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HomeMy WebLinkAbout4.3 Dublin Rch Subarea 3 PDR STAFF REPORT CITY CLERK File #450-30/600-60 CITY COUNCIL DATE:March 4, 2014 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, Acting City Manager SUBJECT: Dublin Ranch Subarea 3 Planned Development Rezone with a Stage 1 Development Plan and a Development Agreement (PLPA 2013-00033) Prepared by Mike Porto, Consulting Planner EXECUTIVE SUMMARY: The City Council will hold a second reading of an Ordinance approving a Planned Development rezone with related Stage 1 Development Plan for the 64-acre area, and an Ordinance approving a Development Agreement. FINANCIAL IMPACT : The developer will make a Community Benefit Payment of $1.8 million to assist in the completion of the Fallon Sports Park Phase II improvements which is included as a term in the proposed Development Agreement. RECOMMENDATION: Ordinance Staff recommends that the City Council waive the reading and adopt an approving a Planned Development Zoning District with a related Stage 1 Development Plan to replace uses Ordinance adopted by Ordinance 24-97; and waive the reading and adopt an approving a Development Agreement between the City of Dublin and Lennar Homes of California, Inc. Submitted By Reviewed By Community Development Director Acting Assistant City Manager DESCRIPTION: Background : The 64-acre project site is undeveloped and currently vacant; it is bounded on four sides by improved streets. The site has two hills in the northeast corner rising to an elevation of 470 feet and causing the site to slope from the northeast to the southwest. A stream corridor on the site travels approximately 1,000 feet from the northwest corner of the site in a southeasterly direction to the middle of the site. ITEM NO. 4.3 Page 1 of 3 VICINITY MAP Surrounding streets are Central Parkway to the north, Dublin Boulevard to the south, Fallon Road to the east, and Lockhart Street to the west. Uses adjacent to and surrounding the project site include: a) Fallon Community Sports Park to the north across Central Parkway; b) Fallon Gateway and a vacant site across Dublin Boulevard to the south planned for a regional medical facility; c) The Groves Lot 3, a Medium-High Density project of 122 townhouse/condominiums on a vacant site west across Lockhart Street as well as the existing family and senior units of the Fairway Ranch apartments; and d) a vacant property planned for commercial, residential and open space uses across Fallon Road to the east. The application includes:  General Plan/Eastern Dublin Specific Plan Amendment to modify the acreage allocated to land uses as follows: a) Medium Density Residential (6.1 to 14 units per acre) – from 27.2 acres to 38 acres; b) Medium-High Density Residential (MHDR) (14.1 to 25.0 units per acre) – from 8.6 acres 7.5 acres; c) Rural Residential/Agriculture – from 0 acres to 14.5 acres (as a partial replacement for 24.9 acres of Open Space); and d) Stream Corridor – from 1.3 acres to 2 acres. No changes are proposed for a 2-acre Neighborhood Park.  Planned Development Rezone with related Stage 1 Development Plan  Development Agreement  CEQA Addendum The City Council, at their February 18, 2014 meeting, adopted a resolution adopting a CEQA Addendum for the Dublin Ranch Subarea 3 Project and adopted a related Statement of Overriding Considerations and approved a General Plan and Eastern Dublin Specific Plan Amendment (Attachment 1). The City Council also waived the reading and introduced an Ordinance approving a Planned Development Rezone with a related Stage 1 Development Plan (Attachment 2). The proposed Stage 1 Planned Development Rezone includes: proposed uses, project access, phasing plan, Master Neighborhood Landscaping Plan, and master Page 2 of 3 infrastructure plan. The Stage 1 Development Concept and Site Plan show uses consistent with the requested General Plan and Eastern Dublin Specific Plan Amendments. The City Council also waived the reading and introduced an Ordinance approving a Development Agreement between the City of Dublin and Lennar Homes of California, Inc. (Attachment 3). Under the Development Agreement, the Developer agrees to make a community benefit payment of $1.8 million to assist with the completion of Fallon Sports Park Phase II improvements. The Community Benefit payment is due on or before recordation of the first final map or December 5, 2014, whichever comes first. No Building Permits can be issued until full payment is received. The City Council is currently being requested to waive the second reading and adopt an Ordinance approving the Planned Development Rezone (Attachment 2) and the Development Agreement (Attachment 3). ATTACHMENTS: 1. City Council Staff Report dated February 18, 2014, without attachments 2. Ordinance approving a Planned Development Zoning District for Subarea 3 with a related Stage 1 Development Plan to replace uses adopted by Ordinance 24-97 3.Ordinance approving a Development Agreement between the City of Dublin and Lennar Homes of California, Inc. with the Development Agreement included as Exhibit A Page 3 of 3 STAFF REPORT CITY CLERK File # CITY COUNCIL 400-20/420-30/450-30 DATE:February 18, 2014 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, Acting City Manager SUBJECT: Dublin Ranch Subarea 3 General Plan/Eastern Dublin Specific Plan Amendment, Planned Development Rezone with a Stage 1 Development Plan, Development Agreement and CEQA Addendum (PLPA 2013-00033) (Related agenda item: 3; action on the General Plan and Eastern Dublin Specific Plan Amendment will be deferred to item 3) Prepared by Mike Porto, Consulting Planner EXECUTIVE SUMMARY: The Applicant is representing a General Plan Amendment (GPA) and Eastern Dublin Specific Plan Amendment (EDSPA) and Planned Development rezone with proposed related Stage 1 Development Plan for the 64-acre area, a Development Agreement and a CEQA Addendum. The proposed GPA/EDSPA would modify the acreage allocated to land uses as follows: a) Medium Density Residential (6.1 to 14 units per acre) – from 27.2 acres to 38 acres; b) Medium- High Density Residential (MHDR) (14.1 to 25.0 units per acre) – from 8.6 acres 7.5 acres; c) Rural Residential/Agriculture – from 0 acres to 14.5 acres (as a partial replacement for 24.9 acres of Open Space); and d) Stream Corridor – from 1.3 acres to 2 acres. No changes are proposed for a two-acre Neighborhood Park. The Request also includes Planned Development Zoning and a Stage 1 Development Plan consistent with the GPA/EDSPA. A conceptual project of approximately 437 units is anticipated. The developer will make a community benefit payment of $1.8 million to assist with the completion of the Fallon Sports Park Phase II improvements which is included as a term in the proposed Development Agreement. FINANCIAL IMPACT : The developer will make a Community Benefit payment of $1.8 million to assist in the completion of the Fallon Sports Park Phase II improvements which is included as a term in the proposed Development Agreement. RECOMMENDATION: Staff recommends that the City Council conduct the public hearing, deliberate, adopt Resolution adopting a CEQA Addendum for the Dublin Ranch Subarea 3 Project and adopting a related Statement of Overriding Considerations; waive the reading and INTRODUCE an Ordinance approving a Planned Development Zoning District with a related Stage 1 Development Plan to replace uses adopted by Ordinance 24-97; and waive the reading and INTRODUCE an Ordinance approving a Development Agreement between the City of Dublin and Lennar Homes of California, Inc. ITEM NO. 6.1 Page 1 of 10 Submitted By Reviewed By Community Development Director Acting Assistant City Manager PROJECT DESCRIPTION: The subject site is located in Area B of Dublin Ranch and received PD Zoning approval in 1997 predating the Stage 1 and Stage 2 PD approval process. The 64-acre project site is undeveloped and currently vacant; it is bounded on four sides by improved streets. Since the original land use approvals in 1997, there have been no additional applications or requests for entitlements. However, precise alignments for both Dublin Boulevard and Fallon Road have been adopted and subsequently improved resulting in a reconfiguration of the development areas and a request by the property owner to modify the land use layout. Preliminary grading has been done at various times on the site. VICINITY MAP The site has two hills in the northeast corner rising to an elevation of 470 feet and causing the site to slope from the northeast to the southwest. The slopes on the site range from less than 5% to 50% on the face of the hills. A stream corridor on the site travels approximately 1,000 feet from the northwest corner of the site in a southeasterly direction to the middle of the site. At that point, the water is collected in a storm drain pipe which ultimately drains to the regional water quality basin located between I-580 and Dublin Boulevard. Surrounding streets are Central Parkway to the north, Dublin Boulevard to the south, Fallon Road to the east, and Lockhart Street to the west as shown on the vicinity map above. Uses adjacent to and surrounding the project site include: a) Fallon Community Sports Park on the north across Central Parkway; b) Fallon Gateway and a vacant site across Dublin Boulevard to the south planned for a regional medical facility; c) The Groves Lot 3, a Medium-High Density project of 122 townhouse/condominiums on a vacant site west across Lockhart Street concurrently under consideration as well as the existing 610 units of the Fairway Ranch Page 2 of 10 apartments; and d) a vacant property planned for commercial, residential and open space uses across Fallon Road to the east. Abutting the project to the south and east are two properties that are part of Subarea 3, but not a part of the current request, described as: 1) General Commercial – a 2.0 acre site located along the north side of Dublin Boulevard, and 2) Semi-Public – a small site owned and used by the Dublin San Ramon Services District (DSRSD) located along the west side of Fallon Road. Current Proposal: The current proposal by the Applicant/Property Owners, Integral Communities, includes:  General Plan/Eastern Dublin Specific Plan Amendment to modify the acreage allocated to land uses as follows: a) Medium Density Residential (6.1 to 14 units per acre) – from 27.2 acres to 38 acres; b) Medium-High Density Residential (MHDR) (14.1 to 25.0 units per acre) – from 8.6 acres 7.5 acres; c) Rural Residential/Agriculture – from 0 acres to 14.5 acres (as a partial replacement for 24.9 acres of Open Space); and d) Stream Corridor – from 1.3 acres to 2 acres. No changes are proposed for a 2-acre Neighborhood Park.  Planned Development Rezone with related Stage 1 Development Plan  Development Agreement  CEQA Addendum ANALYSIS: The proposed General Plan Amendment, Eastern Dublin Specific Plan Amendment and PD rezoning are discussed below. Staff’s analysis is broken up into several sections which describe each component of the project. General Plan & Eastern Dublin Specific Plan Amendment State law limits General Plan amendments to four per General Plan Element per calendar year. This approval would be the first amendment to the Land Use Element for 2010. In order to avoid amendments in excess of the number permitted by State Law, General Plan amendments for specific projects can be grouped together and adopted by one resolution. Therefore, this proposed General Plan Amendment has been grouped together with the proposed The Groves Lot 3 and Subarea 3 General Plan Amendments as a separate item to be heard later on the same agenda and approved with one action (Resolution). All approvals under this agenda item will not become effective until the General Plan Amendment item is approved and effective. Specific Plan amendments are not limited to four per year; however, the proposed Specific Plan amendments have been grouped together with their companion General Plan amendments. Although the General Plan and Eastern Dublin Specific Plan amendments will be acted upon later at this meeting, the analysis is repeated here in order to fully understand the application. Land Use Designations The Applicant is requesting to change the General Plan and Eastern Dublin Specific Plan Land Uses as shown in Table 2 and Figure 2 below. Page 3 of 10 TABLE 2: Existing and Proposed Land Uses – Subarea 3 Land Use Existing Proposed Acres Units Acres Units Medium Density Residential (MDR) 27.2 166-381 38 232-532 (6.1 to 14.0 units per acre) Medium High Density Residential (MDR) 8.6 121-215 7.5 106-187 (14.1 to 25.0 units per acre) Rural Residential/Agriculture (RR/A) 0 0 14.5 0 (1 unit per 100 acres) Open Space (OS) 24.9 -- 0 -- Stream Corridor (SC) 1.3 -- 2.0 -- Neighborhood Park (NP) – No Change 2.0 -- 2.0 -- Total 64 287-596 64 338-719 Figure 2 Existing Land Uses Proposed Land Uses The proposed densities and land use distribution will allow for continuity of open space and a more effective utilization of the property. The requested land use distribution would group residential uses in three areas – a) 7.5 acres of MHDR along the westerly edge of the project site along Lockhart Street across from The Groves, the proposed MHDR residential development to the west; b) a 19.7-acre neighborhood of MDR north of Dublin Boulevard adjacent the open space and Neighborhood Park, and c) an MDR neighborhood of approximately 18.3 acres within the northeast area of the site. The proposed land use amendments would increase the acreage for MDR and the Stream Corridor by reassigning the land currently designated Open Space and slightly reducing the acreage for MHDR. The Open Space land use would be eliminated in favor of Rural Residential/Agricultural which allows more flexible options for aesthetic improvements such vineyards, orchards, and community gardens while preserving an Open Space characteristic. The following is a further discussion of the proposed land uses.  Medium Density Residential and Medium-High Residential (MDR and MHDR) - At a maximum, the proposed acreage by use/densities would allow up to 719 units. As elsewhere in Eastern Dublin, this potential is limited through the required PD-Planned Page 4 of 10 Development zoning. A project of approximately 437 units is anticipated based on a general concept plan reflecting the requested amendment to be distributed as 107 units of MHDR (14.27 units per acre) and 330 units MDR (8.68 units per acre). This figure is within the range of the existing land uses and would not represent a significant deviation from the level of development anticipated under the existing land uses. The number of units proposed within the development envelope will ensure that the on-site grading is optimized and the natural drainage is preserved.  Rural Residential/Agricultural (RR/A) - The RR/A land use is proposed for frontage along Central Parkway adjacent to the Stream Corridor and extends diagonally across the project site to the southeast corner and includes the south facing slope of the hillside as further discussed below. The RR/A designation allows the construction of one residential dwelling unit per 100 acres (1 unit/100 acres). However, since the RR/A land use is less than 100 acres, no units would be permitted within that 14.5 acre area, and the Applicant is not proposing to construct or retain any dwelling units in that area . The RR/A area would be managed by the homeowners association.  Stream Corridor (SC) - The Stream Corridor would be expanded from 1.3 acres to 2.0 acres and generally would remain in its existing location. The Stream Corridor was created to fulfill biological mitigations required for development of other portions of Dublin Ranch.  Neighborhood Park (NP) – No changes in location or size are proposed for the 2-acre Neighborhood Park. It would remain in the central location originally anticipated adjacent to residential uses and open space areas. Visual Resources The Eastern Dublin Specific Plan Visual Resource Section 6.3.4 identifies view corridors as well as certain hillsides as visually sensitive. A portion of the project site includes low lying hills that were identified in the Eastern Dublin Specific Plan as “visually sensitive ridgelands” and located within an area contemplated in the City of Dublin Scenic Corridor Policy. The Eastern Dublin Specific Plan states that these hillsides are to remain to provide a distinctive visual feature as well as provide a screen for development to the north. The Specific Plan policies do permit grading of these ridge lands providing adherence to the policies are taken into account. Previously significant graded areas of the site were needed to accommodate roadway improvements; however, that grading did conform to the Visual Resources policies. The Specific Plan allows for development on the backside of these hills within certain standards in the Specific Plan. The south face of these hills (exposed to I-580) were designated as Open Space to maintain the natural appearance and intended to remain in order to provide a natural backdrop and screen development to the north. The proposed designation for this area will help ensure that natural undeveloped appearance is maintained. The Applicant’s grading concept will conform to the policies of the Visual Resources section of the Eastern Dublin Specific Plan. Most grading activities will occur behind or in front of the current hills with specific contour grading to blend the existing hills with the graded land form. Upon completion, the hillside will be revegetated and will serve to screen development. In addition to recontouring the hill, a small mound graded along the Fallon Road side of the site would serve to hide a large share of the Medium Density Residential planned for the Page 5 of 10 northeasterly area of the project site. This neighborhood would be designed to fit within the natural contours having building pads stepped gradually to match the existing topography of the back side of the hill. Where feasible, the graded slopes would be 3:1 or less. Cut and graded slopes would be revegetated with native vegetation or vineyards. The requested General Plan and Eastern Dublin Specific Plan amendments would require adjustments to various figures, texts, and tables in the General Plan and Eastern Dublin Specific Plan to ensure consistency throughout the documents. The proposed General Plan Amendment and Specific Plan Amendment will be considered as a separate agenda item. The draft City Council resolution, with a complete list of the proposed amendments to the General Plan and Eastern Dublin Specific Plan, is included with that agenda item. Planned Development Rezone The Applicant is requesting approval of a Planned Development Rezone with a related Stage 1 Development Plan. The proposed zoning would ensure consistency with the land use amendment. The proposed Stage 1 Planned Development Rezone includes: proposed uses, project access, phasing plan, Master Neighborhood Landscaping Plan, and master infrastructure plan as described below. Proposed Uses - A comprehensive list of permitted, conditional, and accessory uses, are provided with the Stage 1 Development Plan. General Development Standards/Design Concept Site Plan - The concept plan for the proposed project places the higher density housing along the westerly edge of the project site along Lockhart Street in the form of 107 Medium High Density units on 7.5 acres resulting in approximately 14.27 units per acre, and 330 Medium Density units, including single-family homes. The 38 acres located in the central and northeasterly areas of the project site would include 330 Medium Density units, including single-family homes at a density of 8.68 units per acre. Based on the Concept and Site Plan, the High Density Residential effectively would be 14.27 units per acre. Sub Area 3 Site Plan The Stage 1 Development Concept and Site Plan show uses consistent with the requested General Plan and Eastern Dublin Specific Plan Amendments. Access & Circulation - There will be two primary access points to the site. One will be located on Lockhart Street generally at the intersection with Finnian Way, south of Central Parkway. The entrance would provide access to the High Density Residential housing along Lockhart Page 6 of 10 Street and to the Medium High Density housing north of Dublin Boulevard. The second point, providing access to Medium Density Residential in the northeasterly part of the project site, would be located off of Central Parkway across from the entrance to Fallon Sports Park. It is anticipated that minor vehicular access points may be included as well as emergency vehicle access points (EVA) as required. A review of the joint access points with Fallon Sports Park on Central Parkway will be more thoroughly reviewed for traffic control and land configuration in conjunction with the Site Development Review and Vesting Tentative Map once the design, unit count and final configuration of the on-site roadways are determined. A 10-foot wide paved, meandering trail/access road will follow along the stream corridor and through the RR/A area. The trail is proposed to be a continuation of the multi-use regional trail system that starts offsite in the northern portion of Dublin Ranch. The trail on the project site will start at the northwest corner of the site and travel behind the lots and the Neighborhood Park to Dublin Boulevard connecting to the Fallon Gateway retail center. A secondary trail also is proposed to connect the northerly portion of the site with the southern portion of the site through the Rural Residential/Agriculture portion of the site. Sidewalks will be constructed on all perimeter and internal streets to provide pedestrians from both the project and surrounding neighborhoods access to the nearby commercial centers. Grading - The site has undergone some preliminary grading over the years to construct the stream corridor and for drainage and vegetation management. Also, grading has occurred along the perimeter with the construction of the major roadway improvements of Fallon Road and Dublin Blvd. Future grading in conjunction with the Stage 2 Development Plan, SDR and Vesting Tract Map will conform to the policies required in the Visual Resources section of the EDSP. Master Landscape Plan - A Master Landscape Plan is provided indicating compliance with the adopted Streetscape Master Plan. This plan indicates that the street tree pattern for the surrounding arterials and collector streets is consistent with that approval document. Detailed landscape plans for both the perimeter and internal streets will be provided in conjunction with the future Stage 2 Development Plan and Site Development Review. Phasing Plan - The Applicant is proposing to develop the site in two phases beginning in the north east corner of the site with Phase 1 and the moving westerly with Phase 2 An Ordinance approving the Planned Development Rezoning with related Stage 1 Development Plan for Subarea 3 is included as Attachment 1. The Applicant is required to obtain approval of a Stage 2 Development Plan and Site Development Review prior to constructing a project on this site. DEVELOPMENT AGREEMENT California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter “Chapter 8.56”) authorize the City to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in order to obtain certain commitments and establish certain development rights for the property. The proposed Development Agreement addresses the entire 64-acre Dublin Ranch Subarea 3. Page 7 of 10 Development Agreements are approved by an ordinance of the City Council upon recommendation by the Planning Commission. The proposed Development Agreement (Attachment 2 to Exhibit A) was drafted with input from City Staff, the project Applicant, property owner, and the City Attorney based on the standard Development Agreements prepared by the City Attorney and adopted by the City Council for projects located within the Eastern Dublin Specific Plan area. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project. The Development Agreement becomes effective for a term of five (5) years from the date of approval by the City Council. The City also benefits from entering into the Development Agreement with the property owner. Under the Development Agreement, the Developer agrees to make a community benefit payment of $1.8 million dollars to assist with the completion of Fallon Sports Park Phase II improvements. The Agreement is a contract that establishes obligations for both parties. The proposed Development Agreement also would be consistent with the previous development agreements associated with this property and approved for the Eastern Dublin Specific Plan area. Lennar Homes of California, Inc. has an option to buy the Subarea 3 property at this time. It will be the owner of the property at this time the ordinance approving the Development Agreement takes effect if the Agreement is approved by the City Council. In order to ensure that the City receives the community benefit payment under the Agreement, the Project Approvals will not take effect until the Agreement takes effect and is recorded on the Subarea 3 Property. A City Council Ordinance approving a Development Agreement between the City of Dublin and Lennar Homes of California, Inc. is Attachment 2, with the Development Agreement included as Exhibit A. CONSISTENCY WITH GENERAL PLAN, SPECIFIC PLAN & ZONING ORDINANCE The application includes proposed amendments to the General Plan and Eastern Dublin Specific Plan, PD-Planned Development rezoning with related Stage 1 Development Plan, CEQA Addendum and a Development Agreement. The proposed amendments to the General Plan and the Eastern Dublin Specific Plan reflect land uses that are compatible with the adjacent areas and surrounding development. The proposed project will contribute to housing opportunities and diversity of product type as a complement to the surrounding neighborhoods. The proposed Stage 1 Planned Development rezoning for Subarea 3 would be consistent with the requested land use amendments. The project has been reviewed for conformance with the Community Design and Sustainability Element of the General Plan which evaluates compatibility of the design with adjacent and surrounding development via pedestrian circulation, gathering spaces, open spaces, and integration with the village concept. In general, the proposed project furthers the goals of the Community Design and Sustainability Element of the General Plan by providing a high quality of life and preserving resources and opportunities for future generations. REVIEW BY APPLICABLE DEPARTMENT AND AGENCIES: The Building Division, Fire Prevention Bureau, Public Works Department, Dublin Police Services, Dublin San Ramon Services District and the Alameda County Airport Land Use Page 8 of 10 Commission Staff reviewed the projects to ensure that they are planned and will be built in compliance with all local Ordinances and Regulations. ENVIRONMENTAL REVIEW: The project is located within the Eastern Dublin Specific Plan area, which was the subject of an Environmental Impact Report for the General Plan Amendment and Eastern Dublin Specific Plan (SCH # 91103064), certified by the City Council in Resolution No. 51-93. The General Plan Amendment/Specific Plan EIR is a program EIR, which anticipated several subsequent actions related to future development in Eastern Dublin and identified some impacts from implementation of the General Plan Amendment/Specific Plan that could not be mitigated to less than significant. Upon approval of the Eastern Dublin project, the City adopted a statement of overriding considerations for such impacts. The City also adopted a mitigation-monitoring program, which included numerous measures intended to reduce impacts from the development of the Eastern Dublin area. The environmental impacts of the existing land uses were addressed by the Negative Declaration approved by the City Council in Resolution No. 140-97 for the Planned Development Rezoning for 453 acres of Dublin Ranch (Areas B-E). An Initial Study was prepared and a determination was made to prepare an Addendum to the Eastern Dublin EIR and 1997 ND, included as Exhibit A to the City Council Ordinance (Attachment 3). Pursuant to the 2002 Citizens for a Better Environment case, approval of the Addendum will include a Statement of Overriding Considerations (Exhibit B to Attachment 3) for significant unavoidable impacts identified in the prior EIR that are applicable to the project or project site. All other EIRs NDs, Resolutions, and Ordinances referenced above and throughout the Staff Report are incorporated herein by reference and are available for review at City Hall, 100 Civic Plaza, Dublin, California during business hours. Planning Commission Actions: On January 28, 2014, the Planning Commission held a public hearing to review the Subarea 3 project. At the public hearing, the Planning Commission discussed the proposed General Plan and Eastern Dublin Specific Plan Amendment, Planned Development Rezone with related Stage 1 Development Plan, and a CEQA Addendum. The Planning Commission Staff Report is included as Attachment 4and the draft minutes of the Planning Commission meeting are included as Attachment 5. The Commission deliberated and approved the following resolutions by a 4-1 vote:  Resolution 14-03, recommending that the City Council adopt a CEQA Addendum (Attachment 6);  Resolution 14-4, recommending that the City Council adopt a Resolution amending the General Plan and Eastern Dublin Specific Plan (Attachment 7);  Resolution 14-5, recommending the City Council approve a Planned Development Rezone with a related Stage 1 Development Plan (Attachment 8); Additionally, on February 11, 2014, the Planning Commission considered and recommended approval of the Development Agreement which is included in this Staff Report. Page 9 of 10 PUBLIC NOTICING: In accordance with State law, a public notice was mailed to all property owners and occupants within 300 feet of the proposed project to advertise the project and the upcoming public hearing. A public notice was also published in the Valley Times and posted at several locations throughout the City. A copy of this Staff Report has been provided to the Applicant. ATTACHMENTS: 1. Ordinance approving a Planned Development Zoning District for Subarea 3 with a related Stage 1 Development Plan to replace uses adopted by Ordinance 24-97 2.Ordinance approving a Development Agreement between the City of Dublin and Lennar Homes of California, Inc. with the Development Agreement included as Exhibit A 3. Resolution adopting a CEQA Addendum for the Dublin Ranch Subarea 3 Project and adopting a related Statement of Overriding Considerations with the Addendum included as Exhibit A and The Statement of Overriding Considerations included as Exhibit B 4. January 28, 2014 Planning Commission Staff Report 5. January 28, 2014 Draft Planning Commission minute. 6. Planning Commission Resolution 14-03, recommending that the City Council adopt CEQA Addendum 7. Planning Commission Resolution 14-4, recommending that the City Council adopt a Resolution amending the General Plan and Eastern Dublin Specific Plan for the Subarea 3 and The Groves Lot 3 8. Planning Commission Resolution 14-5, recommending the City Council approve a Planned Development Rezone with a related Stage 1 Development Plan Page 10 of 10 ORDINANCE NO. XX – 14 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * * * * REZONING DUBLIN RANCH SUBAREA 3 TO A PLANNED DEVELOPMENT ZONING DISTRICT AND APPROVING A RELATED STAGE 1 DEVELOPMENT PLAN PLPA 2013-00033 The Dublin City Council does ordain as follows: SECTION 1. RECITALS A. Dublin Ranch Subarea 3 (“project”) is in Dublin Ranch Area B in the Eastern Dublin Specific Plan area. On October 10, 1994, the City Council adopted Ordinance 4-94 prezoning the 1,538 acre Dublin Ranch to PD-Planned Development in accordance with the 1993 Eastern Dublin General Plan Amendment and Eastern Dublin Specific Plan. Following annexation of Dublin Ranch, the City Council adopted Ordinance 24-97 on December 2, 1997 rezoning Dublin Ranch Areas B-E to PD-Planned Development and adopting the then-required Land Use and Development Plan (LUDP) by Resolution 141-97. The LUDP established permitted uses, development standards and other regulations for future development of Areas B-E. Subarea 3 was anticipated for up to 485 units. B. The PD-Planned Development zoning for the project would supersede Ordinance 24-97 as to the Subarea 3 project area. C. The project includes companion applications for amendments to the General Plan and Eastern Dublin Specific Plan and for a Development Agreement. SECTION 2. FINDINGS A. Pursuant to Section 8.32.070 of the Dublin Municipal Code, the City Council finds as follows. 1. The Dublin Ranch Subarea 3 PD-Planned Development zoning meets the purpose and intent of Chapter 8.32 in that it provides a comprehensive development plan that creates a desirable use of land that is sensitive to surrounding land uses by virtue of the layout and design of the site plan. 2. Development of the Project under the PD-Planned Development zoning will be harmonious and compatible with existing and future development in the surrounding area in that it provides residential development in an area that supports residential uses, such as the sports park to the north, but is also a transition to planned medical center and mixed uses to the south and east. The Project provides a high degree of design and landscaping to complement existing and planned uses in the area. B. Pursuant to Sections 8.120.050.A and B of the Dublin Municipal Code, the City Council finds as follows. 1 1. The PD-Planned Development zoning for the Project will be harmonious and compatible with existing and future development in the surrounding area in that it provides residential development in an area that supports residential uses, and the sports park to the north, but is also a transition to planned medical center and mixed uses to the south and east. The Project provides a high degree of design and landscaping to complement existing and planned uses in the area. 2. The Project takes advantage of the flatter areas of the site to locate development. Grading on the site will ensure that much of the development is behind the small hill and not visible from Hwy. 580. The project site is in an infill area that is fully served by public services and existing roadways. There are no major physical or topographic constraints and thus the site is physically suitable for the type and intensity of the proposed residential development. 3. The PD-Planned Development zoning will not adversely affect the health or safety of persons residing or working in the vicinity, or be detrimental to the public health, safety and welfare in that the project will comply with all applicable development regulations and standards. 4. The PD-Planned Development zoning is consistent with and in conformance with the Dublin General Plan and Eastern Dublin Specific Plan, as amended, in that the proposed residential and other uses and the site plan are consistent with the land use designations for the site approved in connection with the Project. C. Pursuant to the California Environmental Quality Act, the City Council adopted a CEQA addendum to the Eastern Dublin EIR and 1997 Negative Declaration, as set forth in Resolution xx-14 on _______________, 2014, which resolution is incorporated herein by reference. SECTION 3.ZONING MAP AMENDMENT Pursuant to Chapter 8.32, Title 8 of the City of Dublin Municipal Code the City of Dublin Zoning Map is amended to rezone the property described below (“Property”) to a Planned Development Zoning District: 64 acres at the northwest corner of Dublin Boulevard and Fallon Road, (APN 985-0027- 012) 2 A map of the rezoning area is shown below: SECTION 4. The regulations for the use, development, improvement, and maintenance of the Property are set forth in the following Stage 1 Development Plan for the Project area, which is hereby approved. Any amendments to the Stage 1 Development Plan shall be in accordance with section 8.32.080 of the Dublin Municipal Code or its successors. Stage 1 Development Plan for Dublin Ranch Subarea 3 This is a Stage 1 Development Plan pursuant to Chapter 8.32 of the Dublin Zoning Ordinance. This Development Plan meets all the requirements for a Stage 1 Development Plan and is adopted as part of the PD-Planned Development rezoning for Dublin Ranch Subarea 3, PLPA 2013-00033. The PD-Planned Development District and this Stage 1 Development Plan provides flexibility to encourage innovative development while ensuring that the goals, policies, and action programs of the General Plan and provisions of Chapter 8.32 of the Zoning Ordinance are satisfied. 3 1. Statement of permitted, conditional, and accessory uses. 4 2. Stage 1 Site Plan. 3. Site area, proposed densities. Gross/net area: 64 acres. Maximum number of units: 437. Allocation of units: Medium High Density Residential - 107 units; Medium Density Residential – 330 units. 5 4. Phasing Plan. Project will be built in two phases. 5. Master Neighborhood Landscaping Plan. 6 6. Grading. Future grading will conform to the policies required in the Visual Resources section of the Eastern Dublin Specific Plan as shown below: Viewshed Sections Viewshed Sections Viewshed Sections 7 7. General Plan and Specific Plan Consistency. The Project is consistent with the General Plan and Eastern Dublin Specific Plan through companion amendments approved in conjunction with the PD rezoning. 8. Inclusionary Zoning Regulations. The Project’s required inclusionary housing has been previously satisfied. No further inclusionary housing is required for the Project. 9. Aerial Photo. SECTION 5. OTHER ZONING REGULATIONS. Pursuant to the Dublin Zoning Ordinance, section 8.32.060.C, the use, development, improvement, and maintenance of the Project area shall be governed by the provisions of the closest comparable zoning district as determined by the Community Development Director and of the Dublin Zoning Ordinance except as provided in the Stage 1 Development Plan. SECTION 6. PRIOR PD ZONING SUPERSEDED. Ordinance 24-97 and the related Land Use and Development Plan approved in Resolution 141-97 are inapplicable as to the Project and are hereby superseded to that extent. SECTION 7. POSTING. The City Clerk of the City of Dublin shall cause this 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. SECTION 8. EFFECTIVE DATE. This ordinance shall not take effect until the Development Agreement for Dublin Ranch Subarea 3 takes effect and is recorded on the Property. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this _________ day of _____________ 2014, by the following votes: AYES: NOES: ABSENT: ABSTAIN: 8 _____________________________ Mayor ATTEST: _____________________________ City Clerk C:\Downloads\cc pd_ord_and_stage_1_dp_for_subarea_3_(jan_2014).doc 2235529.1 9 ORDINANCE NO. XX - 14 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * * * * * * * * * * * * * * * * * * * APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND LENNAR HOMES OF CALIFORNIA, INC. RELATING TO THE SUBAREA 3 PROJECT THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The Applicant, Kevin Fryer, submitted a Planning Application for residential development on Dublin Ranch Subarea 3 which would result in future development of up to 437 single family residences on an approximately 64 acre site (“Project”). The Project proposes General Plan and Eastern Dublin Specific Plan amendments to reallocate existing Medium High Density Residential and Medium Density Residential land uses, to reduce and change Open Space land uses to Rural Residential/Agriculture and to increase the Stream Corridor designation; and B. The Project would rezone Subarea 3 to the Planned Development zoning district and would approve a related Stage 1 Development Plan for future development of up to 437 dwelling units along either side of a stream corridor and open space area. The General Plan and Eastern Dublin Specific Plan amendments, Planned Development rezoning and Stage 1 Development Plan are collectively referred to herein as “Project Approvals”; and C. The Applicant and City desire to enter into a Development Agreement subject to certain terms, including a community benefit payment to the City in the amount of $1.8 Million for Fallon Sports Park Phase II improvements and the vesting of the Project Approvals for five years; and D. The California Environmental Quality Act (CEQA), together with the state guidelines and City environmental regulations, require that certain projects be reviewed for environmental impacts and that environmental documents be prepared; and E. Development of the Project area has been previously analyzed in two documents approved under CEQA; (1) Environmental Impact Report for the General Plan Amendment and Eastern Dublin Specific Plan (SCH # 91103064), certified by the City Council in Resolution No. 51- 93 (“Eastern Dublin EIR”); and (2) Negative Declaration approved by the City Council in Resolution No. 140-97 for the Planned Development Rezoning of 453 acres of Dublin Ranch (Areas B-E) (“1997 ND”). The City prepared a CEQA addendum to the Eastern Dublin EIR and 1997 ND for the Subarea 3 Project (“Addendum”). The proposed Development Agreement would vest the Project Approvals for the Subarea 3 Project as described in the Addendum and does not change any of the development under the Project Approvals. Therefore, the Development Agreement is within the scope of the Project described in the Addendum and its environmental impacts are addressed by the Addendum; and F. On January 28, 2014, the Planning Commission adopted Resolution 14-03 recommending that the City Council adopt the Addendum, which Resolution is incorporated herein by reference and available for review at City Hall during normal business hours; and G. On February 11, 2014, the Planning Commission held a public hearing on the proposed Development Agreement (for which public notice was given by law) and adopted Resolution 14-09 recommending that the City Council adopt the Development Agreement, which Resolution is incorporated herein by reference and available for review at City Hall during normal business hours; and H. A public hearing on the proposed Development Agreement was held before the City Council on February 18, 2014 for which public notice was given as provided by law; and I. The City Council used their independent judgment and considered the Staff Report, the Addendum, Eastern Dublin EIR, 1997 ND, and all reports, recommendations and testimony referenced above and adopted Resolution No. XX-14 approving the Addendum prior to approving the Development Agreement; and J. The City Council has considered the recommendation of the Planning Commission on the Development Agreement, including the Planning Commission’s reasons for its recommendation, the Agenda Statement, all comments received in writing, and all testimony received at the public hearing. Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of: (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin General Plan; (c) the Eastern Dublin Specific Plan, (d) the Addendum, (e) the Staff Report; (f) information in the entire record of proceeding for the Project, 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, and in the Eastern Dublin Specific Plan in that: (a) the General Plan and Eastern Dublin Specific Plan land use designations, policies, programs and objectives are incorporated into the Development Agreement and not altered by the Development Agreement; and (b) the Project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to the provision of infrastructure and public services. 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. 3. The Development Agreement is in conformity with public convenience, general welfare, and good land use policies in that the Project will implement land use guidelines set forth in the Eastern Dublin Specific Plan and the General Plan. 4. The Development Agreement will not be detrimental to the health, safety, and general welfare in that the Developer’s proposed Project will proceed in accordance with all the programs and policies of the General Plan, Eastern Dublin Specific Plan, and Project Approvals. 2 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, the Eastern Dublin Specific Plan, and Project Approvals. 6. The Development Agreement complies with the requirements of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code Chapter 8.56 and specifies the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The Development Agreement contains an indemnity and insurance clause requiring the developer to indemnify and hold the City harmless against claims arising out of the development process, including all legal fees and costs. Section 3. APPROVAL The City Council hereby approves the Development Agreement (Exhibit A to the Ordinance) and authorizes the City Manager 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 ______, 2014 by the following votes: AYES: NOES: ABSENT: ABSTAIN: _____________________________________ Mayor ATTEST: ________________________________ City Clerk 2235003.2 3 RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder’s use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND LENNAR HOMES OF CALIFORNIA, INC FOR THE SUBAREA 3 PROJECT THIS DEVELOPMENT AGREEMENT (“Agreement” or “Development Agreement”) is made and entered into in the City of Dublin on this _____ day of __________ 2014, by and between the CITY OF DUBLIN, a Municipal Corporation (“City”) and LENNAR HOMES OF CALIFORNIA, INC., a California corporation (“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 (“Chapter 8.56”) authorize the City to enter into a development agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property. B. Developer owns certain real property (“the Property”) consisting of approximately 64 acres of land at the northwest corner of Dublin Boulevard and Fallon Road, (APN 985-0027-012) and that is more particularly described in Exhibit A attached hereto and is incorporated herein by reference. C. Developer, or its predecessor in interest, has applied for, and City has approved or is processing, various land use approvals in connection with the development of the Project, including, without limitation, a General Plan Amendment and Eastern Dublin Specific Plan Amendment (Resolution. No. ___, adopted by the City Council on ______, 2014); a Planned Development Zoning and Stage 1 Development Plan Ordinance (Ordinance No. ___, adopted by the City Council on ______, 2014), and this Development Agreement. All such approvals, collectively, together with any approvals or permits now or hereafter issued with respect to the Project, are referred to as the “Project Approvals.” D. The proposed project (“Project”) includes construction of up to 437 attached and detached residential dwelling units on the site, grading of the site, extension of utilities, and related improvements. The Project includes 38 acres of medium density residential, 7.5 acres of medium-high density residential, 14.5 acres of rural residential/agriculture, 2 acres for stream corridor, and 2 acres of neighborhood park. E. City desires the timely, efficient, orderly and proper development of the Project. F. 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. 2 G. 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. H. The Project is located within the Eastern Dublin Specific Plan area, which was the subject of a Program Environmental Impact Report for the General Plan Amendment and Eastern Dublin Specific Plan (SCH # 91103064), certified by the City Council in Resolution No. 51- 93 (“Eastern Dublin EIR”). The Eastern Dublin EIR identified significant impacts from development of the Eastern Dublin area, including the Property site, some of which could not be mitigated to less than significant. Upon approval of the Eastern Dublin General Plan Amendment and Specific Plan, the City Council adopted mitigations, a mitigation monitoring program, and a Statement of Overriding Considerations. I. The environmental impacts of the existing permitted land uses on the Property also were addressed by the Negative Declaration approved by the City Council in Resolution No. 140-97 for the Planned Development Rezoning of 453 acres of Dublin Ranch (Areas B-E) (“1997 ND”). The 1997 ND included the approximately 64 acres of land in Sub Area 3 of Planning Area B, which is the area to be developed by the Project. The 1997 ND concluded that the potentially significant impacts of developing Areas B-E had been adequately described and analyzed in the Eastern Dublin EIR and that no new or more severe significant impacts would result from future development in Areas B-E. J. For the Project, the City prepared an Initial Study to determine if additional review of the proposed Project was required pursuant to CEQA Guidelines section 15162. Based on the Initial Study, the City prepared an Addendum, dated ________ (Resolution. No. ___, adopted by the City Council on ______), describing the Project and finding that impacts of the proposed Project were adequately addressed in the Eastern Dublin EIR and the 1997 ND, and no further environmental review under CEQA is required. K. On _____, __ 2014, the City Council 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 (“Property”). 3 2. Interest of Developer. The Developer has a legal interest in the Property in that it is the owner of the Property. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by the City and Developer and that the Developer is not an agent of the City. The City and Developer hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. 4. Effective Date, Term, and Community Benefit Payment. 4.1. Effective Date. The effective date of this Agreement shall be the Approval Date (“Effective Date”). 4.2. Term. The term of this Agreement shall commence on the Effective Date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 4.3. Termination on Sale of Individual Lots. Notwithstanding the foregoing Section 4.2, the provisions of this Agreement shall terminate with respect to any individual lot and such lot shall be released from and shall no longer be subject to this Agreement (without the execution or recordation of any further document or the taking of any further action) upon the lot being finally subdivided and sold or leased (for a period longer than one (1) year) to a member of the public or any other ultimate user. City shall cooperate with Developer, at no cost to City, in executing in recordable form any document that Developer (including any successor to the title of the Developer in and to any of the aforedescribed lots) may submit to confirm the termination of this Agreement as to any such lot. 4.4. Community Benefit Payment. The Developer shall provide a Community Benefit Payment of One Million Eight Hundred Thousand Dollars ($1,800,000.) to the City, payable on or before the recordation of the first final subdivision map for a portion of the Project, or December 5, 2014, whichever date is earlier. The Community Benefit Payment will be applied towards costs relating to Phase II improvements of Fallon Sports Park. No building permits shall be issued for the Project until the full payment required under this Section has been made to the City. This Term survives the expiration of this Agreement. 4 5. Use of the Property. 5.1. Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. (Such amendments, once effective, shall become part of the law Developer is vested into without an additional amendment of this Agreement.) Notwithstanding the foregoing or anything to the contrary herein, any amendment to the General Plan, the Specific Plan, PD zoning, and the Stage 1 Development Plan applicable to the Property and in effect on the Effective Date shall not become part of the law Developer is vested into under this Agreement unless an additional amendment of this Agreement is entered into between Developer and City in accordance with state and City laws. 5.2. Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk, and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, the location and maintenance of on-site and off-site improvements, the 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. 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 and governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the Effective Date of the Agreement. 5.4. Rules Regarding Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary approval, whether the date of that approval is prior to or after the date of this Agreement. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards, and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable discretionary approval, whether the date of that approval is prior to or after the date of this Agreement. 5.5. 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, 5 relating to Building Standards, in effect at the time of approval of the appropriate building, grading, encroachment or other construction permits for the Project. 6. Subsequently Enacted Rules and Regulations. 6.1. New Rules and Regulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property, which were not in force and effect on the Effective Date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations, or official policies have general applicability. 6.2. 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. Subsequently Enacted or Revised Fees, Assessments and Taxes. The Project shall be subject to subsequently enacted or revised fees, assessments and taxes adopted by the City after the Effective Date of this Agreement. Nothing in this Agreement creates a vested right for the Project in the amount or type of fees, assessments and taxes in effect on the Effective Date of this Agreement. 8. Amendment or Cancellation. 8.1. Modification Because of Conflict with State or Federal Laws. The Project and Property shall be subject to state and federal laws and regulations and this Agreement does not create any vested right in state and federal laws and regulations in effect on the Effective Date. In the event that state or federal laws or regulations enacted after the Effective Date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps, or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be subject to approval by the City Council in accordance with Chapter 8.56. 6 8.2. 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. 8.3. Insubstantial Amendments. Notwithstanding the provisions of the preceding Paragraph 8.2, any amendments to this Agreement that 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) the density or intensity of use of the Project; (d) the maximum height or size of proposed buildings; or (e) 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. 8.4. 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. 9. Annual Review. 9.1. Review Date. The annual review date for this Agreement shall be between June 1 and July 1, 2015 and thereafter between each June 1 and July 1 during the Term. 9.2. Initiation of Review. The City’s Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to Developer thirty (30) days’ written notice that the City intends to undertake such review. Developer shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Agreement. The burden of proof by substantial evidence of compliance is upon the Developer. 9.3. 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. 9.4. 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. 10. Default. 10.1. Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity that are not 7 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. 10.2. 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. 10.3. 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. 11. 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 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. 12. Mortgagee Protection; Certain Rights of Cure. 12.1. 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 8 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. 12.2. Mortgagee Not Obligated. Notwithstanding the provisions of Section 12.1 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 the 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. 12.3. 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 10.2 for not more than an additional sixty (60) days upon request of Developer or a Mortgagee. 13. Severability. The unenforceability, invalidity, or illegality of any provision, covenant, condition, or term of this Agreement shall not render the other provisions unenforceable, invalid, or illegal. 14. 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. 9 15. Transfers and Assignments. 15.1. Right to Assign. Developer may wish to sell, transfer, or assign all or portions of its Property to another entity (each such other entity is referred to as a “Transferee”). In connection with any such sale, transfer, or assignment to a Transferee, Developer may sell, transfer, or assign to such Transferee any or all rights, interests, and obligations of Developer arising hereunder and that pertain to the portion of the Property being sold or transferred to such Transferee, provided, however, that: no such transfer, sale, or assignment of Developer’s rights, interests, and obligations hereunder shall occur without prior written notice to City and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. 15.2. 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. 15.3. Release Upon Transfer. Upon the transfer, sale, or assignment of all of Developer’s rights, interests, and obligations hereunder pursuant to Paragraph 15.1 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 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. 15.4. Developer’s Right to Retain Specified Rights or Obligations. Notwithstanding Paragraphs 15.1 and 15.2 and Paragraph 16, 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 Transferee shall then have no interest or obligations for such rights, 10 interests and obligations, and this Agreement shall remain applicable to Developer with respect to such retained rights, interests, and/or obligations. 16. Agreements Run 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 assigns, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 17. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 18. 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. 11 19. Insurance. 19.1. 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. 19.2. 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. 19.3. Evidence of Insurance. Prior to issuance of any permits for the Project, including grading permits, Developer shall furnish the City satisfactory evidence of the insurance required in Sections 19.1 and 19.2 and evidence that the carrier is required to give the City at least fifteen (15) days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the City, its elective and appointive boards, commissions, officers, agents, employees, and representatives and to Developer performing work on the Project. 20. 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: Gordon Jones, Vice President Lennar Homes of California 6111 Bollinger Canyon Road San Ramon, CA 94583 12 A party may change its address by giving notice in writing to the other party. 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. 21. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 22. 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 23. Counterparts. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. 24. Recordation. The City shall record a copy of this Agreement within ten (10) days following execution by all parties. [Execution Page Follows] 13 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 LENNAR HOMES OF CALIFORNIA, INC. By: __________________________ Chris Foss, Acting City Manager By: __________________________ Gordon Jones Attest: Its: Vice President ________________________ Caroline Soto, City Clerk Approved as to form ________________________ John Bakker, City Attorney 2232527.4 (NOTARIZATION ATTACHED) 14 Exhibit A LEGAL DESCRIPTION OF DUBLIN RANCH SUBAREA 3 PROPERTY The Land referred herein below is situated in the City of Dublin, County of Alameda, State of to California, and is described as follows: Parcel 1 as shown on Parcel Map 8734, filed in the Office of the Recorder of Alameda County on November 22, 2006 in Map Book 294 at Page 1.