HomeMy WebLinkAboutPC Reso 12-46 Moller Ranch Rec to CC DA RESOLUTION NO. 12 - 46
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT
AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF DUBLIN AND BRADDOCK & LOGAN
SERVICES, INC. FOR THE MOLLER RANCH PROJECT
(APNS 985-0001-001-01 and 985-0001-001-02)
PLPA-2011-00003
WHEREAS, Braddock & Logan Services, Inc. ("Applicant") submitted applications for a
226.3-acre property known as Moller Ranch located along the east side of Tassajara Road
north of Fallon Road ("Project Site"); and
WHEREAS, the applications include: 1) General Plan and Eastern Dublin Specific Plan
amendments to change the land use from its current designation, 2) Stage 1 Planned
Development Rezoning (PA 03-060 and PA 06-030), 3) related Stage 2 Development Plan, 4)
Vesting Tentative Tract 8102 to create 370 residential lots, and 5) Development Agreement;
and
WHEREAS, the Project Site and the applications are collectively known as the "Project;"
and
WHEREAS, the proposed amendments would change the existing acreage of the 226.3-
acre Moller Ranch property from the existing land uses: a) Medium Density Residential - 48.9
acres; b) Rural Residential/Agricultural - 143.7 acres; c) Open Space/Stream Corridor — 32.6
acres; and d) Neighborhood Park 1.1 acres, to the are amended land uses as follows: a)
Single-Family Residential - 79.6 acres, b) Rural Residential/Agricultural - 136.8 acres, c) Open
Space/Stream Corridor — 7.6 acres; d) Semi-Public — 1.2 acres, and no change to
Neighborhood Park— 1.1 acres; and
WHEREAS, the project is located within the Eastern Dublin Specific Plan area; and
WHEREAS, the project site currently is vacant land; and
WHEREAS, Development Agreements are required as an implementing measure of the
Eastern Dublin Specific Plan; and
WHEREAS, the Project is in the Eastern Dublin Specific Plan area, for which the City
Council certified a Program Environmental Impact Report by Resolution 51-93 ("Eastern Dublin
EIR" or "EDEIR", SCH 91103064) on May 10, 1993 (resolution incorporated herein by
reference). The Eastern Dublin EIR identified significant impacts from development of the
Eastern Dublin area, some of which could not be mitigated to less than significant. Upon
approval of the General Plan Amendment and Eastern Dublin Specific Plan, the City Council
adopted mitigations, a mitigation monitoring program and a Statement of Overriding
Considerations (Resolution 53-93, incorporated herein by reference); and
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WHEREAS, in 2007 a Supplemental Environmental Impact Report (SCH #2005052146),
was certified by the City Council on May 1, 2007 by Resolution No. 56-07 which addressed
potential environmental impacts resulting from a plan proposed for Moller Ranch and the
adjacent 12.5-acre Tipper property ("Moller/Casamira Valley SEIR"); and
WHEREAS, a Supplemental Environmental Impact Report ("Moller Ranch SEIR") (SCH
#2005052146) has been prepared for the Moller Ranch Project currently proposed pursuant to
the California Environmental Quality Act (CEQA) and the CEQA Guidelines; and
WHEREAS, the Eastern Dublin EIR and the Moller Ranch SEIR identified significant
unavoidable impacts, some of which would apply to the Project. Therefore, approval of the
Project must be supported by a Statement of Overriding Considerations; and
WHEREAS, on November 27, 2012, the Planning Commission adopted the following
Resolutions:
a. Recommending that the City Council certify the Moller Ranch SEIR incorporated
herein by reference,
b. Recommending that the City Council approve amendments to the General Plan
and the Eastern Dublin Specific Plan in accordance with the proposed
amendments stated above, and
c. Recommending that the City Council adopt an Ordinance approving Stage 1
Planned Development Rezoning and related Stage 2 Development Plan, and
d. Approving Vesting Tentative Map 8102 subject to Conditions of Approval; and
WHEREAS, the text of the draft Development Agreement ("Agreement") is attached to
this Resolution as Exhibit A to the proposed Ordinance; and
WHEREAS, a Staff Report was submitted recommending that the Planning Commission
recommend that the City Council approve the Development Agreement; and
WHEREAS, on November 27, 2012, the Planning Commission held a properly noticed
public hearing on the Project, including the proposed Development Agreement, at which time all
interested parties had the opportunity to be heard; and
WHEREAS, the Planning Commission did hear and use their independent judgment and
considered the Moller Ranch SEIR, including all prior CEQA documents, and all said reports,
recommendations, and testimony hereinabove set forth prior to taking any action on the project.
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission does hereby
make the following findings and determinations regarding the proposed 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, Rural Residential/Agriculture, Open Space/Stream Corridor, Semi-Public, and
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Neighborhood Park, 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 General Plan and the Eastern Dublin Specific Plan; c) the Development
Agreement sets forth the rules the City and Developer will be governed by during the
development process which is required by the Eastern Dublin Specific Plan, the Mitigation
Monitoring Program of the Eastern Dublin EIR, and the SEIR for Moller Ranch.
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 amended Planned Development Rezone and Vesting Tentative Map, and
eventually will require a Site Development Review.
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 General Plan and the Eastern Dublin Specific 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 General Plan and the Eastern Dublin Specific Plan.
BE IT FURTHER RESOLVED THAT the Planning Commission of the City of Dublin does
hereby recommend that the City Council adopt an ordinance approving the Development
Agreement between the City of Dublin and Braddock & Logan Services, Inc. for the Moller
Ranch project (PLPA-2011-00003) which is included in Exhibit A.
PASSED, APPROVED, AND ADOPTED this 27th day of November 2012, by the
following votes.
AYES: Wehrenberg, O'Keefe, Brown, Bhuthimethee
NOES:
ABSENT: Schaub
ABSTAIN:
Planning Commissio it erson
ATTEST:
_ l
Assistant C munity Development Director
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ORDINANCE NO. XX - 12
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF DUBLIN AND
BRADDOCK & LOGAN SERIVICES, INC. FOR MOLLER RANCH
(APNS 985-0001-001-01 and 985-0001-001-02)
PLPA-2011-00003
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The proposed project known as Moller Ranch is located within the boundaries of
the Eastern Dublin Specific Plan, and is included in the approval for Planned Development
under PLPA-2011-00003.
B. A Development Agreement for Moller Ranch between the City of Dublin and
Braddock & Logan Services, Inc. ("Developer") has been presented to the City Council, Exhibit
A, attached hereto.
C. Pursuant to the California Environmental Quality Act (CEQA), CEQA Guidelines
Section 15168, the Developer's project is within the scope of the following environmental
documentation:
1. Program Environmental Impact Report for the General Plan Eastern Extended
Planning Area and the Eastern Dublin Specific Plan area, for which the City
Council certified a Program Environmental Impact Report by Resolution 51-93
("Eastern Dublin EIR" or "EDEIR", SCH 91103064) on May 10, 1993 (resolution
incorporated herein by reference),
2. Supplemental Environmental Impact Report (SCH #2005052146), was certified by
the City Council on May 1, 2007 by Resolution No. 56-07 which addressed
potential environmental impacts resulting from a plan proposed for Moller Ranch
and the adjacent 12.5-acre Tipper property ("Moller/Casamira Valley SEIR"),
3. Supplemental Environmental Impact Report ("Moller Ranch SEIR") (SCH
#2005052146) prepared for the Moller Ranch Project currently proposed pursuant
to the California Environmental Quality Act (CEQA) and the CEQA Guidelines and
certified by the City Council prior to adopting this Ordinance,
4. Statement of Overriding Considerations (Resolution 53-93, incorporated herein by
reference) and mitigation monitoring program intended to reduce impacts from
implementation of the plan.
D. The Planning Commission has made its recommendation to the City Council for
approval of the Development Agreement by Resolution 12-XX.
EXHIBIT A TO
ATTACHMENT 4
E. A public hearing on the proposed Development Agreement was held before the
City Council on , 2012 for which public notice was given as provided by law.
F. The City Council has considered all prior CEQA documents and analysis, 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,O 9 9 p e n, (b)
the City of Dublin General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the
Eastern Dublin Specific Plan, (e) the Eastern Dublin EIR, (f) the Moller/Casamira Valley SEIR,
(g) the Moller Ranch 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, subject to
City Council approval of PLPA-2011-00003 is Single-Family Residential, Rural
Residential/Agriculture, Open Space/Stream Corridor, Semi-Public, and
Neighborhood Park,
b) The proposed project is consistent with the designated land use,
c) The proposed 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: General Plan and Specific Plan
amendments, Stage 1 Planned Development rezone with a related Stage 2
Development Plan, and Vesting Tentative Map 8012.
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 General Plan and the Specific Plan which have
been planned for Single-Family Residential, Rural Residential/Agriculture, Open
Space/Stream Corridor, Semi-Public, Neighborhood Park, 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.
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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 day of
, 2012, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
G:IPA#120111PLPA-2011-00003 Moller Ranch B&LIPC Mtg 11.13.121CC Ord Moller DA 11.13.12.doc
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0 VT
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
MOLLER RE INVESTORS, LLC
FOR THE MOLLER RANCH PROJECT
EXHIBIT B TO
ATTACHMENT 4
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 Moller RE Investors, LLC, a California limited
liability company (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 certain real property consisting of approximately 226.3 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. Developer proposes the development of the Property as a single-
family residential project of a maximum of 382 units on approximately 79.6 acres
of the Property ("the Project").
E. 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 Planned Development District Rezoning
including Stage 1 and Stage 2 Development Plans (Ord. No. ); and a
vesting tentative tract map that would create the parcels on which the project
would be constructed (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."
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F. Development of the Property by Developer may be subject to
certain future discretionary approvals, which, if granted, shall automatically
become part of the Project Approvals as each such approval becomes effective.
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. Development of the Property was addressed in the Eastern Dublin
EIR, certified through City Council Resolution 51-93 on May 10, 1993, and in the
Casamira Valley/Moller Ranch Project Supplemental EIR, certified through City
Council Resolution 56-07 on May 1, 2007. Pursuant to California Environmental
Quality Act (CEQA) § 21166 and CEQA Guidelines sections 15162 and 15163,
the City certified a Supplemental EIR for the Project (City Council Resolution
Fati
€a 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 r Ar ("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.
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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. This agreement shall be effective on the
Approval Date ("the Effective 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 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 als as and when issued), any
1 pp (as ), Y
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.
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.)
See Exhibit B
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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.
See Exhibit B
5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.3.7 Miscellaneous. Miscellaneous terms.
See Exhibit B
6. Applicable Rules, Regulations and Official Policies.
6.1 Rules Regarding Permitted Uses. For the term of this
Agreement, the City's ordinances, resolutions, rules, regulations and official
policies governing the permitted uses of the Property, governing density and
intensity of use of the Property and the maximum height, bulk and size of
proposed buildings shall be those in force and effect on the 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,
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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 the 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 except that such
subsequent actions shall be subject to any conditions, terms, restrictions, and
requirements expressly set forth herein.
7.3 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, in•the event an ordinance, resolution or other measure
is enacted, whether by action of the City, by initiative, referendum, or otherwise,
that imposes a building moratorium, a limit on the rate of development or a voter-
approval requirement which affects the Project on all or any part of the Property,
the City agrees that such ordinance, resolution or other measure shall not apply
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to the Project, the Property, this Agreement or the Project Approvals unless the
building moratorium is imposed as part of a declaration of a local emergency or
state of emergency as defined in Government Code § 8558.
8. Subsequently Enacted or Revised Fees, Assessments and Taxes.
8.1 Fees, Exactions, Dedications. The City and Developer
agree that 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, the
dedication of any land, or the 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 !Awe.
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
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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 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 until the later of the following: (1) the end of the
term of this Agreement; or (2) the end of the term or life of any such vesting
tentative map otherwise given pursuant to the Subdivision Map Act or local
regulation not in conflict with the Subdivision Map Act. The term of any p y other
Project Approval shall be extended only so provided rovided 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 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
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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) business days prior to any
annual review.
11.4 Costs. Costs reasonably incurred by the City in connection
with the annual review shall be paid by Developer in accordance with the City's
schedule of fees in effect at the time of review.
12. Default.
12.1 Other Remedies Available. Upon the occurrence of an event
of default, the parties may pursue all other remedies at law or in equity which are
not otherwise provided for in this Agreement or in the City's regulations
governing development agreements, expressly including the remedy of specific
performance of this Agreement.
12.2 Notice and Cure. Upon the occurrence of an event of default
by either party, the nondefaulting party shall serve written notice of such default
upon the defaulting party. If the default is not cured by the defaulting party within
thirty (30) days after service of such notice of default, the nondefaulting party
may then commence any legal or equitable action to enforce its rights under this
Agreement; provided, however, that if the default cannot be cured within such
thirty (30) day period, the nondefaulting party shall refrain from any such legal or
equitable action so long as the defaulting party begins to cure such default within
such thirty (30) day period and diligently pursues such cure to completion.
Failure to give notice shall not constitute a waiver of any default.
12.3 No Damages Against City. Notwithstanding anything to the
contrary contained herein, in no event shall damages be awarded against the
City upon an event of default or upon termination of this Agreement.
13. Estoppel Certificate. 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
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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 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.
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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.
16. Attorneys' 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,
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, denied or delayed. City Manager
shall provide a written explanation for any denial of a request for assignment.
• 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, 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
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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, 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
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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, 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.City Council approval of this
Agreement, Developer shall furnish the City satisfactory evidence of the
insurance required in Sections 21.1 and 21.2. 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.
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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:
Moller RE Investors, LLC
4155 Blackhawk Plaza Circle, Suite 201
Danville, CA 94506
Attention: Jeff Lawrence
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
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.
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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 DEVELOPER
MOLLER RE INVESTORS, LLC
By: a California limited liability company
Joni Pattillo, City Manager
By: Braddock and Logan Services,
Inc., a California corporation
Attest: Its: Manager
Caroline Soto, City Clerk
Approved as to form W s: \./10.
John Bakker, City Attorney
1980867.7
(NOTARIZATION ATTACHED)
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for the Moller Ranch Project
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of (Contra Costa
On I l before me, Nancy E. Embrey, Notary Public
Date Here Insert Name and Title of the Officer
personally appeared e
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who proved to me on the basis of satisfactory evidence to
be the person(s)'whose name(s)' subscribed to the
within instrument and acknowledged to me that
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capacity.(ies)and that by 414k-- - r signature(s) on the
NANCY E. EMBREY instrument the person4e); or the entity upon behalf of
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Commission# 1859710 which the persorl.(sracted, executed the instrument.
„v..1#.7. ,,C; Notary Public-California z
Contra Costa County I certify under PENALTY OF PERJURY under the laws
• My Comm.Expires Aug 1,2013 of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature Evy,ia_kei,
Place Notary Seal Above Sign re 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.
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❑ Attorney in Fact - - OF SIGNER ❑Attorney in Fact _ OF SIGNER
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Order Number: 0131-617761a1a
Page Number: 6
LEGAL DESCRIPTION
Real property in the City of Dublin, County of Alameda,State of California,described as follows:
BEING PORTIONS OF PARCELS ONE AND TWO AS DESCRIBED IN THE DEED TO RICHEY TRUST, ET AL,
RECORDED ON NOVEMBER 09, 2001 IN DOCUMENT NUMBER 2001440482, OFFICIAL RECORDS OF
ALAMEDA COUNTY, LYING SOUTH OF THE ALAMEDA AND CONTRA COSTA COUNTY LINE, DESCRIBED
AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SECTION 21,TOWNSHIP 2 SOUTH, RANGE 1 EAST,
MOUNT DIABLO BASE AND MERIDIAN; THENCE ALONG THE SOUTHERN LINE OF SAID SECTION 21,
NORTH 89°20'13"WEST, 1866.04 FEET TO THE MOST EASTERN CORNER OF SAID PARCEL 2; THENCE
LEAVING SAID SOUTHERN LINE AND ALONG THE SOUTHEASTERN LINE OF SAID PARCEL 2, SOUTH
31°01'01"WEST,953.44 FEET;THENCE SOUTH 33°23'01"WEST, 138.12 FEET TO THE CENTER LINE OF
COUNTY ROAD NO. 2568(TASSAJARA ROAD);THENCE LEAVING SAID SOUTHEASTERN LINE,ALONG
SAID CENTER LINE NORTH 13°02'00"WEST, 196.69 FEET TO A CURVE TO THE LEFT HAVING A RADIUS
OF 800.00 FEET,A DELTA OF 26°03'30";THENCE ALONG SAID CURVE AN ARC LENGTH OF 363.84
FEET;THENCE NORTH 39°05'30"WEST,637.44 FEET TO A CURVE TO THE RIGHT HAVING A RADIUS
OF 800.00 FEET,A DELTA OF 45°10'30";THENCE ALONG SAID CURVE AN ARC LENGTH OF 630.76
FEET;THENCE NORTH 06°05'00"EAST, 86.18 FEET TO THE ALAMEDA/CONTRA COSTA COUNTY LINE;
THENCE ALONG SAID COUNTY LINE, NORTH 73°50'29"EAST, 1344.67 FEET; THENCE NORTH 73°51'13"
EAST, 594.30 FEET; THENCE NORTH 73°51'45"EAST, 4164.60 FEET;THENCE LEAVING SAID COUNTY
LINE,SOUTH 01°07'46"WEST, 2501.72 FEET TO THE SOUTHERN LINE OF SECTION 22,TOWNSHIP 2
SOUTH, RANGE 1 EAST, MOUNT DIABLO BASE AND MERIDIAN;THENCE ALONG LAST SAID LINE,
NORTH 89°20'49"WEST, 2610.32 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION THEREOF LYING WITHIN THE BOUNDARY LINES OF
TASSAJARA ROAD OR COUNTY ROAD NO. 2568.
BEING"NEW PARCEL 1"AS DESCRIBED IN THAT CERTAIN CERTIFICATE OF COMPLIANCE AND
BOUNDARY ADJUSTMENT, BA 12-07, RECORDED JULY 2, 2008 AS INSTRUMENT NO. 20080205093 OF
OFFICIAL RECORDS.
APN: 985-0001-001-01
First American Title
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subparagraph 5.3.1 —Subsequent Discretionary Approvals
None.
Subparagraph 5.3.2—Mitigation Conditions
Subsection a. Infrastructure Sequencing Program
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific road, sidewalk and landscape improvements
(and offers of dedication) identified in Commission Resolution No
approving vesting tentative map %=. ' (the "VTM Resolution") shall be
completed by Developer to the satisfaction and requirements of the Public Works
Director at the times and in the manner specified in the VTM Resolution 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.g. gas, electricity, cable televisions,
telephone):
Construction shall be completed by phase prior to issuance
of the first Certificate of Occupancy for any building within that specific phase of
occupancy for the Project.
Subsection b. Miscellaneous
(i) Completion May Be Deferred.
Notwithstanding the foregoing, the City's Public Works Director
may, in his or her sole discretion and upon receipt of documentation in a form
satisfactory to the Public Works Director that assures completion, allow
Developer to defer completion of discrete portions of any public improvements for
the Project if the Public Works Director determines that to do so would not
jeopardize the public health, safety or welfare.
Subparagraph 5.3.3 — Phasing, Timing
This Agreement contains no requirements that Developer must initiate or
complete development of the Project within any period of time set by the City. It
is the intention of this provision that Developer be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
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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 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
Subparagraph 5.3.7 — Miscellaneous
Subsection a. Fallon Road and Tassajara Road Interchange
Advances.
Certain improvements to the 1-580/Tassajara Road Interchange
("Tassajara Interchange Improvements") and the 1-580/Fallon Road & El Charro
Road Interchange ("Fallon Interchange Improvements") (collectively the
"Interchange Improvements") were constructed in order to facilitate development
in the Eastern Dublin, which includes the Property. City has previously entered
into agreements for funding the construction of the Interchange Improvements
with developers of property within the City. Pursuant to the Tassajara
Interchange funding agreements, developers advanced the funding necessary to
the City for improvement of the Tassajara Interchange Improvements. The Lin
Family has advanced monies to the City needed for the Fallon Interchange
Improvements. All of the funding agreements require the City to seek
reimbursement from non-contributing developers prior to the issuance of building
permits to the non-contributing developer. The Property and the Project benefit
from the construction of the Interchange Improvements.
Subsection i. Fallon Interchange Fee Advance.
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The Developer shall advance its fair share portion of costs advanced for
construction of improvements to the Fallon Road/I-580 Interchange. The advance
will be payable at the time of filing of the first final map. The advance required is
based on the total amount advanced to the City by the Lin Family that remains
outstanding at the time that the advance is made, multiplied by the fair share
percentage of 1.5547%. The fair share percentage (1.5547%) was calculated by
determining the percentage that the Project's trips bears to the total trips
responsible for the interchange. The amount of the advance shall be calculated
using the then-outstanding balance as of the first final map. In the event multiple
maps are filed the full amount due shall be collected with the first map.
As of October 2, 2012, the total amount advanced by the Lin Family that
remained outstanding was $7,226,450. 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 on October 2, 2012, it would have been $112,349.62.
Subsection ii. Tassajara Interchange Fee Advance.
The Developer shall advance its fair share portion of costs advanced by
the developers for construction of improvements to the Tassajara Road/I-580
Interchange. The advance will be payable at the time of filing of the first final
map. The advance required is based on the total amount advanced to the City
by the Lin Family that remains outstanding at the time that the advance is made,
multiplied by the fair share percentage of 1.2907%. The fair share percentage
(1.2907%) was calculated by determining the percentage that the project's trips
bears to the total trips responsible for the interchange..The amount shall be
calculated using the then-outstanding balance as of the first final map. In the
event multiple maps are filed the full amount due shall be collected with the first
map.
As of June 30, 2012, the total amount advanced by other developers that
remained outstanding was $3,954,841 Since the advance does not bear interest,
and since the developers will not be making an additional advances, it is not
anticipated that the amount outstanding would increase. Thus, were the advance
made on June 30, 2012, it would have been $51,294.42.
Subsection iii. TIF Credits for Advances.
City will provide a credit to Developer in the amount of Developer's
advances under subsections i and ii above to be used by Developer against
payment of certain 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
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for the Moller Ranch Project—Exhibit B
(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; (b) the credit created
as a result of the payment required by Subsection i may be used only to satisfy
Section 1 TIF obligations; and (c) the credit created as a result of the payment
required by Subsection ii may be used only to satisfy Section 2 TIF obligations.
Subsection b. Fire Impact Fee Advance
The City is party to an agreement with DR Acquisitions, LLC, dated
October 16, 2001, whereby DR Acquisitions, LLC advanced funds to the City for
the construction of Fire Station 18. The agreement obligates the City to seek
payments from applicants for land use entitlements to reimburse DR Acquisitions
for their fair share of DR Acquistions's advance. Pursuant thereto, the Developer
shall, prior to the first final map, make an payment to City calculated as follows:
The total amount advanced to the Fire Facilities Fee Program by DR
Acquisitions, LLC and the City General Fund that still remain outstanding at the
time that the advance is made shall be multiplied by the percentage of acreage
(6.87%) that the Property (226.3 acres) bears to the total acreage of the Eastern
Dublin area (3293.13 acres). The payment required hereto will be used by the
City to reimburse DR Acquisitions, LLC 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 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 June 30, 2012
is $4,221,052 (consisting of$2,862,137.80 advanced by DR Acquisitions and
$1,358,914.47 advanced by the City General Fund). This outstanding amount is
lower than the total advance because it excludes credits transferred by DR
Acquisitions, LLC 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
July 2012, it would have been $289,986.27. The amount shall be calculated
using the then-outstanding balance as of the first final map. In the event multiple
maps are filed the full amount due shall be collected with the first map.
City will provide a credit against the Fire Facilities Fee to developer in the
amount of developer's advance of monies pursuant to this condition. Developer
Dublin/Moller RE Investors, LLC Development Agreement Page 5 of 5
for the Moller Ranch Project—Exhibit B
shall be responsible for the payment of an Administrative Fee to establish the
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.
Dublin/Moller RE Investors, LLC Development Agreement Page 6 of 5
for the Moller Ranch Project—Exhibit B