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HomeMy WebLinkAbout4.09 CaHighlands-DonlanCanyn e: CITY CLERK File # @][t]UJ~-~~ AGENDA STATEMENt CITY COUNCIL MEETING DATE: December 12,1995 SUBJECT: Approval of Final Map for Tract 5926, California Highlands (Donlan Canyon) Report Prepared by: Public Works Director Lee Thompson and Planning Director Laurence Tong ExItmrrs ATTACHED: 1) 'I Resolution Approving Final Map 2) I Resolution Accepting Parkland In-Lieu Fees 3) / Reduced copy of Final Map 4) / Tract Developer Agreement 5) / Developer's Protest Letter Re: .Parkland In-Lieu Fee RECOMMENDATION:./1,~ 1) ('f/ 2) Adopt resolution approving Final Map Adopt resolution denying protest and accepting Parkland In- Lieu Fee e" , ' FINANCIAL STATEMENT: The Parkland In-Lieu fee submitted is in the amount of $665,531. The developer is providing performance and labor and materials bonds to guarantee construction of the street grading and utility improvements and will pay the cost of construction inspection. Once the improvements have been constructed and accepted, the City will incur maintenance costs for the City-maintained improvements along Dublin Boulevard. DESCRIPTION: Tract 5926, California Highlands (also known as Donlan Canyon), which is located at the westerly terminus of Dublin Boulevard, includes 246 units plus common open space and a single lot for 17 future single-family lots adjacent to the Hansen Hill project. It also includes a lot for a DSRSD water tank and an open space lot that is to be deeded to the East Bay Regional Park District. The interior streets are to be private and maintained by the homeowner's association. The improvement plans and Final Map have been reviewed and found,to be in conformance with the Tentative Map and Conditions of Approval. All of the required fees, bonds, insurance certificates, and deeds have been submitted. ------------------------------------------------------------------- e, COPIES TO: Kaufman & Broad ITEM NO. ~7 g: \develop\donlan \agst5926 ..., The developer, Kaufman and Broad, has taken exception to the Parkland In-Lieu Fee and has filed a formal letter of protest (Exhibit 5). The City Attorney has reviewed the letter and is recommending that the protest be denied, as the time for filing the protest has already passed. Staff recommends that the City Council adopt the resolution approving the Final Map (Exhibit 1), deny the protest, and adopt the resolution accepting the Parkland In-Lieu Fee (Exhibit 2). -... .0-:' e:: Page 2 .: RESOLUTION NO. - 95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN '" '" '" '" '" '" '" '" '" '>ll APPROVING FINAL MAP FOR TRACT 5926 (CALIFORNIA HIGHLANDS) WHEREAS, the Final Map for Tract No, 5926, in the incorporated territory of the City of Dublin, State of California, has been presented to this City Council for approval, all in accordance with the provisions of the Subdivision Map Act of the State of California and the City of Dublin Municipal Code; and .' WHEREAS, the Developer, Kaufinan and Broad of Northern California, Inc., has executed and filed with the City of Dublin a contract to improve Tract No. 5926 in accordance with the Final Map of said Tract No. 5926, the Tract improvement plans, and the specifications attached thereto; and WHEREAS, said contract is secured by a bond in the amount of $3,600,000 conditioned upon faithful performance of said contract; and WHEREAS, said contract is secured by a bond in the amount of$I,800,000 for the benefit of laborers and materialmen upon the work and improvements, conditioned upon payment for labor performed or material furnished under the terms of said contract; NOW, THEREFORE, BE IT RESOLVED that said contract and bonds be and they are hereby approved. BE IT FURTHER RESOLVED that the Final Map of Tract 5926 be and the same is hereby approved; and that rights to areas marked as Public Utility Easement (p.U.E.), Emergency Vehicle Access Easement (E'V,A.E.), and Maintenance Access Easement (M.A.E.), as offered for dedication to public use in conformity with the terms of dedication be, and they are hereby accepted; and that those strips of land .': designated as Storm Drain Easement (S.D.E.), as offered for dedication to public use in conformity with Page 1 r;; '":;i ~'~4 ~...., ft- I '.. ~-'\ ~ ~ 5 ~ t.J "'" '~~e~'D~~~ -$;p~~--~ 0:v'G\ H of the terms of dedication be, and they are hereby rejected; and that the Clerk of this City Council be and is hereby directed to transmit said Map to the County Recorder for filing. .' PASSED, APPROVED AND ADOPTED this 12th day of December, 1995. AYES: NOES: ABSENT: '>ll ABSTAIN: Mayor ATTEST: City Clerk g:\develop\donlan \reso5926 .' . Page 2 RESOLUTION NO. - 95 . A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* ACCEPTING PARKLAND IN-LIEU FEE FOR TRACT 5926 CALIFORNIA IDGHLANDS AND REJECTING PROTEST WHEREAS, pursuant to Chapter 9.28 of the City of Dublin Municipal Code, each subdivider of land classified by the City of Dublin Zoning Ordinance for residential use shall, as a Condition of Approval for a Final Subdivision Map, dedicate or reserve lands, pay fees in lieu thereof, or a combination ofbotil, for park and/or recreational purposes; and WHEREAS, in its approval of the Tentative Map of the subject Tract, the City Council of the City of Dublin did impose conditions in accordance with Chapter 9.28 of the aforesaid Municipal Code that a fee in lieu of limd dedication for park and recreational facilities is to be paid, said fee to be used for the development of park and recreational facilities within a period of five years from the date of adoption of this resolution to serve the residents of the subject Tract; and -.: WHEREAS, the Director of Public Works and the Planning Director have calculated the amount of the In-Lieu Fee as set forth in Attachment "A"; and WHEREAS, the City Engineer is in receipt of a remittance amount as prescribed in accordance with Chapter 9.28 of the Municipal Code, furnished by the Tract Developer, and described as follows: Tract: Subdivider: Amount: Tentative Planned Use: 5926 Kaufmarl and Broad of Northern California $665,531 Park and recreation facilities which benefit residents of Tract 5926 WHEREAS, said remittance was accompanied by a protest (Letter of December 5, 1995); and WHEREAS, the City Council has considered said protest and finds that it has not been timely filed pursuant to Government Code Section 66020 in that the protest was not made at the time of approval of I the Tentative Map or within 90 days of imposition of the In Lieu Fee; and . WHEREAS, the City Council further finds that the protest lacks merit for the reasons set forth in Attachment "A"; Page 1 -...,.., :U~"""','3"'*",' ~ ~. v !Mi' jjoll':~ ~ .... ';,~:::')" '\J ~.....t~ Q; _.._"._~~~__.,,,,,-,,.,,~ ...... (kf7D~ A~~~ (~6rlJauL !r1-Uw fee~ NOW, THEREFORE, BE IT RESOLVED that the protest is denied and the aforesaid remittance is hereby accepted as performance of said Subdivider's obligation under Chapter 9.28 of the aforesaid ." Municipal Code. PASSED, APPROVED AND ADOPTED this 12th day of December, 1995. AYES: NOES: ABSENT: ". ABSTAIN: Mayor ATTEST: City Clerk g:\deveop\donlan \respkded .' .' Page 2 .,', ATTACHMENT "A" OF RESOLUTION CALCULATION OF PARKLAND IN-LIEU FEE TRACT 5926 CALIFORNIA HIGHLANDS Formula: AxBxC D "A" = the park and recreation area required per dwelling, based on the type of dwelling units of the proposed subdivision and the park area per one thousand people in the City. For attached single-family, duplex, or multifamily dwelling units, "A" = 0.010 acres per unit. "B" ~ the number of dwelling units in the proposed subdivision, in this case 246. , "C" = the current market value of the developable acreage of the area to be subdivided. In this case, Kaufman and Broad is paying $4.5 million for the entire project, excluding the 0.90 acre land trade with the City. Since the open space is not developable and has only economic value for grazing and as a buffer for the residents, Staff has estimated that 90% of the purchase price is for the developable portion of the land and 10% is for open space. The value of the developable land is .90 x $4,500,000, or $4.050.000. Note that Kaufman and Broad, in their protest letter, has used $10,000 per acre as the value of the open space. This represents 38% of the total purchase price of the project land. Staff feels that this open space land has only minimal value as it is not buildable from a topography or General Plan/zoning standpoint. . ' It is being dedicated to the East Bay Regional Park District at no charge simply to serve the development ,. as a buffer to other development. "D" = the developable acreage of the land to be subdivided. The area of the parcel encompassing the units and streets is 14.97 acres, not including the 0.90 acre parcel traded with the City. Note that Kaufman and Broad, in their protest letter, has included the graded 2: 1 open space slopes and the water tank site and tank access road in their calculation for developable land. The definition of "developable acreage" in Section 9.04.060 of the Municipal Code "includes the areas lotted for residential uses including streets, but does not include open space parcels such as creeks, ridgelines, and other areas not allowed to be built upon by the General Plan or other City policies." The 0.90 acre parcel traded from the City has not been included in the area nor in the value of this parcel, as it was not part of the Tentative Map, and the transfer will not be made until the Final Map is recorded. The calculation is therefore: 0.010 acres x 246 units x $4,050.000 = $665,531 14.97 acres CREDIT FOR PRIVATE OPEN SPACE . Municipal Code Section 9.28.060A allows a credit if the developer provides park improvements to the "dedicated land." No land is being dedicated; so this subsection is not applicable. Page 3 Municipal Code Section 9.28.060B allows that, as determined by the advisory agency (the City Council in approving the Tentative Map), planned developments shall be eligible to receive a credit for private open space and recreational facilities in the subdivision not to exceed 25% of fees, provided that it meets the following four criteria: . 1. Private open space is at least one half (1/2) acre in area with its smallest dimension being at least one hundred feet (100') clear excluding yards and setbacks normally required by zoning prOVIsIOns; 2. Private open space and recreational facilities are owned and maintained by a homeowner's association, are available to all residents of the subdivision without restriction, and are designated for park and recreational purposes by recorded covenants which run with the land, and cannot be defeated or eliminated without consent of the City Council; ~ 3. Private open space and facilities are suitable for active park and recreation purposes, taking into consideration such factors as shape, topography, access, and improvements proposed; 4. Are in accord with the principles and standards for local parks contained in the park and recreation element of the City of Dublin General Plan. In this case, the Council as the advisory agency in approving the Tentative Map did not approve credit for private open space and recreation facilities. In addition, the only private recreation facility contains a small pool which does not m~et any of the four criteria required, 1. The parcel does not meet the minimum size required by the ordinance. . 2. The proposed CC&R's do not include a covenant that gives the City Council the power to consent to amendments regarding pool usage. 3. The pool area is too small to be considered suitable for active park and recreation purposes. 4. The City's Parks and Open Space Element ofthe General Plan and the Parks and Recreation Master Plan call for large pool complexes and do not provide for pools in neighborhood parks. (See Parks and Recreation Master Plan, Guiding Policy 1.6, Action Program Ig and pages 17 [adopted standard size for swimming pools], 22 [discussion re: aquatic facility], and 65 [Aquatic Center Standards]. Based on the previous analysis, this subdivision is not entitled to parkland fee credit for its small pool facility. This calculation is based on Dublin Municipal Code Chapter9.28 and Section 9.04.060 [Definition of Developable Acreage]; and Government Code Section 66477. .,' Page 4 \ ~J~Iall.".Il'IlOO ..----.. I.' - ----- I~ \~ .-..... "' SCENIC UnMfNr :-~:.-::.: ".... /~~ // NovtMMlIl 1"5 ~~Ermrm C"'-.. t~.tlittil~ & Gb.Of\ hc~ - - ;;--"':~-::::" ..-.. ...., ::: ::::.~::;'- \ (1 '::::::::::":''':. '- '- :: :.-::::::::::. I., ~.""" a.l..{iM' it ~ l\ r"~ n 1p1J (r , :L. 1?e~~~ ~~~ ~H~- CITY OF DUBLIN TRACT DEVELOPER AGREEMENT ." This agreement is made and entered into this 12th day of December, 1995, by and between the City of Dublin, a municipal corporation, hereinafter referred to as "CITY", and Kaufman and Broad of Northern California, hereinafter referred to as "DEVELOPER". WITNESSETH WHEREAS, it has been determined by the City Council of the City of Dublin, State of California, that DEVELOPER, as a subdivider, desires to improve and dedicate Tract 5926 in accordance with the requirements and conditions set forth within the City of Dublin Planning COijlmission Resolution No. 93-003 adopted on February 16, 1993; the requirements of the Subdivision Map Act of the State of California and the Subdivision Ordinance of the City of Dublin;' and those certain plans and specifications for said development approved by said City Council, and now on file in the office of the Public Works Director/City Engineer, which are hereby referred to for a more definite and distinct description of the work to be performed under this Agreement as though set forth at length herein; and ,- WHEREAS, Developer intends to satisfactorily complete the required improvement within the time hereinafter specified, and City intends to accept Developer's offer(s) of dedication of said improvement(s) in consideration for Developer's satisfactory performance of the terms and conditions of this Agreement: NOW, THEREFORE, in consideration of the mutual promises, conditions and. covenants herein contained, the parties agree as follows: ,', 1. Completion Time. Developer will commence the work required by this Agreement within thirty (30) days following the date on which City executes this Agreement. Developer shall complete said work not later than three hundred sixty-five (365) days following said date of execution. Time is of the essence in this Agreement. Upon completion, Developer shall furnish City with a complete and reproducible set of final as-built plans, including any authorized modifications. 2. Bonds Furnished. Concurrently with the execution of this Agreement, Developer shall furnish City with a Faithful Performance Bond and a Labor and Materials Bond. Each bond shall be in a form prescribed by City, and shall be issued by a company duly and legally licensed to conduct a general surety business in the State of California. Each bond shall become a part of this Agreement. a. Faithful Performance Bond. Developer shall furnish City with a bond conditioned upon the faithful performance of this Agreement, said bond to be in the penal sum of $3,600,000. b. Labor and Materials Bond. Developer shall furnish City with a bond conditioned upon payment of all claims for labor and materials used or consumed in the performance of this Agreement. Said bond shall comply with the laws of the State of California, and with Title 15, Part 4, Division 3 of the Civil Code of the State of California (commencing with Section 3082). Said bond shall be in the penal sum of $1,800,000. 3. Insurance Required. Concurrently with the execution of this Agreement, Developer .',' shall furnish City with evidence of insurance coverage as specified below. Page 1 1"":"''1' n~'~s.~" 4 IH M ~"~i~ ~...:~ u :--.';I"-",:J "J~" :!I__ __. ...,. _~, ~tt~~~~ . . . a. Worker's Compensation Insurance. Statutory coverage as required to cover the full liability of Developer in accordance with the provisions of Division IV of the Labor Code of the State of California, and an employer's liability insurance coverage with a limit of not less than $100,000 per occurrence to cover any claims arising from employment not covered by worker's compensation laws. b. Comprehensive General Liabilitv Insurance. Minimum limits of liability shall not be less than $1,000,000 per occurrence combined single limit bodily injury and property damage coverage; any deductible provision shall not exceed $1,000 per claim, and each and every policy must contain a cross liability or severability of interests clause. c. Comprehensive Automobile Liabilitv Insurance. Minimum limits of liability shall be not less than $1,000,000 per occurrence combined single limit bodily injury and property damage coverage; coverage shall include owned, non-owned, and hired vehicles, and each and every policy must contain a cross liability of severability of interests clause. d. Other Requirements. All insurance policies shall be issued by a company legally licensed to transact business in the State of California, shall be issued at Developer's own cost and expense, shall be maintained by Developer in full force and effect during the life of this contract, and must have an "AM. BEST" rating of B+, X or better. All certificate's of insurance shall name the City and its officers, agents and employees as additional insureds, shall contain a provision that a written notice of cancellation or reduction in coverage shall be furnished the City (10) ten days in advance of the effective date thereof, and shall state that such coverage is primary to any other coverage of City. 4, Work Performance and Guarantee. Developer shall secure the services of those skilled in the trade, profession, or calling necessary to perform the work to be accomplished under the terms of this contract, and shall guarantee and maintain the work for a period of one (1) year following the completion and acceptance thereof against any defective workmanship or defective materials furnished in the performance of this Agreement, and any acceptance of the work by City will not operate as a release to Developer or Developer's bondsmen from the aforesaid guarantee. 5. Inspection of the Work. Developer shall guarantee free access to City through its Public Works Director/City Engineer and his designated representative for the safe and convenient inspection of the work throughout its construction. Said City representative shall have the authority to reject all materials and workmanship which are not in accordance with the plans and specifications, and all such materials and or work shall be removed promptly by Developer and replaced to the satisfaction of City without any expense to City in strict accordance with the improvement plans and specifications, 6. Aqreement Assiqnment. This Agreement shall not be assigned by Developer without the written consent of City. 7. Abandonment of Work. If the work to be done under this Agreement is abandoned, or if this Agreement is assigned by Developer without written consent of City, or if City through its City Engineer determines that the said work or any part thereof is being unnecessarily or unreasonably delayed or that Developer is willfully violating any of the conditions or covenants of this Agreement or is executing this Agreement in bad faith, the City shall have the authority to order Developer to discontinue all work or any part thereof under this Agreement, and Developer shall cease to continue the work or such part thereof as City may designate, and City shall thereupon have the power to obtain by Agreement, purchase, rental or otherwise, all labor, equipment, and materials deemed necessary to complete the work and Page 2 to use such materials as IT!ay be found upon the line of such work. Developer and his sureties. shall be liable for all expenses incurred by City for the acquisition and use of such labor, equipment, and materials. ,', 8. Use of Streets or Improvements. At all times prior to the final acceptance of the work by City, the use of any or all streets and improvements within the work to be performed under this Agreement shall be at the sole and exclusive risk of Developer. The issuance of any building or occupancy permit by City for dwellings located within the tract shall not be construed in any manner to constitute a partial or final acceptance or approval of any or all such improvements by City. Developer agrees that City's Building Official may withhold the issuance of building or occupancy permits when the work or its progress may substantially and/or detrimentally affect public health and safety. 9. Safety Devices. Developer shall provide and maintain such guards, watchmen, fenfes, barriers, regulatory signs, warning lights, and other safety devices adjacent to and on the tract site as may be necessary to prevent accidents to the public and damage to the property. Developer shall furnish, place, and maintain such lights as may be necessary for illuminating the said fences, barriers, signs, and other safety devices. At the end of all work to be performed under this Agreement, all fences, barriers, regulatory signs, warning lights, and other safety devices (except such safety items as may be shown on the plans and included in the items of work) shall be removed from site of the work by the Developer, and the entire site left clean and orderly. 10. Acceptance of Work. Upon notice of the completion of all tract work and the delivery of a set of final as-built plans to City by Developers, City, through its City Engineer or his designated representative, shall examine the tract work without delay, and, if found to be in accordance with said plans and specifications and this Agreement, shall accept the work and .' notify Developer or his designated agents of such acceptance. , '. 11. Patent and Copyriqht Costs. In the event that said plans and specifications require the use of any material, process or publication which is subject to a duly registered patent or copyright, Developer shall be liable for, and shall indemnify City from any fees, costs or litigation expenses, including attorneys' fees and court costs, which may result from the use of said patented or copyrighted material, process or publication. 12. Alterations in Plans and Specifications. Any alteration or alterations made in the plans and specifications which are a part of this Agreement or any provision of this Agreement shall not operate to release any surety or sureties from liability on any bond or bonds attached hereto and made a part hereof, and consent to make such alterations is hereby given, and the sureties to said bonds hereby waive the provisions of Section 2819 of the Civil Code of the State of California. 13. Liability. a. Developer Primarily Liable. Developer shall be responsible for any and all loss, accident, neglect, injury or damage to person, life or property which may be the result of or may be caused by construction, operations, or execution of this Agreement, and for which City might be held liable. Developer shall protect and indemnify the City of Dublin, the City Council, the City Engineer and/or any officer, agent or employee of the City, and save them harmless in every way from all suits or actions at law for damage or injury to persons, life or property that may arise or be occasioned in any way because of construction operations or execution of this Agreement. ., Page 3 .' b. Desiqn Defect. If, in the opinion of the City, a design defect in the work of improvement becomes apparent during the course of construction, or within one (1) year following acceptance by the City of the improvements, and said design defect, in the opinion of the City, may substantially impair the public health and safety, Developer shall, upon order by the City, correct said design defect at his sole cost and expense, and the sureties under the Faithful Performance and Labor and Materials Bonds shall be liable to the City for the corrective work required. c. Litiqation Expenses. In the event that legal action is instituted by either party to this Agreement, and said action seeks damages for breach of this Agreement or seeks to specifically enforce the terms of this Agreement, and, in the event judgment is entered in said action, the prevailing party shall be entitled to recover its attorneys' fees and court costs. 0+ IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate at Dublin, California, the day and year first above written. CITY OF DUBLIN By Mayor . ATTEST: . City Clerk DEVELOPER ;1 ~lk ( - By Page 4 LANFERMAN, FISHER & HASHIMOTO A TIORNEYS AT LA W .' December 5, 1995 "" The Honorable Mayor and City Council CITY OF DUBLIN c/o City Attorney for the City of Dublin 100 Civic Plaza Dublin, California 94568 RECEIVED DEe 6 1995 en Y ur uV_DLiN ~4..MJ de /IIlCiZcli Re: Statement of Protest of Development Fees [Pmk and Recreation Fees] and Request for Documentation Property/Project: ''California Highlands" Dublin, California Tract No. 5926 Dear Honorable Mayor and Members of the City Council of the City of Dublin: ... Kaufman and Broad of Northern California, Inc. is pleased to be able to submit its final s,ubdivision map for approval in connection with the "California Highlands" project. We have appreciated the opportunity of working with the City of Dublin and its staff in reaching this stage in the development process, and look forward to continuing our constructive relationship with the City of Dublin, We regret, however, that it now appears necessary that we submit the following Statement of Protest and Request for Documentation, in connection with the payment under protest of the park and recreational fees being demanded as a condition of approval of the final subdivision map for this project. This letter is respectfully submitted pursuant to Government Code ~66020 as the Statement of Protest as to the park and recreation fees imposed against this project. Kaufman and Broad respectfully tenders the payment under protest of these fees, imposed as a condition of processing the final subdivision map, and this protest seeks both a reconsideration of the amount of fees calculated, and relief as to the timing, of payment of these fees. Kaufman and Broad respectfully tenders the required fees under protest, so as not to unduly delay or impair the processing of this residential housing develop- ment, and hereby makes all rights to challenge the calculatior., imposition, and timing 3100 MOWRY AVENUE. SUITE 300. FREMONT. TELEPHONE: (510) 494-5500 . FAX: (510) 494-551 ( ;".'"~.::J'Hl1~B''''''''' ~ ~""".if. 'Ij ~ ~ :s:. ~< ~ ~ ~ ~ ~ ~ ...__~...:---...-..-..:.\.... rrfbte ~t lcctt-er- .': . . e. The Honorable Mayor and City Council CITY OF DUBLIN December 5, 1995 Page 2 of said fees, and hereby makes a claim for a refund or reimbursement of all fees paid in connection with the subdivision, which may be deemed to be excess or improper. This shall be deemed a continuing Statement of Protest for all park and recreation fees paid for this subdivision and for all phases of construction as to this project, past, present or future. 1. Improper Calculation of Fees: California Government Code 966477 (the "Quimby Act") provides for and limits the types and amounts of fees which may be imposed on new residential development for parks and recreation purposes. The City of Dublin Municipal Code, Chapter 9.28, was adopted pursuant to the limited authority provided by 966477. As pointed out in the letter from Mr. Matt Koart of Kaufman and Broad to the City of Dublin, dated November 29, 1995 [attached], the calculation of park and recreation fees pursuant Dublin Municipal Code 99.28.040 should not exceed a gross park fee in the amount of $254,613.85. Kaufman and Broad respectfully protests the calculation and imposition of park and recreation fees in excess of that amount. 2. Entitlement to "Credit" AJ!ainst Park Fees for Recreational Improvements: Pursuant to State law, a subdivider is entitled to a "credit" against the payment of park fees otherwise authorized by a local park fee ordinance in the amounts of the value of park and recreational improvements provided by the subdivider. Government Code 966477(i). See also, 73 Ops,CaI.Atty.GenI. 152 (1990). Pursuant to State law, the Dublin Municipal Code provides for such a credit in favor of Kaufman and Broad. Section 9.28.060. Pursuant to the letter from Mr. Matt Koart of Kaufman and Broad to the City of Dublin, dated December 4, 1995, the current landscape architect's estimate for the park and recreational improvements to be made by Kaufman and Broad is in the amount of $211,125,00, and an appropriate credit must be allowed against the gross park fees otherwise payable. 3. Obiection to Time of Payment of Park Fees: Protest is also respectfully submitted with regard to the requirement of the City of Dublin that park fees be tendered prior to City Council consideration and approval of the final subdivision map. It is respectfully submitted that the City of Dublin improperly requires premature payment of such fees, in contradiction of State law. State law, in general, provides that "any local agency which imposes ariy fees or charges on a residential development for the construction of public improvements or facilities shall not The Honorable Mayor and City Council CITY OF DUBLIN December 5, 1995 Page 3 .," .. . require the payment of those fees or charges, notwithstanding any other provision of law, until the date of the final inspection, or the date the certificate of occupancy is issued, whichever occurs first. ..." Government Code ~66007(a). Although there are exceptions to this general rule, including an apparent exception for park fees, the City of Dublin's requirements would appear to be in contradiction of controlling State law, even under the more lenient provisions of the Quimby Act. Section 66477 provides that park fees shall be payable "at the time of the recording of the final map... or at a later time as may be prescribed by local ordinance." There is no authority for Dublin's requirement for prepayment of these park fees at an earlier stage, 4. General Obiections for Failure to Comvlv with ~66477 and Dublin Municival Code ~9.28. 030-070: Kaufman and Broad respectfully reserves its general objections to the calculation and imposition of these fees for failure to comply with both State and local law, including, but not limited to, failure to limit the amount of fees to an amount not exceeding the "reasonable costs" of providing park and recreational facilities for the future inhabitants of this subdivision, failure to accurately determine the current market value of property used for calculating the amount of the fees, insufficient plans, policies and park standards, and failure to afford appropriate credits for other recreational improve- ments made by the subdivider. . This letter also serves as our Request for copies of any and all Documentation relied upon by the City to justify the imposition, calculation, and requirement for payment of the disputed fees. Kaufman and Broad respectfully reserves the right to specify further grounds for protest upon review of the City's documentation, and in light of such additional evidence and legal issues as may emerge from the consideration of this protest. Finally, request is respectfully made that the City promptly review this Statement of Protest and provide your response, and that the City notify Kaufman and Broad in the event that there is any available process for appeal or administrative review. We reiterate the request for the immediate return of all disputed fees, together with interest thereon as provided by statute, e: e:, .: . The Honorable Mayor and City Council CITY OF DUBLIN December 5, 1995 Page 4 We thank you again for your courtesy and attention to this matter. .. DPL\jf f:lclienl\k&bldublin Idub1in,ltr 95120511518 . K FMA } November 29, 1995 Ms. Jeri Ram Senior Planner City of Dublin 100 Civic Plaza Dublin, CA 94568 .' " VIA TELECOPY Re: CA Highlands; Park Fees '" Dear Jeri: As you know, the City of Dublin is in the process of calculating the appropriate park fees for the CA Highlands project Because there are a number of variables involved in calculating the correct fee, I thought I should state Kaufinan and Broad's position regarding how the formula set forth in Municipal Code Chapter 9.28 should be applied. Specifically, the numbers to insert as variables "C" and "D" are not altogether clear. Variable "C" means the current market value of the developable acreage. As you know, K&B is acquiring the entire 197 acre property for $4,500,000. The portion of the purchase prices attributable to the developable acreage is $2,797,100. This is calculated based on the $4,500,000 purchase price, less the $1,702,900 value of open space (Le., $10,000 per acre times 170.29 acres). TIlls per acre value is based on reports that East Bay Park District has recently paid $10,000 per acre for land in the general area, but this is not yet confirmed. As additional support for this value, note that $1,702,900 equates to only $6,922.36 per residential unit. I can unequivocally states that K&B would have paid at least $6,922.36 per unit less for this property if it did not include the 170+ acres of open space. , .' Variable "D",means the current market value of the "developable acreage" of the area to be subdivided. Including only acreage that is being graded, the developable acreage is 26.71 acres. Given that K&B paid full value of the land acquired from the City under the land transfer, I have included the 0.90 acres in the above total. I have also included in the total 9.55 acres of graded slopes, water tank pad and access road and 1.31 acres for the detention basin (see attached exhibit). Using these values, the gross park fee equals $254,613.85 [.OlD (area per unit) x 246 (residential units) x $2,797,100 (value of developable acreage)] /26.71 (developable acreage). . f:\for4 \ worddocs\donlan \ram2 KAUFMAN AND BROAD OF NORTHERN CALIFORNIA, INC. ,: I .. 0 ..: R 0 IV L,~:-; \' ,1 S r l,~ C E \ U J T E J 00, SAN RAM 0 N C ^ II FOR N I A '.'458 J TEL 5 I 0 8 b ~ 0 b ~ 0 FAX <t II S b ~ 71 J 7 .' " .' .' ( , ..;r- " () J....,.;.... In addition, under Municipal Code Section 9.28.060, K&B is entitled to a credit against park fees for the construction of the private recreational area. I am still formulating a cost estimate for the construction for this area and will forward it to you upon completion. Finally, we still need to agree on whether the park fee is payable in one lump sum at Final Map, or payable on a unit-by-unit basis at Certifi~ate of Occupancy. Have you discussed this issue with the City Attorney yet? After you and Lee Thompson have had an opportunity to consider this proposal, please contact me at your earliest convenience to let me know if it is acceptable. '" Sincerely, ~./~ Matt Koart, Director - Land Acquisitions cc: Dave Baker Lee Thompson (via fax) f:\for4 \ worddocs\donlan\ram2 ~C1 ~> ~c: ~~ ~.~ ~Z ~~ '~ > ,~ = N~ 0\0= 'S; z tj CI'J ~= .g II j f :1 zr~ 1l i ~ r2G (") 5 ,. G') CD .. '" '"'l .. Z _- .. a c-cn .. !cnO EO..:: · .:= to , i -m c~~ () ",nO" .- i . ~ CJ:l -- . .. .. . ~ .; ~ -- ~ ... f,;: ~ .: ; ::s CoI Sil CS\ ., ~ -- ~ ~ (',' , ".:",,1..' ... \ ." .. . ~ - ~'- ~ fiT .:~, - II ~ - .. TM'T"r'\' n n-, '/. KAjJFMAN::BROlWJ ."" December 4, 1995 Ms. Jeri Ram Senior Planner City of Dublin 100 Civic Plaza Dublin, CA 94568 VIA TELECOPY (510) 833-6628 Re: CA Highlands; Rental Housing Fees and Park Fees Credits '" Dear Jeri: . To assist in the calculation of rental housing in-lieu fees, Anthony Hurt & Associates has prepared the enclosed analysis. Please let me know if agree with Mr. Hurt's conclusions. As I mentioned during my meeting with Larry Tong and Rich Ambrose, I believe the rental housing ordinance should be rescinded, and intend to make this an issue during the City's discussion of the proposed inclusionary housing ordinance. However, I would like to reach an agreement on the in-lieu fee in the event the ordinance is not rescinded or modified. In addition, enclosed is a cost estimate for the recreational area prepared by our landscape architect. Total costs are estimated to by $211,125. This will easily exceed the 25% park fee credit limit. Also, please note that this estimate excludes grading, utilities, equipment building, bathrooms and land cost. Ifnecessary, I can provide you with a break-down of those costs as well. I look forward to your response. Sincerely, ~./~ Matt Koart, Director - Land Acquisitions .' ...... cc:, Rich Ambrose (w/o encl.) Dave Baker (wi encl.) Larry Tong (w/o encl.) f: \f or4 \ worddocs\donlan \ram3 ~ '. I ! \\ ~" \, I' .;, ~ () \ P \ 1 I .....: 0 R r H [ R:"-.: t: \. II f (1 R ~ I ~ I N C