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HomeMy WebLinkAbout4.09 PulteHmesDubRchAreaF2CITY CLERK File # ❑R&❑®-®:� AGENDA STATEMENT CITY COUNCIL MEETING DATE: June 7, 2005 SUBJECT: PA 04-043 Interim Agreement between City and Pulte Homes for Issuance of Building Permits for Homes in Dublin Ranch Area F2 Pending Development Agreement Effectiveness Report prepared by Eddie Peabody Jr., Community Development Director ATTACHMENTS: 1. Interim Agreement Between the City of Dublin and Pulte Homes Corporation for Area F2 of Dublin Ranch Area F RECOMMENDATION: I . Receive staff report 2. Authorize Mayor to sign Interim Agreement. FINANCIAL STATEMENT: None. DESCRIPTION: Pulte Homes is in the midst of mobilizing for the construction of the 121-home Area F2 project in Area F of Dublin Ranch. Due to an oversight, Pulte Homes was unaware until very recently of the necessity that they enter into a Development Agreement with the City prior to developing the project. Staff will be taking the F2 development agreement to the Planning Commission on either June 14 or June 28 (depending on whether adequate notice can be provided) and will bring the matter to the next City Council meeting for the first reading of an ordinance to approve a Development Agreement. The Development Agreement will become effective 30 days following the second reading of the Ordinance. Once the Development Agreement is effective, and the developer has complied with all other requirements, the City may issue building permits for construction of homes within the development. In the interim, Pulte, due to its substantial investment and reliance upon its understanding that it had all necessary entitlements, has asked for permission to begin the construction of 60 homes. The purpose of this Interim Agreement is to provide assurance to the City that, if an application is received for a building permit for a home prior to the effective date of the Development Agreement, all other requirements are satisfied for issuance of such a permit and if the City issues such a building permit, all risks associated with issuance of a building permit prior to the effective date of the Development Agreement are borne by the developer. The City entered into a similar agreement with the developer of the Emerald Pointe Business Park and Toll Brothers for the Areas A-6 and A-7 projects. The Interim Agreement would allow for the issuance of up to 60 building permits during the interim period in which the Development Agreement is not yet effective. RECOMMENDATION: Staff recommends the City Council receive staff report and authorize the Mayor to sign the interim agreement by a motion. COPIES TO: Applicant PA File ITEM NO. G:\PA#\2004\04-043 DUBLIN RANCH AREA F2 \DA\STAFF REPORT ON PULTE INTERIM AGREEMENT 060205.DOC O U City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 IctJ I Spaœ above this line for Recorder's Use INTERIM AGREEMENT BETWEEN THE CITY OF DUBLIN AND PUL TE HOME CORPORATION FOR AREA F2 OF DUBLIN RANCH AREA F lJ - Î _D S- Lt."1 ATIACHMENT I ~øo' THIS AGREEMENT ("Interim Agreement") is made and entered in the City of Dublin on this 7th day of June 2005 by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and Pulte home corporation, a Michigan corporation (hereafter "Developer"). RECITALS A. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 33.4 acres of land, located in the City of Dublin, County of Alameda, State of California, which is designated as Tract 7283 and is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "F2 Property"; and B. DEVELOPER acquired its interest in the F2 Property from Chang Su-O-Un, Hong Uen Un and Hong Yao Un (the "Uns") or the Uns successors in interest; and C. The Uns and CITY are parties to a "Master Development Agreement Between the City of Dublin and The Un Family for the Dublin Ranch Project (Areas A, B, C, D, E, F, G and H) ("Master Developmenf Agreement"), section 7 of which requires DEVELOPER to enter into a project-specific development agreement in accordance with the Eastern Dublin Specific Plan; and D. DEVELOPER proposes the development ofthe F2 Property with 121 single-family detached homes (the "Project"); and E. DEVELOPER has applied for, and CITY has approved various land use approvals in connection with the development of the Project, including an amendment to the General Plan and Eastern Dublin Specific Plan (City Council Resolution No. 47-04), PD District rezoning (City Council Ordinance No. 12-04), Master Vesting Tentative Map for Tract 7281 (Planning Commission Resolution No. 04-14), Vesting Tentative Map for Tract 7283 (Neighborhood F2) (Planning Commission Resolution 04-14), and site development review (Planning Commission Resolution No. 04-073) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and F. DEVELOPER has applied for a development agreement (the "F2 Property Development Agreement") as required by the Eastern Dublin Specific Plan and the Master Development Agreement, which the City is presently processing and which requires Planning Commission review and City Council approval by Ordinance; and Dublin/Pulte Homes Interim Agreement For Dublin Ranch Area F I F2 Page 2 of6 June 7, 2005 "3Jbì G. DEVELOPER wishes to begin construction of homes prior to the effective date of the "F2 Property Development Agreement"; and H. The purpose ofthis agreement is to allow DEVELOPER to begin construction of a maximum of _ homes in Area F2 prior to the effective date of the "F2 Property Development Agreement" at DEVELOPER's own risk. 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 F2 Propertv. The property which is the subject of this Interim Agreement is described in Exhibit A attached hereto ("F2 Property"). 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the F2 Property in that it owns the F2 Property in fee simple. 3. Relationship of City and Developer. It is understood fhat 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. JOffective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is approved by the City Council. 4.2 Term. The term of this Agreement shall commence on the effective date and extend until the Effective Date of the F2 Development Agreement between CITY and DEVELOPER, but in no event shall the term extend beyond September 15, 2005. Dublin/Pulle Homes Interim Agreement For Dublin Ranch Area F / F2 Page 3 of6 June 7, 2005 t1DD 1 5. No Damaaes Aaainst CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. 6. Severabilitv. 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. 7. Attornevs' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions ofthis 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 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. 8. Indemnification. 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, its 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). 9. DEVELOPER to Bear Risk. DEVELOPER agrees that it bears all risks associated with the issuance by CITY of any building permits for homes or other authorizations to construct prior to the effective date of the F2 Development Agreement including, but not limited DublinlPulte Homes Interim Agreement For Dublin Ranch Area F I F2 Page 4 of6 June 7, 2.0.05 5ÞDl to, the risk that the DEVELOPER will not be able to construct or continue to construct other aspects of the project because the F2 Development Agreement never becomes effective (due to a referendum). DEVELOPER agrees, if CITY issues one or more building permits for homes prior to the Effective Date of the F2 Development Agreement, that Developer will not claim that it has a vested right to proceed with construction of the Project on account of the issuance of such building permit(s). 10. No Guarantee That Permits Will Issue Nothing in this Agreement shall be construed as an entitlement to issuance of any permits, including building permits to construct homes. Any application for a building permit will be considered by CITY in the same manner it considers issuance of any other permits. 11. Notices. 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 P.O. Box 2340 Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to DEVELOPER shall be addressed as follows: Rodger Miller, Director of Land Pulte Home Corporation 6210 Stoneridge Mall Rd., 5th FI. Pleasanton, CA 94588 FAX No. (925) 249-4373 A party may change address by giving notice În 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 overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. Dublin/Pulte Homes Interim Agreement For Dublin Ranch Area F I F2 Page 5 at6 June 7, 2005 ~COI 12. Aareement is Entire Understandina. This Agreement constitutes the entire understanding and agreement of the parties with respect to the issuance of building permits prior to the effective date of the development agreement. 13. Counterparts. This Agreement may be executed in two (2) duplicate originals, each of which shall be deemed to be an original. 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: A TIEST: By: City Clerk Date: APPROVED AS TO FORM: City Attorney PUL TE HOME CORPORATION a Michigan corporation By: Date: Rodger Miller Its Attorney in Fact DublinlPulte Homes Interim Agreement For Dublin Ranch Area F I F2 Page 6 of 6 June 7, 2005 Exhibit A Legal Description of F2 Property Real property in the City of Dublin, County of Alameda, State of California, described as follows: Parcel 4 as shown on the Final Map of Tract 7281, filed September 3, 2004, Map Book 277, Pages 82 to 85 inclusive, Alameda County Records. lV'bl