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HomeMy WebLinkAbout6.2 Silvera Ranch DA CITY CLERK File # DI~][llJ~-[?a][Q] AGENDA STATEMENT CITY COUNCIL MEETING DATE: March 15,2005 SUBJECT: PUBLIC HEARING: PA 02-024 Pfeiffer Ranch Investors II, Inc. 2nd Reading - Development Agreement for Silvera Ranch (Pinn Brothers Fine Homes) Report Prepared by: Janet Harbin. Senior Planner~ ATTACHMENTS: 1. Ordinance approving the Development Agreement between the City of Dublin and Pfeiffer Ranch Investors II, Inc.(attached as Exhibit A) If¥ I. Open Public Hearing and receive Staff presentation; 2. Take testimony from the Applicant's Representative and the Public; 3. Close the Public Hearing and deliberate; and, 4. Waive the second reading and adopt th.e Ordinance approving the Development Agreement (Attachment I with Development Agreement, attached as Exhibit A, between the City of Dublin and Pfciffer Ranch Investors II, Inc.) RECOMMENDATION: PROJECT DESCRIPTION: On October 21, 2003, the City Council adopted Resolution No. 15-03 approving a Planned Development Rezoning and Stage 2 Development Plan, for the Silvera Ranch, located within the Eastern Dublin Specific Plan area. (Note: The original project name was Silveria Ranch; however, the Developer recently modifIed the spe1ling of the name to Silvera on many maps and documents for marketing purposes.) This approval established the final zoning for a 93.4 acre property located within the northern portion of the Eastern Dublin Specific Plan area, adjacent to the southeast and northeast of the intersection of Tassajara Road and the future extension ofFal1on Road. The homes planned for the subdivision wil1 be elustered and constructed on approximately 37 acres of the 93.4-acre project site in four phases, with approximately 56 acres designated as permanent private open space under a Conservation Easement, deed restriction or other instrument agreed to by the Developer. The Planned Development rezoning and the Eastern Dublin Specific Plan require that a Development Agreement be approved prior to the issuance of building permits for the development of the property. Develovment Al!reement One of the implementing measures of the Eastern Dublin Specific Plan is the requirement that the City enter into a Development Agreement with developers in the Plan area. The Development Agreement provides security to the developer that the City wil1 not change its zoning and other laws applicable to the project for a specified period of time. The benefit to the City of entering into a Development Agreement _________~___W____________________________~M_____________------------~~---------..----------------------.---- COPIES TO: G~\PA#\2002\02-0l4 Pion Bro.s\ÇCSR DA 2nd reading.doc \q,~ ApplicantIPropcrty Owner Developer ~ 2 In-House Distribution . ITEM NO. . with the property owner is that the document is a contract that ensures that the goals of the Eastern Dublin Specific Plan are met and the infrastructure facilitics for the area are constructed with each development phase. Additional1y, it ensures that dedications of property and easements are made, project phasing is followed, the appropriate fees are paid for the development, and any additional terms of the agreement are met as the development proceeds. Approval of development agreements is by adoption of an ordinance by the City Council upon a recommendation by the Planning Commission. The proposed Development Agreement between the City of Dublin and Pfeiffer Ranch Investors II, Inc. for the Silvera Ranch Project (PA 02-024) is contained in Exhibit A of Attachment 1, the Ordinance approving the Development Agreement. The agreement has been drafted and negotiated with the owners on record for the property, Pfeiffer Ranch Investors, Inc. Planning Commission Action: On January 25, 2005, the Planning Commission considered the proposed Development Agreement between the City of Dublin and Pfeiffer Ranch Investors II, Inc. for thc Silvera Ranch Project (Exhibit A of the Ordinance in Attachment I) at a public hearing. At the public hearing, the Planning Commission adopted Resolution No. 05-05, recommending City Council approval of the Development Agreement in Exhibit A. City Council Action: On March I, 2005, the City Council held a public hearing to consider an Ordinance to approve the Development Agreement for the Silvera Ranch project. At the meeting, the City Council discussed the issue of changing the accessibility of the trail which Jjes between the cast boundary of the residential development and the open space area from its existing status of a private trail for use only by residents of the subdivision, to a public trail for use by all persons in the community. Additionally, the City Council also discussed the possibility of closing the trail and allowing access onJy to emergency personnel and vehicles. The City Council determined that the use of the trail should be restricted to limit the number ofpeople using it because of the sensitivity of the adjacent 56 aeres of open space area, the proximity of Cali fomi a Tiger Salamander habitat, and the potential for disturbance ofthe nesting Golden Eagle in a trec near the project site by unauthorized persons. The City Council directed Staff to revise the Agreement to reflect the change in the nature of the designated trail to one which has the sole purpose of providing an Emergency Vehiele Accessway (EVA) to emergency personnel such as Fire and Police. The City Council acted to waive the first reading of the Ordinance, and introduced the proposed Ordinance approving the Development Agreement with changes as indicated. Subsequent to the City Council meeting, Staff has revised the Development Agreement to reflect City Council action. The revised Development Agreement is attached (see pages 7 & 8 of Exhibit B of the Development Agreement). ANALYSIS: The City Attorney drafted the proposed Development Agreement for Silvera Ranch with input from City Staff, representatives of the property owner and Developer, and their attorneys. The Development Agreement sets forth the agreement between the parties in relation to many items, including, but not limited to, phasing, project and off-site infrastructure, and payment or waiver offees. The Development Agreement runs with the land and the rights there under can be assigned. The main points of the Development Agreement can be found in Exhibit A of Attachment I. As required by the City of Dublin Municipal Code, a second reading of the proposed Ordinance is necessary prior to final adoption of the Ordinance to approve the Developmcnt Agreement. 2 OD3 RECOMMENDATION: Staff recommends that the City Council: I) Hear Staff presentation; 2) Open the Public Hearing; 3) Take testimony from the Applicant and the Public; 4) Close the Public Hearing and deliberate; 4) Waive the second reading and adopt the Ordinance (Attachment I) approving the Development Agreement, attached as Exhibit A, between the City of Dublin and Pfeiffer Ranch Investors 11, Inc. 3íI(ý3 l~i ORDINANCE NO. . AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN ************ APPROVING A DEVELOPMENT AGREEMENT FOR P A 02-024 PFEIFFER RANCH INVESTORS II, INe. FOR SILVERA RANCH THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The proposed Silvera Ranch Project to be developed by Pinn Brothers Fine Homes is located within the boundaries ofthe Eastern Dublin Specific Plan ("Specific Plan") in an area which is designated on the General Plan Land Use Element Map, and Eastern Dublin Specific Plan Land Use Map as Single Family Density Residential, Mediwn Density Residential, Medium-High Density Residential, and Rural Residentiall Agriculture. B. A Development Agreement is required as an implementing measure of the Eastern Dublin Specific Plan and by the Planned Development Zoning District P A 02-024. C. Pursuant to the California Environmental Quality Ad, it has been determined that the Project is exempt from CEQA pursuant to Government Code section 65457 for residential projects that are consistent with an adopted specific plan. This is based on the determination that there are no supplemental impacts that would require preparation of a Supplemental EIR, as further documented in the project record/documentation prepared by the City, dated October 2003, and incorporated herein by reference. The project review found that the environmental impacts of the Silvera Ranch Project werc addressed by the approved Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was certified by the Dublin City Council in Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994; along with the project- specific Addendum for P A 02-024 dated October 2003. D. The Development Agreement between the City of Dublin and Pfeiffer Ranch Investors 11, Inc., has been presented to the City Council, Exhibit A, and attached hereto. E. A public hearing on the proposed Development Agreement was held before the Planning Commission on January 25, 2005, for which public notice was given as provided by law. F. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreement. G. A public hearing on the proposed Development Agreement was held before the City Council on March 1,2005, for which public notice was given as provided by law. H. The City Council has considered the recommendation of the Planning Commission who considered the item at the January 25,2005 meeting, including the Planning Commission's TCasons for its recommendation, the Agenda Statement, all comments received in writing and all testimony received at the public hearing. ê - \ 5 ..oS c.:,. a. 1 AITACliMENT .1- ;< cD 3( Section 2. .FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin's General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the Specific Plan, (e) the ErR, (f) the addendum to the EIR for the Silvera Ranch Project, (g) the Agenda Statement, and on the basis of the specific conclusions set forth below, 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, as amended by the Eastern Dublin General Plan Amendment, and in the Specific Plan in that (a) the General Plan and Specific Plan land use designations for the site are Single Family Density Residential, Medium Density Residential, Medium-High Density Residential, and Rural Residential! Agriculture, and the proposed project is a project consistent with those land uses; (b) the project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to provision of infrastructure and public services; and (c) the Development Agreement ineludes provisions relating to vesting of development rights, and similar provisions set forth in the Specific Plan. 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 in that the project approvals ineludc a Planned Development Rezoning, Vesting Tentative Tract Map, and Site Development Review. 3. The Development Agreement is in confonrrance with public convenience, general welfare and good land use policies in that the Silvera Ranch Project wil1 implemCllt land use guidelines set forth in the Specific Plan and the General Plan which have planned for residential uses of varying densities and a large amount of permanent open space at this location. 4. The Development Agreement will not be detrimental to the health, safety and general welfare in that the project will proceed in accordance with all the programs and policies of the Eastern Dublin Specific Plan. 5. The Development Agreement will not adversely affcct the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan and with the Specific Plan. Section 3. APPROVAL The City Council hereby approves the Development Agreement, as contained in Exhibit A, and authorizes the Mayor to sign thc agreement accordingly. Section 4. RECORDATION Within ten (10) days after the Development Agreement is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. 2 · 3a.! -;';.c/ ........ Ð \...".,.- Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after thc date of its passage. Thc City Clerk of the City of Dublin shall cause the O,dinancc to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of thc Government Code of the State of California. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 15th day of March 2005, by the fol1owing votes: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk G:\p.#\2002\02-024\CC Ord DA 3 City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Lf ~ q>$ Space above this lins for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND PFEIFFER RANCH INVESTORS II, INC. FOR THE SILVERA RANCH PROJECT EXHIBIT A r; Pb 3't THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered in the City of Dublin on this day of , 2005, by and between the City of Dublin, a Municipal Corporation (hereafter "City"), and Pfeiffer Ranch Investors II, Inc., a California corporation ("Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. Califomia Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") 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 93.4 acres of land, located in the City of Dublin, County of Alameda, State of California, and is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property"; and C. The City Council adopted the Eastem Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and D. The Eastern Dublin Specific Plan requires Developer to enter into this development agreement; and E. Developer proposes the development of the Property with 254 single-family homes along with 55.86 acres of land to be subjected to a conservation easement or similar instrument (the "Project"); and F. Developer has applied for, and City has approved or is processing, various land use approvals in connection with the development ofthe Project, including Planned Development District rezoning (City Council Ordinance No. 15-03), general provisions for the PD District rezoning including the Development Plan (Cily Council Resolution No. 207-03), Vesting Tentative Map for Tract 7441 (Planning Commission ["PC"] Resolution No. 03-48), and site development review (PC Resolution No. 03-48), (collectively, together wilh any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and G. Development of the Property by Developer may be subject to certain future discretionary approvals, which, if granted, shall automatically Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634.2 Page 2 Draft: March 15, 2005 ~~pt become part of the Project Approvals as each such approval becomes effective; and H. City desires the timely, efficient, orderly and proper development of said Project; and I. The City Council has found that, among other things, this Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and J. 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; and K. On , the City Council of the City of Dublin adopted Ordinance No. _ approving this Agreement. The ordinance took effect on 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 that is the subject of this Agreement is described in Exhibit A attached hereto. 2. Interest of Developer. The Developer has a legal or equitable interest in the Property in that it owns the Property in fee simple. 3. Relationship of Citv and Developer. 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. 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. Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 719634.' Page 3 DRAFT: March 15. 2005 1Gb 3ß 4.1 . Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by City. 4.2. Term. The term of this Agreement shall commence on the effective date and extend five (5) years thereafter, unless said term is otherwise tenninated or modified by circumslances set forth in this Agreement. 5. Use of the Property. 5.1. Riqht to Develop. 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. Permitted Uses. 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 (operated by City) 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. Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1. Subsequent Discretionary Approvals. Conditions, tenns, 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 other approvals from regulatory agencies.) Not Applicable 5.3.2. Mitiqation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmenlal impacts of the Project or otherwise relating to development of the Project. See Exhibit B 5.3.3. Phasinq. Timina. 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. Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634.2 Page 4 DRAFT: March 15, 2005 $ /5f) 3't See Exhibit B 5.3.4. Financina Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5. Fees. Dedications. Terms relating to payment of fees or dedication of property. See Exhibit B 5.3.6. Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B 5.3.7. Miscellaneous. Miscellaneous terms. See Exhibit B 6. Aoolicable Rules, Reaulations and Official Policies. 6.1. Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies goveming 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 the Agreement. 6.2. Rules re Desian and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary approval, whether the date of that approval is prior to or after the date of this Agreement. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the lime of the applicable discretionary approval, whether date of approval is prior to or after the date of this Agreement. 6.3. Uniform Codes Aoolicable. 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, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634.2 Page 5 DRAFT: March 15. 2005 q I5b ¿~ Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subseauentlv Enacted Rules and Reaulations. 7.1. New Rules and Reaulations. During the term of Ihis Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2. Approval of Application. 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 actions shall be subject to any conditions, terms, restrictions, and requirements expressly set forth herein. 7.3. Moratorium Not Applicable. 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, a limit on the rate of development or a voter- approval requirement 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. Subseauentlv Enacled or Revised Fees. Assessments and Taxes. 8.1. Fees, Exactions. Dedications City and Developer agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement (including Exhibit B). The City shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvemenls, or impose other exactions in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634.2 Page 6 DRAFT: March 15, 2005 l0tiQ 3$ 8.2. Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective only; and (3) the application of such fees would not prevent, impose a substantial financial burden on, or materially delay development in accordance with this Agreement. 8.3. New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. 8.4. Assessmenls. Nothing herein shall be construed to relieve the Property from assessments levied against it by City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5. Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and Developer does not return its ballot, Developer agrees, on behalf of itself and its successors, that City may count Developer's ballot as affirmatively voting in favor of such assessment, fee or charge. 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 Cily Council in accordance with Chapter 8.56. 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 procedures of State law and Chapter 8.56. 9.3. Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "significant" reservation or dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions orrequirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634.2 Page 7 DRAFT: March 15, 2005 Il~ 32': buildings; or (g) monetary contributions by Developer as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. City's Public Works Director shall determine whether a reservation or dedication is "significant" . 9.4. Amendment of Proiect Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) monetary contributions by the Developer; or (g) public improvements to be constructed by Developer shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5. Cancellation bv Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to Ihe date of cancellation shall be retained by City. 10. Term of Proiect Approvals. 10.1. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described in Recital F above shall automatically be extended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1. Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2005 and each July 15 to August 15 thereafter. 11.2. Initiation of Review. The City's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to Developer thirty (30) days' written notice that the City intends to undertake such review. Developer shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Agreement. The burden of proof by substantial evidence of compliance is upon the Developer. Dublin/Pfeiffer R¡mch Development Agreement For the Silvera/Haight Project 729634.2 Page 8 DRAFT: March 15, 2005 12- '1J 3/& 11.3. Staff Reports. To the extent practical, City shall deposit in the mail and fax to Developer a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4. çosts. 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. Olher Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not othelWise 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. Notice and Cure. 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. 12.3. No Damaaes Aaainst City. In no event shall damages be awarded against City upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. 13.1. 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, (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) to the knowledge of the certifying party 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. Should the party receiving the request not execute and return such certificate wilhin the applicable period, this shall not be deemed to be a default, Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634.2 Page g DRAFT: March 15, 2005 \?Db 3<t provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mortaaaee Protection; Certain Riahts of Cure. 14.1. Mortaaaee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2. Mortaaaee Not Obliaated, Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvemenls provided for or authorized by the Project Approvals or by this Agreement. 14.3. Notice of Default to Mortaaaee and Extension of Riaht to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the City's notice. City, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of Developer or a Mortgagee. 15. Severability. 15.1. 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. Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634.2 Page 10 DRAFT: March 15. 2005 I y.~ 8-$ 16. Attornevs' Fees and Costs. 16.1. 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 10 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. 17. Transfers and Assianments. 17.1. Riaht to Assian. Developer may wish to sell, transfer or assign all or portions of its Property to other developers (each such other developer is referred to as a "Transferee"). In connection with any such sale, Iransfer or assignment to a Transferee, Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer arising hereunder and that pertain to the portion of the Property being sold or transferred, to such Transferee, provided, however, that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur without prior written notice to City and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. 17.2. Approval and Notice of Sale. Transfer or Assianment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) days atter Developer's notice, provided all necessary documenls, certifications and other information are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform the Developer's obligations hereunder. Notice of any such approved sale, transfer or assignment (which includes a description of all rights, interests and obligations that have been transferred and those which have been retained by Developer) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. 17.3. Effect of Sale. Transfer or Assianment. Developer shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to subparagraph 17.1 of this Agreement, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to subparagraph 17.1 of this Agreement; and b) such obligations are expressly assumed by Transferee and provided that such Transferee shall be subject to alllhe provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval pursuant to subparagraphs 17.1 and 17.2 of this Agreement. Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634.1 Page 11 DRAFT: March 15, 2005 16% 3<t 17.4. Permitted Transfer. Purchase or Assianment. The sale or other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to the exercise of any right or remedy under a deed of trust encumbering Developer's interest in the Property shall not require City Manager approval pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 17.1. 17.5. Termination of Aareement Upon Sale of Individual Lots to Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the purchaser or user thereof and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 18. Aareement Runs with the Land. 18.1. All of the provisions, rights, terms, covenants, and obligations contained in 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, whelher by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude 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. 19. Bankruptcy. 19.1. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnificalion. Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634,2 Page 12 DRAFT: March 15, 2005 IW1> ~ß 20.1. Developer agrees to indemnify, defend and hold harmless City, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise 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, provided that Developer shall have no indemnification obligation with respect to negligence or wrongful conduct of City, ils contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the City or another public entity (except as provided in an improvement agreement or maintenance bond). 21. Insurance. 21.1. Public Liabilitv and ProDertv Damaoe 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 ($1,000,000.00) with a Twenty Five Thousand Dollar ($25,000) self insurance retention 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. 21.2. Workers ComDensation Insurance. During the term of this Agreement 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. 21.3. Evidence of Insurance. Prior to City Council approval of this Agreement, Developer shall furnish City satisfactory evidence of the insurance required in Sections 21.1 and 21.2 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 performing work on the Project. 22. Sewer and Water. 22.1. Developer acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of City. Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634.2 Page 13 DRAFT: March 15, 2005 It ~ ~'r: 23. Notices. 23.1. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: Pfeiffer Ranch Investors II, Inc. Attn: AI Pinn 1475 Saratoga Ave., Suite 250 San Jose, CA 95129 FAX No. (408) 252-2632 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. Notices may also be given by ovemight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Aoreement is Entire Understandinq. This Agreement constitutes the entire understanding and agreement of the parties. 25. Exhibits. The following documenls are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions Exhibit C Nielsen Driveway - Truck Turn-Around Exhibit D Nielsen Property Proposed Right Turn Pocket Extension Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634,1 Page 14 DRAFT: March 15, 2005 \ ~i1b 3£ Exhibit E Temporary Bridge Exhibit F Open Space/Conservation Easement Areas 26. Counteroarts. This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. 27. Recordation. City shall record a copy of this Agreement within ten days following execution by all parties. [Signature Page Follows] Dublin/pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729ÔJ4.2 Page 15 DRAFT: March 15. 2005 Iq~~)t 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: By: Mayor Date: ATTEST: By: City Clerk Date: APPROVED AS TO FORM: City Attorney PFIEFFER RANCH INVESTORS II, INC. a California corporation By: Print: Its: Date: (NOTARIZATION ATTACHED) Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project 729634.2 Page 16 DRAFT: March 15, 2005 "2-Oq, ~ t EXHIBIT A Property Description '2-1~3t EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparaaraph 5.3.1 "" Subseauent Discretionary Approvals None. SubparaQraph 5.3.2 "- MltlQation Conditions Subsection a. Infrastructure SeauencinQ Proaram The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) identified in Resolution No. 03-48 of the City of Dublin Planning Commission approving the Vesting Tentative Map for Tentalive Tract Map 7441 and Site Development Review for PA 02-024 Pinn Brothers Homes, Silveria Ranch Tassajara Road/Fallon Road (hereafter "TM Resolution") shall be completed by Developer to the satisfaction of the Public Works Director at the times and in the manner specified in the TM Resolution unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of City's Public Works Director. -Condition 29 !Traffic Studv]: Condition 29 reads as follows: Traffic Study. The Applicant/Developer shall construct all necessary on-site and off-site traffic mitigation improvements as discussed in A Traffic Study for the Proposed Silveria Ranch Development in the City of Dublin prepared by T JKM Transportation Consultants. In addition to the Project-Specific mitigations listed in the report, the Applicant Developer shall also contribute a pro-rata share toward funding the following improvements: 1. Adding a shared right/left-turn lane on the 1-580 Eastbound Off-ramp at Hacienda Drive as identified in the East Dublin Properties EIR. 2. Improvements for the intersection of Dublin Boulevard/Dougherty Road as evaluated in the study under Dublin/Pfeiffer Ranch Development Agreement Page 1 For the Silvera/Haight Project-EXHIBIT B Draft: March 15. 2005 729634.2 '2. 2.Þò ~3f; Bui/dout conditions. The Applicant/Developer shall advance to the City applicable monies for acquisition of right-of-way and construction of the improvements assumed in the study. The amount of money advanced to the City will be based on the Applicant/Developer's fair share of the deficit (spread over those projects which are required to make up the deficit) between funds available to the City from Category 2 Eastern Dublin Traffic Impact Fee funds and the estimated cost of acquiring the right-of-way and constructing the improvements. The City will provide credit for the Category 2 Eastern Dublin Traffic Impact Fee to the Applicant/Developer for any advance of monies made for the improvements planned for the Dublin Boulevard/Dougherty Road intersection. When Requ/red: Prior to acceptance of Improvements. The City recently adopted an update to the Eastern Dublin Traffic Impact Fee ("the updated TIF"), and the improvements funded by the updated TIF include the shared right/left-turn lane on 1-580 eastbound off-ramp at Hacienda Drive referred to in Condition 29 ("the Shared Turn Lane Improvements"). Accordingly, notwithstanding anything to the contrary in Condition 29, Developer shall in lieu of making the payment required by Condilion 29 associated with the Shared Turn Lane Improvements pay (in cash or, at Developer's discretion, to the extent permitted by Subsection 5.3.5.a, TIF Credits) the updated TIF. Developer's payment of the updated TIF shall be deemed to comply with Developer's payment obligations in Condition 29 with respect to the Shared Turn Lane Improvements. With regard to the Dublin Boulevard/Dougherty Road Intersection Improvements, Developer shall provide CITY with Developer's fair share, as determined by CITY on the basis of the Project's trips, for the costs of design and construction of Dublin BoulevardlDougherty Road Intersection Improvements by a payment to CITY in cash in the amount of the Project's fair share of the deficiency, if any, between funds available to CITY for CIP Project # 96852 [Dougherty RoadlDublin Blvd. Intersection] and the cost of such project. Such payment to be made within 30 days of written notice from the Public Works Director, which notice will be given following bid opening. If such payment is made prior to the issuance of building permits, City shall provide a credit to Developer for funds advanced by Developer pursuant to Condition 29. All aspects of the credit Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project-EXHIBIT B 729634_2 Page 2 Draft: March 15, 2005 1- ?1; -peg shall be covered by City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 ("TIF Guidelines"), Notwithstanding the provisions of Section 4 of this Agreement, Condition 29 and the provisions of this subsection shall survive the expiration of this Agreement if the Property is developed pursuant to the Vesting Tentative Map approved by PC Resolution No. 03-48. -Condition 37 [Access to Nielsen] Condition 37 reads as follows: Access to Nielsen, An access easement across a portion of Parcel A shall be granted to Nielsen for access between Street '~" and APN 985-0002-009. The easement configuration and the approach from Street '~" shall allow tractor-trailer trucks safe, convenient, and unobstructed access to the Nielsen property from Street '~". The structural pavement section for Street '~" shall be extended to and conform to the existing surfacing at the common property line. The Applicant!Developer shall provide conform grading and road surfacing on the Nielsen property as needed to provide a suitable connection to the existing Nielsen driveway, subject to permission being granted by the property owner. Improvements shall be in general conformance with the attached exhibit dated 9/17/03 prepared by RJA and Associates. The Applicant! Developer shall also provide provisions for closure of the existing Nielsen property driveway if directed by the City. When required: Prior to Acceptance of Final Map. In order to ensure appropriate access to the Nielsen property, Developer shall, prior to acceptance of the final map, comply with the following instead of the requirements of Condition 37. Developer shall either bond for or improve the entrance at the northern boundary of the Nielsen Property and the extension of Road B consistent with the design conceptually shown on Exhibit C to the Agreement, which is labeled "Nielsen Driveway - Truck Turn-Around." Notwithstanding anything to the contrary shown on Exhibit C, this Agreement shall not require Developer to construct any improvements on the Nielsen property nor shall this Agreement require Developer to construct the fencing or gating shown on Exhibit C. The extension of Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project-EXHIBIT B 729634.2 Page 3 Draft: March 15, 2005 ?Lf~?\'1: Road B shall allow tractor-trailer trucks safe, convenient, and unobstructed access to the Nielsen property from Street A and shall provide a safe and adequate truck turn~around wilhin the Street A and Street B intersection (as shown on Exhibit C). The improvements shall be completed to the satisfaction of the City Engineer. The City does not anticipate accepting the offers of dedication of the right of way for the extension of Street B south of Street A until such time as the extension is completed to City standards. The improvements required by this subsection are an interim condition and not an improved condition. Developer shall further grant to the owner of the Nielsen Property temporary easements of ingress and egress over those portions of Tract 7441 south of Street A necessary for the truck turn- around and access driveway to operale as designed ("the Temporary Easement"). The general location of the Temporary Easement will include the area shown in light grey on Exhibit C to the Agreement and such adjacent areas as are reasonably necessary for the provision of adequate access and security to the Nielsen property. The Temporary Easement shall automatically terminate upon the City's acceptance of the right of way for Street B Extension south of Street A. Developer shall also grant to the owner of the Nielsen Property an easement that permits the owner of the Nielsen Property to construct the extension of Street B to City standards within the dedicated right of way. The easement deeds shall be prepared to the satisfaction of and be approved by the City Engineer and the City Attorney. Developer shall satisfy its obligation to mitigate all impacts to the Nielsen Property (including loss of access rights and lost parking spaces) by making a $155,000 payment to the owner of the Nielsen Property, upon the recordation ofthe Phase 1 final map for the Project. -Condition 39 [Improvement of Tassajara Road] Condition 39 reads as follows: Improvement of Tassajara Road. With the development of Tract 7441, Applicant! Developer shall improve Tassajara Road from the southerly edge of the property (south of Street '/'\ "- to the northerly edge of the property (north of Fallon Road) for public street purposes and as agreed upon in the Development Agreement between the City and Pinn Brothers Homes. Improvements shall generally conform to the alignment, typical sections, and phasing plan shown on Sheets 1-3 and Sheet 8 of Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project-EXHIBIT B 729634.2 Page 4 Draft: March 15, 2005 ').?% 3"6 the tentative map, with the following added conditions: 1) The entire Tassajara Road right-of-way for Tract 7441 shall be dedicated as part of the Phase 1 final map. 2) The interim Fallon Road connection to the existing Tassajara Road alignment (Phase 2) shall include a southbound left turn lane and a southbound merge! acceleration lane on Tassajara Road and other improvements to provide for safe ingress and egress on Tassajara Road, as determined by the City Engineer. The Applicant/Developer shall confer with the Alameda County Fire Department prior to development of improvement plans for Phase 2 to determine the possibility of deferring a connection between the two roads until Phase 4. The City Engineer may consider deferring the connection if approved by ACFD. 3) The final interim lane channelization and geometries at the Fallon Road! Tassajara Road intersection (Phase 4) shall be as approved by the City Engineer. The Phase 4 improvements shall include retention of the existing Tassajara Road pavement as a southbound free-right turn through the intersection. 4) The City Engineer may require additional improvements with each phase to provide for suitable transitions between improvements and to provide for public safety. 5) The City Engineer may modify the scope and phasing of improvements to allow for orderly integration of th is work with improvements to be constructed by adjoining developments. When RequIred: Prior to Guaranteed Recordation of Final Map and Approval of Improvement Plans. Subject to Government Code Section 66462.5, the Improvements to Tassajara Road and Fallon Road required by Condition 39 shall include in addition a temporary 120-foot extension of the right-turn pocket serving Street A ("the Extension"). The Extension is designed to serve truck traffic using the existing driveway to the Nielsen property. The Extension shall be designed and constructed to the satisfaction of the City Engineer and shall substantially comply with the conceptual plan attached to the Agreement as Exhibit D and labeled "Nielsen Property Proposed Right Turn Pocket Extension." Dul:>linlPfeiffer Ranch Development Agreement For the Silvera/Haight Projec~EXHIBIT B 7:29634.2 P"ge 5 Draft: March 15. 2005 1.. {" ~ ,?..¡;; Advance of Funds for Tassaiara Road/l-580 Interchanqe and Fallon Roadll-580 Interchanoe: Certain improvements to the 1-580fTassajara Road Interchange ("Tassajara Interchange Improvements") and the 1- 580/Fallon Road & EI Charro Road Interchange ("Fallon Interchange Improvements") (collectively the "Interchange Improvements") must be constructed in order to facilitate development of the Project and the development of other properties in Eastem Dublin. City has previously entered into agreements for funding the construction of the Interchange Improvements with developers of property within the City. Pursuant to these agreements, four developers (Alameda County Surplus Property Authority, Jennifer Lin, Greenbriar Homes and Mission Peak) advanced $13,075,151 to City for the Tassajara Interchange Improvements, and the Lin Family has agreed to advance, but has not yet advanced, monies to the City needed for the Fallon Interchange Improvements. All of the agreements require the City to seek reimbursement from non- contributing developers prior to the issuance of building permits to the non-contributing developer. Development of the Project will benefit from construction of the Interchange Improvements. Pursuanl to a Preannexation Agreement Between the City of Dublin, Pinn Brothers Construction, Inc., Silveria Ranch, L.L.C., and Albert C. Haight Living Trust, dated September 17, 2002 ("the Preannexation Agreement"), Developer agreed not to oppose the imposition of conditions on future land-use approvals that require Developer to advance monies for the construction of the Interchange Improvements. In furtherance of Section II of the Preannexation Agreement, Developer agrees, in satisfaction of its obligations thereunder to advance monies for the Tassajara Road Interchange Improvements, to advance to the City $99,544 prior to approval of the final map for Tracl 7441 and agrees that it will not assert the provisions of Government Code section 66458 to require the City to approve a final map for Tract 7441 until such time as it has advanced those funds to the City. In furtherance of Section II of the Preannexation Agreement, Developer agrees, in satisfaction of its obligations thereunder to advance monies for the Fallon Road Interchange Improvements, to, upon request by the City, advance to the City 1.0558% of the monies advanced by the Lin Family pursuant that certain Agreement between the City of Dublin and the Lin Family Regarding Funding for Construction of the Fallon Road/l- 580 Interchange, dated May 1, 2001 and as subsequently amended ("the 1-580 Construction Agreement"). As the Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project-EXHIBIT B 729634.2 Page 6 Draft: March 15, 2005 2.1~ 3ß advances by the Un Family may be made in one or more increments, the obligations will not be satisfied until such time as the Un Family has satisfied its obligations under the 1-580 Construction Agreement. Notwithstanding the provisions of Section 4 of this Agreement, the provisions of this paragraph shall survive the expiration of this Agreement if the Property is developed pursuant to the Vesting Tentative Map approved by PC Resolution No. 03-48. City will provide a credit to Developer in the amount of Developer's payment of monies under this Section II, to be used by Developer against payment of the Eastern Dublin Traffic Impact Fee ("TIF"). The use of credits (including limitations on the use of credits) and manner of conversion of the credit to a right of reimbursement will be as set forth in the City's then- current TIF Guidelines, subject to the following provisions: (a) the Developer shall pay an administrative fee of one-half of one percent or $1 ,000 whichever is greater; (b) the credit shall be granted at the time Developer makes payments of money pursuant to this agreement; and (c) the Tassajara Interchange Improvements credit may be used only against the Category 1 TIF Fees and the Fallon Interchange Improvements credit may be used only against the Category 2 TIF Fees. Condition 41 reads as follows: Improvement and Dedication of Private Trail. In accordance with the Development Agreement between the City of Dublin and Pinn Brothers Homes for Silveria Ranch dated September_ , 2003, with the parcelization or development of adjacent parcels within the tract adjacent to the southerly and easterly open space areas, Applicant! Developer shall improve the trail with an all-weather surface and landscaping as shown on the Planned Development exhibits and Tentative Tract Map 7441. The trail and adjacent open space areas shall be for private access purposes and will be maintained by the community Homeowners Association, and shall be dedicated to the Homeowners Association on the Final Map. When required: Recordation of Final Map and approval of improvement plans. Condition 41 is revised to read as follows: Applicantl Developer shall improve the EVA/Maintenance roads within the tract adjacent to the southerly and easterly open space areas with an all-weather surface and landscaping Dublin/pfeiffer Ranch Development Agreement For the Silvera/Haight Project-EXHIBIT B 729634,2 Page 7 Draft: March 15, 2005 2~Vb 9'Z as shown on the Planned Development exhibits and Tentative Tract Map 7441. The EVA/Maintenance roads and adjacent open space areas shall be closed to residents of the subdivision and the public. The Applicant/Developer shall install split-rail fencing and manual gates to restrict vehicular and pedestrian access to the EVA/Mainlenance roads and open space area, with the exception of emergency access vehicles, emergency personnel and maintenance by the Homeowners Association. The open space area, including the EVA/Maintenance roads, shall be owned and maintained by the community Homeowners Association, and shall be dedicated/conveyed to the Homeowners Association on the Final Map. Condition 101 is revised to read as follows: Replace "trail" with "EVA/Maintenance roads". (ii) Sewer. All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with DSRSD requirements. (iii) Water. An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative map conditions of approval to the satisfaction and requirements of the City's fire department. All potable water system components to serve the project site shall be completed in accordance with the DSRSD requirements. Recycled water lines shall be installed in accordance with the tentative map conditions of approval. (iv) Storm Drainaae. The storm drainage systems off site, as well as on site drainage systems for the areas to be occupied, shall be improved consistent with the Drainage Plan and tentative map conditions of approval and to the satisfaction and requirements of the Dublin Public Works Department applying City's and Zone 7 (Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. Pursuant to Alameda County's National Pollution Discharges Elimination Permit (NPDES) No. CAS0029831 with the Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Projec~EXHIBIT B 729634.2 Page 8 Draft: March 15, 2005 7.. Cf~ 3<g California Regional Water Quality Control Board, all grading, construction, and development activities within the City of Dublin must comply with the provisions of the Clean Water Act. Proper erosion control measures must be installed at development sites within the City during construction, and all activities shall adhere to Best Management Practices. Developer's plans for the Project show a proposed bioswale to collect and filter stormwater at the southwestern corner of the property. The location of the bioswale is between Street A and the boundary with the Nielsen Property. Notwithstanding anything to the contrary shown on the plans approved by the City, the bioswale shall be located 50 feet from the existing water service well on the Nielsen property, measured horizontally, and shall be lined with a buried impermeable membrane to ensure that the bioswale results in no surface water infiltration to the groundwater aquifer. (v) other Utilities (e.(I. (las. electricitv. cable televisions. telechone) Construction shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous (i) Comcletion Mav Be Deferred. Notwithstanding the foregoing, City's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director thaI assures completion, allow Developer to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. (ii) Advance of Funds for Construction of Fire Station 18. The City required the developer of Dublin Ranch Area A ("Area A Developer") as a condition of approval of that project 10 construct, at no cost to the City, a fire station ("Fire Station 18") to serve a portion of Eastem Dublin that includes the Property. Area A Developer has now completed Fire Station 18. In conjunction with Area A Developer's conslruction and outfitting of Fire Station 18, the City agreed to recover from subsequent applicants for certain land use approvals in Eastern Dublin Ihe subsequent applicant's proportionate share of the Fire Station 18 construction costs and costs of equipment and apparatus to outfit Fire Station 18 advanced by Area A Developer. Pursuant to those provisions, Developer agreed in section V of the Preannexation Agreement not to Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project-EXHIBIT B 729634.2 Page 9 Draft: March 15, 2005 ~01J 3 'l oppose a requirement on future development approvals that requires Developer to pay funds, prior to approval of final subdivision maps, in order to allow the City to reimburse the Area A Developer for its advance of costs to construct and equip the Fire Station 18. In furtherance of this provision in the Preannexation Agreement, Developer agrees to advance to the City $154,261.27 prior to approval of the final map for Tract 7441 and agrees that it will not assert Ihe provisions of Government Code section 66458 to require the City to approve a final map for Tract 7441 unlil such time as it has advanced those funds to the City. City will provide a credit to Developer in the amount of Developer's payment of monies under this Subsection, to be used by Developer against payment of Fire Facilities Fee. The amount of the credit, once established, shall not be increased for inflation and shall not accrue interest. The credits may be used by Developer against payment of the Fire Facilities Fee for any project in Dublin or, with written notice to City, may be transferred by Developer to another developer of land in Dublin. If Developer has not been able to use Ihe credits within ten years of the City's acceptance of Fire Station 18 Improvements, the remaining credits will convert to a right of reimbursement and shall terminate atter ten years. Any reimbursement shall be from Fire Facilities Fees only, if available. Other aspects of the credit and right of reimbursement shall be consistent with the City's Traffic Impact Fee Guidelines. (iii) Pedestrian/Bicvcle BrldQe The Vesting Tentative Tract Map for Tract 7441 proposes the construction of a pedestrian/bicycle bridge over the Tassajara Creek tributary that extends under Tassajara Road and through the Kobold and DR Acquisition I, LLC. Properties (APN 985-0002-0504-01, 985-0002-05-02 and 985-0029-010). In lieu of the location depicted on said Map, Developer shall construct a pedestrian/bicycle pathway in Ihe location and as generally depicted on Exhibit E. (jv) Conservation/Open Space Easement. Condition 27 reads as follows: Conservation/Open Space Easement. Although no species are present on the site, a portion of the property has been identified as potential aestivation habitat for the California tiger salamander, a Species of Special Concern. The subject open space area, which has been incorporated into the project, and consists of Open Space areas/parcels C, D, and F totaling 49.1 acres, shall be preserved for potential habitat. A conservation/open space easement, or similar instrument shall be agreed to by the Applicant, in a form approved by the City Engineer, City Attorney and Director of Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Projecl-EXHIBIT B 729634.2 Page 10 Draft: March 15, 2005 31~3'Í Community Development, and recorded for the property, including a map illustrating the parcels within the said easement area. The area shall be maintained by the Homeowners Associations. All recorded documents shall be submitted to the City Engineer for City records. When required: Prior to Final Map. In satisfaction of its agreement, as set forth in Condition 27, to grant a conservation easement or similar instrument for parcels C, D, and F, Developer shall record a development restriction upon such parcels, and additionally upon parcel A at the time and in the manner required by Condition 27 for parcels C, D, and F. (Exhibit F shows the location of the parcels A, C, D, and F.) Developer shall draft the development restriction for parcel A in a manner to ensure that the interim improvements required for access to the Nielsen property and the Temporary Easements, as described in this Agreement (see subsection 5.3.2(a)(i) above), may be temporarily maintained notwithstanding the development restrictions and that upon the City's acceptance of the right of way for Street B Extension south of Street A the development restrictions shall automatically become effective in the area formerly subject to the Temporary Easements. The City acknowledges that parcels A, C, D, and F will be privately owned, and for the benefit of the Homeowners' Association and its members only, though the development restrictions shall be enforceable by City. Notwithstanding any contrary language of Condition 27, the development restrictions shall be recorded concurrently with the recordation of each final map that creates any of the restricted parcels. Iv) Abandonment of Existina PG&E Easements. Condition 36 reads as follows: Abandonment of Existing PG&E Easements. The existing easements controlled by Pacific Gas & Electric Company recorded on 7/07/59 in Book 9080 Pages 583 and 585, as identified in the report by First American Title (Order Number 610646ALA) dated 3/28/02 shall be extinguished prior to approval of the final map. The Applicant/Developer shall provide the City with an updated Title Report as evidence that said easements have been extinguished. When required: Prior to Acceptance of Improvements. Dublin/Pfeiffer Ranch Development Agreement For the SilveralHaight Project-EXHIBIT B 729634,2 Page 11 Draft: March 15, 2005 ?¡2.~ '3 ~ Developer has received and recorded a quit claim deed from PG&E for the PG&E. The City acknowledges that the easements have been extinguished and that Condition 36 has been satisfied. Subparaflraph 5.3.3 -- PhasinCl. Tlmlnfl This Agreement contains no requirements that Developer must initiate or complete development of the Project within any period of time set by City. It is the intention of this provision that Developer be able to develop the Property in accordance with its own time schedules and the Project Approvals. SubDaraaraDh 5.3.4 -- Financina Plan Developer will install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in Subparagraph 5.3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project will be made available by the Dublin San Ramon Services District. Developer will enter into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. SubDaraaraDh 5.3.5 -- Fees. Dedications Subsection a. Traffic Impact Fees. Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 225-99, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Developer further agrees that it will pay eleven percent (11 %) of the "Section 1/Category 1" portion of the TI F in cash. Developer also agrees that it will pay twenty-five percent 25% of the "Section 2/Category 2" portion of the TIF in cash. If City amends its TIF fee and as a result the City's outstanding balance due on loans is less than 25% of total Section 2/Category 2 improvements, the Developer shall pay such reduced percentage of the "Section 2/Category 2" portion of the TIF in cash. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freewav Interchanfles. Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project-EXHIBIT B 729634.2 Page 12 Draft: March 15, 2005 -:?'?%?/Z Developer shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11·96 as amended by Resolution No. 155-98 and by any subsequent resolution which revises such Fee. Developer will pay such fees no later than the lime of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subsection c. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the then-current amount of the fee. Noise Mitiaation Fee. Subsection d. Developer shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Subsection e. School Impact Fees. School impact fees shall be paid by Developer in accordance wilh Government Code section 53080 and the agreement between Developer's predecessor in interest and the Dublin Unified School District regarding payment of mitigation fees. Subsection f. Fire Impact Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Subsection CI. Tri-Vallev Transportation Development Impact Fee. Developer shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subparaaraph 5.3.6 -- Credit Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project-EXHIBIT B 729634.2 Page 13 Draft: March 15, 2005 Subsection a. Traffic ImDact Fee ImDrovements -- Credit City shall provide a credit to Developer for those improvements described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such improvements are constructed by the Developer in their ultimate location. All aspects of the credit shall be covered by City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 ("TIF Guidelines"). Subsection b. Traffic ImDact Fee Riaht-of-Wav Dedications -- Credit City shall provide a credit to Developer for any TIF area right-of-way to be dedicated by Developer to City which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. Dublin/Pfeiffer Ranch Development Agreement For the Silvera/Haight Project-EXHIBIT B 729634.2 Page 14 Draft: March 15. 2005 3 ¿j~ ' $ . \ ~ "<t "<t 'l'- I I r u .e:¡; a::: ',I ':'--~' \ . , ~ I '. ' / ,~' 'I' \ 1" ~ 'I , .. \___-,1\ I I \.,', I .......\. , z··\ .,'1 \ \ '.,1 .lw1 l'- ../ ..\ \, .., if! ,.., \ \., i I \. \ " "Ì",.-,--~.' /~~, \ ~', W~. .. \.\, - .. " \ "\. ,......-. Z··,.I "," 37 4C' lA¿;i . ,,' U" '"\"' .~~ C.::, , ,,<'I Ç) """'" '~;~ ~ iii·.... f"I.... . ..I>" 0"\ ."'. .. 'i, "'. ....~~~. . ,,'ê" .......fS ~~f \. ,g¡,¡! ~I¡, "'" """ r, li}i.t"! ".... 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