HomeMy WebLinkAboutOrd 19-09 Dublin Rch No Dev AgmtORDINANCE NO. 19 - 09
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*************
APPROVING A DEVELOPMENT AGREEMENT FOR DUBLIN RANCH NORTH BETWEEN
THE CITY OF DUBLIN AND HONG YAO LIN AND HONG LIEN LIN
APN: 985-0028-003-02
PA 08-045
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The proposed Dublin Ranch North Annexation Area ("Project") includes General
Plan and Specific Plan amendments to modify the land use designations from Low Density
Residential and Rural Residential/Agriculture to Estate Residential and Open Space and reduce
the overall density of the site, approval of a Planned Development Prezone with a related Stage
1 and Stage 2 Development Plan for the 157.7 acre project site and a Vesting Tentative Tract
Map to subdivide 157.2 acres into 5 lots.
B. Pursuant to CEQA and the CEQA Guidelines, the City as the Lead Agency
prepared a Mitigated Negative Declaration for the Dublin Ranch North project entitled "Initial
Study/Mitigated Negative Declaration" dated October 2009 and incorporated herein by
reference, and circulated it for review. The Planning Commission reviewed the Mitigated
Negative Declaration and adopted a Resolution incorporated herein by reference,
recommending that the City Council adopt the Mitigated Negative Declaration.
C. A public hearing on the proposed Development Agreement was held before the
Planning Commission on November 10, 2009, for which public notice was given as provided by
law.
D. The Planning Commission has made its recommendation to the City Council for
approval of the Development Agreement.
F. A public hearing on the proposed Development Agreement was held before the
City Council on December 1, 2009 for which public notice was given as provided by law.
G. The City Council has considered the recommendation of the Planning Commission
who considered the item at its November 10, 2009 meeting, including the Planning
Commission's reasons for its recommendation, the Staff Report, all comments received in
writing and all testimony received at the public hearing.
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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 Specific Plan, (d) the Eastern Dublin
EIR, (e) the Mitigated Negative Declaration, (f) the Agenda Statement, and on the basis of the
specific conclusions set forth below, the City Council finds and determines that:
1. The Project is consistent with the objectives, policies, land uses and programs
specified and contained in the City's General Plan and Eastern Dublin Specific Plan as
amended in that (a) the proposed General Plan and Specific Plan land use designation for the
site are Estate Residential and Open Space 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, (c) the project is
consistent with the Stage 1 and Stage 2 Planned Development Zoning proposed for Dublin
Ranch North, and (d) the Dublin Ranch North Development Agreement includes provisions
relating to vesting of development rights, and similar provisions set forth in the Specific Plan.
2. The Dublin Ranch North Development Agreement is compatible with the uses
authorized in, and the regulations prescribed for, the land use districts in which the real property
is located in that the project approvals include Annexation into the City of Dublin, General Plan
Amendment, Eastern Dublin Specific Plan Amendment, Planned Development Prezone with a
related Stage 1 and Stage 2 Development Plan and a Vesting Tentative Tract Map.
3. The Dublin Ranch North Development Agreement is in conformity with public
convenience, general welfare and good land use policies in that the project will implement land
use guidelines set forth in the General Plan and the Eastern Dublin Specific Plan which have
planned for residential uses at this location.
4. The Dublin Ranch North 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 Dublin Ranch North Development Agreement will not adversely affect 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, Exhibit A, and
authorizes the Mayor to execute it.
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.
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Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of
its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at
least three (3) public places in the City of Dublin in accordance with Section 36933 of the
Government Code of the State of California.
PASSED, APPROVED AND ADOPTED this 15th day of December, 2009 by the following
votes:
AYES: Councilmembers Biddle, Hart, Hildenbrand, and Mayor Sbranti
NOES: None
ABSENT: Councilmember Scholz
ABSTAIN: None
~~-.._
Mayor
ATTEST:
P
City Clerk
Ord No. 19-09, Adopted 12-15-09, Item 4.2
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RECORDING REQUESTED BY:
CITY OF DUBLIN
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waived per GC 27383
BOO P17
Space above this line for Recorder's use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
HONG YAO LIN AND HONG LIEN LIN
FOR THE DUBLIN RANCH NORTH PROJECT
EXHIBIT A TO
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THIS DEVELOPMENT AGREEMENT (this "Agreement" or this
"Development Agreement") is made and entered in the City of Dublin on this 15th
day of December, 2009, by and between the City of Dublin, a Municipal
Corporation (hereafter "City") and Hong Yao Lin (also known as Kevin Lin) and
Hong Lien Lin (also known as Frederich or Frederic Lin) (hereafter collectively
referred to as "Developer") pursuant to the authority of §§ 65864 et seq. of the
California Government Code and Dublin Municipal Code, Chapter 8.56. City and
Developer are, from time-to-time, individually referred to in this Agreement as a
"Party," and are collectively referred to as "Parties."
RECITALS
A. California Government Code §§65864 et seq. ("Development
Agreement Statute") and Chapter 8.56 of the Dublin Municipal Code (hereafter
"Chapter 8.56") authorize the City to enter into a Development 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.
B. Developer is the owner of certain property presently outside of the
City's boundaries but within the City of Dublin's sphere of influence described
more particularly in Exhibit A ("the Property"), which is incorporated herein by
reference.
C. Developer has filed an application with the City to, among other
things, authorize the filing of an application to annex the Property to the City and
the' Dublin San Ramon Services District, which proposal would require the
approval of the Alameda Local Agency Formation Commission.
D. Developer proposes the development of the Property, which
property is approximately 157.63 acres, with 4 residential units ("the Project").
E. Developer, or its predecessor in interest, has applied for, and City
has approved or is processing, various land use approvals in connection with the
development of the Project, including, without limitation, a resolution of
application for the annexation, a General Plan Amendment, an amendment to the
Eastern Dublin Specific Plan, a Stage 1 and Stage 2 Development Plan; and a
vesting tentative tract map. All such approvals collectively, together with any
approvals or permits now or hereafter issued with respect to the Project are
referred to as the "Project Approvals."
F. The City Council adopted the Eastern Dublin Specific Plan by
Resolution No. 53-93 which Plan is applicable to the Property. The Eastern
Dublin Specific Plan requires Developer to enter into a development agreement
as a condition of the development of the Property.
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G. Development of the Property by Developer may be subject to
certain future discretionary approvals, which, if granted, shall automatically
become part of the Project Approvals as each such approval becomes effective.
H. City desires the timely, efficient, orderly and proper development of
the Project.
I. The City Council has found that, among other things, this
Development Agreement is consistent with its General ;Plan and the Eastern
Dublin Specific Plan and has been reviewed and evaluated in accordance with
the Development Agreement Statute and Chapter 8.56.
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.
K. [CEQA compliance language to be added.]
L. On December 15, 2009, the City Council of the City of Dublin
adopted Ordinance No. approving this Development Agreement ("the
Approving Ordinance"). The Approving Ordinance will take effect on January 14,
2010 ("the Approval Date").
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
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 is
the owner of the property.
3. Relationship of City and Developer.
It is understood that this Agreement is a contract that has been negotiated
and voluntarily entered into by the City and Developer and that the Developer is
not an agent of the 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.
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4. Effective Date and Term.
4.1. Effective Date. The effective date of this Agreement shall be the
Approval Date. Notwithstanding the foregoing, this Agreement shall not become
operative until the Property is annexed to the 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
terminated or modified by circumstances set forth in this Agreement.
5. Use of the Property.
5.1. Right 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 (such amendments once effective shall become part of the law
Developer is vested into without an additional amendment of 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 the 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, terms,
restrictions, and requirements for subsequent discretionary actions.
(These conditions do not affect Developer's responsibility to obtain all
other land use approvals required by the ordinances of the City of Dublin
other approvals from regulatory agencies.)
5.3.2. Mitigation Conditions. Additional or modified conditions
agreed upon by the parties in order to eliminate or mitigate adverse
environmental impacts of the Project or otherwise relating to development
of the Project.
See Exhibit B
5.3.3. Phasing, Timing. Provisions that the Project be constructed
in specified phases, that construction shall commence within a specified
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time, and that the Project or any phase thereof be completed within a
specified time.
See Exhibit B
5.3.4. Financing 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 prope-ty.
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. Applicable Rules, Regulations and Official Policies.
6.1. Rules Regarding Permitted Uses. For the term of this Agreement,
the City's ordinances, resolutions, rules, regulations and official policies
governing the permitted uses of the Property, governing density and intensity of
use of the Property and the maximum height, bulk and size of proposed buildings
shall be those in force and effect on the Effective Date of the Agreement.
6.2. Rules Regarding Design 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 construe#ion standards and specifications applicable to public
improvements to be constructed by Developer shall be those in force and effect
at the time of the applicable discretionary approval, whether date of approval is
prior to or after the date of this Agreement.
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6.3. Uniform Codes Applicable. 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
Standards, in effect at the time of approval of the appropriate building, grading, or
other construction permits for the Project.
7. Subsequently Enacted Rules and Regulations.
7.1. New Rules and Regulations. During the term of this 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 Properly 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 the 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,
the City agrees that such ordinance, resolution or other measure shall not apply
to the Project, the Property, this Agreement or the Project Approvals unless the
building moratorium is imposed as part of a declaration of a local emergency or
state of emergency as defined in Government Code § 8558.
8. Subsequently Enacted or Revised Fees, Assessments and Taxes.
8.1. Fees, Exactions, Dedications The 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,
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shall not increase or accelerate existing fees, dedications of land or construction
of public improvements, 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).
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. Assessments. Nothing herein shall be construed to relieve the
Property from assessments levied against it by the 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 the 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 subject to
approval by the City 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
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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 or requirements for subsequent discretionary actions; (e) the density
or intensity of use of the Project; (f) the maximum height or size of proposed
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. The City's Public
Works Director shall determine whether a reservation or dedication is
"significant".
9.4. Amendment of Project 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
amendmen# 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 by 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 the date of cancellation shall be retained by the City.
10. Term of Project 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, 2010 and thereafter between each July 15 and
August 15 during the Term.
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
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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.
11.3. Staff Reports. To the extent practical, the 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. Costs. Costs reasonably incurred by the 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. Other 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 otherwise provided for in this Agreement or in the 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 Damages Against City. Notwithstanding anything to the
contrary contained herein, in no event shall damages be awarded against the
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
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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 the City shall be authorized to execute any certificate requested
by Developer. Should the party receiving the request not execute and return
such certificate within the applicable period, this shall not be deemed to be a
default, 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. Mortgaqee Protection; _Certain Rights of Cure.
14.1. Mortgaqee 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. Mortgaqee Not Obligated. Notwithstanding the provisions of
Section 14.1 above, .no Mortgagee shat! have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to
constructor 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 improvements provided for or authorized by the Project Approvals
or by this Agreement.
14.3. Notice of Default to Mortgaqee and Extension of Right to Cure. If
the 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 the City shall deliver to such Mortgagee, concurrently with service
thereon to Developer, any notice given to Developer with respect to any claim by
the 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. The 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.
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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.
16. Attorneys' Fees and Costs.
16.1. If the City or Developer initiates any action at law or in equity to
enforce or interpret the terms and conditions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and costs in addition
to any other relief to which it may otherwise be entitled. If any person or entity
not a party to this Agreement initiates an action at law or in equity to challenge
the validity of any provision of this Agreement or the Project Approvals, the
parties shall cooperate in defending such action. Developer shall bear its own
costs of defense as a real party in interest in any such action, and shall
reimburse the City for all reasonable court costs and attorneys' fees expended by
the City in defense of any such action or other proceeding.
17. Transfers and Assignments.
17.1 Right to Assign. 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, transferor
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 Assignment. The City
Manager shall consider and decide on any transfer, sale or assignment within ten
(10) days after Developer's notice, provided all necessary documents,
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 Release Upon Transfer. Upon the transfer, sale, or assignment of
all of Developer's rights, interests and obligations hereunder pursuant to
Paragraph 17.1 of this Agreement, Developer shall be released from the
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obligations under this Agreement, with respect to the Property transferred, sold,
or assigned, arising subsequent to the date of City Manager approval of such
transfer, safe, or assignment; provided, however, that if any transferee,
purchaser, or assignee approved by the City Manager expressly assumes all of
the rights, interests and obligations of Developer under this Agreement,
Developer shall be released with respect to all such rights, ,interests and
assumed obligations. In any event, the transferee, purchaser, or assignee shall
be subject to all the provisions hereof and shall provide all necessary documents,
certifications and other necessary information prior to City Manager approval.
17.4 Developer's Right to Retain Specified Rights or Obligations.
Notwithstanding Paragraphs 17.1 and 17.2 and Paragraph 18, Developer may
withhold from a sale, transferor assignment of this Agreement certain rights,
interests and/or obligations which Developer shall retain, provided that Developer
specifies such rights, interests and/or obligations in a written document to be
appended to this Agreement and recorded with the Alameda County Recorder
prior to the sale, transferor assignment of the Properly. Developer's purchaser,
transferee or assignee shall then have no interest or obligations for such rights,
interests and obligations and this Agreement shall remain applicable to
Developer with respect to such retained rights, interests and/or obligations.
17.5 Termination of Agreement 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 !ot which has been finally subdivided
and individually (and not in "bulk") leased (for aper-iod 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. Agreement Runs with the Land.
18.1 Ali 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, whether 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,
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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. Indemnification.
Developer agrees to indemnify, defend and hold harmless the 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 the 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). If City is
named as a party to any legal action, City shall cooperate with Developer, shall
appear in such action and shall not unreasonably withhold approval of a
settlement otherwise acceptable to Developer.
21. Insurance.
21.1. Public Liability and Property Damage Insurance. During the term of
this Agreement, Developer .shall maintain in Effect a policy of comprehensive
general liability insurance with aper-occurrence combined single limit of not less
than one million dollars ($1,000,000.00) with a One Hundred Thousand Dollar
($100,000) 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 Compensation 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.
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21.3. Evidence of Insurance. Prior to City Council approval of this
Agreement, Developer shall furnish the 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 the City.
23. Notices.
23.1. All notices required or provided for under this Agreement shall be in
writing. Notices required to be given to the 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:
Hong Yao Lin and Hong Lien Lin
c/o Charter Properties
4690 Chabot Drive, Suite 100
Pleasanton, CA 94588
Attn: James Tong
Fax No. (925) 463-1$61
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 overnight courier which shall be deemed given the
following day or by facsimile transmission which shall be deemed given upon
verification of receipt.
24. Agreement is Entire Understanding
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24.1 This Agreement constitutes the entire understanding and
agreement of the parties.
25. Exhibits.
The following documents 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
26. Counterparts.
This Agreement is executed in three (3) duplicate originals, each of which
is deemed to be an original.
27. Recordation.
The City shall record a copy of this Agreement within ten (10) days
following execution by all parties.
[Execution Page Follows]
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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:
Joni Pattillo, City Manager
DEVELOPER
Hong Yao Lin (also known as Kevin Lin)
Hong Lien Lin (also known as Frederich or
Frgc~e~ic Lin)
Attest:
Caroline Soto, City Clerk
Jam
Approved as to form
John Bakker, City Attorney
1308424.2
Representative
Approved ds to Form:
Martin W. Inderbi n
Attorney for Hong Yao Lin and Hong Lien
Lin
(NOTARIZATION ATTACHED)
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Exhibit A
Legal Description of Property
Real property in the County of Alameda, State of California, described as follows:
The northwest %4 of Section 27, in Township 2 South, Range 1 East, Mount
Diablo Base and Meridian.
Excepting therefrom that portion as granted in the deed to Dublin San Ramon
Services District, recorded April 13, 2004 as Instrument No. 2004-156119 of
Official Records.
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EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subparagraph 5.3.1 --Subsequent Discretionary Approvals
None.
Subparagraph 5.3.2 --Mitigation Conditiions
Subsection a. Infrastructure Sequencing Program
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of
dedication) identified in the City Resolution approving a vesting tentative map
(the "VTM Resolution") shall be completed by DEVELOPER to the satisfaction
and requirements of the Public Works Director at the times and in the manner
specified in the VTM Resolution and SDR Resolution unless otherwise provided
below.
(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.
(iv) Storm Drainage.
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(A) General. 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 tentative map conditions of approval and to the satisfaction
and requirements of the Dublin Public Works Department applying the 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 Discharge Elimination Permit (NPDES) No. CAS0029831 with the.
California Regional Water Quality Control Board, or pursuant to subsequent
permits adopted by the 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.
(v) Other Utilities fe.g. gas, electricity, cable televisions,
telephone).
Construction shall be completed by phase prior to issuance of the
first Certificate of Occupancy for any building within that specific phase of
occupancy for the Project.
Subsection b. Miscellaneous
(i) Completion May Be Deferred.
Notwithstanding the foregoing, the 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 that 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.
Subparagraph 5.3.3 -- Phasing Timing
This Agreement contains no requirements that Developer must initiate or
complete development of the Project within any period of time set by the 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.
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Subaaraaraph 5.3.4 --Financing 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. If so required by 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.
Subparagraph 5.3.5 -- Fees, Dedications
Subsection a. Traffic Impact Fees.
Developer shall pay the Eastern Dublin Traffic-Impact Fee ("TIF")
established. by Resolution No. 111-04, including any future amendments to such
fee that may be in effect at the time of issuance of building permits. 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.
In order to ensure that certain interest-bearing debt owed by the TIF is
repaid in a timely manner so as to reduce costs that would otherwise occur as a
result of accrued interest, the City's Administrative Guidelines for Eastern Dublin
Traffic Impact Fees (Resolution No. 20-07 ("T1F Guidelines")) require developers
to pay a portion of the "Section 1" and "Section 2" TIF in cash, rather than using
TIF credits. Developer agrees that it will make the TIF payments in cash as
required by the TIF Guidelines in effect at the time of payment.
Subsection b. Traffic, Impact Fee to Reimburse Pleasanton for
Freeway Interchanges.
Developer shall pay the Eastern Dublin I-580 Interchange Fee in the
amounts and at the times set forth in Resolution No. 155-98 and by any
subsequent resolution which revises such Fee that may be in effect at the time of
issuance of building permits. Developer will pay such fees no later than the time
of issuance of building permits.
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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 that may be
in effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits.
Subsection d. Noise Mitigation Fee.
Developer shall pay a Noise Mitigation Fee established by City of Dublin
Resolution No. 33-96, including any future amendments to such fee that may be
in effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits.
Subsection e. School Impact Fees.
School impact fees shall be paid by Developer in accordance with
Government Code section 53080 and the agreement between Developer or its
predecessor in interest and the Dublin Unified School District regarding payment
of school mitigation fees.
Subsection f. Fire Facilities Fees.
Developer shall pay a fire facilities fee established by City of Dublin
Resolution No. 12-03 including any future amendments to such fee that may be
in effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits.
Subsection q. Tri-Valley Transportation Development 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.
Subparagraph 5.3.6 --Credit
Subsection a. Traffic Impact Fee Improvements --Credit
The City shall provide a credit against Eastern Dublin Traffic Impact Fees
to Developer for those improvements described in the resolution establishing the
Eastern Dublin Traffic Impact Fee if such improvements are constructed by the
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Developer in their ultimate location. All aspects of the credit shall be governed
by the TIF Guidelines.
Subsection b. Traffic Impact Fee Right-of-Way Dedica#ions --
Credit
The City sha11 provide a credit against Eastern Dublin Traffic Impact Fees
to Developer for any TIF area right-of-way to be dedicated by Developer to the
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.
Subsection c. Public Facility Fee -Neighborhood Parkland
Component
City shall provide a credit against Public Facilities Fees to Developer for
any neighborhood parkland to be dedicated by the Developer which exceeds the
amount required under section 9.28 of the Dublin Municipal Code. Such credits
shall be expressed in acres of parkland. All aspects of the credits shall be
governed by the City's Public Facilities Fees Administrative Guidelines.
(Resolution No. 195-99)
Subparagraph 5.3.7 -Miscellaneous
The portion of the Property on which the Development is proposed daes
not presently have access to a public street. The adjacent property owner has
received approval of a tentative map, Tract 7441, that includes the improvement
and dedication of a new public street, Cydonia Court, that approaches the
boundary of the Development. The approved tentative map for the adjacent
property also shows a dedication of an access way to the City between the
terminus of Cydonia Court and the Property. Because of the relatively small
number of lots in the Development, the City does not believe that a public street
to serve the development is warranted. Therefore, it is the City's intention to
facilitate the granting by the adjacent property owner of a private right of way and
utilities easement between the terminus of Cydonia Court and the Property
boundary, which intention is reflected in the proposed, but not-yet-recorded, final
map for the adjacent property (referred to as Tract 7540). In the event that the
City or Developer is unable to secure the granting of such easement, the City will
ensure that the dedication shown on the Tract 7441 tentative map can be
accepted either at the time of filing of the final map or at some point in the future
so that the Property has access to a public street. To the extent necessary, the
City will assist in transferring the maintenance responsibilities of the easement
area from the Tract 7540 HOA to the Developer of Tract 8016.
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