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HomeMy WebLinkAbout6.1 Wallis Ranch DA~~ v~r,, CITY CLERK -;-ih 82 File # ^®^^~'©® / Y\~ 4 / AGENDA STATEMENT CITY COUNCIL MEETING DATE: January 6, 2009 SUBJECT: PUBLIC HEARING: PA 05-051 Wallis Ranch (Phase I) (Dublin Ranch West) Development Agreement between the City of Dublin and The Lin Family for the 184-acre Wallis Ranch (Dublin Ranch West) project. Report Prepared by Mike Porto, Consulting Planner ATTACHMENTS: 1) Ordinance approving the Development Agreement for PA OS-051 Wallis Ranch (Dublin Ranch West) Chang Su-O Lin ("The Lin Family") (Development Agreement attached as Exhibit A). 2) Planning Commission Resolution No. 08-36 recommending that the City Council adopt an Ordinance approving Development Agreement for Wallis Ranch (Dublin Ranch West) PA OS-051. RECOMMENDATION: ~~ 1) Receive Staff presentation; 2) Open Public Hearing; 3) Take testimony from the Applicant and the public; 4) Close the Public Hearing and deliberate; and 5) Waive reading and introduce the Ordinance approving the ,Development Agreement for PA OS-O51 Wallis Ranch (Dublin Ranch West) Chang Su-O Lin ("The Lin Family"). FINANCIAL STATEMENT: A Community Benefit payment of $1,000,000 has been provided in exchange for lengthening the term of the Development Agreement from 5 to 15 years. Wallis Ranch PROJECT DESCRIPTION: The Wallis Ranch project (also known as Dublin Ranch West) is located near the northeasterly City limits below a ridge, abutting the Contra Costa County line, west of Tassajara Road. The property has been used in the past for farming, grazing, and other rural uses. There is limited grazing on site at this time. i .- nt~r~rm ,.~. 4' .-. At 184 acres, Wallis Ranch is the largest of the ~ ~ i ,~~' three properties totaling 189 acres, annexed to the ~ ~' ~ VICINITY MAP ------------------------------------------------------------------------------------------------------------- COPIES TO: Applicant/Property Owner Developer Page 1 of 5 ITEM NO. (D . G: IPA#12005105-051 Dublin Rnnch West-Wa11islDevelopment AgreementlCCMtg Lti.091CCSR-Wallis DA--firstread Lti.09.doc City in May of 2005 as Dublin Ranch West. On March 15, 2005, the City Council approved PA 02-028, as follows: 1) the annexation request; 2) an Ordinance prezoning the annexation area to Planned Development; 3) amendments to the General Plan and Eastern Dublin Specific Plan; 4) adoption of Stage 1 Planned Development Plan for the 184-acre Wallis Ranch; and 5) certification of the Supplemental Environmental Impact Report (SCH2O03022083). In February 2007, the City Council approved PA OS-051 which included: an amendment to the Stage 1 Planned Development zoning, a Stage 2 Development Plan, Master Vesting Tentative Tract (Map 7515), and Vesting Tentative Tracts 7711, 7712, 7713, 7714, 7715 & 7716 for Neighborhoods 1, 2, 3, 4, 5 and 6, respectively of Wallis Ranch. The approval also included a Site Development Review and adoption of a Mitigated Negative Declaration which addressed the area within Contra Costa County due to the area's inclusion for access and environmental mitigation purposes. The amendment to the Stage 1 Planned Development zoning and Stage 2 Development Plan was adopted by Ordinance No. 2-07. The Site Development Review and the Vesting Tentative Map, along with the Conditions of Approval, were adopted by Planning Commission Resolution No. 07-01. Project Overview Wallis Ranch primarily is a residential project. It was designed with a significant effort to preserve and utilize the natural environment, influenced by the natural landscapes of Tassajara Creek and the hillside grassland slopes and corridors. Specifically, the Project is designed to provide a mix of housing types while connecting to the natural environment at different scales by orienting units and views towards the open space, and incorporating trail access into these spaces. In addition to the residential uses, other approved uses include: a neighborhood park, private recreation areas, semi-public space, an open space corridor/multi-use trail system, habitat preservation, stormwater detention basin, public improvements, and associated public right-of--way. The approved land use/Planned Development zoning is shown below: Table 1: Summary by Use -Wallis Ranch Land Use Acreage ross +/-) Sin le Famil Low Densi Residential 15.4 Ac Medium Densi Residential 57.1 Ac Medium Hi h Densi Residential 16.0 Ac Nei hborhood Park 10.4 Ac Semi-Public 1.9 Ac Open S ace 83.3 Ac TOTAL 184.1 Ac ~'~ Acreage figure includes all public improvements and public or private open space. c2> Acreage figure includes the Community Green adjacent to Neighborhood 5. t3~ Acreage figure includes the detention basin adjacent to Neighborhood 4. The Project is approved for development at a total of 935 units within six (6) neighborhoods. In accordance with the policies of the General Plan and the Eastern Dublin Specific Plan, the lower residential densities are designated in the steeper areas of the project site to ensure hillside, ridgeline, and slope preservation. The higher densities are concentrated in the lower elevations towards Tassajara Creek under a plan that preserves and maintains the natural water course and riparian environment. All of the units within the Wallis Ranch project are proposed to be for-sale housing either as asingle-family detached product or condominiums. No multi-family rental or apartments are proposed. Page 2 of 5 Wallis Ranch (Dublin Ranch West), the subject of this proposed Development Agreement, is shown below. ~,~ MMlem DengRf RedtlestW 7e.o=.Ga,~. ls.s:.c. m R~~ ~:,~~, ...~.~_ nil.; >: F: ~~~~i ~~~ i~~ ~~~ NpilMgbod S MOOhuDamRy RealdwgW IQ7 s w pan 1lTtr.m Lfnixn 33iE ~' ~4~r S< ~ ~~`. -x~.;:a ~a~ ~~.. r ~+.: ~~'allis Ranch Stage 2 Development Plan - - r STAC;F, 2 PD SITE PI.A~i , ,. it',F dv , - .»r,~ --~---- o~~ ,_ - u,... .. as v ~. _.... ... &®4P~Wc _.,c~~ ./ V.iF' r T ~ 1.9f. a. gvo 1.7=x m ' 71gta)=ra Chst-UPea bp.m .-. McMmIRQ6DeuYP J33=x.Qmgq /~ RWAwgW 40.7: acm l3.l sqc. 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G-.H t i_ .Rl.= ~&~~ 9+R 17.5 Projects within the Eastern Dublin Specific Plan require a Development Agreement between the Developer and the City. 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 Development Agreement must be approved prior to recordation of the final Tract Map and issuance of building permits for the development of the property. Development Agreements are approved by an ordinance of the City Council upon recommendation by the Planning Commission. A Development Agreement for Wallis Ranch was not included in the items presented to the Planning Commission or the City Council at the time of the public hearing for the requested project approvals. Attachment 1 is a draft Ordinance approving the proposed Development Agreement. The proposed Development Agreement (Exhibit A to Attachment 1) was negotiated by the City Manager, drafted by the City Attorney and includes a $1,000,000 Community Benefit payment to be paid prior to the execution of the Development Agreement. Pertinent elements of the Development Agreement are discussed below. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the Project for a period of specific period of time. Typically the term is five Page 3 of 5 years. However, the proposed Development Agreement provides for an extended period as discussed below. The City also benefits from entering into the Development Agreement with the property owner. This document is a contract that establishes obligations for meeting the goals of the Eastern Dublin Specific Plan and guarantees timing for construction of public infrastructure and facilities for the project area. Additionally, it ensures that dedications of property and easements are made, project phasing is followed, appropriate fees are paid for the development, and any additional terms of the agreement are carried out as development proceeds. In return, the Developer agrees to comply with the Conditions of Approval and, in some cases, make commitments for which the City might otherwise have no authority to compel the Developers to perform. Specifically, the Development Agreement augments the City's standard development regulations, defines the precise financial responsibilities of the Developer, ensures timely provision of adequate public facilities for each project, and provides terms for the Developer to advance funds for specific facilities which have community or area-wide benefit or for reimbursement from future development, as appropriate. Since the Development Agreement runs with the land, the rights thereunder can be assigned. Items specific to this Development Agreement include: • Community Benefit Payment: A community benefit payment of $1 million made on or rip Or to the Effective Date of the Development Agreement. (This provision is stated in Recital D on page 1 of the Development Agreement. The Effective Date is described in Paragraph 4.1 as the Approval Date.) • Extended Term - Development Agreement: A term of fifteen (15) years for the Development Agreement (Paragraph 4.2) in exchange for the community benefit payment of $1 million, stated above, prior to the Effective Date. Otherwise, the term would default to five (5) years. - Site Development Review: The effective term of the Site Development Review approved by Planning Commission Resolution No. 07-01 to be extended or otherwise correspond to the term of the Development Agreement (Exhibit B, p. 6 of 8, Subparagraph 5.3.7 (i)). • Antone School (Historic Preservation): Relocation and preservation or replacement of the old Antone School building on Parcel 17 of Tract 7715 "Community Green" Open Space (Exhibit B, p. 6 of 8, Subparagraph 5.3.7 (ii)). • Affordable Housing: Satisfaction of affordable housing requirements through Affordable Unit Credit Certificates (AUCC) available from the Fairway Ranch project which constructed 589 affordable units that can satisfy the affordable housing obligation for projects such as Wallis Ranch. Planning Commission Hearing At its meeting of November 12, 2008, the Planning Commission held a public hearing and adopted Resolution No. 08-36 recommending that the City Council adopt an Ordinance approving the Development Agreement. ENVIRONMENTAL REVIEW The Dublin Ranch West project (PA 02-028), proposed for annexation in 2005, essentially included similar land uses and densities analyzed and approved in the 1993 Environmental Impact Report for the Eastern Dublin General Plan Amendment for the Eastern Extended Planning Area the Eastern Dublin Specific Plan and associated documents. At that time a determination was made to prepare a Draft Supplemental Environmental Impact Report (SCH 2003022033) in order to thoroughly and comprehensively assess the potential for the Project to cause or contribute to significant impacts beyond those identified in the 1993 Environmental Impact Report. The Supplemental Environmental Impact Report was certified by the City Council on March 15, 2005 by Resolution No. 42-05. Page4of5 For PA OS-051 approved in 2007, a determination was made to prepare a Mitigated Negative Declaration The primary purpose of the Mitigated Negative Declaration was to expand the scope of the Supplemental Environmental Impact Report to include the adjacent 11.6-acre parcel within unincorporated Contra Costa County which was not originally addressed in the Supplemental Environmental Impact Report. The City Council adopted the Mitigated Negative Declaration by Resolution No. 18-07 on February 6, 2007. No further environmental determinations are needed to approve the proposed Development Agreement. CONCLUSION: The Development Agreement will implement the provisions of the Planned Development zoning for the Wallis Ranch project (PA OS-051), the Stage 2 Development Plan, the Site Development Review, and Conditions of Approval for Master Vesting Tentative Tract Map 7515 and for the six Neighborhood Vesting Tentative Tract Maps approved as part of this project (Neighborhood 1 -Tract 7711, Neighborhood 2 -Tract 7712, Neighborhood 3 -Tract 7713, Neighborhood 4 -Tract 7714, Neighborhood 5 -Tract 7715, and Neighborhood 6 -Tract 7716) and will extend those approvals fora 15-year period through adoption of the Ordinance approving the Development Agreement. RECOMMENDATION: Staff recommends the City Council: 1) Receive Staff presentation; 2) Open Public Hearing; 3) Take testimony from the Applicant and the public; 4) Close the Public Hearing and deliberate; and 5) Waive reading and introduce the Ordinance approving the Development Agreement for PA OS-051 Wallis Ranch (Dublin Ranch West) Chang Su-O Lin ("The Lin Family"). Page 5 of 5 ~~ 3~ ORDINANCE NO. XX - O8 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE DEVELOPMENT AGREEMENT FOR PA 05-051 WALLIS RANCH (DUBLIN RANCH WEST) CHANG SU-O LIN ("THE LIN FAMILY") THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The proposed project known as Wallis Ranch is located within the boundaries of the Eastern Dublin Specific Plan, and is included in the approval for Planned Development under PA OS-051. B. A Development Agreement for Wallis Ranch between the City of Dublin and Chang Su-O Lin (the "Lin Family") ("Developer") has been presented to the City Council, Attachment 1 to 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 Final Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan, which was certified by the City Council by Resolution No. 51-93, and the Addenda dated May 4, 1993 and August 22, 1994 (hereafter "Eastern Dublin EIR" or "program EIR") (SCH #91-103064). The Program EIR was integral to the planning process and is incorporated herein by reference. The program EIR examined the direct and indirect effects, cumulative impacts, broad policy alternatives, and area wide mitigation measures for developing Eastern Dublin. In addition, an Initial Study was prepared for PA 98-070, the Stage 1 Planned Development zoning for Dublin Ranch Area H (SCH #99-1120412), and a determination was made that the project is within the scope of the Eastern Dublin Specific Plan and General Plan Amendment, for which the Program EIR was certified. D. In connection with project PA 02-028 for Wallis Ranch and consistent with CEQA and the CEQA Guidelines, a Supplemental EIR (SCH2003022083) was prepared and certified by the City Council on March 15, 2005 by Resolution 42-OS E. In connection with project PA OS-051 for Wallis Ranch and consistent with CEQA and the CEQA Guidelines, a Mitigated Negative Declaration (MND) was prepared and the City adopted by the City Council on February 6, 2007 by Resolution 18-07. F. A public hearing on the proposed Development Agreement was held before the Planning Commission on November 12, 2008, for which public notice was given as provided by law. G. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreement by Resolution 08-36. H. A public hearing on the proposed Development Agreement was held before the City Council on January 6, 2009 for which public notice was given as provided by law. l - (o-- D Gl Co • l Atta~hmPnt 1 2~ ~~ I. The City Council has considered the recommendation of the Planning Commission, including the Planning Commission's reasons for its recommendation, the Agenda Statement, all comments received in writing, and all testimony received at the public hearing. Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the Eastern Dublin Specific Plan, (e) the EIR, (f) the Supplemental EIR, (g) the Mitigated Negative Declarations, and (h) 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 designations for the site are Low Density Residential, Medium Density Residential, Medium-High Density Residential, Neighborhood Park, and Open Space, (b) the proposed project is consistent with the designated land use, (c) the project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to the provision of infrastructure and public services, and (d) the Development Agreement includes provisions relating to vesting of development rights and similar provisions set forth in the Specific Plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located in that the project approvals include Stage 1 Planned Development zoning, Stage 2 Development Plan, and Vesting Tentative Maps. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies in that the Developer's project will implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for Low Density Residential, Medium Density Residential, Medium-High Density Residential, Neighborhood Park and Open Space, and infrastructure uses at this location. 4. The Development Agreement will not be detrimental to the health, safety and general welfare in that the Developer's project will proceed in accordance with all the programs and policies of the Eastern Dublin Specific Plan. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan and with the 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) 2 ~~.~o 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 by the following votes: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk G: IPA#12005105-OSI Dublin Ranch West-Wn11islDevelopment AgreementlDub-Wa1lisRanch-DA CC Ord.doc ~~ ~o 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 THE LIN FAMILY FOR WALLIS RANCH (DUBLIN RANCH WEST) EXHIBIT A TO ATTACHMENT 1 Yt ~.t ~' t~ THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered in the City of Dublin on this day of , 2008, by and between the City of Dublin, a Municipal Corporation (hereafter "City"), and Chang Su-O-Lin (also known as Jennifer Lin), a married woman (hereafter "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. 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 establish certain development rights in such property; and B. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 184 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"; and C. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and D. The Eastern Dublin Specific Plan requires Developer to enter into this development agreement, and, at the request of the Developer, City has agreed to extend the term of the Agreement beyond the standard five-year term that the City offers for development agreements required by the Eastern Dublin Specific Plan in exchange for the Developer's submission of a $1,000,000 community benefit payment to the City prior to the Effective Date of this Agreement; and E. Developer proposes the development of the Property with 935 residential units (although the Stage 1 development plan permits 1023 units) and various non-residential uses including neighborhood park, semi-public, open space, open space multi-use trial, private recreation facilities, water retention basin and associated public right-of-way (the "Project"); and F. Developer has applied for, and City has approved various land use approvals in connection with the development of the Project, including an amendment to the General Plan and Eastern Dublin Specific Plan (City Council Resolution No. 19-07), PD District rezoning and related Stage 1 and Stage 2 development plans (City Council Ordinance No. 2-07), Master Vesting Tentative Dublin/Lin Family Development Agreement Page 2 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 (~~3~ Map for Tract 7515 (Planning Commission Resolution No. 07-01), Neighborhood Vesting Tentative Maps for Tract 7711 (Neighborhood 1), Tract 7712 (Neighborhood 2), Tract 7713 (Neighborhood 3), Tract 7714 (Neighborhood 4), Tract 7715 (Neighborhood 5), Tract 7716 (Neighborhood 6) (Planning Commission Resolution 07-01), and site development review (Planning Commission Resolution No. 07-01) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and G. Development of the Property by Developer may be subject to certain future discretionary approvals, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective; and H. City desires the timely, efficient, orderly and proper development of said Project; and I. The City Council has found that, among other things, this Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and J. City and Developer have reached agreement and desire to express herein a development agreement that will facilitate development of the Project subject to conditions set forth herein; and K. On , 2008, the City Council of the City of Dublin adopted Ordinance No. approving this Agreement. The ordinance took effect on , 2008 ("the Approval Date"). NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, City and Developer.agree as follows: AGREEMENT Description of Property. The Property that is the subject of this Agreement is described in Exhibit A attached hereto. 2. Interest of Developer. Dublin/Lin Family Development Agreement Page 3 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 ~~ 3 ~ The Developer has a legal or equitable interest in the Property in that it owns the Property in fee simple. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Developer and that the Developer is not an agent of City. The City and Developer hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. 4. Effective Date and Term. 4.1. Effective Date. The effective date of this Agreement shall be the Approval Date. 4.2. Term. The term of this Agreement shall commence on the Effective Date and extend fifteen (15) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. Notwithstanding the foregoing sentence, in the event that the City does not receive the Community Benefit Payment referenced above in Recital D on or prior to the Effective Date, the term will be five (5) years rather than fifteen (15) years. 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. Notwithstanding anything to the contrary in this Agreement, the ordinances, resolutions, rules, regulations and official policies governing amendments to the Project Approvals shall be those in force and effect on the Effective Date 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 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. Dublin/Lin Family Development Agreement Page 4 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 ~~b 3 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 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. Dublin/Lin Family Development Agreement Page 5 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 ~~ ~~ 6.1. Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Property, governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the Effective Date of the Agreement. 6.2. Rules re Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary approval, whether the date of that approval is prior to or after the date of this Agreement. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable discretionary approval, whether date of approval is prior to or after the date of this Agreement. 6.3. Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Regulations. 7.1. New Rules and Regulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the Effective Date of this Agreement and which are not in conflict with those applicable to the 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. Notwithstanding the foregoing, the parties agree that all of the provisions of Ordinance No. _-07 (adding Municipal Code Chapter 7.90 entitled Universal Design) shall apply to the Project, except the requirements set forth in Dublin Municipal Code section 7.90.060.B.1 through 7.90.060.B.5. 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, Dublin/Lin Family Development Agreement Page 6 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 l~~ ~v 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 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, City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1. Fees, Exactions, Dedications City and Developer agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement (including Exhibit B). The City shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, or impose other exactions in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 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 City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. Dublin/Lin Family Development Agreement Page 7 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 ii~~o 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 City may count Developer's ballot as affirmatively voting in favor of such assessment, fee or charge. 9. Amendment or Cancellation. 9.1. Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the Effective Date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be subject to approval by the City Council in accordance with Chapter 8.56. 9.2. Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Chapter 8.56. 9.3. Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate 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 Engineer shall determine whether a reservation or dedication is "significant". 9.4. Amendment of Project Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) monetary contributions by the Developer; or (g) public improvements to be constructed by Developer shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Dublin/Lin Family Development Agreement Page 8 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 ~z~3o Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5. Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by City. 10. Term of Project Approvals. 10.1. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described in Recital F above shall automatically be extended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1. Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2008 and each July 15 to August 15 thereafter. 11.2. Initiation of Review. The City's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to Developer thirty (30) days' written notice that the City intends to undertake such review. Developer shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Agreement. The burden of proof by substantial evidence of compliance is upon the Developer. 11.3. Staff Reports. To the extent practical, City shall deposit in the mail and fax to Developer a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4. Costs. Costs reasonably incurred by 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 City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. Dublin/Lin Family Development Agreement Page 9 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 i3~~~ 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 City upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. 13.1. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature 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 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 Dublin/Lin Family Development Agreement Page 10 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 ~ `~~ 30 any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2. Mortgaqee Not Obli aq ted. 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 Mortgaqee and Extension of Right to Cure. If 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 City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by 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. City, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of Developer or a Mortgagee. 15. Severability. 15.1. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. 16.1. If 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 City for all reasonable court costs and attorneys' fees expended by City in defense of any such action or other proceeding. Dublin/Lin Family Development Agreement Page 11 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 1~~~ 17. Transfers and Assignments. 17.1 Developer's Right to Assign. All of Developer's rights, interests and obligations hereunder may be transferred, sold or assigned in conjunction with the transfer, sale, or assignment of the Property subject hereto, or any portion thereof, at any time during the Term of this Agreement, provided that no transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur without the prior written notice to City and approval by the City Manager of City, which approval shall not be unreasonably withheld or delayed. The City Manager shall consider and decide the matter within ten (10) working days after Developer's notice is given to City and receipt by City Manager of all necessary documents, certifications and other information required by City Manager to decide the matter. In considering the request, the City Manager shall base the decision upon the proposed assignee's reputation, experience, financial resources and access to credit and capability to successfully carry out the development of the Property to completion. The City Manager's approval shall be for the purposes of: (a) providing notice to City; (b) assuring that all obligations of Developer are fully allocated as between Developer and the proposed purchaser, transferee or assignee; and (c) assuring City that the proposed purchaser, transferee or assignee is capable of performing Developer's obligations hereunder not withheld by Developer pursuant to Paragraph 17.3. Notwithstanding the foregoing, provided notice is given as specified in Paragraph 23, no City approval shall be required for any transfer, sale, or assignment of this Agreement to: (1) any entity which either (i) is an affiliate or subsidiary of Developer or (ii) results from the merger of Developer or its parent or is the purchaser of all, or substantially all, of the assets of Developer or its parent; (2) any Mortgagee; or (3) any transferee of a Mortgagee. 17.2 Release Upon Transfer. Upon the transfer, sale, or assignment of all of Developer's rights, interests and obligations hereunder pursuant to Paragraph 17.1 of this Agreement, Developer shall be released from the obligations under this Agreement, with respect to the Property transferred, sold, or assigned, arising subsequent to the date of City Manager approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or assignee approved by the City Manager expressly assumes all of the rights, interests and obligations of Developer under this Agreement, Developer shall be released with respect to all such rights, interests and assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval. 17.3 Developer's Right to Retain Specified Rights or Obligations. Notwithstanding Paragraphs 17.1 and 17.2 and Paragraph 18, Developer may withhold from a sale, transfer or assignment of this Agreement certain rights, interests and/or obligations which Developer shall retain, provided that Developer Dublin/Lin Family Development Agreement Page 12 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 Ilr~ ~~D 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. 17.4 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 servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. 19.1. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. Dublin/Lin Family Development Agreement Page 13 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 l~~ 3~ 20.1. Developer agrees to indemnify, defend and hold harmless 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 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). 21. Insurance. 21.1. Public Liability and Property Damage Insurance. During the term of this Agreement, Developer shall maintain in effect a policy of comprehensive general liability insurance with aper-occurrence combined single limit of not less than one million dollars ($1,000,000.00) with a One Hundred Thousand Dollar ($100,000) self insurance retention per claim. The policy so maintained by Developer shall name the City as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2. Workers Compensation Insurance. During the term of this Agreement Developer shall maintain Worker's Compensation insurance for all persons employed by Developer for work at the Project site. Developer shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. Developer agrees to indemnify the City for any damage resulting from Developer's failure to maintain any such insurance. 21.3. Evidence of Insurance. Prior to City Council approval of this Agreement, Developer shall furnish City satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the City at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the City, its elective and appointive boards, commissions, officers, agents, employees and representatives and to Developer performing work on the Project. 22. Sewer and Water. 22.1. Developer acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of City. Dublin/Lin Family Development Agreement Page 14 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 «~ ~,~ 23. Notices. 23.1. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to 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: Martin W. Inderbitzen P.O. Box 1537 Pleasanton, CA 94566 FAX No. ( ) -_ With copies to: James Tong Charter Properties 4690 Chabot Drive, Ste. 100 Pleasanton, CA 94588 FAX No. ( ) - 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: Dublin/Lin Family Development Agreement Page 15 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 «~3 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 (10) days following execution by all parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN: By: Janet Lockhart, Mayor ATTEST: By: City Clerk APPROVED AS TO FORM: City Attorney DEVELOPER: ,, By: ,`- Chang Su- -Lin (also known as Jennifer L n) APPROVED AS TO FORM: <' ~~.. Martin W. Inde itzen Attorney for Chang Su-O-Lin (NOTARIZATION ATTACHED) Dublin/Lin Family Development Agreement Page 16 of 16 For Wallis Ranch (Dublin Ranch West) Revised Wallis Ranch Development Agreement_FINAL.DOC; 114.200 2D~ 3 ~ STATE OF CALIFOR~JNIA ) COUNTY OF ~X~~~-~~~- ) On Q~ /p a00~' b e me, l Q.IpQ Notary Public, personally appeared v - d / who proved to me on the basis of satisfacto~vidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. my hand and official seal. Signature of N DARA L. ESPINOSA Commission # 1622921 Notary PubUc - California Alameda County IMY Comm. 6cpket Nov 19, 2'0 (Seal) WASOl 41740104v2 334166-00042 2i~~ ~~ Exhibit A Legal Description of Property Dublin/Lin Family Development Agreement Page 1 of 1 For Wallis Ranch (Dublin Ranch West) -EXHIBIT A ZZ~ 30 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparagraph 5.3.1 -- Subsequent Discretionary Approvals At Developer's sole discretion and in accordance with Developer's construction schedule, Developer shall apply for such other permits and approvals as may be required by other governmental orquasi-governmental entities in connection with the development of, or the provision of services to, the Project. City shall cooperate with Developer in its efforts to obtain such permits and approvals. 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 roadway improvements (and offers of dedication) identified in Resolution No. 07-01 of the City of Dublin Planning Commission approving Site Development Review for Wallis Ranch, Master Vesting Tentative Tract Map 7515, and Neighborhood Vesting Tentative Tract Maps 7711, 7712, 7713, 7714, 7715, and 7716 for Neighborhoods 1 through 6 for PA 05-051 (hereafter "SDR and VTM Resolution") shall be completed by Developer to the satisfaction of the City Engineer at the times and in the manner specified in the SDR and VTM Resolution unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of City's City Engineer. (ii) Sewer. All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with DSRSD requirements. (iii) Water. An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the Dublin/Lin Family Development Agreement Page 2 of 8 For Wallis Ranch (Dublin Ranch West) -EXHIBIT B z~~3a 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. 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 City's standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. 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 Engineer may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the City Engineer that assures completion, allow Developer to defer completion of discrete portions of any public improvements for the Project if the City Engineer determines that to do so would not jeopardize the public health, safety or welfare. Subparagraph 5.3.3 -- Phasing, Timing (i) City and Developer expressly agree that there is no requirement that Developer initiate or complete development of the Project or any particular phase of the Project within any particular period of time, and City shall not impose such a requirement on any Project Approval. The parties acknowledge that Developer cannot at this time predict when or the rate at which Dublin/Lin Family Development Agreement Page 2 of 8 For Wallis Ranch (Dublin Ranch West) -EXHIBIT B Z'~ 30 or the order in which phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. (ii) In light of the foregoing and except as set forth in subsection (iii) below, the parties agree that Developer shall be able to develop in accordance with Developer's own time schedule as such schedule may exist from time to time, provided that such schedule is consistent with the Project Approvals,and Developer shall determine which part of the Project Site to develop first, and at Developer's chosen schedule. In particular, and not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in alater-adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' desire to avoid that result by acknowledging that Developer shall have the right to develop the Project in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. (iii) Nothing in this Agreement shall exempt Developer from completing work required by a subdivision improvement agreement, road improvement agreement or similar agreement in accordance with the terms thereof. 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. Developer will enter into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Subparagraph 5.3.5 -- Fees, Dedications Subsection a. Traffic Impact Fees. Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 111-04, including any future amendments to such fee that may be in effect at the time of issuance of building permits. Developer Dublin/Lin Family Development Agreement Page 3 of 8 For Wallis Ranch (Dublin Ranch West) -EXHIBIT B Z5~3o will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Developer further agrees that it will pay eleven percent (11 %) of the "Section 1" portion of the TIF in cash. Developer also agrees that it will pay twenty-five percent (25%) of the "Section 2" portion of the TIF in cash. If City amends its TIF fee and as a result the City's outstanding balance due on loans is less than 25% of total Section 2 improvements, the Developer shall pay such reduced percentage of the "Section 2" portion of the TIF in cash. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchanges. Developer shall pay the Eastern Dublin I-580 Interchange Fee in the amounts and at the times set forth in Resolution No. 155-98 and by any subsequent resolution which revises such Fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subsection c. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any future amendments to such fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits and in the then-current amount of the fee at time of building permit issuance. Subsection d. Noise Mitigation Fee. Developer shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any future amendments to such fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Subsection e. School Impact Fees. School impact fees shall be paid by Developer in accordance with Government Code section 53080 and the agreement between Developer's predecessor in interest and the Dublin Unified School District regarding payment of school mitigation fees. Dublin/Lin Family Development Agreement Page 4 of 8 For Wallis Ranch (Dublin Ranch West) -EXHIBIT B z~ ~ Subsection f. Fire Facilities Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any future amendments to such fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Subsection q. Tri-Valley Transportation Development Fee. Developer shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subparagraph 5.3.6 --Credit Subsection a. Traffic Impact Fee Improvements --Credit City shall provide a credit to Developer for those improvements described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such improvements are constructed by the Developer in their ultimate location. All aspects of the credit shall be covered by City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 20-07 ("TIF Guidelines"). Subsection b. Traffic Impact Fee Right-of-Way Dedications -- Credit City shall provide a credit to Developer for any TIF area right-of-way to be dedicated by Developer to City which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. Subsection c. Public Facility Fee -Neighborhood Parkland Component City shall provide a credit to Developer for any neighborhood parkland to be dedicated by the Developer which exceeds the amount required under Chapter 9.28 of the Dublin Municipal Code. Such credits shall be expressed in acres of parkland. All aspects of the credits shall be governed by the City's Public Facilities Fees Administrative Guidelines (Resolution No. 195-99) Dublin/Lin Family Development Agreement Page 5 of 8 For Wallis Ranch (Dublin Ranch West) -EXHIBIT B z~~ ~o Subparagraph 5.3.7 -- Miscellaneous (i) Term of Site Development Review Approval. Notwithstanding anything to the contrary in the City's Zoning Ordinance and section 10 of this Agreement, the term of the Site Development Review approval granted by the City of Dublin Planning Commission Resolution No. 07-01, and any subsequent revision to it, shall automatically be extended for the term of this Agreement. (ii) Antone School Building. Developer agrees to relocate and restore the Antone School Building to the Community Green (Parcel 17 of Tract 7515) or such other location as may be approved by the Community Development Director. In the event the structure is damaged during relocation making it impracticable to restore the structure, as determined by the Community Development Director and Building Official, Developer shall propose and construct a replacement structure, the exterior design of which shall resemble the Antone School Building and shall be subject to the approval of the Community Development Director. 1138143.1 Dublin/Lin Family Development Agreement Page 6 of 8 For Wallis Ranch (Dublin Ranch West) -EXHIBIT B ~~ 3v RESOLUTION N0.08 -36 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE APPROVING DEVELOPMENT AGREEMENT FOR WALLIS RANCH (DUBLIN RANCH WEST) PA OS-051 WHEREAS, a request has been made by Chang Su-O Lin (the "Lin Family") ("Applicant") to enter into a Development Agreement with the City of Dublin for the property known as the Wallis Ranch (Dublin Ranch West), a 184-acre project (PA OS-O51); and WHEREAS, Development Agreements are required as an implementing measure of the Eastern Dublin Specific Plan; and WHEREAS, the project site was annexed by the City in May 2005 as a result of a request and application (PA 02-028) for pre-zoning and a Stage 1 Planned Development Plan by the applicant/property owner; and WHEREAS, an amendment to the General Plan and an amendment to the Eastern Dublin Specific Plan was adopted by Ordinance 19-07 which included the project site; and WHEREAS, as part of the City's Sphere of Influence, broad policy alternatives, and area-wide mitigation measures for developing Eastern Dublin, the project site initially was addressed as part of a program EIR prepared pursuant to CEQA Guidelines Section 15168 which served as a comprehensive planning framework for future development of the area; and WHEREAS, the City certified the program EIR by Resolution 51-93, and Addenda dated May 4, 1993 and August 22, 1994, (hereafter "Eastern Dublin EIR" or "program EIR") (SCH #91-103064) that is available for review in the City Planning Department and is incorporated herein by reference; and WHEREAS, in conjunction with the annexation application, an Initial Study and Draft Supplemental EIR (SEIR) (SCH #2003022083) were prepared in order to thoroughly and comprehensively assess the potential for the project to cause or contribute to significant impacts beyond those identified in the 1993 EIR. The SEIR was certified by the City on March l 5, 2005, by Resolution 42-05; and ` WHEREAS, a Mitigated Negative Declaration was adopted on February 6, 2007 by Resolution 18-07 with an application (PA OS-051) for an 11.6-acre area within the unincorporated area of Contra Costa County abutting the site needed for drainage, open space, emergency vehicle access, and habitat preservation; and WHEREAS, PA OS-O51 also included City Council Ordinance 02-07 approving an amendment to the Stage 1 Planned Development zoning and a Stage 2 Development Plan; and WHEREAS, PA OS-O51 also included Planning Commission Resolution 07-01 approving a Site Development Review, Master Vesting Tentative Tract Map 7515, and Vesting Tentative Tracts 7711, 7712, 7713, 7714, 7715 & 7716 for Neighborhoods 1, 2, 3, 4, 5 and 6, respectively; and ATTACHMENT 2 Z~a~3~ WHEREAS, the text of the Draft Development Agreement is attached to this Resolution as Exhibit A to the proposed Ordinance; and WHEREAS, the Planning Commission did hold a public hearing on said Development Agreement on November 12, 2008; and WHEREAS, proper notice of said public hearing was given in all respects as required by law; and WHEREAS, the Staff Report was submitted recommending that the Planning Commission recommend that the City Council approve the Development Agreement; and WHEREAS, the Planning Commission did hear and use their independent judgment and considered all said reports, recommendations, and testimony hereinabove set forth. NOW, THEREFORE, BE IT RESOLVED THAT the City of Dublin Planning Commission does hereby make the following findings and determinations regarding said proposed Development Agreement: 1. Said 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 proposed to be Planned Development and that the Applicant's project is consistent with that designation; b) the project is consistent with the fiscal policies in relation to provision of infrastructure and public services of the City's Eastern Dublin Specific Plan/General Plan; c) the Agreement sets forth the rules the Applicant and City will be governed by during the development process which is required by the Eastern Dublin Specific Plan and the Mitigation Monitoring Program of the Eastern Dublin Specific Plan. 2. Said Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located in that the project approvals included Planned Development Zoning, Stage 2 Development Plan, Site Development Review, and Tentative Parcel Map. 3. Said Agreement is in conformity with public convenience, general welfare and good land use practice in that the Applicant's project will implement land use guidelines set forth in the Eastern Dublin Specific Plan/General Plan, as proposed. 4. Said 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. Said 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 Eastern Dublin Specific Plan. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT the City of Dublin Planning Commission does hereby recommend that the City Council approve the Development Agreement between the City of Dublin and Chang Su-O Lin (the "Lin Family") for the project (PA OS-O51). PASSED, APPROVED AND ADOPTED this 12th day of November, 2008. Page 2 of 3 ~0~3~ AYES: Schaub, Tomlinson, Wehrenberg, Biddle, King NOES: ABSENT: ABSTAIN: L~//~~- Planning Commission Chairperson ATTEST: C Pla ,ng Manager G. IPA#12005105-OSl Dublin Ranch West-WallisiDevelopment AgreementlDub-WallrsRanch-DA_PC Reso.doc Page 3 of 3