HomeMy WebLinkAboutPC Reso 10-26 Jordan Ranch DA RESOLUTION NO. 10 - 26
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT
AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT
FOR JORDAN RANCH
PA 09-011
WHEREAS, a request has been made by BJP ROF Jordan Ranch LLC (Mission Valley
Properties) ("Applicant") for approval of a Development Agreement for the property known as
Jordan Ranch (Fallon Village Project Area}, an area of approximately 189.4 acres (PA 09-
011); and
WHEREAS, the Applicants are principals of BJP ROF Jordan Ranch LLC (Mission
Valley Properties) a limited liability corporation ("Developer") and party to the Development
Agreement; and
WHEREAS, Development Agreements are required as an implementing measure of the
Eastern Dublin Specific Plan; and
WHEREAS, the project site is in Eastern Dublin for which the City adopted the 1993
Eastern Dublin General Plan Amendment and Specific Plan to provide a comprehensive
planning framework for future development of the area. In connection with this approval, the
City certified a program EIR pursuant to CEQA Guidelines section 15168 (SCH Na
91103064, Resolution 51-93, and Addendum dated August 22, 1994, hereafter "Eastern
Dublin EIR" or "program EIR") that is available for review in the City Planning Department and
is incorporated herein by reference. The program EIR was integral to the planning process
and examined the direct and indirect effects, cumulative impacts, broad policy alternatives,
and area-wide mitigation measures for developing Eastern Dublin; and
WHEREAS, the program EIR also identified some impacts resulting from
implementation that could not be mitigated, and the City adopted a statement of overriding
considerations for such impacts. The City also adopted a mitigation monitoring program,
which included a series of ineasures intended to reduce impacts from the implementation of
the plan; and
WHEREAS, the City Council approved a Supplemental Environmental Impact Report
(SCH # 2001052114) for the Eastern Dublin Property Owners Annexation area ("EDPO SEIR"
on April 2, 2002 (Resolution 40-02, incorporated herein by reference); and
WHEREAS, the City Council, on December 6, 2005, the City Council certified a
Supplemental EIR (SCH#2005062010) for the Fallon Village Project ("2005 SEIR")
(Resolution 222-05, incorporated herein by reference). The 2005 SEIR addressed a Stage 1
Planned Development Rezone and Amendment for the 1,132-acre Fallon Village Project Area
(PA 04-040) including the EDPO area, and three actions pertaining to the Braddock & Logan
project on 472 acres (PA 05-036). The Stage 1 Planned Development Rezone and
Amendment provided for various land uses including the development of 3,108 units on 1,132
1
acres. This total included 1,064 units as part of PA 05-036 with the remaining units allocated
by land use to the other properties within the Fallon Village Project area; and
WHEREAS, on December 6, 2005, the City Council approved Ordinance 33-05 adopting
a PD-Stage 1 Planned Development Rezone amendment for the Fallon Village Project Area
(PA 04-040); and
WHEREAS, on May 11, 2010, pursuant to the California Environmental Quality Act
(CEQA), the Planning Commission adopted Resolution 10-XX (incorporated herein by
reference) recommending that the City Council consider a CEQA Addendum and approve its
findings that the impacts of the proposed Project have been adequately addressed in previously
certified EIRs (the Eastern Dublin EIR, the EDPO SEIR, and the 2005 SEIR) and that no further
environmental review is required for the Project ; and
WHEREAS, the previously adopted mitigation monitoring programs and all adopted
mitigation measures continue to apply to the project area; and
WHEREAS, the proposed Development Agreement is attached to this resolution as
Exhibit A to the Ordinance; and
WHEREAS, the Planning Commission did hold a public hearing on the application on
May 11, 2010; and
WHEREAS, proper notice of the public hearing was given in all respects as required by
law; and
WHEREAS, a Staff Report was submitted recommending that the Planning Commission
recommend that the City Council approve the Development Agreement; and
WHEREAS, the Planning Commission did hear and use their independent judgment and
considered the Addendum and prior environmental documentation, and all said reports,
recommendations, and testimony hereinabove set forth.
NOW, THEREFORE, BE IT RESOLVED THAT the City of Dublin Planning Commission
does hereby make the following findings and determinations regarding the amended
Development Agreement:
1. The Agreement is consistent with the objectives, policies, general land uses and
programs specified in the Eastern Dublin Specific Plan/General Plan in that: a~ the Eastern
Dublin Specific Plan/General Plan land use designation for the subject site is Single-Family
Residential, Medium Density Residential, Medium High Density Residential, Community Park,
Neighborhood Park, Neighborhood Square, Semi-Public, Elementary School, and Open Space,
and that the Developer's project is consistent with that designation; b) the project is consistent
with the fiscal policies in relation to provision of infrastructure and public services of the City's
Eastern Dublin Specific Plan/General Plan; c) the Agreement sets forth the rules the Developer
and City will be governed by during the development process which is required by the Eastern
Dublin Specific Plan and the Mitigation Monitoring Programs of the Eastern Dublin EIR, EDPO
SEIR and 2005 SEIR.
Page 2 of 3
2. The 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 Planned Development Rezone, Site Development Review, and Vesting
Tentative Map.
3. The Agreement is in conformity with public convenience, general welfare and
good land use practice in that the Developer's project will implement land use guidelines set
forth in the Eastern Dublin Specific Plan/General Plan.
4. The Agreement will not be detrimental to the health, safety and general welfare in
that the development will proceed in accordance with the Agreement and any Conditions of
Approval for the Project.
5. The Agreement will not adversely affect the orderly development of the property or
the preservation of property values in that the development will be consistent with the City of
Dublin Eastern Dublin Specific Plan/General Plan.
BE IT FURTHER RESOLVED THAT the City of Dublin Planning Commission does
hereby recommend that the City Council adopt an ordinance approving the Development
Agreement between the City of Dublin and BJP ROF Jordan Ranch LLC (Mission Valley
Properties) for the Jordan Ranch project (PA 09-011) which is included in Exhibit A.
PASSED, APPROVED AND ADOPTED this 11th day of May, 2010.
AYES: King, Brown, Wehrenberg, Schaub
NOES:
ABSENT: Swalwell
~
ABSTAIN:
Plan ing Commiss' n Chairp rson
ATTEST:
Plannin a er
G:IPA#120091PA 09-011 Jordan RanchlPC Meeting 5.11.101FINAL PC Reso-DA.doc
G:IPA#120091PA 09-011 Jordan RanchlPC Meeting 5.11.101FINAL PC Reso-DA.doc
Page 3 of 3
ORDINANCE NO. XX -10
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE DEVELOPMENT AGREEMENT FOR
JORDAN RANCH BETWEEN THE CITY OF DUBLIN
AND BJP ROF JORDAN RANCH LLC (MISSION VALLEY PROPERTIES)
PA 09-011
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The proposed project known as Jordan Ranch is located within the boundaries of
the Eastern Dublin Specific Plan, and is included in the approval for Planned Development
under PA 09-011.
B. A Development Agreement for Jordan Ranch between the City of Dublin and BJP
ROF Jordan Ranch LLC (Mission Valley Properties) ("Developer") has been presented to the
City Council, Exhibit A, attached hereto.
C. Pursuant to the California Environmental Quality Act (CEQA), development of the
Jordan Ranch property has been analyzed in the Final Environmental Impact Report for the
Eastern Dublin General Plan Amendment and Specific Plan, which was certified by the City
Council by Resolution No. 51-93, the Addenda dated May 4, 1993 and August 22, 1994
(hereafter "Eastern Dublin EIR" or "program EIR") (SCH #91103064), the Eastern Dublin
Property Owners area Supplemental Environmental Impact Report ("EDPO SEIR") (SCH #
2001052114), and the Fallon Village Project area Supplemental Environmental Impact Report
(SCH#2005062010) ("2005 SEIR").
D. On , 2010 the City Council considered the CEQA Addendum
prepared for the Jordan Ranch Project (including the proposed Development Agreement) and
adopted Resolution No. XX-10 finding that the Project impacts had been adequately addressed
in the previously certified Eastern Dublin EIR, the EDPO SEIR, and the 2005 SEIR, and that no
further environmental review was required, and adopting a related Statement of Overriding
Considerations for the Jordan Ranch project, which resolution is incorporated herein by
reference.
E. A public hearing on the proposed Development Agreement was held before the
Planning Commission on May 11, 2010 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 by Resolution 10 - XX.
G. A public hearing on the proposed Development Agreement was held before the
City Council on , 2010 for which public notice was given as provided by law.
EXHIBIT A TO
ATTACHMENT 3
H. The City Council has considered the recommendation of the Planning
Commission, including the Planning Commission's reasons for its recommendation, the Agenda
Statement, all comments received in writing, and all testimony received at the public hearing.
Section 2. FINDINGS AND DETERMINATIONS
Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b)
the City of Dublin General Plan, (c) the Eastern Dublin Specific Plan, (d) the Eastern Dublin EIR,
(e) the EDPO SEIR, (f) the Fallon Village Project area SEIR, (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 designation for the site is Single-Family Residential, Medium Density
Residential, Medium High Density Residential, Community Park, Neighborhood Park,
Neighborhood Square, Semi-Public, Elementary School, and Open Space, (b) the proposed
project is consistent with the designated land use, (c) the project is consistent with the fiscal
policies of the General Plan and Specific Plan with respect to the provision of infrastructure and
public services, and (d) the Development Agreement includes 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 districts in which the real property is located in that the
project approvals include, Stage 2 Development Plan, Site Development Review, and Vesting
Tentative Map.
3. The Development Agreement is in conformity with public convenience, general
welfare, and good land use policies in that the Developer's project will implement land use
guidelines set forth in the Specific Plan and the General Plan which have planned for Single-
Family Residential, Medium Density Residential, Medium High Density Residential, Community
Park, Neighborhood Park, Neighborhood Square, Semi-Public, Elementary School, and Open
Space, and infrastructure uses at this location.
4. The Development Agreement will not be detrimental to the health, safety and
general welfare in that the Developer's project will proceed in accordance with all the programs
and policies of the Eastern Dublin Specific Plan.
5. The 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 Eastern Dublin Specific Plan.
Section 3. APPROVAL
The City Council hereby approves the Development Agreement (Exhibit A to the
Ordinance) 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.
2
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 AND ADOPTED BY the City Council of the City of Dublin, on this day of
, 2010 by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
G:PA#120091PA 09-011 Jordan RanchlPC Meeting 5.11.100NAL CC ORD-DA.doc
3
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
Space above this line for Recorder's use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
BJP-ROF JORDAN RANCH LLC
FOR THE JORDAN RANCH PROJECT
EXHIBIT B TO
ATTACHMENT 3
THIS DEVELOPMENT AGREEMENT (this "Agreement" or this
"Development Agreement") is made and entered in the City of Dublin on this
day of 2010, by and between the City of Dublin, a Municipal
Corporation (hereafter "City") and BJP-ROF Jordan Ranch LLC, a Delaware
limited liability company (hereafter 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 owns certain real property ("the Property') consisting of
approximately 187.9 acres of land and that is more particularly described in
Exhibit A attached hereto and is incorporated herein by reference.
C. 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.
D. Developer proposes the development of the Property with a mixed
use project consisting of up to 780 dwelling units, up to 12,000 square feet of
retail use, a range of public parks, public and semi-public uses, open spaces and
roadways ("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 Stage 1 Planned
Development Zoning and Development Plan for the Fallon Village Project (Ord.
No. _ adopted by the City Council on ?; a Stage 2 Planned
Development Rezoning and Development Plan (Ord. No. _ adopted by the
City Council on , 2010), Site Development Review (SDR) (Planning
Commission Resolution No. _ adopted on , 2010), a Vesting Tentative
Tract Map (Planning Commission Resolution No. adopted on , 2010),
and this Development Agreement. 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. City desires the timely, efficient, orderly and proper development of
the Project.
2
G. 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.
H. City and Developer have reached agreement and desire to express
herein a Development Agreement that will facilitate development of the Project
subject to conditions set forth herein.
1. The development of the Property and the Project has been
evaluated in three environmental impact reports certified by the City: (1) Eastern
Dublin General Plan Amendment and Specific Plan Environmental Impact
Report, State Clearinghouse No. 91103064; (2) East Dublin Properties Stage 1
Development Plan and Annexation Supplemental EIR (State Clearinghouse No.
2001052114); and (3) Fallon Village Project Draft Supplemental Environmental
Impact Report (State Clearinghouse Number 2005062010) (collectively, "Prior
EIRs"). The Prior EIRs specifically addressed the General Plan, Specific Plan
and Stage 1 Planned Development Zoning and Development Plan for the
Project. An Initial Study was prepared for a Stage 2 Planned Development
Rezoning and Development Plan, Site Development Review (SDR), a Vesting
Tentative Tract Map, and this Development Agreement to determine whether
these approvals will result in any new or substantially more severe significant
environmental impacts than those analyzed in these prior EIRs or any other
standard requiring further environmental review under CEQA are met (Public
Resources Code section 21166 and CEQA Guidelines sections 15162 and
15163). The Initial Study determined that these approvals did not trigger any of
the CEQA standards requiring further environmental review. An Addendum was
prepared for these approvals explaining the basis for finding no further review is
required under CEQA pursuant to CEQA Guidelines section 15164(e). The City
Council considered and approved the findings in the Addendum (Reso. No.
adopted by the City Council on , 2010) prior to approving Stage 2
Planned Development Rezoning and Development Plan, Site Development
Review (SDR), a Vesting Tentative Tract Map, and this Development Agreement.
J. On , 2010, 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
("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
1. Description of Property.
3
The Property that is the subject of this Agreement is described in Exhibit A
attached hereto ("Property").
2. Interest of Developer.
The Developer has a legal 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.
4. Effective Date and Term.
4.1. Effective Date. The effective date of this Agreement shall be the
Approval Date ("Effective Date").
4.2. Term. The term of this Agreement shall commence on the
Effective Date and extend ten (10) 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).
Notwithstanding the foregoing or anything to the contrary herein, any amendment
to the General Plan, Specific Plan and PD zoning applicable to the Property and
in effect on the Effective Date shall not become part of the law Developer is
vested into under this Agreement unless an additional amendment of this
Agreement is entered into between Developer and City in accordance with State
and City laws.
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
4
to the Property, shall be those set forth in this Agreement, the Project Approvals
and any amendments to this Agreement or the Project Approvals subject to the
provisions of Section 5.1.
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.)
See Exhibit B
5.3.2. Infrastructure Conditions. Additional or modified conditions
agreed upon by the parties relating to infrastructure and public
improvements required for 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
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 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.
5
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 construction 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.
6.3. Uniform Codes Applicable. 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, encroachment 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 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. The Developer may elect to apply for
amendments to the Project's Vesting Tentative Map to vest 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 pursuant to Government Code section 66498.2.
6
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 or timing 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
except as necessary to protect City residents from a condition presenting an
imminent threat to public health or safety.
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,
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).
Notwithstanding the foregoing, the Project and Property shall be subject to
escalator fee increases to City fees in effect on the Effective Date if uniformly
applied to comparable uses or property in Eastern Dublin or the City.
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. Nothing in this subsection shall prevent
7
Developer from challenging the validity of a subsequently enacted tax under
state or federal law.
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. Nothing in this subsection shall prevent Developer
from challenging the validity of an assessment under state or federal law.
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
MID 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 provided City has provided all statutorily required notices and complied
with all requirements governing the imposition of such assessment, fee or
charge.
9. Amendment or Cancellation.
9.1. Modification Because of Conflict With State or Federal Laws. The
Project and Property shall be subject to state and federal laws and regulations
and this Agreement does not create any vested right in state and federal laws
and regulations in effective on the Effective Date. 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
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
8
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. 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)(1), the
term of the vesting tentative map described in Recital F above shall automatically
be extended for the term of this Agreement or the term pursuant to the provisions
of the state Subdivision Map Act, whichever is longer. 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, 2011 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
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
9
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 parry may, at anytime, 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 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. Mortgagee Protection; Certain Rights of Cure.
14.1. Mortgagee 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
10
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. Mortgagee Not Obligated. 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 improvements provided for or authorized by the Project Approvals
or by this Agreement.
14.3. Notice of Default to Mortgagee 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.
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 inequity 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.
11
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, transfer 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 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
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, sale, 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, transfer or 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, transfer or assignment of the Property. Developer's purchaser,
transferee or assignee shall then have no interest or obligations for such rights,
12
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 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. Agreement 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, 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,
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.
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,
13
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 a per-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.
21.3. Evidence of Insurance. Prior to issuance of any permits for the
Project, including grading permits, 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. City agrees to cooperate and
attempt to facilitate legally-required actions by DSRSD and Zone 7 of the
Alameda County Flood Control and Water Conservation District regarding water
supply for the Project.
14
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:
BJP-ROF Jordan Ranch LLC
5000 Hopyard Road, Suite 170
Pleasanton, CA 94588
Attn: Rob Radanovich
Fax No. (925) 467-9919
With copy to:
David Gold
Morrison and Forester
101 Ygnacio Valley Road
Suite 450
Walnut Creek, CA 94596
Fax No. (925) 946-9912
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.
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:
15
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]
16
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 DEVELOPER
By:
Joni Pattillo, City Manager
Attest:
Caroline Soto, City Clerk
Approved as to form
BJP-ROF JORDAN RANCH LLC,
a Delaware limited liability company
By: Fallon-Jordan, LLC,
a California limited liability company,
its manager
By: MVP Development California,
LLC
a California limited liability
company,
its managing member
By: Robert Radanovich, member
John Bakker, City Attorney
1419789.6
(NOTARIZATION ATTACHED)
17
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF California )SS
COUNTY OF a Ally d„ )
File No:
APN No:
On (i D before me, -(-)1 Notary Public, personally appeared
1!20 Jv s, 4- 1r/ Z4 n o
who proved to me on the basis of satisfactory evidence to be (he person(s) whose name(s) is/am subscribed to the within
instrument and acknowledged to me that he/ihe/t#tey-executed the same in his/herftheir authorized capacity(ies), and that by
his/4ieDldieh-signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal`.
Signature ?(.?/1 ! • .d ?f??
DIANE E. BURTON
COMM. *1828460
NOTARY PUBLIC •CALIPORNM
ALAMEDA COUNTY
Comm. Exp. DEC. 27, 2012
This area for official notarial seal.
OPTIONAL SECTION
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the
documents.
F-1 INDIVIDUAL
0 CORPORATE OFFICER(S) TITLE(S)
0 PARTNER(S) ? LIMITED ? GENERAL
0 ATTORNEY-IN-FACT
0 TRUSTEE(S)
? GUARDIAN/CONSERVATOR
? OTHER
SIGNER IS REPRESENTING:
Name of Person or Entity
Name of Person or Entity
OPTIONAL SECTION
Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form.
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW
TITLE OR TYPE OF DOCUMENT:
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
Reproduced try First American Title company 11/2007
Exhibit A
Legal Description of Property
Real property in the County of Alameda, State of California, described as follows:
[ADD]
Order Number: 0192-3484873
Page Number: 8
LEGAL DESCRIPTION
Real property in the City of Dublin , County of Alameda, State of California, described as follows:
BEGINNING AT THE NORTHEASTERN CORNER OF THE FIRST PARCEL DESCRIBED BELOW (98388140),
SAID POINT BEING THE QUARTER CORNER OF SECTIONS 34 AND 35, TOWNSHIP 2 SOUTH, RANGE 1
EAST, MOUNT DIABLO BASE AND MERIDIAN; THENCE ALONG THE EASTERN LINE OF SAID FIRST
PARCEL, SOUTH 010 29'39" WEST, 223.21 FEET; THENCE SOUTH 000 46' 42" WEST, 2709.61 FEET TO
THE SOUTHEASTERN CORNER OF SAID FIRST PARCEL; THENCE LEAVING SAID EASTERN LINE AND
ALONG THE SOUTHERN LINE OF SAID FIRST PARCEL, NORTH 880 30' 52" WEST, 2597.08 FEET TO THE
SOUTHWESTERN CORNER OF SAID FIRST PARCEL, SAID POINT BEING ON A NON-TANGENT CURVE TO
THE LEFT HAVING A RADIAL WHICH BEARS NORTH 620 31'08" EAST, A RADIUS OF 399.94 FEET, A
DELTA OF 100 23'53"; THENCE LEAVING SAID SOUTHERN LINE, NORTHWESTERLY ALONG THE
WESTERN LINE OF SAID FIRST PARCEL AND SAID CURVE AN ARC LENGTH OF 72.58 FEET; THENCE
NORTH 370 52'45" WEST, 428.46 FEET TO A CURVE TO THE RIGHT HAVING A RADIUS OF 399.94
FEET, A DELTA OF 440 12' 02"; THENCE ALONG SAID CURVE AN ARC LENGTH OF 308.53 FEET; THENCE
NORTH 060 19' 16" EAST, 1321.37 FEET TO A NON-TANGENT CURVE TO THE RIGHT, HAVING A RADIAL
WHICH BEARS NORTH 830 40' 20" WEST, A RADIUS OF 800.55 FEET, A DELTA OF 160 02'30"; THENCE
ALONG SAID CURVE AN ARC LENGTH OF 224.14 FEET; THENCE NORTH 220 21' 46" EAST, 500.00 FEET
TO A CURVE TO THE LEFT HAVING A RADIUS OF 199.76 FEET, A DELTA OF 190 23'54"; THENCE
ALONG SAID CURVE AN ARC LENGTH OF 67.63 FEET TO THE SOUTHERN CORNER OF EXCEPTION
PARCEL DESCRIBED BELOW (2007257006); THENCE ALONG THE SOUTHEASTERN LINE OF LAST SAID
PARCEL, NORTH 220 21'46" EAST, 136.09 FEET TO THE NORTHEASTERN CORNER OF LAST SAID
PARCEL AND NORTHERN LINE OF SAID FIRST PARCEL; THENCE ALONG SAID NORTHERN LINE, SOUTH
890 50' 11" EAST, 2565.27 FEET TO THE POINT OF BEGINNING.
BEING THE PARCEL DESCRIBED IN THE DEED TO FIRST AMERICAN TITLE GUARANTY COMPANY
RECORDED ON NOVEMBER 04, 1998 IN DOCUMENT NO. 98388140, OFFICIAL RECORDS OF THE
COUNTY OF ALAMEDA, STATE OF CALIFORNIA:
EXCEPTING THEREFROM THE PARCEL DESCRIBED IN THE DEED TO THE CITY OF DUBLIN RECORDED
ON JULY 12, 2007 IN DOCUMENT NO. 2007257006, OFFICIAL RECORDS OF THE COUNTY OF ALAMEDA,
STATE OF CALIFORNIA.
APN: 985-0027-006-03 (Old APN), 985-0027-006-04 (New APN)
985-0027-007-01 (Old APN), 985-0027-007-02 (New APN)
FirstAmerican Tide
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 - Infrastructure Conditions
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 Resolution No. 10- of the City of Dublin Planning
Commission approving Site Development Review and Vesting Tentative Tract
Map 8024 for the Jordan Ranch Project for PA 09-011 (hereafter "SDR and VTM
Resolution") shall be completed by Developer to the satisfaction of the City
Engineer at the times and in the manner specified in the SDR and VTM
Resolution unless otherwise provided below. All such roadway improvements
shall be constructed to the satisfaction and requirements of City's City Engineer.
(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.
Exhibit B 1
Recycled water lines shall be installed in accordance with the
tentative map conditions of approval.
(iv) Storm Drainage.
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 standards and policies of the
City and Zone 7 (Alameda County Flood Control and Water Conservation
District, Zone 7) that 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.
The property is within the Dublin Ranch Eastside Storm Drain
Benefit District (G-3 Culvert). Therefore, in accordance with Dublin Municipal
Code section 7.74.290, a condition on the tentative map approval requires
Developer to pay the applicable benefit charges for the property prior to First
Final Map or first building permit, whichever is earlier.
(v) Other Utilities (e.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 City's Public Works Director that assures completion, allow
Developer to defer completion of discrete portions of any public improvements for
the Project if the City's Public Works Director determines that to do so would not
jeopardize the public health, safety or welfare.
Subparagraph 5.3.3 - Phasing, Timing
Exhibit B 2
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.
Subparagraph 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 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.
Subparagraph 5.3.5 - Fees, Dedications
Notwithstanding anything to the contrary in this Subparagraph 5.3.5 or this
Development Agreement, Developer shall pay any fees required by Subsections
a-g at the time such fees are due under the resolutions and/or ordinances
establishing and/or amending such fees.
Subsection a. Traffic Impact Fees.
Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF")
established by Resolution No. 40-10, including any future, lawfully enacted
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.
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for
Freeway Interchanges.
Developer shall pay the Eastern Dublin 1-580 Interchange Fee in the
amounts and at the times set forth in Resolution No. 155-98 or any subsequent,
lawfully enacted resolution that 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.
Exhibit B 3
Subsection d. Public Facilities Fees.
Developer shall pay a Public Facilities Fee established by City of Dublin
Resolution No. 214-02, including any future, lawfully enacted 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. Noise Mitigation Fee.
Developer shall pay a Noise Mitigation Fee established by City of Dublin
Resolution No. 33-96, including any future, lawfully enacted 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 f. 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 h. 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 (TIF) Improvements - Credit
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
Developer in their ultimate location. All aspects of the credit shall be governed
by the TIF Guidelines. The TIF may be paid by credits acquired from third
parties subject to City confirmation of the validity of any credit.
Subsection b. Traffic Impact Fee Right-of-Way Dedications -
Credit
Exhibit B 4
City shall provide a credit against Eastern Dublin Traffic Impact Fees 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.
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.
Subparagraph 5.3.7 - Miscellaneous
Subsection a. Compliance with Inclusionary Zoning Ordinance.
Developer proposes residential development on the Property. Pursuant to
the City's Inclusionary Zoning Regulations (Chapter 8.68 of the Dublin Municipal
Code) ("the Regulations"), developers of more than 20 residential units are
required to set aside 12.5% of the units in the project as affordable units as
specified.
Under the Regulations, certain exceptions permit developers to satisfy the
obligation other than through on-site construction. For instance, part of this
obligation can be satisfied through the payment of a fee in-lieu of construction. In
addition, developers can satisfy their affordable housing obligations by, among
other mechanisms, obtaining City Council approval of an alternative method of
compliance that the City Council finds meet the purposes of the Regulations.
Developer shall satisfy its affordable housing obligation through the
following "alternative method of compliance" under City Code Sec. 8.68.040E:
(1) The Project will meet affordability goals by providing medium to high
density residential units of certain sizes that will promote the City's affordability
and Housing Element goals. The City hereby finds that certain types and sizes
of townhouse and/or mixed use units in the Project are likely to meet the City
affordability standard for "moderate income" units. 'The Project proposes 197
townhouse and mixed use units at a density of 14.4 and 15.9 units per acre that
are likely to meet the moderate-income affordability standard. The 197 units
Exhibit B 5
exceed the 12.5% affordability requirement of 98 units based on a total of 780
residential units in the Project; and
(2) Developer shall make the following community benefit payments to the
City at the time specified, for a total general community benefit payment
(independent of the Inclusionary Housing Fund) of Five Million Dollars
($5,000,000.00)
Community
Benefit
Payment
Due Date
Amount
First Payment
90 days after Effective
Date of this Agreement
Second Payment 24 Months after Effective
Date of this Agreement
Third Payment 36 Months after Effective
Date of this Agreement
Total
$2,000,000.
$2,000,000.
$1,000,000.
$5,000,000.
The Developer's obligation to make the Third Payment in the amount of
$1,000,000 is subject to the provisions regarding the Semi-Public Area Rezoning
in Subsection 5.3.7(b) of this Agreement.
Notwithstanding the foregoing, if a legal action is filed by a third party
against the City challenging any of the Project Approvals within the applicable
statute of limitations period under State Law on or prior to the Due Date for the
First Payment, the Due Date for the First Payment shall be the earlier of (i) the
date on which the appeal period ends for any trial court judgment or court of
appeals decision in favor of the City or order or entry of dismissal of said legal
action; or (2) the date on which the Developer submits any application to the City
for subsequent approvals or permits to develop the Project ("Revised Due Date
for First Payment"). If the Due Date for the First Payment is changed pursuant to
this paragraph due to the filing of said legal action, then the Due Date of the
Second Payment shall be 21 months after the Revised Due Date for First
Payment, and the Due Date for the Third Payment shall be 33 months after the
Revised Due Date for First Payment.
Through its approval of this agreement, the City Council hereby finds that
the "alternative method of compliance" in this subsection 5.3.7(a) meets the
Exhibit s 6
purposes of the Regulations and will promote the City's affordability and Housing
Element goals, and hereby waives the requirements of the Regulations.
Notwithstanding anything to the contrary in this Agreement, if any
community benefit payment under this Subsection 5.3.7(a) is not received in full
by the City by the Due Date for such payment, this Agreement shall, following
notice and an opportunity to cure under Section 12.2, automatically terminate
and approval of Developer's "alternative method of compliance" shall become
ineffective. Accordingly, in such event, the City will withhold further issuance of
building permits and other approvals until such time as Developer has entered
into a binding agreement specifying how it will comply with the Inclusionary
Zoning Regulations.
Subsection b. Semi-Public Area Rezoning.
The Project includes a 2.7 gross acre semi-public area located
adjacent to Central Parkway ("Semi-Public Area"). This area is intended to
provide semi-public uses, which include recreational facilities, for Project and City
residents. The Developer may apply for a General Plan Amendment, Specific
Plan Amendment and rezoning of the Semi-Public Area for another non-public
use in the future. Since the Semi-Public Area may not be developed for semi-
public uses in the future, the Developer shall make a One Million Dollar payment
($1,000,000.) to the City General Fund at the time specified below:
General Fund Due Date Amount
Payment
First Payment 90 days after Effective $280,000.
Date of this Agreement
Second Payment 12 Months after Effective $280,000.
Date of this Agreement
Third Payment 24 Months after Effective $180,000.
Date of this Agreement
Fourth Payment 36 Months After Effective $180,000.
Date of this Agreement
Fifth Payment 48 Months after Effective $80,000.
Date of this Agreement
Exhibit B 7
Total $1,000,000.
Notwithstanding the foregoing, if (i) the Developer has not applied for and
obtained City approval of a General Plan Amendment, Specific Plan Amendment
and rezoning of the Semi-Public Area for another non-public use on or before 24
months after the Effective Date of this Agreement and (ii) the Developer has paid
to the City the full amount of the First and Second Payments for General Fund
Payment in an amount equal to $560,000, then the Third Payment of the
Community Benefit Payment in the amount of $1,000,000 required under
Subsection 5.3.7(a) shall be reduced to $440,000 and the Developer shall not be
required to make any further payments under this Subsection 5.3.7(b) that are
due on or after 24 months after the Effective Date of this Agreement.
Notwithstanding the foregoing, if a legal action is filed by a third party
against the City challenging any of the Project Approvals within the applicable
statute of limitations period under State Law on or prior to the Due Date for the
First Payment, the Due Date for the First Payment for the General Fund Payment
shall be the earlier of (i) the date on which the appeal period ends for any trial
court judgment or court of appeals decision in favor of the City or order or entry
of dismissal of said legal action; or (2) the date on which the Developer submits
any application to the City for subsequent approvals or permits to develop the
Project ("Revised Due Date for First Payment').
If the Due Date for the First Payment for the General Fund Payment is
changed pursuant to these provisions due to the filing of said legal action, then
the Due Date of the Second Payment shall be 9 months after the Revised Due
Date for First Payment; the Due Date for the Third Payment shall be 21 months
after the Revised Due Date for First Payment; and the Due Date for the Fourth
Payment shall be 33 months after the Revised Due Date for First Payment.
Notwithstanding anything to the contrary in this Agreement, this
Agreement shall, following notice and an opportunity to cure under Section 12.2,
automatically terminate if City has not received any General Fund Payment
under this Subsection 5.3.7(a) in full by the Due Date for such payment.
Subsection c. Eminent Domain Cooperation
Developer is required to construct certain off-site improvements under the
conditions of approval for the Vesting Tentative Map on land for which Developer
or City does not have sufficient title or interest at the time of entering into this
Agreement. These requirements shall be consistent with the provisions of
Government Code section 66462.5. Developer shall construct off-site
Exhibit B 8
improvements for a second public access at such time as the City Fire
Department determines that a second public access is required to serve a portion
of the Project. If this condition cannot be satisfied prior to the recordation of the
final map due to insufficient title or interest in property, the City shall require
Developer to enter into agreement under Government Code section 66462.5(c)
prior to recordation of final map. Developer shall pay all costs, expenses and
fees, including, but not limited to, all City attorney's fees and staff time costs,
relating to any eminent domain action to acquire offsite property interests
required in connection with the subdivision or Project.
Subsection d. Biological Mitigation Cooperation
The Parties acknowledge that subsequent to entering into this Agreement,
Developer will need to process and obtain various federal and state permits to
develop the Project which may require site plan modifications. To the extent
consistent with City Code Section 8.32.080, the parties anticipate that Developer
may administratively process various site plan modifications to the Stage 2
approval to ensure the federal, state and City approvals are consistent. City will
use reasonable efforts to attempt to expeditiously process requests for
amendments to Project Approvals to address any minor modifications affecting
the Project Development Plan due to federal or state permitting requirements.
Subsection e. School Site Cooperation
The Project Approvals include a lot designated for a school site. City
agrees to cooperate with Developer's efforts to satisfy the condition of approval
of the Vesting Tentative Map to sell the school site property to the Dublin Unified
School District in compliance with the law. Developer acknowledges that if the
Dublin Unified School District determines not to acquire the school site, it will
need to obtain subsequent legislative and project level entitlements from the City
to allow residential or any other non-public uses on the school site.
Subsection f. Fallon Interchange Fee Advance.
Condition 99 of the SDR and VTM Resolution ("Condition 99") reads as
follows:
Fallon Road/ 1-580 Interchange Improvement Contribution: The
developer shall pay a fair share portion of costs advanced by the Lin
Family for construction of improvements to the Fallon Road/1-580
Interchange. The advance will be payable at the time of filing of the
first final map. The developer's fair share has been determined to be
2.7711 % of the balance of construction funds advanced by the Lin
Exhibit B 9
Family. The amount shall be calculated against the then-outstanding
balance as of the first final map.
City will provide a credit to developers in the amount of developer's
advance to be used by developer against payment of Section 2
obligations of the Eastern Dublin Traffic Impact Fee ("TIF"). In
accordance with the City's TIF Guidelines (Resol. 20-07),
establishment of the credit shall require the payment of an
administrative fee. 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 TIF Guidelines,
subject to the following provisions: (a) the credit shall be granted at
the time Developer makes the advance required by this condition;
and (b) the credit may be used only to satisfy Section 2 TIF
obligations.
The advance required by Condition 99 will be based on the total amount
advanced to by the Lin Family that remains outstanding at the time that the
advance is made, multiplied by .027711. The fair share percentage (2.7711 %)
was calculated by determining the percentage that the project's trips bears to the
total trips responsible for the interchange.
As of February, 2010, the total amount advanced by the Lin Family that
remained outstanding was $10,641,943. Since the advance does not bear
interest, and since the Lin Family will not be making an additional advances, it is
not anticipated that the amount outstanding would increase. Thus, were the
advance made in February, 2010, it would be $294,888.24.
Subsection Q. Fire Impact Fee Advance
Condition 118 of the SDR and VTM Resolution ("Condition 118") reads as
follows:
Fire Impact Fee Advance. Prior to the filing of the first final map,
the developer shall make an advance payment of Fire Facilities Fees
equal to 5.71 %. of the then-outstanding amounts of the advances
made by DR Acquisitions and the City General Fund to construct
and equip, respectively, Fire Station 18 and Fire Station 17. The
advance will be used to repay a portion of monies advanced by DR
Acquisitions, LLC and the City General Fund.
City will provide a credit to developer in the amount of developer's
advance of monies pursuant to this condition. Developer shall be
responsible for the payment of an Administrative Fee to establish the
Exhibit B 10
credit. The credit may be used by developer against payment of Fire
Facilities Fee on this property or any property where Developer has
an interest in the City of Dublin. The amount of the credit, once
established, shall not be increased for inflation and shall not accrue
interest. The credits with written notice to City, and payment of an
administrative fee, may be transferred by developer to another
developer of land in Dublin. Other aspects of the credit shall be
consistent with the City's Traffic Impact Fee Guidelines.
WHEN REQ'D: Prior to First Final Map.
The advance required by Condition 118 will be used by the City to
reimburse the developer of Dublin Ranch Area A (DR Acquisitions, L.L.C.) for its
advance of costs to the Fire Facilities Fee program to construct and equip the
new Eastern Dublin fire station (Fire Station 18) and to reimburse the City
General Fund for its loan of funds to the Fire Facilities Fee program for Fire
Station 17 Construction.
The amount of the advance will be based on the total amount advanced to
the Fire Facilities Fee Program by DR Acquisitions, L.L.C. and the City General
Fund that still remain outstanding at the time that the advance is made, multiplied
by the percentage of acreage (5.71 %) that the Property (187.9 acres) bears to
the total acreage of the Eastern Dublin area (3293.13 acres).
The total amount advanced was $8,138,163 (consisting of $5,996,345
advanced by DR Acquisition and $2,141,818 advanced by the City General
Fund). The calculated amount of the advances outstanding as of March 2010 is
$5,402,371 (consisting of $4,574,381 advanced by DR Acquisitions and
$1,804,183 advanced by the City General Fund). This outstanding amount is
lower than the total advance because it excludes credits transferred by DR
Acquisitions, L.L.C. to other entities and because the City General Fund loan has
been repaid as Fire Facilities Fees have been collected. However, because the
City loan is interest bearing, the amount outstanding could possibly increase as
well as decrease.
Thus, for illustrative purposes, had the advance been made in March
2010, it would have been $308,475.38.
Exhibit a 11