as a result of any actions or
inactions by the DEVELOPER, or any actions or inactions of
DEVELOPER'S contractors, subcontractors, agents, or
employees in connection with the construction, improvement,
operation, or maintenance of the Project.
20. Insurance.
20.1 Public Liability and Property Damage Insurance.
During the term of this Agreement , DEVELOPER
shall maintain in effect a policy of comprehensive general
liability insurance with a per -occurrence combined single
limit of not less than one million dollars ($1,000,000) and
a deductible of not more than two -hundred and fifty
thousand dollars ($250,000) per claim. The policy so
maintained by DEVELOPER shall name the CITY as an additional
insured and shall include either a severability of interest
clause or cross -liability endorsement. In the event that
DEVELOPER exercises its right to assign pursuant to
paragraph 16.1, CITY shall have the right to determine the
amount of the deductible, provided that the deductible shall
not be less than $1,000 per claim.
20.2 Workers Compensation Insurance.
During the term of this Agreement and any
extension thereof DEVELOPER shall maintain Worker's
Compensation insurance for all persons employed by DEVELOPER
for work at the Project site. DEVELOPER shall require each
contractor and subcontractor similarly to provide Worker's
Compensation insurance for its respective employees.
DEVELOPER agrees to indemnify the City for any damage
resulting from DEVELOPER'S failure to maintain any such
insurance.
20.3 Evidence of Insurance,.
Prior to City Council approval of this
Agreement, DEVELOPER shall furnish CITY satisfactory
evidence of the insurance required in Sections 20.1 and
20.2 and evidence that the carrier is required to give the
CITY at least fifteen days prior written notice of the
cancellation or reduction in coverage of a policy. The
insurance shall extend to the CITY, its elective and
appointive boards, commissions, officers, agents, employees
and representatives and to DEVELOPER and each contractor and
subcontractor performing work on the Project.
HANSEN AGREEMENT 12
January 14, 1992
PAGES. OF O.
21. Notices.
All notices required or provided for under this
Agreement shall be in writing and delivered in person or
sent by certified mail, postage prepaid. Notices required
to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
P.O. Box 2340
Dublin, CA 94568
Notices required to be given to DEVELOPER shall be addressed
as follows:
Bren Company
6601 Owens Drive, Suite 105
Pleasanton, California 94566-9736
Att'n: Michael Toohey
A party may change address by giving notice in writing to
the other party and thereafter all notices shall be
addressed and transmitted to the new address. Notices shall
be deemed given and received upon personal delivery, or if
mailed, upon the expiration of 48 hours after being
deposited in the United States Mail.
22. Agreement is Entire Understandincs.
This Agreement is executed in three duplicate
originals, each of which is deemed to be an original. This
Agreement consists of () pages and
() exhibits totalling (_) pages which
constitute the entire understanding and agreement of the
parties.
HANSEN AGREEMENT 13
January 14, 1992
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed as of the date and year first
above written.
CITY OF DUBLIN: BREN COMPANY:
By: By:
Name: Name:
Its: Its:
APPROVED AS TO FORM:
City Attorney
(NOTARIZATION ATTACHED)
HANSEN AGREEMENT 14
January 14, 1992
PAGE OF3.z6
EXHIBIT A
Description of the Property
HANSEN AGREEMENT 15
January 14, 1992
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby
imposed pursuant to Paragraph 5.3 above.
1. Subparaaraph 5.3.1: DEVELOPER must obtain
all necessary building, grading and other construction
permits as set forth in Paragraph 6.3 of this Agreement.
2. Subparagraph 5.3.2:
a. DEVELOPER shall construct a 12-foot
access road (the "Access Road") over the Property along
Martin Canyon Creek as described in Condition No. 76 to the
CITY's approval of the Tentative Map ("Condition 76"). The
Access Road, together with that portion of the Property
lying between the fence to be constructed by Developer
pursuant to Condition 76 and the northern boundary of the
Property, shall be dedicated to the CITY for public access
and maintenance purposes. The construction and dedication
required by this subparagraph shall occur as part of Phase
I of the Project. Upon dedication, DEVELOPER shall be
released from all liability for the maintenance of the
property so dedicated.
b. DEVELOPER shall grade and rock the area
shown on Attachment 1 hereto to allow CITY to extend the
Access Road over such area, which extension shall be
constructed to the standards set forth in Condition 76 and
as a part of Phase I. CITY shall obtain or provide all
permits, easements and licenses necessary to permit
DEVELOPER to so grade and rock such area.
c. DEVELOPER's obligation to pay its 23.7%
proportionate share of the cost of the improvements prior to
the release of occupancy, as described in Condition No. 47
to the CITY's approval of the Tentative Map ("Condition
47"), shall be based on CITY's cost of performing the
improvements to the "T" intersection of Dublin Boulevard and
Silvergate Drive, adjusted for inflation, at the time of
payment.
d. The improvements to be constructed or
performed by DEVELOPER pursuant to Subparagraphs (a) and
(b) shall be included within the scope of the subdivision
improvement agreement to be entered into by and between
DEVELOPER and CITY as described in Condition No. 65 to the
HANSEN AGREEMENT 16
January 14, 1992
P'AGE4 - OF �
CITY's approval of the Tentative Map (the "Tract Developer
Agreement").
3. Subparagraph 5.3.3: Except as imposed
pursuant to any building, grading or other construction
permits required pursuant to Paragraph 6.3 of the Agreement,
the Project shall not be subject to requirements relating to
timing or commencement or completion of construction. The
Project shall, however, be constructed in two phases. Phase
I shall consist of the recordation of a final map for Lots
1 - 72 and shall include construction of the Access Road and
dedication of the area specified in subparagraph 2(a) ,
performance of the work described in subparagraph 2(b), and
completion of the road across the Valley Christian Center
property, as shown on the tentative map. Phase II shall
consist of the recordation of a final map for Lots 73 -
180.
4. Subparagraph 5.3.4: Not applicable.
5. Subparagraph 5.3.5:
a. DEVELOPER shall pay to CITY the total sum
of One Hundred Fifty Thousand Dollars ($150,000) for use by
CITY to provide affordable housing, to be paid as follows:
the sum of $60,000 shall be paid to CITY at the time the
final map for Phase I, consisting of 72 units, is approved
and recorded and the sum of $90,000 shall be paid to CITY at
the time the final map for Phase II, consisting of 108
units, is approved and recorded, provided that if the final
map for Phase II is not approved and recorded within one
year from the date the Phase I final map is recorded, then
the sum of $90,000 shall be increased by the percentage
increase in the Consumers Price Index for the San Francisco
Bay Area (Wage Earners Index) for each year or fraction
thereof, until the final map for Phase II is approved and
recorded.
Notwithstanding the foregoing, if CITY should subsequent
to the effective date of this Agreement adopt an
inclusionary housing ordinance generally applicable to new
residential development within the CITY that provides for
the option of paying a fee in lieu of providing affordable
housing ("City's In -Lieu Housing Fee") which is lower on a
per -unit basis than the fee to be paid by DEVELOPER pursuant
to this subparagraph ("Developer's Housing Fee"), then the
per -unit amount of Developer's Housing Fee shall be reduced
to an amount equal to the per -unit amount of City's In -Lieu
Housing Fee. In no event shall DEVELOPER be entitled to a
reduction in Developer's Housing Fee to the extent that
such fee has already been paid with respect to Phase I or
HANSEN AGREEMENT 17
January 14, 1992
PAGE ? OF3
Phase II of the Project at the time of the effective date of
the inclusionary housing ordinance.
b. Park In -Lieu fees shall be paid as
follows:
180 D.U. x 0.016 AC/D.0 = 2.88 AC.
2.88 AC. x $165,548/AC. = $476,778 or $2,649/D.U.
Park In -Lieu fees for Phase I, in the amount
of One Hundred Ninety Thousand Seven Hundred Twenty Eight
Dollars ($190,728), shall be paid by DEVELOPER to CITY when
the final map for Phase I is approved and recorded or by
April 1, 1992, whichever is earlier.
Park In -Lieu fees for Phase II shall be paid
by DEVELOPER to CITY when the final map for Phase II is
approved and recorded and shall be calculated in accordance
with the provisions of CITY's ordinance then in effect and
current market values of the land as of the date of payment.
HANSEN AGREEMENT 18
January 14, 1992
PAGE 8 OF 3�
STATE OF CALIFORNIA
COUNTY OF
On before me,
personally appeared RICHARD C. AMBROSE, personally known to
me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same
in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which
the person acted, executed the instrument.
WITNESS by hand and official seal.
HANSEN AGREEMENT 19
January 14, 1992
STATE OF CALIFORNIA )
COUNTY OF
On before me,
personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the
instrument.
WITNESS by hand and official seal.
HANSEN AGREEMENT 20
January 14, 1992
VAGCBO OF 3�
Chapter 8.12
DEVELOPMENT AGREEMENTS
Sections:
8.12.010
8.12.020
8.12.030
8.12.040
8.12.050
8.12.060
8.12.070
8.12.080
8.12.090
8.12.100
8.12.110
8.12.120
8.12.130
8.12.140
8.12.150
8.12.160
8.12.170
Authority.
Definitions.
Forms Information
and fees.
Qualification as an
applicant.
Review of application.
Notice —Public hearing.
Rules governing
conduct of hearing.
Determination by
Planning Commission.
Decision by City
Council.
Approval by ordinance.
Contents of agreement.
Initiation of amendment
or cancellation.
Recordation of
development agreement,
amendment or
cancellation.
Annual review.
Effect of development
agreement.
Severability.
Judicial review —Time
limitation.
8.12.010 Authority.
This ordinance is adopted under the au-
thority of Government Code Sections 65864
through 65869.5. (Ord. 8-91 § 1 (part))
8.12.020 Definitions.
A. "Development agreement" means a
444-1
8.12.010
development agreement entered into be-
tween the city and a developer (as defined
in Section 8.12.040) pursuant to Govem-
ment Code Section 65864 et seq. and this
ordinance.
B. "Person" means an individual, group,
partnership, firm, association, corporation,
trust, governmental agency, or any other
form of business or legal entity.
C. "Project" means the development
project that is the subject of a development
agreement. (Ord. 8-91 § 1 (part))
8.12.030 Forms —Information and
fees.
A. The City Manager shall prescribe the
form for each application, notice and docu-
ments provided for or required hereunder
for the preparation and implementation of
development agreements.
B. The City Manager may require an
applicant to submit such information and
supporting data as he reasonably considers
necessary to process the application.
C. Each application shall be accompa-
nied by a development agreement on the
city's form of development agreement.
D. The City Council shall establish by
resolution the schedule of fees and charges
imposed for the filing and processing of
applications and documents provided for or
required hereunder. (Ord. 8-91 § 1 (part))
8.12.040 Qualification as an
applicant.
Only a qualified applicant may file an
application to enter into a development
agreement. A qualified applicant is a per-
son, including any authorized agent, who
has a legal or equitable interest in the real
property which is the subject of the devel-
opment agreement, provided that in all
(Dublin 8-91)
ATTACHMENT
psses
8.12.040
instances the owner(s) of fee title of the real
property shall join in the application or the
development agreement shall be conditional
upon the close of escrow vesting fee title to
the property in the developer. The City
Manager may require an applicant to submit
proof of his interest in the real property and
of the authority of any agent to act for the
applicant. The qualified applicant and any
successors -in -interest shall be referred to as
"developer." (Ord. 8-91 § I (part))
8.12.050 Review of application.
The City Manager shall endorse on the
application the date it is received. He shall
review the application and may reject it if
it is incomplete or inaccurate for purposes
of processing. If he fmds that the applica-
tion is complete, he shall accept it for filing.
He shall prepare a staff report and recom-
mendation and shall state whether or not the
agreement proposed or in an amended form
would be consistent with the general plan
and any applicable specific plan. He shall
also indicate whether or not the staff recom-
mends approval of the agreement as pro-
posed or in an amended form. (Ord. 8-91 §
1 (part))
8.12.060 Notice —Public hearing.
A. Public Hearing. A public hearing
shall be held on the proposed development
agreement by both the Planning Commis-
sion and the City Council.
B. Notice. The City Manager shall give
notice of intention to consider adoption of
development agreements in the manner
provided in subsection D and of any other
concurrent public hearing required by law.
C. Form of Notice. The form of the
notice of intention to consider adoption of
a development agreement shall contain:
(Dublin 8-91)
444-2
1. The date, time and place of the hear-
ing;
2. A general explanation of the matter
to be considered, including a general de-
scription of the property, in text or by dia-
gram, that is the subject of the hearing;
3. The identity of the hearing body; and
4. Other information required by specif-
ic provision of this chapter or which the
City Manager considers necessary or desir-
able.
D. Time and Manner of Notice. The
time and manner of giving notice shall be
by:
1. Publication or Posting. Publication at
least once in a newspaper of general circu-
lation, published and circulated in the city
at least ten (10) days prior to the hearing,
or if there is no such newspaper, posting at
least ten (10) days prior to the hearing in at
least three (3) public places in the city; and
2. Mailing. Mailing of the notice at
least ten (10) days prior to the hearing to:
a. All persons shown on the last equal-
ized assessment roll as owning real property
within three hundred (300) feet of the prop-
erty which is the subject of the proposed
development agreement;
b. All persons shown on the last equal-
ized assessment roll as owning the subject
real property and to the developer for the
proposed development agreement; and
c. Each local agency expected to pro-
vide water, fire, sewage, streets, roads,
schools or other essential services or facili-
ties to the subject property, whose ability to
provide those facilities and services may be
significantly affected.
E. Additional Notice. The Planning
Commission or City Council, as the case
may be, may direct that notice of the public
hearing shall be given in a manner that
I ;fl1t E3a OF' 3 4.
exceeds the notice requirements prescribed
by state law.
F. Failure to Receive Notice. The failure
of any person entitled to notice required by
law or this chapter does not affect the au-
thority of the city to enter into a develop-
ment agreement. (Ord. 8-91 § 1 (part))
8.12.070 Rules governing conduct
of hearing.
The public hearings shall be conducted
as nearly as may be in accordance with
such procedural standards as may be adopt-
ed for the conduct of zoning hearings. Each
person interested in the matter shall be
given an opportunity to be heard. The de-
veloper has the burden of proof at the pub-
lic hearing on the proposed development
agreement. (Ord. 8-91 § 1 (part))
8.12.080 Determination by
Planning Commission.
A. After the hearing by the Planning
Commission, the Planning Commission
shall make its recommendation in writing to
the City Council. The recommendation shall
include the Planning Commission's determi-
nation whether the development agreement
proposed:
1. Is consistent with the objectives, poli-
cies, general land uses and programs speci-
fied in the general plan and any applicable
specific plan;
2. Is compatible with the uses autho-
rized in, and the regulations prescribed for,
the land use district in which the real prop-
erty is located;
3. Is in conformity with public conve-
nience, general welfare and good land use
practice;
4. Will not be detrimental to the health,
safety and general welfare; and
41 44 4-3
8.12.060
5. Will not adversely affect the orderly
development of property or the preservation
of property values.
B. The recommendation shall include
the reasons for the recommendation. (Ord.
8-91 § 1 (part))
8.12.090 Decision by City Council.
A. After a public hearing, the City
Council may accept, modify or disapprove
the recommendation of the Planning Com-
mission. It may, but need not, refer back to
the Planning Commission matters not previ-
ously considered by the Planning Commis-
sion during its hearing for report and rec-
ommendation.
B. The City Council may not approve
the development agreement unless it makes
all the determinations set forth in Section
8.12.080. The City Council, in its sole
discretion, may deny the development
agreement on the grounds that, in its opin-
ion, the proposed agreement is not in the
best interest of the public.
C. If the property is located outside the
city limits, the application for a develop-
ment agreement shall be acted upon by the
city only if the property is within the city's
sphere of influence. If so, the agreement
shall be conditional upon the property being
annexed to the city and shall specify the
time period for completion of annexation.
If annexation does not occur within the
specified time period, the agreement shall
be null and void. (Ord. 8-91 § 1 (part))
8.12.100 Approval by ordinance.
If the City Council approves the develop-
ment agreement, it shall do so by the adop-
tion of an ordinance. No sooner than thirty
(30) days after the ordinance approving the
development agreement is adopted, the city
(Dublin 8.91)
PAGE33_ o 3l0
8.12.100
may enter into the agreement. (Ord. 8-91 §
1 (part))
8.12.110 Contents of agreement.
A. A development agreement shall spec-
ify its duration, the permitted uses of the
property thereunder, the density and/or
intensity of use, the maximum height and
size of proposed buildings, provisions for
reservation or dedication of land for public
purposes, and requirements for construction
and maintenance of on -site and off -site
improvements or payment of fees in lieu of
such dedication or improvements.
B. A development agreement may also
include conditions, terms, restrictions and
requirements for subsequent discretionary
actions (provided such conditions, terms,
restrictions and requirements do not prevent
the development of the land subject to the
development agreement for the uses and to
the density or intensity of development set
forth in the agreement) but does not affect
the developer's responsibility to obtain all
land use approvals required by the city's
ordinances.
C. A development agreement may in-
clude conditions and restrictions imposed by
the city with respect to the project, includ-
ing those conditions and restrictions pro-
posed in an environmental impact report
applicable to the project prepared and certi-
fied under the California Environmental
Quality Act, in order to eliminate or miti-
gate adverse environmental impacts of the
project.
D. A development agreement may pro-
vide that the project be constructed in spec-
ified phases, that construction shall com-
mence within a specified time, and that the
project or any phase thereof be completed
within a specified time.
(Dublin 8-91)
444-4
E. A development agreement may in-
clude a requirement for the developer's pay-
ment of ongoing operational costs of public
services and for the developer's agreement
to be included within a Mello -Roos District
or other comparable district for financing
ongoing operational costs of public services
for the project.
F. If the development agreement re-
quires developer's financing of necessary
public facilities, it may include terms relat-
ing to subsequent reimbursements over time
for such financing.
G. All development agreements shall
contain an indemnity and insurance clause
requiring the developer to indemnify and
hold the city harmless against claims arising
out of the development process, including
all legal fees and costs.
H. A development agreement is a con-
tract that is negotiated and voluntarily en-
tered into by city and developer and may
contain any additional or modified condi-
tions, terms or provisions agreed upon by
the parties, including sanctions for failure to
meet requirements.
I. A development agreement may in-
clude conditions relating to financial guar-
antees for performance of obligations there-
under. (Ord. 8-91 § 1 (part))
8.12.120 Initiation of amendment
or cancellation.
A. Unless otherwise provided in a devel-
opment agreement, either party may propose
an amendment to or cancellation in whole
or in part of a development agreement pre-
viously entered into.
B. The procedure for proposing and
adoption of an amendment to or cancella-
tion in whole or in part of a development
agreement shall be the same as the proce-
PAGE OF
dure for entering into an agreement in the
first instance.
C. Where the city initiates the proposed
amendment to or cancellation in whole or
in part of the development agreement, it
shall first give notice to the developer of the
city's intention to initiate such proceedings
in the manner set forth in Section 8.12.060.
D. In the event that a development
agreement should be canceled or terminated,
all rights of the developer under the devel-
opment agreement shall terminate. Except
as otherwise provided in the development
agreement, the city may, in its sole discre-
tion, determine to retain any and all bene-
fits, including reservation or dedications of
land, improvements constructed and pay-
ments of fees, received by the city.
E. Notwithstanding the above paragraph,
any termination of the development agree-
ment shall not prevent the developer from
constructing or completing a building or
other improvements authorized pursuant to
other validly issued permits, approvals or
entitlements, but the city may take any
action permitted by law to prevent, stop, or
correct any violation of law occurring after
cancellation of the development agreement.
(Ord. 8-91 § 1 (part))
8.12.130 Recordation of
development agreement,
amendment or
cancellation.
A. Within ten (10) days after the city
enters into the development agreement, the
City Clerk shall submit for recording the
agreement with the County Recorder.
B. If the parties to the agreement or
their successors -in -interest amend or cancel
the agreement or if the city terminates or
modifies the agreement for failure of the
444-5
8.12.120
developer to comply in good faith with the
terms or conditions of the agreement, the
City Clerk shall submit for recording the
notice of such action with the County Re-
corder. (Ord. 8-91 § 1 (part))
8.12.140 Annual review.
A. The City Council shall review the de-
velopment agreement at least every twelve
(12) months following the date of the agree-
ment. The Planning Director shall begin the
review proceeding by giving thirty (30)
days' written notice that the city intends to
undertake a periodic review of the develop-
ment agreement to the developer.
B. The City Council shall conduct a
public hearing at which the developer must
demonstrate good faith compliance with the
terms of the agreement. The burden of
proof on this issue is upon the developer.
The City Council shall determine, upon the
basis of substantial evidence, whether or not
the developer has, for the period under
review, complied in good faith with the
terms and conditions of the agreement.
C. If the City Council finds and deter-
mines on the basis of substantial evidence
that the developer has complied in good
faith with the terms and conditions of the
agreement during the period under review,
the review for that period shall be conclud-
ed. If the City Council finds and determines
on the basis of substantial evidence that the
developer has not complied in good faith
with the terms and conditions of the agree-
ment during the period under review, the
Council may modify or terminate the
agreement. (Ord. 8-91 § 1 (part))
8.12.150
Effect of development
agreement.
A. Unless otherwise provided by the
(Dublin 8-91)
PAGEc 4 0F 3
8.12.150
development agreement, the city's rules,
regulations and official policies governing
permitted uses of the property, density and
design, and improvement and construction
standards and specifications applicable to
development of the property shall be those
city rules, regulations and official policies
in force on the effective date of the devel-
opment agreement.
B. A development agreement shall not
prevent the city, in subsequent actions ap-
plicable to the property, from applying new
rules, regulations and policies which do not
conflict with those rules, regulations and
policies applicable to the property as set
forth in the development agreement.
C. A development agreement shall not
prevent the city from denying or condition-
ally approving any subsequent land use
permit or authorization for the project on
the basis of such existing or new rules,
regulations, and policies. (Ord. 8-91 § 1
(part))
8.12.160 Severability.
Should any provision of this chapter or
a subsequent development agreement be
(Dublin 8-91)
414-6
held by a court of competent jurisdiction to
be either invalid, void or unenforceable, the
remaining provisions of this chapter and
development agreement shall remain in full
force and effect unimpaired by the holding,
except as may otherwise be provided in a
development agreement. (Ord. 8-91 § 1
(part))
8.12.170 Judicial review—Tim_e
limitation.
A. Any judicial review of an ordinance
approving a development agreement shall be
by writ of mandate pursuant to Code of
Civil Procedure Section 1085; and judicial
review of any city action taken by the city
pursuant to this chapter, other than the
initial approval of a development agree-
ment, shall be writ of mandate pursuant to
Code of Civil Procedure Section 1094.5.
B. Any action or proceeding to attack,
review, set aside, void or annul any decision
of the city taken pursuant to this chapter
shall not be maintained by any person un-
less the action or proceeding is commenced
within ninety (90) days after the date of the
decision. (Ord. 8-91 § 1 (part))
PACE' OF .-36