HomeMy WebLinkAboutPC Reso 12-13 Brannigan Str Rec to CC DARESOLUTION NO. 12 -13
A RESOLUTION OF THE PLANNING COMMISSION
OF THE. CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT
AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT FOR
A 3-ACRE SITE ON BRANNIGAN STREET NORTH OF GLEASON DRIVE
(APN 985-0052-021)
PLPA-2011-00039
WHEREAS, Lennar Homes of California, Inc. ("Applicant") submitted applications fora 3-
acre site located along the west side of Brannigan Street north of Gleason Drive ("Project Site").
The applications include: 1) General Plan and Eastern Dublin Specific Plan amendments to
change the land use from its current designation of Public/Semi-Public to Medium Density
Residential; 2} Planned Development rezoning with related Stage 1 Development Plan
Amendment and new Stage 2 Development Plan; 3) Site Development Review (SDR) to
construct 19 single-family detached homes; 4) Vesting Tentative Tract Map 8093 to create 19
residential lots; and 5) Development Agreement. The Project Site and the applications are
collectively known as the "Project," and
WHEREAS, the project is located within the Eastern Dublin Specific Plan area; and
WHEREAS, Development Agreements are required as an implementing measure of the
Eastern Dublin Specific Plan; and
WHEREAS, a CEQA Addendum to prior environmental review documents has been
prepared pursuant to the California Environmental Quality Act (CEQA) and the GEQA
Guidelines; and
WHEREAS, on March 27, 2012, the Planning Commission held a public hearing on the
Project, including the Development Agreement, and recommended that the City Council adopt
the CEQA Addendum, adopt General Plan and Eastern Dublin Specific Plan Amendments for
the project as stated above from Public/Semi-Public to Medium Density Residential, and
recommended that the City Council adopt a Planned Development (PD} rezoning with related
Stage 1 Development Plan amendment and new Stage 2 Development Plan to guide
development of the proposed residential project; and
WHEREAS, a proposed Ordinance to adopt a Development Agreement and the text of
the draft Development Agreement ("Agreement") are attached to this Resolution as Exhibit A;
and
WHEREAS, proper notice of said public hearing was given in all respects as required by
law; and
WHEREAS, the 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 CEQA Addendum and prior CEQA documents, all said reports,
recommendations, and testimony prior to taking any action on the Project.
NOW, THEREFORE, BE IT RESOLVED THAT the City of Dublin Planning Commission
does hereby make the following findings and determinations regarding the draft 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 Agreement
addresses a Medium Density Residential subdivision on the Project site consistent with the
proposed General Plan and Eastern Dublin Specific Plan land use designations; b) the project
is consistent with the fiscal policies in relation to the provision of infrastructure and public
services of the City's General Plan and Eastern Dublin Specific Plan; and c) the Agreement sets
forth the rules the Applicant and the City will be governed by during the development process
which is required by the Eastern Dublin Specific Plan and the Mitigation Monitoring Program of
the Eastern Dublin Specific Plan.
2. The Agreement is compatible with the uses authorized in, and the regulations
prescribed for, the land use district in which the property is located and consistent with the
approvals for the Project.
3. The Agreement is in conformity with public convenience, general welfare and
good land use practice in that the Applicant's project will implement land uses and policies set
forth in the General Plan and Eastern Dublin Specific Plan for Eastern Dublin generally and the
Project site spec"rfically.
4. The Agreement will not be detrimental to the health, safety and general welfare in
that the development will proceed in accordance with the applicable Planned Development
zoning, 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 wilt be consistent with the City of
Dublin General Plan and Eastern Dublin Specific Plan.
NOW, THEREFORE, 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 Lennar Homes of California, Inc. for
the Lennar Brannigan Project (PLPA-2011-00039), which documents are attached as Exhibit A
to this resolution and are incorporated herein by reference.
PASSED, APPROVED AND ADOPTED this 27th day of March of 2012.
AYES: Wehrenberg, Schaub, O'Keefe, Bhuthimethee
NOES:
ABSENT: Brown
ABSTAIN: '~~nD.,fl' f~~ ~a~~ ,~,
Planning Commissi~air
Page 2 of 3
ATTEST:
r,..
f __.
Planning ger
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ORDINANCE NO. XX -12
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*****************************
APPROVING A DEVELOPMENT AGREEMENT FORA 3-ACRE SITE
ON BRANNIGAN STREET NORTH OF GLEASON DRIVE
BETWEEN THE CITY OF DUBLIN AND
LENNAR HOMES OF CALIFORNIA, INC.
(PLPA-2011-00039)
The City Council of the City of Dublin does ordain as follows:
Section 1. RECITALS
A. The proposed project known as Brannigan Street, Lennar Homes is located within
the boundaries of the Eastern Dublin Specific Plan, and is included in the approval for Planned
Development under PLPA-2011-00039.
B. A Development Agreement for Brannigan Street, Lennar Homes between the City
of Dublin and Lennar Homes ("Developer") has been presented to the City Council, Exhibit A,
attached hereto.
C. Consistent with CEQA Section 21166 and CEQA Guidelines Sections 15162 and
15163, an Initial Study was prepared by the City, as the Lead Agency, to determine whether
there would be significant environmental impacts occurring as a result of the current project
beyond or different from those already addressed in the previous CEQA documents. Consistent
with CEQA Guidelines Section 15164, a determination was made to prepare an Addendum to
the environmental documents certified previously.
D. A public hearing on the proposed Development Agreement was held before the
Planning Commission on March 27, 2012 for which public notice was given as provided by law.
E. The Planning Commission has made its recommendation to the City Council for
approval of the Development Agreement by Resolution 11 - XX.
F. A public hearing on the proposed Development Agreement was held before the
City Council on XX, 2012 for which public notice was given as provided by law.
G. The City Council has considered the recommendation of the Planning
Commission, including the Planning Commission's reasons for its recommendation, the
Addendum, the Staff Report, 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 Addendum, (e) the
Staff Report, and on the basis of the specific conclusions set forth below, the City Council finds
and determines that:
EXHIBIT A TO
ATTACHMENT 5
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
General Plan and Eastern Dublin Specific Plan Amendment in that: (a) the General Plan and
Eastern Dublin Specific Plan land use designation for the site is Medium Density Residential, (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 Eastern Dublin 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
Eastern Dublin 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 1 Development Plan Amendment and 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 Eastern Dublin Specific Plan and the General Plan which have
planned for Medium Density Residential, 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.
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 XX day of
XX, 2012 by the following votes:
2of3
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
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BOO P17
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
LENNAR HOMES OF CALIFORNIA, INC.
FOR THE LENNAR BRANNIGAN PROJECT
EXHIBIT A
THIS DEVELOPMENT AGREEMENT (this "Agreement" or this
"Development Agreement") is made and entered in the City of Dublin on this
day of , 2012, by and between the CITY OF DUBLIN, a Municipal
Corporation (hereafter "City") and Lennar Homes of California, Inc., a California
corporation (hereafter "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 intends to purchase, desires to develop, and holds an
equitable interest in, in that it has the right to purchase, certain real property
consisting of approximately _ gross acres of land, located in the City of Dublin,
County of Alameda, State of California, which is more particularly described in
Exhibit A attached hereto and incorporated herein by this reference, and which
real property is hereafter called the "Property."
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. The Property is within Area F of Dublin Ranch, which is subject to a
Master Development Agreement between the City of Dublin and the Lins dated
June 29, 1999 and recorded in Official Records Alameda County on July 8, 1999
as Instrument No. 99251790, and a Supplemental Development Agreement
between the City of Dublin and the Lins dated April 18, 2000 and recorded in
Official Records of Alameda County on November 13, 2000 as Instrument No.
200335772.
E. Developer proposes the development of the Property as a
residential project consisting of 19 detached single-family units ("the Project").
F. DEVELOPER 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 General Plan Amendment (City Council
Resolution No. ~, an amendment to the Eastern Dublin Specific Plan (City
Council Resolution No. ~; a PD District rezoning (Ordinance No. ); a
Stage 1 Development Plan for Area F (Ord. No. 12-04 as amended by Ord. No.
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~; a Stage 2 Development Plan (Ord. No. ~; a vesting tentative map that
would create the parcels on which the Project would be constructed (Planning
Commission Resolution No. ; and Site Development Review (Planning
Commission Resolution No. 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."
G. City desires the timely, efficient, orderly and proper development of
the Project.
H. 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.
I. 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.
J. Pursuant to CEQA the City Council adopted Resolution No. _-12
approving an Addendum for the Lennar/Brannigan project.
K. On ,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.
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
has the right to purchase the Property under the Purchase and Sale Agreement.
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
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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.
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 Prooertv.
5.1 Ripht 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, such as to Site Development Review or
Tentative Map project approvals, 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 voluntarily 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
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 or other approvals
from regulatory agencies.)
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None
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 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.
None
5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
None
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 Approval 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.
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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 the Developer submits its
application for 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 the Project Approvals 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. Consistent with
Government Code Section 66498.2 (applicable to vesting tentative maps), in the
event City subsequently changes its ordinances, policies or standards during the
term of this Agreement, such .changed ordinances, policies, or standards shall
automatically apply to secure the vested right for Developer to proceed with the
Project under such changes, provided Developer notifies City in writing that it
elects to apply such changes and clearly specifies such changes to the City's
ordinances, policies and standards.
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 as permitted by Section 7.1.
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.
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7.4 Rights under Vesting Tentative Map. Notwithstanding anything to
the contrary contained herein, this Agreement shall not supersede any rights
Developer may obtain pursuant to City's approval of the vesting tentative map for
the Project.
8. Subsequently Enacted or Revised Fees, Assessments and Taxes.
8.1 Fees, Exactions, Dedications. The City and Developer agree that
this Agreement does not limit the City's discretion to impose or require payment
of any fees in connection with the development of the Project for purposes of
mitigating environmental and other impacts of the Project, dedication of any land,
or construction of any public improvement or facilities. Furthermore, Developer
agrees that, notwithstanding any rights it may obtain under its vesting tentative
map, the City may impose or increase any such fees on the Project, payment of
which is typically required at building permit or final map approval, even if those
fees or charges were increased or first enacted after Developer's application for
the vesting tentative map was deemed complete.
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
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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
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.
Pursuant to California Government Code Section 66452.6(a), the term of
any vesting tentative map described 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, 2013 and thereafter between each July 15 and
August T5 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
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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. Defa u It.
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.
Either party may, at any time, and from time to time, request written notice
from the other party requesting such party to certify in writing that, (a) this
Agreement is in full force and effect and a binding obligation of the parties,
(b) this Agreement has not been amended or modified either orally or in writing,
or if so amended, identifying the amendments, and (c) to the knowledge of the
certifying party the requesting party is not in default in the performance of its
obligations under this Agreement, or if in default, to describe therein the nature
and amount of any such defaults. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days following the receipt
thereof, or such longer period as may reasonably be agreed to by the parties.
City Manager of the City shall be authorized to execute any certificate requested
by Developer. Should the party receiving the request not execute and return
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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
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.
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.
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16. Attornevs' Fees and Costs.
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. Notwithstanding the
foregoing, provided notice is given as specified above, no City approval, shall be
required for any transfer, sale; or assignment of this Agreement to: 1) any entity
which is an affiliate or subsidiary of Developer; 2) any Mortgagee; or 3) any
transferee of a Mortgagee.
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, transferor
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, transferor 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,
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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, 17.2 and 17.3 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,
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.
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 servitudes and shall constitute
covenants running with the land pursuant to applicable laws, including, but not
limited to, Section 1468 of the Civil Code of the State of California. Each
covenant to do, or refrain from doing, some act on the Property hereunder, or
with respect to any owned property, (a) is for the benefit of such properties and is
a burden upon such properties, (b) runs with such properties, and (c) is binding
upon each party and each successive owner during its ownership of such
properties or any portion thereof, and shall be a benefit to and a burden upon
each party and its property hereunder and each other person succeeding to an
interest in such properties.
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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,
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.
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
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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.
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.
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:
Doug Rich, Vice President of Finance
Lennar Homes of California, Inc.
6111 Bollinger Canyon Road, Suite 550
San Ramon, CA 94583
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.
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
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26. Counterparts.
This Agreement is executed in three (3) duplicate originals, each of which
is deemed to be an original.
27. Recordation.
City shall record a copy of this Agreement within ten days following
execution by all parties. Failure of the City to comply with this Paragraph shall
not affect the rights and obligations of the parties under this Agreement.
29. Legal Authority.
Each individual executing this Agreement on behalf of Developer hereby
represents and warrants that he or she .has full power and authority under the
entity's governing documents to execute and deliver this Agreement in the name
of and on behalf of the company and to cause the entity to perform its obligations
under this Agreement.
[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
BV:
Joni Pattillo, City Manager
Attest:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
1799316.2
DEVELOPER
Lennar Homes of California, Inc.,
a California corporation ~
Dale Billy
Its: Vice President
(NOTARIZATION ATTACHED)
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of _~
On t`(1f~1 _m~. 2t~, 2012 before me, L- = r'~t2-P.r ~l ~Etsn., ~talnl i e _ ,
Date Here Insert Name d ills of the icer
personally appeared ~ ~ ~i ~ l4
Name(s) of Si9nerft:)
s
who proved to me on the basis of satisfactory evidence to
be the person( whose name(,s') is/a~ subscribed to the
within instrument and acknowledged to me that
he/~ executed the same in his/NeN#+~eir authorized
~,~,,,~ capacity(ies), and that by his/I~eer~F~eir signature(s') on the
L. BITTER instrument the person(, or the entity upon behalf of
connnktloa ae tast2eo which the erson s acted, executed the instrument.
tlotrt, IPYbNc • CalilorNa p ( )
cooly cotta Cowgy
Cmalw. OctS 5 I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my ha(nd~a~nd -offic\ial seal.
Signature ~ `t(,r~
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
^ Individual
^ Corporate Officer -Title(s): _
^ Partner - ^ Limited ^ General
^ Attorney in Fact
^ Trustee
^ Guardian or Conservator
^ Other:
Signer Is Representing
Top of thumb here
Signer's Name:
^ Individual
^ Corporate Officer -Title(s):
^ Partner - ^ Limited ^ General
^ Attorney in Fact
^ Trustee
^ Guardian or Conservator
^ Other:
Signer Is Representing:
Top of thumb here
®2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotaryorg Item #5907 Reorder:Call Toll-Free 1-800-876.6827
Exhibit A
Legal Description of Property
Parcel 1 of Parcel Map 9451 as filed for record on August 9, 2007 in Book 300 of
Parcel Maps at Pages 53 through 54, Alameda County Records, California.
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subparagraph 5.3.1 -Subsequent Discretionary Apurovals
None.
Subparagraph 5.3.2 -Mitigation Conditions
Subsection a. Infrastructure Sequencing Program
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads: Sidewalk and Landscape Improvements
The project-specific sidewalk and landscape improvements (and
offers of dedication) identified in Planning Commission Resolution No.
approving Site Development Review and Vesting Tentative Map 8903 (the "SDR
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 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.
Recycled water lines shall be installed in accordance with the
tentative map conditions of approval.
(iv) Storm Drainage:
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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 (e.a. aas, electricity, cable televisions,
teleahonel:
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.
Subgaraaraph 5.3.3 -Phasing, Timina
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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Subparagraph 5.3.4 - Financina Plan
Developer will install all improvements necessary for the Project at its own
cost (subject to credits for any improvements which qualify for credits as provided
in Subparagraph 5.3.6 below).
Other infrastructure necessary to provide sewer, potable water, and
recycled water services to the Project will be made available by the Dublin San
Ramon Services District. 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
None.
Subparagraph 5.3.6 -Reimbursement
None.
Subparacraph 5.3.7 -Miscellaneous
Subsection a. Community Benefit Contributions
Developer has agreed to provide the following Community Benefit
Contributions in consideration of the City's approval of Developer's proposed
amendments to the General Plan and to the Eastern Dublin Specific Plan.
(i) Payment.
Developer shall make a $50,000 community benefit payment to the
City within thirty days after the Approval Date.
(ii) Contribution of Improvements.
Although it is not a component of its project, Developer agreed to
complete the ultimate street frontage improvements on the west side of
Brannigan Street from the southern boundary of the property to Brannigan
Street's intersection with Gleason Drive as a tentative map condition. These
improvements consist of (a) widening the street to match the improvements on
the portion of Brannigan Street fronting the Property (56' curb face to curb face)
and (b) constructing the ultimate curb return for the northwestern portion of the
Brannigan Street/Gleason Drive intersection. Improvements shall include grading
as needed, full pavement structural section, concrete curb and gutter, a 6-foot
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temporary asphalt concrete walkway (including a connection to the existing
walkway on the northern portion of Gleason Drive), and an accessible curb ramp
with domes at the intersection. The existing pedestrian push button pole at the
intersection shall be relocated behind the new curb face. A drainage inlet shall be
installed at the northerly end of the curb return and pipe installed to tie the inlet to
the existing system unless the need for the inlet is waived by the City Engineer
during final design.
1799316.4
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