HomeMy WebLinkAbout6.3 DubRanG DA H1H2MH1&2CITY CLERK FILE #600-60
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: April 2, 2002
SUBJECT:
PUBLIC HEARING PA 01-009 Toll Brothers - Ordinance
approving Development Agreements for Dublin Ranch Area G
(Neighborhoods H-l, H-2, MH1 & MH2) 1st Reading
Report Prepared by: Michael Porto, Planning Consultant
ATTACHMENTS:
1. Ordinance Approving Development Agreements between the
City of Dublin and Toll CA II, L.P (Toll Brothers) with the
Development Agreements attached as:
Exhibit A-1 - Neighborhood HI
Exhibit A-2 - Neighborhood H2
Exhibit A-3 - Neighborhood MH1
Exhibit A-4 - Neighborhood MH2
2. Planning Commission Staff Report with the Resolution
RECOMMENDATION:
1. Open public hearing and hear staff presentation
2. Receive staff presentation and take public testimony.
3. Question staff, applicant, and the public.
4. Close public hearing and deliberate.
5. Waive Reading and introduce Ordinance (Attachment 1)
approving Development Agreements, Exhibits A-1, A-2, A-3
and A-4
FINANCIAL STATEMENT: None
PROJECT DESCRIPTION:
An Ordinance approving the Development Agreements between the City of Dublin and Toll Brothers is
required by the Eastern Dublin Specific Plan. Items in each Development Agreement include, but are not
limited to, the financing and timing of infrastructure; payment of traffic, noise and public facilities impact
fees; oversizing of roads and general provisions.
BACKGROUND:
This project is part of Dublin Ranch Area G comprised of 86.4 acres of medium high and high density
residential, village center mixed uses, a neighborhood park and a neighborhood square. The Planning
Commission, on January 8, 2002 and January 22, 2002 approved a Site Development Review for Area G
neighborhoods MH-1, MH-2, H-1 and H-2. The Tentative Maps, (Tracts 7324, 7325, 7326 & 7327)
setting the lot pattern for these subdivisions were also approved by the Planning Commission on January
G:\pa\O 1-009\cc sr da 1 st reading
COPIES TO:
Applicant
In House Distribution
ITEM NO.
8, 2002 for Neighborhoods MH-1, MH-2 and H-1 (Resolutions 02-03, 02-04, 02-05) and on January 22,
2002 for Neighborhood H-2 (Resolutions 02-6). At its meeting of March 26, 2002, the Planning
Commission considered a staff report, reviewed the four development agreements and unanimously
approved Resolution 02-16 recommending that the City Council adopt the attached Ordinance approving
these DeVelopment Agreements.
Dublin Ranch Areas G is located east of Tassajara Road and north of 1-580. The project area is entirely
vacant with no structures. Grading has occurred to create the proposed lots and streets and some street
pavement has been installed. Upon completion of the Development Agreement process by the City
Council, building permits can be issued.
ANALYSIS:
One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into
Development Agreements with developers in the plan area. The Development Agreements provide
security to the developer that the City will not change its zoning and other laws applicable to the project
for a specified period of time. Additionally, it is a mechanism for the City to obtain commitments from
the developer that the City might not otherwise be able to obtain. The Development Agreements are one
means the City has to assure that the Specific Plan goal, that new development funds, the costs of
infrastructure and service, is met.
The proposed Development Agreements between the City Of Dublin and Toll Brothers are Exhibits A-I,
A-2, A-3 & A-4 of Attachment 1 to this staff report. The Development Agreements are based on the
standard Development Agreement developed by the City Attorney and adopted by the City Council for
Eastern Dublin Projects, with the exception of the term of each Development Agreement. The applicant
requested the ability to extend the Development Agreements on an annual basis up to five additional
City procedure requires that there be three public hearings on Development Agreements. The purpose for
the hearing before the Planning Commission is to recommend approval of the Development Agreements
to the City Council.
The Agreements:
The City Attorney drafted the proposed Development Agreements with input from City staff, Toll
Brothers and their attorneys. The Development Agreements set forth the agreements between the parties
in relation to many items, including, but not limited to, infrastructure construction and phasing, and the
payment of various required impact fees.
The Development Agreements become effective for a term of five years from the date they are signed by
the City unless otherwise agreed, with an Optional Extension. The Development Agreements run with the
land and the rights thereunder can be assigned. The main points of the Development Agreements can be
found in Exhibits A-1, A-2, A-3 and A-4 of Attachment 1 and are highlighted below:
Infrastructure Construction and Traffic Impact Fees:
The City requires that Developers in Eastern Dublin pay traffic impact fees for certain City wide
improvements to the circulation system. Additionally, fees are charged for certain circulation
improvements specific to Eastern Dublin. The City determines the direct project impact through a traffic
study that has been conducted for the development.
Other Fees and Funding Requirements:
The Development Agreements also address the payments of the Public Facilities Fees, Noise Mitigation
Fees, School Fees, Fire Impact Fees and the Tri-Valley Transportation Development Impact Fees. The
Development Agreements also provide for a yearly contribution to the City of $100,000 for each year the
Developer exercises the option to extend the term of the Development Agreements. The DevelOpment
Agreements can only be extended for a maximum of 5 years beyond the 5 years provided in the City's
Standard Development Agreement, for a total maximum term of 10 years.
Other Infrastructure Improvements:
The Development Agreements also provide for the construction of certain other improvements to serve
the project site such as a fire station, off-site sewer, water, storm drainage and other utility services as
required by the tentative parcel map approval.
ENVIRONMENTAL REVIEW:
This project is within the scope of the Eastern Dublin Specific Plan and General Plan Amendment, for
which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration was prepared for'
the entire project. The project will not have environmental effects which were not examined in the
Program EIR. No new effects will occur and therefore no revisions to the Program EIR are required. That
Mitigated Negative Declaration, together with the Program EIR, adequately describes the total project for
the purposes of CEQA.
CONCLUSIONS:
Approval of these Development Agreements will implement provisions of the Eastern Dublin Specific
Plan. The proposal is consistent with both the General Plan and the Specific Plan.
RECOMMENDATION:
Staff recommends that the City Council open the public hearing, deliberate and:
1. Waive the reading and introduce an Ordinance (Attachment 1) approving the Development
Agreements (Exhibits Al, A2, A3, & A4) between the City of Dublin and Toll CA II L.P.
2. Schedule the second hearing of the Ordinance for April 16, 2002
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DUBLIN
APPROVING FOUR DEVELOPMENT AGREEMENTS
FOR PA 01-009 TOLL BROTHERS (TOLL CA II, L.P.)
FOR NEIGHBORHOODS H1, H2, MH1 & MH2 OF DUBLIN RANCH AREA G
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The proposed Neighborhoods HI, H2, MH1 & MH2 of Dublin Ranch Area G is located
within the boundaries of the Eastern Dublin Specific Plan ("Specific Plan") in an area, which is
designated on the General Plan Land Use Element Map, and Eastern Dublin Specific Plan Land Use Map
as Single Family land uses.
B. Pursuant to the California Environmental Quality Act (CEQA), CEQA Guidelines Section
15182, the proposed 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 (the "EIR") (SCH
91103064).
C. Four Development Agreements betWeen the City of Dublin and Toll CA II, L.P. have been
presented to the City Council, copies of which are attached to the Staff Report as Exhibits A-l, A-2, A-3
and A-4 of Attachment 1.
D. A public hearing on the proposed Development Agreements was held before the Planning
Commission on March 26, 2002, for which public notice was given as provided by law.
E. The Planning Commission has made its recommendation to the City Council for approval
of the Development Agreements.
F. A public hearing on the proposed Development Agreements was held before the City
Council on April 2, 2002 and April 16, 2002, for which public notice was given as provided by law.
G. The City Council has considered the recommendation of the Planning Commission who
considered the item at the March 26, 2002 meeting, 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's General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the Specific Plan, (e) the
EIR, (f) the individual Mitigated Negative Declarations (g) the Agenda Statement, and on the basis of the
specific conclusions set forth below, the City Council 'finds and determines that:
ATTACHMENT 1
1. The Development Agreements are consistent with the objectives, policies, general land
uses and programs specified and contained in the City's General Plan, as amended by the Eastern Dublin
General Plan Amendment, and in the Specific Plan in that (a) the General Plan and Specific Plan land use
designation for the site is Single Family Density Residential Land Uses and the proposed project is a
project consistent with that land use, (b) the project is consistent with the fiscal policies of the General
Plan and Specific Plan with respect to provision of infrastructure and public services, and (c) the
Development Agreements include provisions relating to vesting of development rights, and similar
provisions set forth in the Specific Plan.
2. The Development Agreements are 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 a PD District Overlay Zone for Dublin Ranch Area G, and vesting tentative tract map
7141 and 7142.
3. The Development Agreements are in conformity with public convenience, general welfare
and good land use policies in that Neighborhoods H1, H2, MH1 & MH2 of Dublin Ranch Area G will
implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for
residential, commercial, parks, schools, public and semi-public, open space and campus office uses at this
location.
4. The Development Agreements will not be detrimental to the health, safety and general
welfare in that the 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 Agreements (Exhibit A-I, A-2, A-3 and A-4
of Attachment 1 to the Staff Report) and authorizes the Mayor to sign each agreement.
Section 4. RECORDATION
Within ten (10) days after the Development Agreements are executed by the Mayor, the City Clerk
shall submit the Agreements to the County Recorder for recordation.
Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of its
passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3)
public places in the City of Dublin in accordance with Section 36933 of the Government Code of the
State of California.
2
PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 16th day of April
2002, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
MAYOR
CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY
G:01-009 Ordinance da
3
City of Dublin
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Space above this line for Recordefs Use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
TOLL-DUBLIN, L.L.C.
FOR NEIGHBORHOOD H-1
OF AREA G OF DUBLIN RANCH
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this __ day of __, 2002, by and between the CITY OF DUBLIN,
a Municipal Corporation (hereafter "Cityi'), and Toll-Dublin, LLC, a California
limited liability company (hereafter collectively "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. The City Council adopted the Eastern Dublin Specific Plan by
Resolution No. 53-93 which Plan is applicable to the Property; and
C. DEVELOPER desires to develop and holds legal interest in certain
real property consisting of approximately 8.7 acres of land, located in the City of
Dublin, County of Alameda, State of California, which is designated as Parcel 5
on the Master Subdivision Map for Tract 7148 and 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
D. DEVELOPER acquired its interest in the Property from DR
Acquisitions I, LLC, which acquired its interest in the Property from Chang Su-O-
Lin, Hong Lien Lin and HOng Yao Lin (the "Lins"); and
E. The Lins and CITY are parties to a "Master Development
Agreement Between the City of Dublin and The Lin Family for the Dublin Ranch
Project (Areas A, B, C, D, E, F, G and H)" as amended by the Supplemental
Development Agreement Between the City of Dublin and The Lin Family for
Dublin Ranch Areas F, G & H (collectively, the "Supplemental DA"), section 7 of
which requires DEVELOPER to enter into this development agreement; and
F. The Eastern Dublin Specific Plan also requires DEVELOPER to
enter into this development agreement; and
G. DEVELOPER proposes the development of the Property with 289
dwelling units (the "Project"); and
H. DEVELOPER (or its predecessor in interest) has applied for, and
CITY has approved or is processing, various land use approvals in connection
with the development of the Project, including an amendment to the General Plan
and Eastern Dublin Specific Plan (City Council Resolution No. 5.3-93), Planned
DublinFFoll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 2 of 17
March 20, 2002
Development District Rezone/Development Plan Stage I and Stage 2 (Ord.
No.16-99), Master Vesting Tentative Map for Tract 7148 (Planning Commission
Resolution No. 00-14), Vesting Tentative Map and site development review for
Neighborhood H-1 (Planning Commission Resolution 02-03) (collectively,
together with any approvals or permits now or hereafter issued with reSpect to
the Project, the "Project Approvals"); and
I. 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
· J. CITY desires the timely, efficient, orderly and proper development
of said Project; and
K. The City Council has found that, among other things, this
Development Agreement is c°nsistent with its General Plan and the Eastern
Dublin Specific Plan and has been reviewed and evaluated in accordance with
Chapter 8.56; and
L. 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
M. Pursuant to the California Environmental Quality Act (CEQA) the
Planning Commission adopted Resolution No. 02-03 finding that the Project is
within the scope of the Final Environmental Impact Report for the Eastern Dublin
General Plan Amendment and Specific Plan (SCH 91103064) which was certified
by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and
August 22, 1994 (the "EIR"); and
N. On
adopted Ordinance No.~
ordinance took effect on
2002, the City Council of the City of Dublin
approving this Development Agreement. The
2002.
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein
contained, CITY and DEVELOPER agree as follows:
AGREEMENT
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 3 of 17
March 20, 2002
2. Interest of Developer.
The DEVELOPER has a legal or equitable interest in the Property in that it
is 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
date upon which this Agreement is signed by City.
4.2 Term. 'The term of this Development Agreffment shall commence
on the effective date and extend five years thereafter, unless said term is
otherwise terminated or modified by circumstances set forth in this Agreement.
4.3 Optional Extension. Prior to the termination of this Development
Agreement, as provided in Section 4.2, DEVELOPER may extend the term of the
Development Agreement. To do so, DEVELOPER shall give CITY written notice
at least 90 days prior to the termination date of the Development Agreement. At
the time DEVELOPER provides such notice, DEVELOPER shall make a
contribution to CITY in the amount of One Hundred Thousand Dollars
($100,000). Upon receipt of the notice and the contribution, the City Manager
shall approve the extension and shall notify the DEVELOPER in writing that the
term' of the Development Agreement has been automatically extended for an
additional one-year period, commencing on the date the Development
Agreement would otherwise have terminated. The DEVELOPER may exercise
its option to extend the Development Agreement no more than five times, for a
maximum total term of the Development Agreement of ten years. The total
contribution for the maximum extension of five years will be Five Hundred
Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this
Section, if DEVELOPER provides the notice and cOntribUtion to extend one of the
other Development Agreements in Area G (Neighborhoods MH-1, 'MH-2, or H-
2), DEVELOPER shall not be required to provide the $100,000 contribution to
extend the term of this Development Agreement.
5. Use of the Property.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 4 of 17
March 20, 2002
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.
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.
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
other approvals from regulatory agencies.)
' Not Applicable
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 utilitieSand sources of funding.
See Exhibit B
5.3.5 Fees, Dedications. Terms relating to payment of fees or
dedication of property.
See Exhibit B
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 5 of 17
March 20, 2002
5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.3.7 Miscellaneous. Miscellaneous terms.
See Exhibit B
6. Applicable Rules, Regulations and Official Policies.
6.1 Rules 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 Supplemental DA.
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 Project Approval. 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 permit approval for the public improvement.
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 Requlations.
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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 6 of 17
March 20, 2002
Project Approvals and (b) if such ordinances, resolutions, rules, regulations or
official policies have general applicability.
7.2 Approval of Application. Nothing in this Agreement shall prevent
the CITY from denying or conditionally approving any subsequent land use
permit or authorization for the Project on the basis of such new or modified
ordinances, resolutions, rules, regulations and policies except that such
subsequent actions shall be subject to any conditions, terms, restrictions, and
requirements expressly set forth herein.
7.3 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, in the event an ordinance, resolution or other measure
is enacted, whether by action of CITY, by initiative, referendum, or otherwise,
that imposes a building moratorium 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.
Dublin/Toll Development Agreement
For Dublin Ranch Area G 1 Neighborhood H-1
Page 7 of 17
March 20, 2002
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, 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; and (3) the application of
such fees would not prevent 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.
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
XIlID 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.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 8 of 17
March 20, 2002
Any such amendment or suspension of the .Agreement shall be approved 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 dens. ity
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, CITY's Public
Works Director 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 Pro.iect Approval. Any other amendment
of the Project Approvals, or any of them, shall not require amendment of this
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 shallbe retained by CITY.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 9 of 17
March 20, 2002
10. Term of Proiect APprovals.
Pursuant to California Government Code Section 66452.6(a), the term of
the vesting tentative map described in Recital H above shall automatically be
extended for the term of this Agreement and any extensions thereto pursuant to
Section 4.3 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
August 15, 2003 and each August 15 thereafter.
1'1.2 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
Development 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.
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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 10 of 17
March 20, 2002
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 Dama,qes Against CITY. In no event shall damages be
awarded against CITY upon an event of default or upon termination of this
Agreement.
13. Estoppel Certificate.
Either party may, at any time, and from time to time, request written notice
from' the other party requesting such party to certify in writing that, (a) this
Agreement is in full force and effect and a binding obligation of the parties,
(b) this Agreement has not been amended or modified either orally or in writing,
or if so amended, identifying the amendments, and (c) to the knowledge of the
certifying party the requesting party is not in default in the performance of its
obligations under this Agreement, or if in default, to describe therein the nature
and amount of any such defaults. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days following the receipt
· thereof, or such longer period as may reasonably be agreed to by the parties.
City Manager of 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 i.n this Agreement shall be
binding upon and effective against any person or entity, including any deed of
trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or
any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or
otherwise.
14.2 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 14.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to
construct or complete the construction of improvements, or to guarantee such
construction of improvements, or to guarantee such construction or completion,
or to pay, perform or provide any fee, dedication, improvements or other exaction
./0 ~
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 11 of 17
March 20, 2002
or imposition; provided, however, that a Mortgagee shall not be entitled to devote
the Pro pert3/to any' uses or to construct any improvements thereon other than
those uses or improvements provided for or authorized by the Project Approvals
or by this Agreement.
14.3 Notice of Default to Mortgagee and Extension of Right to Cure. If
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.
The unenforceability, invalidity or illegality of any provisions, covenant,
condition or term of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
16. Attorneys' Fees and Costs.
If 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 whi(~h 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.
17. Transfers and Assignments.
17.1 Right to Assign. DEVELOPER may wish to sell, transfer or assign
all or portions of its Property to other developers (each such other developer is
referred to as a "Transferee"). In connection with any such sale, transfer or
assignment to a Transferee, DEVELOPER may sell, transfer or assign to such
Transferee any or all rights, interests and obligations of DEVELOPER arising
hereunder and that pertain to the portion of the Property being sold or
transferred, to such-~Transferee, provided, however, that: no such transfer, sale or
assignment of DEVELOPER's rights, interests and obligations hereunder shall
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 12 of 17
March 20, 2002
occur without prior written notice to CITY and approval by the' City Manager,
which approval shall not be unreasonably withheld or delayed.
17.2 Approval and Notice of Sale, Transfer or Assignment. The City
Manager shall consider' and decide.on any transfer, sale or assignment within ten
(10) days after DEVELOPER's notice, provided all necessary documents,
certifications and other information are provided to the City Manager to enable
the City Manager to determine whether the proposed Transferee can perform the
DEVELOPER's obligations hereunder. Notice of any such approved sale,
transfer or assignment (which includes a description of all rights, interests and
obligations that have been transferred and those which have been retained by
DEVELOPER) shall be recorded in the official records of Alameda County, in a
form acceptable to the City Manager, concurrently with such sale, transfer or
assignment.
17.3 Effect of Sale, Transfer or Assignment. DEVELOPER shall be
released from any obligations hereunder sold, transferred or assigned to a
Transferee pursuant to subparagraph 17.1 of this Agreement, provided that: a)
such sale, transfer or assignment has been approved by the City Manager
pursuant to subparagraph 17.1 of this Agreement; and b) such obligations are
expressly assumed by Transferee and provided that such Transferee shall be
subiect to all the provisions hereof and shall provide alt necessary documents,
certifications and other necessary information prior to City Manager approval
pursuant to subparagraphs 17.1 and 17.2 of this Agreement.
17.4 Permitted Transfer, Purchase or Assignment. The sale or other
transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to
the exercise of any right or remedy under a deed of trust encumbering
DEVELOPER'S interest in the Property shall not require City Manager approval '
pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or
assignment by the Purchaser to a subsequent transferee, purchaser, or assignee
shall be subject to the provisions of paragraph 17.1.
17.5 Termination of Agreement Upon Sale of Individual Lots to Public.
Notwithstanding any provisions of this Agreement to the contrary, the
burdens of this Agreement shall terminate as to any lot which has been finally
subdivided and individually (and not in "bulk") leased (for a period of longer than
one year~) or sold to the purchaser, or user thereof and thereupon and without the
execution or recordation of any further document or instrument such lot shall be
released from and no longer be subject to or burdened by the provisions of this
Agreement; provided, however, that the benefits of this Agreement shall continue
to run as to any such lot until a building is constructed on such lot, or until the
termination of this Agreement, if earlier, at which time this Agreement shall
terminate aS to such lot.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 13 of 17
March 20, 2002
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.
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
20. Indemnification.
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
~mprovement 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 a per-occurrence combined single limit of not less
than one million dollars ($1,000,000.00) with a Twenty Five Thousand Dollar
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-t
Page 14 of 17
March 20, 2002
($25,000) 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.
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.
23. Notices.
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:
Toll - Dublin, LLC
Attn: Jon Paynter
100 Park Place, Suite 140
San Ramon, CA 94583
FAX No. (925) 855-9927
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1
Page 15 of 17
March 20, 2002
A party may change address by giving notice in writing to the other
party and t.hereafter all notices shall be addressed .and .tranSmitted to the new
address. Notices shall be deemed given and received upon personal delivery, or
if mailed, upon the expiration of 48 hours after being deposited in the United
States Mail. Notices may also be given by overnight courier which shall be
deemed given the following day or by facsimile transmission which shall be
deemed given upon verification of receipt.
24. Agreement is Entire Understanding.
This Agreement constitutes the entire understanding and agreement of the
parties.
25. Exhibits.
The following documents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
Exhibit A Legal Description of Property
Exhibit B Additional Conditions
26. Counterparts.
This Agreement is executed in two (2) duplicate originals, each of which is
deemed to be an original.
27. Recordation:
CITY shall record a copy of this Agreement within ten days following
execution by all parties.
.28. Corporate Authority.
If either party is a corporation, each individual signing this Agreement on
behalf of that corporation represents and warrants that each of them is duly
authorized to execute and deliver this Agreement on behalf of the corporation
and that the Agreement is binding on the corporation in accordance with its
terms.
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:
Dublin/Toll Development Agreement
For Dublin Ranch Area G /Neighborhood H-1
Page 16 of 17
March 20, 2002
By:
Mayor
ATTEST:
Date:
By:
City Clerk
APPROVED AS TO FORM:
Date:
City Attorney
TOLL CA II, LP
a California limited'liability company
By:
Jon Paynter
Assistant Vice President
Date:
(NOTARIZATION ATTACHED)
G:~pa\01-009\das\dah-13-20
Dublin/Toll Develc pment Ag reement
For Dublin Ranch Area G / Neighborhood H-1
Page 17 of 17
March 20, 2002
EXHIBIT "A"
PAGE 1 OF 1
1 9180-04
03/21/02
F.C.I.
DESCRIPTION
DEVELOPMENT AGREEMENT
BEING ALL OF THAT CERTAIN PARCEL OF LAND KNOWN AS: "PARCEL 5" AS
SHOWN UPON THAT CERTAIN FINAL MAP ENTITLED: "TRACT 7148"AS FILED ON THE
14TM DAY OF FEBRUARY, 2001 IN BOOK 257 OF MAPS, AT PAGES 3 - 7, OFFICIAL
RECORDS OF ALAMEDA COUNTY, CALIFORNIA, FOR PURPOSES OF AN
DEVELOPMENT AGREEMENT, LYING AND BEING IN THE CITY OF DUBLIN, ALAMEDA
COUNTY, CALl FORNIA.
SAID "PARCEL 5"CONTAINING 8.706 ACRES, MORE OR LESS;
A PORTION OF: ASSESSOR'S PARCEL NUMBER 985-0009-004-03.
END OF DESCRIPTION
PROFESSIONAL LAND SURVEYOR No. 5859
(EXP. 12/31/2004)
STATE OF CALIFORNIA
// ,/r DATE
P:\legals\19180\dev-agmt-5,doc
BA :KAY& $omPs
CML ENGINEERING' LAND PLANNING' LAND SURVEYING
5142 Franklin Drive Suffe B. Pleasanton. CA. 94588-3355
(925] 225-0690
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subparagraph 5.3.1 -- Subsequent Discretional, Approvals
None.
Subparagraph 5.3.2 -- Mitigation Conditions
Subsection a.
Infrastructure Seauencin_cl 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 Nos. 00-14, and 02-03 of the City of Dublin
Planning Commission approving the Tentative Maps for the Master Parcel (Tract
7148) and Neighborhood H-I (Tract 7326) respectively (hereafter collectively
"TM Resolutions"), and those described below shall be completed by
DEVELOPER to the satisfaction of the Public Works Director at the times and in
the manner specified in theTM Resolutions unless otherwise provided below. All
such roadway improvements shall be constructed to the satisfaction and
requirements of CITY's Public Works Director.
--Condition 64 [(Offsite) Traffic Signals]
Condition 64 states that the timing of installation of the
improvements it requires, if not otherwise constructed by another
developer, shall be as specified in this development agreement or when
deemed necessary by the Director of Public Works. Pursuant to Condition
64, and notwithstanding anything to the contrary in Condition 64, unless
otherwise constructed by another developer, Developer shall install the
traffic signals required by condition 64 prior to the issuance of the first
Certificate of Occupancy in Neighborhood H-1.
--Conditions 67 and 68 [Tassaiara Road, Additional Northbound Lane; and
Intersection Improvements of Dublin Boulevard and Tassaiarra Road]
Conditions 67 and 68 state that the timing of the completion of
improvements required by Conditions 67 and 68 shall be as determined by
the Director of Public Works or as specified in the development
agreement. Pursuant to Conditions 67 and 68, and notwithstanding
Dublin/Toll Development Agreement
For Dublin Ranch,Area G / Neighborhood H-1 -- Exhibit B
Page 1 of 6
March 20, 2002
anything to the contrary in Conditions 67 and 68, the improvements
required by Conditions 67 and 68 shall be completed as required by the
triggering traffic study or updated traffic study required by Conditions 67
and 68 ("the Triggering Traffic Study"), but in no case later than the timing
of completion of improvements as specified in the Tract Developer
Agreement for Neighborhood H-l, if the improvements required by
Conditions 67 and 68 are requ. ired by the Triggering Traffic Study.
Notwithstanding the foregoing, the Director of Public Works may extend
the obligation to construct the improvements required by condition 67 until
such time as the property to the west (owned by the Dublin Land
Company) develops.
--Condition 72 [Intersection of Dou,qherty Road & Dublin Blvd.]
Condition 72 of Tract Map 7326 is hereby superseded by Condition
110 in the TM Resolution for tract 7148, which reads as follows:
Intersection of Doughtery Road & Dublin Blvd.
The City shall determine the Applicant/Deve/opeKs fair share
contribution to the above-referenced intersection with each
subsequent entitlement application, in the event that the City does
not have sufficient Category 2 TIF funds, Applicant/Developer shall
advance their fairshare Section 2 TIF fees for future widening,
signal modification and improvement to the intersection of
Doughtery Road and Dub/in Blvd., at the time Of the first building
permit. These funds wi//be based on the percent of trip
contribution to the intersection defined and approved by the
Director of Public Works.
This intersection improvement is a TIF improvement. Therefore
costs spent may be credited against payment of traffic impact fees
in accordance with City TIF Guidelines.
DEVELOPER shall provide CITY with DEVELOPER's fair share,
as determined by CITY on the basis of the Project's trips, for the costs of
design and construction of Dublin Boulevard/DOugherty Road Intersection
Improvements by a payment to CITY in cash in the amount of the Project's
fair share of the deficiency, if any, between funds available to'CITY for CIP
Project #9689 [Dougherty Road/Dublin Blvd. Intersection] and the cost of
such project, such payment to be made within 30 days of written notice
from the Public Works Director to be given following bid opening.
Notwithstanding the provisions of Section 4 of this Agreement,
Condition 72 and this paragraph shall survive termination of this
Agreement.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1 -- Exhibit B
Page 2 of 6
March 20, 2002
(ii) Sewer
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with DSRSD
requirements.
(iii) Water
An all weather roadway and an approved hydrant and water supply
system shall be available and in service at the site in accordance with the tentative map
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 to the areas to be occupied, shall be improved consistent with the Drainage
Plan and tentative map conditions of approval and to the satisfaction and requirements
of the Dublin Public Works Department applying CITY and Zone 7's (Alameda'County
Flood Control and Water Conservation District, Zone 7) standards and policies which
are in force and effect at the time of issuance of the permit for the proposed
improvements. The .site shall also be protected from storm flow from off site and shall
have erosion control measures in place to protect downstream facilities and properties
from erosion and unclean storm water consistent with the Drainage Plan. As used
herein, "Drainage Plan" shall refer to CITY's master drainage plan referenced in
Condition 40 of Planning Commission Resolution 00-36.
If determined to be necessary by CITY, DEVELOPER agrees to
participate in a drainage benefit district or such other mechanism as may be established
by CITY in the future to reimburse developers for oversizing drainage facilities that
benefit the Property.
(v)
Other Utilities (e.g. gas, electricity, cable televisions,
telephone)
Construction shall be complete by phase prior to issuance of the
first Certificate of Occupancy for any building within that specific phase of occupancy.
Subsection b. Miscellaneous
(i) Completion May be Deferred.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1 -- Exhibit B
Page 3 of 6
March 20, 2002
Notwithstanding the foregoing, CITY's Public Works Director may,
in his or her sole discretion and upon receipt of documentation in a form satisfactory to
the Public Works Director that assures completion, allow DEVELOPER to defer
completion of discrete portions of any public improvements for the Project if the Public
Works Director determines that to do so would not jeopardize the public health, safety
or welfare.
Subparagraph 5.3.3 -- Phasinq, Timinq
This Agreement contains no requirements that DEVELOPER must initiate or
complete development of the Project within any period of time set by CITY. It is the
intention of this provision that DEVELOPER be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
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. 225-99, including any future amendments to 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.
DEVELOPER further agrees that it will pay three percent (3%) of the
"Section l/Category 1" portion of the TIF in cash.
DEVELOPER also agrees that it will pay 12.4% of the "Section 2/Category
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 12.4% of total Section 2/Category 2
improvements, the DEVELOPER shall pay such reduced percentage of the "Section
2/Category 2" portion of the TIF in cash.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1 -- Exhibit B
Page 4 of 6
March 20, 2002
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway
Interchanges.
DEVELOPER shall pay the Eastern Dublin !-580 Interchange Fee
established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155-
98 and by 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.
Subsection c.
Public Facilities Fees.
DEVELOPER shall pay a Public Facilities Fee established by City of
Dublin Resolution No. 60-99, including any future amendments to such fee.
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. DEVELOPER
may use the credits for payment of the Community Park Land portion of the Public
Facilities Fee granted to the Lin Family by the Master DevelOpment Agreement in
accordance with City's Public Facilities Fee Guidelines (Resolution 195-99).
Subsection d.
Noise Mitiqation Fee.
DEVELOPER shall pay a Noise Mitigation Fee established by City of
Dublin Resolution No. 33-96, including any future amendments to such fee.
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.
SchoollmpactFees.
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
mitigation fees.
Subsection
Fire Impact Fees,
DEVELOPER shall pay a fire facilities'fee established by City of Dublin
Resolution No. 208-00 including any future amendments to such fee. DEVELOPER will
pay such fees no later than the time of issuance of building permits and in amount of the
fee in effect at time of building permit issuance.
Subsection .Cl. Tri-Valley Transportation Development Impact 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1 -- Exhibit B
Page 5 of 6
March 20, 2002
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, 23-99 ("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.
Subparagraph 5.3.6 -- Miscellaneous
None.
J:\wpd\Mnrsw\114\187'~Agree',da_.ex b H1 032002.doc
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-1 -- Exhibit B
Page 6 of 6
March 20, 2002
City of Dublin
When Recorded Mail To:
City Clerk
City of'Dublin
100 Civic Plaza
Dublin, CA 94568
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
TOLL-DUBLIN, L.L.C.
FOR NEIGHBORHOOD H-2
OF AREA G OF DUBLIN RANCH
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this day of ,2002, by and between the CITY OF DUBLIN,
a Municipal Corporation (hereafter "citY"), and Toll-Dublin, LLC, a California
limited liability company (hereafter collectively "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. The City Council adopted the Eastern Dublin Specific Plan by
Resolution No. 53-93 which Plan is applicable to the Property; and
C. DEVELOPER desires to develop and holds legal interest in certain
real property consisting of approximately 10.2 acres of land, located in' the City of
Dublin, County of Alameda, State of California, which is designated as Parcel 6
on the Master Subdivision Map for Tract 7148 and 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
D. DEVELOPER acquired its interest inthe Property from DR
Acquisitions I, LLC, which acquired its interest in the Property from Chang Su-O-
Lin, Hong Lien Lin and Hong Yao Lin (the "Lins"); and
E. The Lins and CITY are parties to a "Master Development
Agreement Between the City of Dublin and The Lin Family for the Dublin Ranch
Project (Areas A, B, C, D, E, F, G and H)" as amended by the Supplemental
Development Agreement Between the City of Dublin and The Lin Family for
Dublin Ranch Areas F, G & H (collectively, the "Supplemental DA"), section 7.of
which requires DEVELOPER to enter into this development agreement; and
F. The Eastern Dublin Specific Plan also requires DEVELOPER to
enter into this deVelopment agreement; and
G. DEVELOPER proposes the development of the. Property with 626
dwelling units (the "Project"); and
H. DEVELOPER (or its predecessor in interest) has applied for, and
CITY has approved or is processing, various land use approvals in connection
with the development of the Project, including an amendment'to the General Plan
and Eastern Dublin Specific Plan (City Council Resolution No. 53-93), Planned
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2
Page 2 of 16
March 20, 2002
Development District Rezone/Development Plan Stage 1 and Stage 2 (Ord.
'No. 16-99), Master Vesting Tentative Map for Tract 7148 (Planning Commission
Resolution No. 00-14), Vesting Tentative Map and site development review for
Neighborhood H;2 (Planning Commission Resolution 02-06) (collectiVely,
together with any approvals or permits now or hereafter issued with respect to
the Project, the "Project Approvals"); and
I. 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
J. CITY desires the timely, efficient, orderly and proper development
of said Project; and
K. The City Council has found that, among other things, this
Development Agreement is consistent with its General Plan and the Eastern
Dublin Specific Plan and has been reviewed and evaluated in accordance with
Chapter 8.56; and
L. 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
M. Pursuant to the' Calit;0rnia Environmental Quality Act (CEQA) the
Planning Commission adopted Resolution No. 02-06 finding that the Project is
within the scope of the Final Environmental Impact Report for the Eastern Dublin
General Plan Amendment and Specific Plan (SCH 91103064) which was certified
by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and
August 22, 1994 (the "EIR"); and
N. On
adopted Ordinance No.
ordinance took effect on
2002, the City Council of the City of Dublin
approving this Development Agreement. The
2002.
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein
contained, CITY and DEVELOPER agree as follows:
AGREEMENT
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
Dublin/Toll Development Agreement.
For Dublin Ranch Area G / Neighborhood H-2
Page 3 of 16
March 20, 2002
2. Interest of Developer.
The DEVELOPER has a legal or equitable interest i.n the Property in that it
is 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 ofjoi'nt 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
date upon which this Agreement is signed by City.
4.2 Term. The term of this Development Agreement shall commence
on the effective date and extend five years thereafter, unless said term is
otherwise terminated or modified by circumstances set forth in this Agreement.
4.3 Optional Extension. Prior to the termination of this Development
Agreement, as provided in SeCtion 4.2, DEVELOPER may extend the term of the
Development Agreement. To do so, DEVELOPER shall give CITY written notice
at least 90 days prior to the termination date of the Development Agreement. At
the time DEVELOPER provides such notice, DEVELOPER shall make a
contribution to CITY in the amount of One Hundred Thousand Dollars
($100,000). Upon receipt of the notice and the contribution, the City Manager
shall approve the extension and shall notify the DEVELOPER in writing that the
term of the DeVelopment Agreement has been automatically extended for an
additional one-year period, commencing on the date the Development
Agreement would otherwise have terminated. The DEVELOPER may exercise
its option to extend the Development Agreement no more than five times, for a
maximum total term of the Development Agreement of ten years. The total
contribution for the maximum extension of fiVe years will be Five Hundred
Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this
SeCtion, if DEVELOPER provides the notice and contribution to extend one of the
other Development Agreements in Area G (Neighborhoods MH-1, MH-2, or H-
1), DEVELOPER shall not be required to provide the $100,000 contribution to
extend the term of this Development Agreement.
Du blinf'l'oll Development Agreement
For Dublin Ranch Area G I Neighborhood H-2
Page 4 of 16
March 20, 2002
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.
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.
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
other approvals from regulatory agencies.)
Not Applicable
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 Financinq Plan. Financial plans which identify necessary
capital improvements such as- streets and utilities and sources of funding.
See Exhibit B
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2
Page 5 of 16
March 20, 2002
5.3.5 Fees, Dedications. Terms relating to payment of fees or
dedication of property.
See Exhibit El
5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.32 Miscellaneous. Miscellaneous terms.
See Exhibit B
6. Applicable Rules, Re,qulations and Official Policies.
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 Supplemental DA.
6.2 Rules re Desiqn 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 Project Approval. 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 atthe time of
the applicable permit approval for the public imprOvement.
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 Reclulations.
7.1 New Rules and Requlations. 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G 1 Neighborhood H-2
Page 6 of 16
March 20, 2002
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.
7.2 Approval of Application. NOthing in this Agreement shall prevent
the CITY from denying or conditionally approving any subsequent land use
permit or authorization for the Project on the basis of such new or modified
ordinances, resolutions, rules, regulations and policies except that such
subsequent actions shall be subject to any conditions, terms, restrictions, and
requirements expressly set forth herein.
7.3 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, in the event an ordinance, resolution or other measure
is enacted, whether by action of CITY, by initiative, referendum, or otherwise,
that imposes a building moratorium 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 e_xactions 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, 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; and (3) the application of
such fees would not prevent 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.
Dublin/Toll Development Agreement
For Dublin Ranch Area. G / Neighborhood H-2
Page 7 of 16
March 20, 2002
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.
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 approved 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. CiTY's Public
Works Director 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; (0
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2
Page 8 of 16
March 20, 2002
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
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 Proiect Approvals.
Pursuant to California Government Code Section 66452.6(a), the term of
the vesting tentative r~ap described in Recital H above shall automatically be
extended for the term of this Agreement and any extensions thereto pursuant to
Section 4.3 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
August 15, 2003 and each 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
Development 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.
Dublin/Toll Development Agreement
For Dublin Randh Area G / Neighborhood H-2
Page 9 of 16
March 20, 2002
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.
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 di!igently pursues such cure to completion.
Failure to give notice shall not constitute a waiver of any default.
12.3 No Damages A.qainst CITY. In no event shall damages be
awarded against CITY upon an event of default or upon termination of this
Agreement.
13. Estoppel Certificate.
Either party may, at any time, and from time to time, request written notice
from the other party requesting such party to certify in writing that, (a) this
Agreement is in full force and effect and a binding obligation of the parties,
(b) this Agreement has not been amended or modified either orally or in writing,
or if so amended, identifying the amendments, and (c) to the knowledge of the
certifying party the requesting party is not in default in the performance of its
obligations under this Agreement, or if in default, to describe therein the nature
and amount of any such defaults. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days following the receipt
thereof, or such longer period as may reasonably be agreed to by the parties.
City Manager of 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2
Page 10 of 16
March 20, 2002
of recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat,
render invalid, diminish or impair the lien of any Mortgage made in good faith and
for value, but all the terms and conditions contained in this Agreement shall be
binding upon and effective against any person or entity, including any deed of
trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or
any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or
otherwise.
14.2 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 14.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to
construct or complete the construction of improvements, or to guarantee such
construction of improvements, or to guarantee such construction or completion,
or to pay, perform or provide any fee, dedication, improvements or other exaction
or imposition; provided, however, that a Mortgagee shall not be entitled to devote
the Property to any uses or to construct any improvements thereon other than
those uses or improvements provided for or authorized 'by the Project Approvals
or by this Agreement.
14.3 Notice of Default to Mort.qa.qee 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.
The unenforceability, invalidity or illegality of any provisions, covenant,
condition or term of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
16. Attorneys' Fees and Costs.
If 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2
Page 11 of 16
March 20, 2002
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.
17. Transfers and Assiqnments.
17.1 Right to Assign. DEVELOPER may wish to sell, transfer or assign
all or Portions of its Property to other develoPers (each such other developer is
referred to as a "Transferee"). in connection with any such sale, transfer or
assignment to a Transferee, DEVELOPER may sell, transfer or assign to such
Transferee any or all rights, interests and obligations of DEVELOPER arising
hereunder and that pertain to the portion of the Property being sold or
transferred, to such Transferee, provided, however, that: no such transfer, sale or
assignment of DEVELOPER's rights, interests and obligations hereunder shall
occur without prior written notice to CITY and approval by the City Manager,
which approval shall not be unreasonably withheld or delayed.
17.2 Approval and Notice of Sale, Transfer or Assignment. The City
Manager shall consider and decide on. any transfer, sale or assignment within ten
(10) days after DEVELOPER's notice, provided all necessary documents,
certifications and other information are provided to the City Manager to enable
the City Manager to determine whether the proposed Transferee can perform the
DEVELOPER's obligations hereunder. Notice of any such approved sale,
transfer or assignment (which includes a description of all rights, interests and
obligations that have been transferred and those which have been retained by
DEVELOPER) shall be recorded in the official records of Alameda County, in a
form acceptable to the City Manager, concurrently with such sale, transfer or
assignment.
17.3 Effect of Sale, Transfer or Assiqnment. DEVELOPER shall be
released from any obligations hereunder sold, tranSferred or assigned to a
Transferee pursuant to subparagraph 17.1 of this Agreement, provided that: a)
such sale, transfer or assignment has been approved by the City Manager
pursuant to subparagraph 17.1 of this Agreement; and b) such obligations are
expressly assumed by Transferee and provided that such Transferee shall be
subject to all the provisions hereof and shall provide all necessary documents,
certifications and other necessary information prior to City Manager approval
pursuant to Subparagraphs 17.1 and 17.2 of this Agreement.
17.4 Permitted Transfer, Purchase or Assiqnment. The sale or other
transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to
the exercise of any right or remedy under a deed of trust encumbering
DEVELOPER'S interest in the Property shall not require City Manager approval
pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2
Page 12 of 16
March 20, 2002
assignment by the Purchaser to a subsequent transferee, purchaser, or assignee
shall be-subject to the provisions of paragraph 17.1.
17.5 Termination of Agreement Upon Sale of Individual Lots to Public.
Notwithstanding any provisions of this Agreement to the contrary, the
burdens of this Agreement shall terminate as to' any lot which has been finally
subdivided and individually (and not in "bulk") leased (for a period of longer than
one year) or sold to the purchaser or user thereof and thereupon and without the
execution or recordation of any further document or instrument such lot shall be
released from and no longer be subject to or burdened by the provisions of this
Agreement; provided, however, that the benefits of this Agreement shall continue
to run as to any such lot until a building is constructed on such lot, or until the
termination of this Agreement, if earlier, at which time this Agreement shall
terminate as to such lot.
18. Agreement Runs with the Land.
All of the provisions, rights, terms, covenants, and obligations contained in
this Agreement shall be binding upon the parties and their respective heirs,
successors and assignees, representatives, lessees, and all other persons.
acquiring the Property, or any portion thereof, or any interest therein, whether by
operation of law or in any manner whatsoever. All of the provisions of this
Agreement shall be enforceable as equitable 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.
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
20. Indemnification.
· 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G f Neighborhood H-2
Page 13 of 16
March 20, 2002
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 a per-occurrence combined single limit of not less
than one million dollars ($1,000,000.00) with a Twenty Five Thousand Dollar
($25,000) 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 andevidence 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.
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/Toll Develcpment Agreement
For Dublin Ranch Area G / Neighborhood H-2
page 14 of 16
March 20, 2002
23. Notices.
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:
Toll - Dublin, LLC
Attn: Jon Paynter
100 Park Place, Suite 140
San Ramon, CA 94583
FAX No. (925) 855-9927
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 Understandinq.
This Agreement constitutes the entire understanding and agreement of the
parties.
25. Exhibits.
The following documents are referred to in this Agreement and are
attached hereto and incorporated herein .as though set forth in full:
Exhibit A Legal Description of Property
Exhibit B Additional Conditions
26. Counterparts.
This Agreement is executed in two (2) duplicate originals, each of which is
deemed to be an original.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2
Page 15 of 16
March 20, 2002
.27. Recordation.
CITY shall record a copy of this Agreement within ten days following
execution by all parties.
28. Corporate Authority.
If either party is a corporation, each individual signing this Agreement on
behalf of that corporation represents and warrants that each of them is duly
authorized to execute .and deliver thiS Agreement on behalf of the corporation
and that the Agreement is binding on the corporation in accordance with its
terms.
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: Date:
Mayor
ATTEST:
By: Date:
City Clerk
APPROVED AS TO FORM:
City Attorney
TOLL CA II, LP
a California limited liability company
By: Date:
Jon Paynter
Assistant Vice President
(NOTARIZATION ATTACHED)
Dublin/Toll Develc pment Ag reement
For Dublin Ranch Area G / Neighborhood H-2
g:\pa\01-009\dah-2 3-20
Page 16 of 16
March 20, 2002
EXHIBIT "~"
PAGE 1 OF 1
1 9180-05
03/21/02
F.C.I.
DESCRIPTION
DEVELOPMENT AGREEMENT
BEING ALL OF THAT CERTAIN PARCEL OF LAND KNOWN AS: "PARCEL 6" AS
SHOWN UPON THAT CERTAIN FINAL MAP ENTITLED: "TRACT 7148"AS FILED ON THE
14z~ DAY OF FEBRUARY, 2001 IN BOOK 257 OF MAPS, AT PAGES 3 - 7, OFFICIAL
RECORDS OF ALAMEDA COUNTY, CALIFORNIA, FOR PURPOSES OF AN
DEVELOPMENT AGREEMENT, LYING AND BEING IN THE CITY OF DUBLIN, ALAMEDA
COUNTY, CALIFORNIA.
SAID "PARCEL 6"CONTAINING 10.158 ACRES, MORE OR LESS;
A PORTION OF: ASSESSOR'S PARCEL NUMBER 985-0009-004-03.
END OF DESCRIPTION
PROFESSIONAL LAND SURVEYOR No. 5859
(EXP. 12/31/2004)
STATE OF CALIFORNIA
/DATE
IIIAeK Y $111111 .S
CML ENGINEERING*'LAND PLANNINGe [AND SURVEYING
5142 Franldln Drive Suite 8, Pleasanton, CA. 94588-3355
(925) 225-0090
P:',legals\19180\dev~agmt-6.doc
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subparagraph 5.3.1 -- Subsequent Discretionary Approvals
None.
Subparagraph 5.3.2 -- Mitigation Conditions
Subsection a.
Infrastructure Sequencing Pro_clram
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 Nos. 00-14, and 02-06 of the City of Dublin
Planning Commission approving the Tentative Maps for the Master Parcel (Tract
7148) and Neighborhood H-2 (Tract 7327) respectively (hereafter collectively
"TM Resolutions"), and those described below shall be completed by
DEVELOPER to the satisfaction of the Public Works Director at the times and in
the manner specified in the TM Resolutions unless otherwise provided below. All
such roadway improvements shall be constructed to the satisfaction and
requirements of CITY's Public Works Director.
--Condition 66 [(Offsite) Traffic Signals]
Condition 66 states that the timing of installation of the
improvements it requires, if not otherwise constructed by another
developer, shall be as specified in this development agreement or when
deemed necessary by the Director of Public Works. Pursuant to Condition
66, and notwithstanding anything to the contrary in Condition 66, unless
otherwise constructed by another developer, Developer shall install the
traffic signals required by condition 66 prior to the issuance of the first
Certificate of Occupancy .in Neighborhood H-2.
--Conditions 70 and 71 [Tassaiara Road, Additional Northbound Lane; and
Intersection Improvements of Dublin Boulevard and Tassaiarra'Road]
Conditions 70 and 71 state that the timing of the completion of
improvements required by Conditions 70 and 71 shall be as determined by
the Director of Public Works or as specified in the development
agreement. Pursuant to Conditions 70 and 71, and notwithstanding
DubiinfToll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2 -- Exhibit B
Page 1 of 6
March 20, 2002
anything to the contrary in Conditions 70 and 71, the improvements
required by Conditions 70 and 71 shall be completed as required by the
triggering traffic study or updated traffic study required by Conditions 70
and 71 ("the Triggering Traffic Study"), but in no case later than the timing
of completion of improvements as specified in the Tract Developer
Agreement for Neighborhood H'2, if the improvements required by
Conditions 70 and 71 are required by the Triggering Traffic Study.
Notwithstanding the foregoing, the Director of Public Works may extend
the obligation to construct the improvements required by condition 70 until
such time as the property to the west (owned by the Dublin Land
Company) develops.
--New Condition 73A [Intersection of Dougherty Road & Dublin Blvd.]
Condition 73A of Tract Map 7327 is hereby added, to read as
follows:
Intersection of Doughtery Road & Dublin Blvd.
The City shall determine 'the Applicant/Developer's fair share
contribution to the above-referenced intersection with each
subsequent entitlement application. In the event'that the City does
not have sufficient Category 2 TIF funds, Applicant/Developer shall
advance their fairshare Section 2 TIF fees for future widening,
signal modification and improvement to the intersection of
Doughtery Road and Dublin Blvd., at the time of the first building
permit. These funds will be based on the pement of trip
contribution to the intersection defined and approved by the
Director of Public Works.
This intersection improvement is a TIF improvement. Therefore
costs spent may be credited against payment of traffic impact fees
in accordance with City TIF Guidelines.
DEVELOPER shall provide CITY with DEVELOPER's fair share,
as determined by CITY on the basis of the Project's trips, for the Costs of
design and construction of Dublin Boulevard/Dougherty Road Intersection
Improvements by a payment to CITY in cash in the amount of the Project's
fair share of the deficiency, if any, between funds available to CITY for CIP
Project #9689 [Dougherty Road/Dublin Blvd. Intersection] and the cost of
such project, such payment to be made within 30 days of written notice
from the Public Works Director to be given following bid opening.
Notwithstanding the provisions of Section 4 of this Agreement,
Condition 73A and this paragraph shall survive termination of this
Agreement.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2 -- Exhibit B
Page 2 of 6
March 20, 2002
(ii) Sewer
Ali sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with DSRSD
requirements.
(iii) Water
An all weather roadway and an approved hydrant and water supply
system shall be available and in service at the site in accordance with the tentative map
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 Draina_cle
The storm drainage systems off site, as well as on site drainage
systems to the areas to be occupied, shall be improved consistent with the Drainage
Plan and tentative map conditions of approval and to the satisfaction and requirements
of the Dublin Public Works Department applying CITY and Zone 7's (Alameda County
Flood Control and Water Conservation District, Zone 7) standards and policies which
are in force and effect at the time of issuance of the permit for the proposed
improvements. The site shall also be protected from storm flow from off site and shall
have erosion control measures in place to protect downstream facilities and properties
from erosion and unclean storm water consistent with the Drainage Plan. As used
herein, "Drainage Plan" shall refer to CITY's master drainage plan referenced in
Condition 40 of Planning Commission Resolution 00-36.
If determined to be necessary by CITY, DEVELOPER agrees to
participate in a drainage benefit district or such other mechanism as may be established
by CITY in the future to reimburse developers for oversizing drainage facilities that
benefit the Property.
(v)
Other Utilities (e..q..qas, electricity, cable televisions,
telephone)
Construction shall be complete by phase prior to issuance of the
first Certificate of Occupancy for any building within that specific phase of occupancy.
Subsection b.
Miscellaneous
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2 -- Exhibit B
Page 3 of 6
March 20, 2002
(i) Completion May be Deferred.
Notwithstanding the foregoing, CITY's Public Works Director may,
in his or her sole discretion and upon receipt of documentation in a form satisfactory to
the Public Works Director that assures completion, allow DEVELOPER to defer
completion of discrete portions of any public improvements for the Project if the Public
Works Director determines that to do so would not jeopardize the public health, safety
or welfare.
Subparagraph 5.3.3 -- Phasin.q~ Timin~
This Agreement contains no requirements that DEVELOPER must initiate or
complete development of the Project within any period of time set .by CITY. It is the
intention of this provision that DEVELOPER be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
Subparagraph 5.3.4 -- Financin_cl 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. 225-99, including any future amendments to 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.
DEVELOPER further agrees that it will pay three percent (3%) of the
"Section 1/Category 1" portion of the TIF in cash.
DEVELOPER also agrees that it will pay 12.4% of the "Section 2/Category
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 12.4% of total Section 2/Category 2
improvements, the DEVELOPER shall pay such reduced percentage of the "Section
2/Category 2" portion of the TIF in cash.
Dublin/Toll Development Agreement
For Dublin Ranch Area G 1 Neighborhood H-2 m Exhibit B
Page 4 of 6
March 20, 2002
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway
Interchan_cles. '
DEVELOPER shall pay the Eastern Dublin 1-580 Interchange Fee
established by City of Dublin Resolution No. 11 ,-96 as amended by Resolution No. 155-
98 and by 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.
Subsection c.
Public Facilities Fees.
DEVELOPER shall pay a Public Facilities Fee established by City of
Dublin Resolution No. 60-99, including any future amendments to such fee.
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. DEVELOPER
may use the credits for payment of the Community Park Land portion of the Public
Facilities Fee granted to the Lin Family by the Master Development Agreement in
accordance with City's Public Facilities Fee Guidelines (Resolution 195-99).
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.
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
mitigation fees.
Subsection f. ' Fire Impact Fees.
DEVELOPER shall pay a fire facilities fee established by City of Dublin
Resolution No. 208-00 including any future amendments to such fee. DEVELOPER will
pay such fees no later than the time of issuance of building permits and in amount of the
fee in effect at time of building permit issuance.
Subsection .q. Tri-Valley Transportation Development Impact 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2 -- Exhibit B
Page 5 of 6
March 20, 2002
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. 23-99 ("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.
Subparagraph 5.3.6 -- Miscellaneous
None.
G:Xpa\01-009klacxbh2 3-20
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood H-2 -- Exhibit B
Page 6 of 6
March 20, 2002
City of Dublin
When Recorded Mail To:
City Clerk
City of Dublin
t00 Civic Plaza
Dublin, CA 94568
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
TOLL-DUBLIN, L. LC.
FOR NEIGHBORHOOD MH-1
OF AREA G OF DUBLIN RANCH
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this day of ,2002, by and between the CITY OF DUBLIN,
.a Municipal Corporation (hereafter "City"), and Toll-Dublin, LLC, a California
limited liability company (hereafter collectively "Developer"), pursuant to l~he
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. The City Council adOpted the Eastern Dublin Specific Plan by
Resolution No. 53-93 which Plan is applicable to the Property; and
C. DEVELOPER desires'to develop and holds legal interest in certain
real property consisting of approximately 8.98 acres of land, located in the City of
Dublin, County of Alameda, State of California, which is designated as Parcel 2
on the Master Subdivision Map for Tract 7148 and 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
D. DEVELOPER acquired its interest in the Property from DR
Acquisitions I, LLC, which acquired its interest in the Property from Chang Su-O-
Lin, Hong Lien Lin and Hong YaO Lin (the "Lins"); and
E. The Lins'and CITY are parties to a "Master Development
Agreement Between the City of Dublin and The Lin Family for the Dublin Ranch
Project (Areas A, B, C, D, E, F, G and H)" as amended by the Supplemental
Development Agreement Between the City of Dublin and The Lin Family for
Dublin Ranch Areas F, G & H (collectively, the "Supplemental DA"), section 7 of
which requires DEVELOPER to enter into this development agreement; and
F. The Eastern Dublin Specific Plan also requires DEVELOPER to
enter into this development agreement; and
G. DEVELOPER proposes the development of the Property with 200
dwelling units (the "Project"); and
H. DEVELOPER (or its predecessor in interest) has applied for, and
CITY has approved or is processing, various land use approvals in connection
with the development of the Project, including an amendment to the General Plan
and Eastern Dublin Specific Plan (City Council Resolution No. 53-93), Planned
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 2 of 16
March 20, 2002
Development Districl~ Rezone/Development Plan Stage 1 and Stage 2 (Ord.
NO.16-99), Master Vesting Tentative Map for Tract 7148 (Planning Commission
Resolution No. 00-14), Vesting Tentative Map and site development review for
Neighborhood MH-1 (Planning Commission Resolution 02-05) (collectively,
together with any approvals or permits now or hereafter issued with respect to
the Project, the "Project Approvals"); and
!. 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
J. CITY desires the timely, efficient, orderly and proper development
of said Project; and
K. The City Council has found that, among other things, this
Development Agreement is consistent with its General Plan and the Eastern
Dublin Specific Plan and has been reviewed and evaluated in accordance with
Chapter 8.56; and
L. 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
M. Pursuant to the California Environmental Quality Act (CEQA) the
Planning Commission adopted Resolution No. 02-05 finding that the Project is
within the scope of the Final Environmental Impact Report for the Eastern Dublin
General Plan Amendment and Specific Plan (SCH 91103064) which was certified
by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and
August 22, 1994 (the "EIR"); and
N. On
adopted Ordinance No.
ordinance took effect on
2002, the City Council of the City of Dublin
approving this Development Agreement. The
2002.
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein
contained, CITY and DEVELOPER agree as follows:
AGREEMENT
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 3 of 16
March 20, 2002
2. Interest of Developer.
The DEVELOPER has a legal or equitable interest in the Property in that it
is 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
date upon which this Agreement is signed by City.
4.2 Term. The term of this Development Agreement shall commence
on the effective date and extend five years thereafter, unless said term is
otherwise terminated or modified by circumstances set forth in this Agreement.
4.3 Optional Extension. Prior to the termination of this Development
Agreement, as provided in Section 4.2, DEVELOPER may extend the term of the
Development Agreement. To do so, DEVELOPER shall give CITY written notice
at least '90 days prior to the termination date of the Development Agreement. At
the time DEVELOPER provides such notice, DEVELOPER shall make a
contribution to CITY in the amount of One Hundred Thousand Dollars
($100,000). Upon receipt of the notice and the contribution, the City Manager
shall approve the extension and shall notify the DEVELOPER in writing that the
term of the Development Agreement has been automatically extended for an
additional one-year period, commencing on the date the Development
Agreement would otherwise have terminated. The DEVELOPER may exercise
its option to extend the Development Agreement no more than five times, for a
maximum total term of the Development Agreement of ten years. The total
contribution for the maximum extension of five years will be Five Hundred
Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this
Section, if DEVELOPER provides the notice and contribution to extend one of the
other Development Agreements in Area G (Neighborhoods MH-2, H-l, or H-2),
DEVELOPER shall not be required to provide the $100,000 contribution to
extend the term of this Development Agreement.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 4 of 16
March 20, 2002
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.
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.
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
other approvals from regulatory agencies.)
Not Applicable
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 Phasinq, 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 5 of 16
March 20, 2002
5.3.5 FeeS, Dedications.' Terms relating to payment of fees or
dedication of property.
See Exhibit B
5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.3.7 Miscellaneous. Miscellaneous terms.
See Exhibit B
6. Applicable Rules, Regulations and Official Policies.
6.1 Rules 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 Supplemental DA.
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 Project Approval. 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 permit approval for the public improvement.
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 Requlations.
7.1 New Rules and Requlations. 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 6 of 16
March 20, 2002
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.
7.2 Approval of Application. Nothing in this Agreement shall prevent
the CITY from denying or conditionally approving any subsequent land use
permit or authorization for the Project on the basis of such new or modified
ordinances, resolutions, rules, regulations and policies except that such
subsequent actions shall be subject to any conditions, terms, restrictions, and
requirements expressly set forth herein.
7.3 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, in the event an ordinance, resolution or other measure
is enacted, whether by action of CITY, by initiative, referendum, or otherwise,
that imposes a building moratorium 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, 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; and (3) the application of
such fees would not prevent 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.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 7 of 16
March 20, 2002
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.
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 approved 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. CITY's Public
Works Director shall determine whether a reservation or dedication is
"significant".
9.4 Amendment of Proiect 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)
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 8 of 16
March 20, 2002
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
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 Proiect Approvals.
Pursuant to California Government Code Section 66452.6(a), the term of
the vesting tentative map described in Recital H above shall automatically be
extended for the term of this Agreement and any extensions thereto pursuant to
Section 4.3 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
August 15, 2003 and each 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
Development 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.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 9 of 16
March 20, 2002
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.
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. In no event shall damages be
awarded against CITY upon an event of default or upon termination of this
Agreement.
13. Estoppel Certificate.
Either party may, at any time, and from time to time, request written notice
from the other party requesting such party to certify in writing that, (a) this
Agreement is in full force and effect and a binding obligation of the parties,
(b) this Agreement haS not been amended or modified either orally or in writing,
or if so amended, identifying the amendments, and (c) to the knowledge of the
certifying party the requesting party is not in default in the performance of its
obligations under this Agreement, or if in default, to describe therein the nature
and amount of any such defaults. A party receiving a request hereunder shall
execute-and return such certificate within thirty (30) days following the receipt
thereof, or such longer period as may reasonably be agreed to by the parties.
City Manager of City shall be authorized to execute any ce~ificate 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 10 of 16
March 20, 2002
of recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"), Notwithstanding the foregoing, no breach hereof shall defeat,
render invalid, diminish or impair the lien of any Mortgage made in good faith and
for value, but all the terms and conditions contained in this Agreement shall be
binding upon and effective against any person or entity, including any deed of
trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or
any portion thereof, by foreclosure, trustee'S sale, deed in lieu of foreclosure, or
otherwise.
14.2 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 14.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to
construct or complete the construction of improvements, or to guarantee such
construction of improvements, or to guarantee such construction or completion,
or to pay, perform or provide any fee, dedication, improvements or other exaction
or imposition; provided, however, that a Mortgagee shall not be entitled to devote
the Property to any uses or to construct any improvements thereon other than
those uses .or improvements provided for or authorized by the Project Approvals
or by this Agreement.
14.3 Notice of Default to Mortgagee and Extension of Riqht 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.
The unenforceability, invalidity or illegality of any provisions, covenant,
condition or term of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
16. Attorneys' Fees and Costs.
If 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 11 of 16
March 20, 2002
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.
17, Transfers and Assignments.
17.1 Right to Assign. DEVELOPER may wish to sell, transfer or assign
all or portions of its Property to other developers (each such other developer is
referred to as a "Transferee"). In connection with any such sale, transfer or
assignment to a Transferee, DEVELOPER may sell, transfer or assign to such
Transferee any or all rights, interests and obligations of DEVELOPER arising
hereunder and that pertain to the portion of the Property being sold or
transferred, to such Transferee, provided, however, that: no sUch transfer, sale or
assignment of DEVELOPER's rights, interests and obligations hereunder shall
occur without prior written notice to CITY and approval by the City Manager,
which approval shall not be unreasonably withheld or delayed.
17.2 Approval and Notice of Sale, Transfer or Assignment. The City
Manager shall consider and decide on any transfer, sale or assignment within ten
(10) days after DEVELOPER's notice, provided all necessary documents,
certifications and other information are provided to the City Manager to enable
the City Manager to determine whether the proposed' Transferee can perform the
DEVELOPER's obligations hereunder. Notice of any such approved sale,
transfer or assignment (which includes a description of all rights, interests and
obligations that have been transferred and those which have been retained by
DEVELOPER) shall be recorded in the official records of Alameda County, in a
form acceptable to'the City Managerl concurrently with such sale, transfer or
assignment.
17,3 Effect of Sale, Transfe~ or Assignment. DEVELOPER shall be
released from any obligations hereunder sold, transferred or assigned to a
Transferee pursuant to subparagraph 17.1 of this Agreement, provided that: a)
such sale, transfer or assignment has been approved by the City Manager
pursuant to subparagraph 17.1 of this Agreement; and b) such obligatiOns are
expressly assumed by Transferee and provided that such Transferee shall be
subject to all the provisions hereof and shall provide all necessary documents,
certifications and other necessary information prior to City Manager approval
pursuant to subparagraphs 17.1 and 17.2 of this Agreement.
17.4 Permitted Transfer1 Purchase or Assignment. The sale or other
transfer of any interest in the Property to a Purchaser ("Purchaser") pursuant to
the exercise of any right or remedy under a deed of trust encumbering.
DEVELOPER'S interest in the Property shall not require City Manager approval
pursuant to the provision of paragraph 17,1. Any subsequent transfer, sale or
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 12 of 16
March 20, 2002
assignment by the Purchaser to a subsequent transferee, purchaser, or assignee
shall be subject to the provisions of paragraph 17.1.
17.5 Termination of A,qreement 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.'
1.8. 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.
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
20. Indemnification.
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
Dublin/Toll Development Ag reement
For Dublin Ranch Area G / Ne!ghborh0od MH-1
Page 13 of 16
March 20, 2002
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 a per-occurrence combined single limit of not less
than one million dollars ($1,000,000.00) with a Twenty Five Thousand Dollar
($25,000) 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.
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/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 14 of 16
March 20, 2002
23. Notices.
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:
Toll - Dublin, LLC
Attn: Jon Paynter
100 Park Place, Suite 140
San Ramon, CA 94583
FAX No. (925) 855-9927
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 Understandinq.
This Agreement constitutes the entire understanding and agreement of the
parties.
25. Exhibits.
The following documents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
Exhibit A Legal Description of Property
Exhibit B Additional Conditions
26. Counterparts.
This Agreement is executed in two (2) duplicate originals, each of which is
deemed to be an original
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1
Page 15 of 16
March 20, 2002
27. Recordation.
CITY shall record a copy of this Agreement within ten days following
execution by all parties.
28. Corporate Authority.
If either party is a corporation, each individual signing this Agreement on
behalf of that corporation represents and warrants that each of them is duly
authorized to execute and deliver this Agreement on behalf of the corporation
and that the Agreement is binding on the corporation in accordance with its'
terms.
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: Date:
Mayor
ATTEST:
By: Date:
City Clerk
APPROVED AS TO FORM:
City Attorney
TOLL CA II, LP
a California limited liability company
By: Date:
Jon Paynter
Assistant Vice President
(NOTARIZATION ATTACHED)
Dublin/Toll Development Ag reement
For Dublin Ranch Area G I Neighborhood MH-1
g:\pa\01-009\damhl 3-20
Page 16 of 16
March 20, 2002
EXHIBIT "A"
PAGE 1 OF 1
9180-02
03/21/02
F.C,I.
DESCRIPTION
DEVELOPMENT AGREEMENT
BEING ALL OF THAT CERTAIN PARCEL OF LAND KNOWN AS: "PARCEL 2" AS
SHOWN UPON THAT CERTAIN FINAL MAP ENTITLED: "TRACT 7148"AS FILED ON THE
14:~ DAY OF FEBRUARY, 2001 IN BOOK 257 OF MAPS, AT PAGES 3 - 7, OFFICIAL
RECORDS OF ALAMEDA COUNTY, CALIFORNIA, FOR PURPOSES OF AN
DEVELOPMENT AGREEMENT, LYING AND BEING IN THE CITY OF DUBLIN, ALAMEDA
COUNTY, CALIFORNIA.
SAID "PARCEL 2"CONTAINING 8.978 ACRES, MORE OR LESS;
A PORTION OF: ASSESSOR'S PARCEL NUMBER 985-0009-004-03.
END OF DESCRIPTION
PROFESSIONAL LAND SURVEYOR No. 5859
(EXP. 12/31/2004)
STATE OF CALIFORNIA
P:'Jegals\19180~ev-agmt-2.d~c
mACKAY& SomPs
CiVIL ENGINEERING*' LAND PLANNING ' LAND SURVEYING
5142 Franklin Drive Suite B, Pleasanton, CA. 94588-3355
[g25) 225-05~0
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subparagraph 5.3.1 -- Subsequent Discretionary Approvals
None.
Subparagraph 5.3.2 -- Mitigation Conditions
Subsection a.
Infrastructure Sequencing Pro_clram
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 Nos. 00-14, and 02-05 of the City of Dublin
Planning Commission approving the Tentative Maps for the Master Parcel (Tract
7148) and Neighborhood MH-1 (Tract 7324) respectively (hereafter collectively
"TM Resolutions"), and those described below shall be completed by
DEVELOPER to the satisfaction of the Public Works Director at the times and in
the manner specified in the TM Resolutions unless otherwise provided below. All
such roadway improvements shall be constrUcted to the satisfaction and
requirements of CITY's Public Works Director.
--Condition 62 [(Offsite) Traffic Signals]
Condition 62 states that the timing of installation of the
improvements it requires, if not otherwise constructed by another
developer, shall be as specified in this development .agreement or when
deemed necessary by the Director of Public Works. Pursuant to Condition
62, and notwithstanding anything to the contrary in Condition 62, unless
otherwise constructed by another developer, Developer shall install the
traffic signals required by condition 62 prior to the issuance of the first
Certificate of Occupancy in Neighborhood MH-1.
--Conditions 63 and 64 [Tassaiara Road, Additional Northbound Lane; and
Intersection Improvements of Dublin Boulevard and Tassaiarra Road]
Conditions 63 and 64 state that the timing of the completion of
improvements required by Conditions 63 and 64 shall be as determined by
the Director of Public Works or as specified in the development
agreement. Pursuant to Conditions 63 and 64, and notwithstanding
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1 -- Exhibit B
Page 1 of 6
March 20, 2002
anything to the contrary in Conditions 63 and 64, the imprOvements
required by Conditions 63'and 64 shall be completed as required by the
triggering traffic study or updated traffic study required by Conditions 63
and 64 ("the Triggering Traffic Study"), but in no case later than the timing
of completion of improvements as specified in the Tract Developer
Agreement for Neighborhood MH-1, if the improvements required by
Conditions 63 and 64 are required by the Triggering Traffic Study.
Notwithstanding the foregoing, the Director of Public Works may extend
the obligation to construct the improvements required by condition 63 until
such time as the property to the west (owned by the Dublin Land
Company) develops.
--Condition 70 [Intersection of Dou.qherty Road.& Dublin Blvd.]
Condition 70 of Tract Map 7324 is hereby superseded by Condition
110 in the TM Resolution for tract 7148, which reads as follows:
Intersection of Doughtery Road & Dublin Blvd.
The City shall determine the Applicant/Developer's fair share
contribution to the above-referenced intersection with each
subsequent entitlement application. In the event that the City does
not have sufficient Category 2 TIF funds, Applicant/Developer shall
advance their fairshare Section 2 TIF fees for future widening,
signal modification and improvement to the intersection of
Doughtery Road and Dublin Blvd., at the time of the first building
permit. These funds will be based on the percent of trip
contribution to the intersection defined and approved by the
Director of Public Works.
This intersection improvement is a TIF improvement. Therefore
costs spent may be credited against payment of traffic impact fees
in accordance with City TIF Guidelines.
DEVELOPER shall provide CITY with DEVELOPER's fair share,
as determined by'CITY on the basis of the Project's trips, for the costs of
design and construction of Dublin Boulevard/Dougherty Road Intersection
Improvements by a payment to CITY in cash in the amount of the Project's
fair share of the deficiency, if any, between funds available to CITY for CIP
Project #9689 [Dougherty Road/Dublin Blvd. Intersection] and the cost of
such project, such payment to be made within 30 days of written notice
from the Public Works Director to be given following bid opening.
NotWithstanding the provisions of Section 4 of this Agreement,
Condition 70 and this paragraph shall .survive termination of this
Agreement.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1 -- Exhibit B
Page 2 of 6
March 20, 2002
(ii) Sewer
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with DSRSD
requirements.
(iii) Water
An all weather roadway and an approved hydrant and water supply
system shall be available and in service at the site in accordance with the tentative map
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 to the areas to be occupied, shall be improved consistent with the Drainage
Plan and tentative map conditions of approval and to the satisfaction and requirements
of the Dublin Public Works Department applying CITY and Zone 7's (Alameda County
Flood Control and Water Conservation District, Zone 7) standards and policies which
are in force and effect at the time of issuance of the permit for the proposed
improvements. The site shall also be protected from storm flow from off site and shall
have erosion control measures in place to protect downstream facilities and properties
from erosion and unclean storm water consistent with the Drainage Plan. As used
herein, "Drainage Plan" shall refer to CITY's master drainage plan referenced in
Condition'40 of Planning Commission Resolution 00-36.
If determined to be necessary by CITY, DEVELOPER agrees to
participate in a drainage benefit district or such other mechanism as-may be established
by CITY in the future to reimbUrse developers for oversizing drainage facilities that
benefit the Property.
(v)
Other Utilities (e.g. gas, electricity, cable televisions~
telephone)
Construction shall be complete by phase prior to issuance of the
first Certificate of Occupancy for any building within that specific phase of occupancy.
Subsection b.
Miscellaneous
(i) Completion May be Deferred.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1 -- Exhibit B
Page 3 of 6
March 20, 2002
Notwithstanding the foregoing, CITY's Public Works Director may,
in his or her s01e discretion and upon receipt of documentation in a form satisfactory to
the Public Works Director that assures completion, allow DEVELOPER to defer
completion of discrete portions of any public improvements for the Project if the Public
Works DireCtor determines that to do so would not jeopardize the public health, safety
or welfare.
Subparagraph 5.3.3 -- Phasinq, Timin,cl
This Agreement contains no requirements that DEVELOPER must initiate or
complete development of the Project within any period of time set by CITY. It is the
intention of this provision that DEVELOPER be able to develop the Property in
accordance with its own time schedules and the .Project Approvals.
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 paythe Eastern Dublin Traffic Impact Fee ("TIF")
established by Resolution No. 225-99, including any future amendments to 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.
DEVELOPER further agrees that it will pay three percent (3%) of the
"Section l/Category 1" portion of the TIF in cash.
DEVELOPER .also agrees that it will pay 12.4% of the "Section 2/Category
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 12.4% of total Section 2/Category 2
improvements, the DEVELOPER shall pay such reduced percentage of the "Section
2/Category 2" portion of the TIF in cash.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1 -- Exhibit B
Page 4 of 6
March 20; 2002
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway
Interchanqes.
DEVELOPER shall pay the Eastern Dublin 1-580 Interchange Fee
established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155-
98 and by 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.
Subsection c.
Public Facilities Fees.
DEVELOPER shall pay a Public Facilities Fee established by City of
Dublin Resolution No. 60-99, including any future amendments to such fee.
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. DEVELOPER
may use the credits for payment of the Community Park Land portion of the Public
Facilities Fee granted to the Lin Family by the Master Development Agreement in
accordance with City's Public Facilities Fee Guidelines (Resolution 195-99).
Subsection d.
Noise Miti.qation Fee.
DEVELOPER shall pay a Noise Mitigation Fee established by City of
Dublin Resolution No. 33-96, including any future amendments to such fee.
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
mitigation fees,
Subsection f.
Fire Impact Fees.
DEVELOPER shall pay a fire facilities fee established by City of Dublin
Resolution No. 208-00 including any future amendments to such fee. DEVELOPER will
pay such fees no later than the time of issuance of building permits and in amount of the
fee in effect at time of building permit issuance:
Subsection .ct. Tri-Valley Transportation Development Impact 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-1 -- Exhibit B
Page 5 of 6
March 20, 2002
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. 23-99 ("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.
Subpara.qraph 5.3.6 -- Miscellaneous
None.
G:~pa\01-009\da exbrnh-1
Dublin/Toll Development Agreement
For Dublin Ranch Area G 1 Neighborhood MH-1 -- Exhibit B
Page 6 of 6
March 20, 2002
City of Dublin
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
TOLL-DUBLIN, EEC.
FOR NEIGHBORHOOD MH-2
OF AREA G OF DUBLIN RANCH
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this __ dayof ,2002, by and between the CITY OF DUBLIN,
a Municipal Corporation (hereafter "City"), and Toll-Dublin, LLC, a California
limited liability company (hereafter collectively "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. The City Council adopted the Eastern Dublin Specific Plan by
Resolution No. 53-93 which Plan is applicable to the Property; and
C. DEVELOPER desires to develop and holds legal interest in certain
real property consisting of approximately 11.6 acres of land, located in the City of
Dublin, County of Alameda, State of California, which is designated as Parcel 4
on the Master Subdivision Map for Tract 7148 and 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
D. DEVELOPER acquired its interest in the Property from DR
Acquisitions I, LLC, which acquired its interest in the Property from Chang Su-O-
Lin, Hong Lien Lin and Hong Yao Lin (the "Lins"); and
E. The Lins and CITY are parties to a "Master Development
Agreement Between the City of Dublin and The Lin Family for the 'Dublin Ranch
Project (Areas A, B, C, D, E, F, G and H)" as amended by the Supplemental
Development Agreement Between the City of Dublin and The'Lin Family for
Dublin Ranch Areas F, G & H (collectively, the "Supplemental DA"), section 7 of
which requires DEVELOPER to enter into this development agreement; and
F. The Eastern Dublin Specific Plan also requires DEVELOPER to
enter into this development agreement; and
G. DEVELOPER proposes the development of the Property with 281
dwelling units (the "Project"); and
H. DEVELOPER (or its predecessor in interest) has applied for, and
CITY has approved or is processing, various land use approvals in connection
with the development of the Project, including an amendment to the General Plan
and Eastern Dublin Specific. Plan (City Council Resolution No. 53-93), Planned
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 2 of 16
March 20, 2002
Development District Rezone/Development Plan Stage 1 and Stage 2 (Ord.
No. 16-99), Master Vesting Tentative Map for Tract 7148 (Planning Commission
Resolution No. 00-14), Vesting Tentative Map and site development review for
Neighborhood MH-2 (Planning Commission Resolution 02-04) (collectively,
together with any approvals or permits now or hereafter issued with respect to
the Project, the "Project Approvals"); and
I. 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
J. CITY desires the timely, efficient, orderly and proper development
of said Project; and
K. The City Council has found that, among other things, this
Development Agreement is consistent with its General Plan and the Eastern
Dublin Specific Plan and has been reviewed and evaluated in accordance with
Chapter 8.56; and
L. 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
M. Pursuant to the California Environmental Quality Act (CEQA)the
Planning Commission adopted Resolution No. 02-04 finding that the Project is
within the scope of the Final Environmental Impact Report for the Eastern Dublin
General Plan Amendment and Specific Plan (SCH 91103064) which was certified
by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and
August 22, 1994 (the "EIR"); and
N. On
adopted Ordinance No.
ordinance took effect on
2002, the City Council of the City of Dublin
approving this Development Agreement. The
2002.
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein
contained, CITY and DEVELOPER agree as follows:
AGREEMENT
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 3 of 16
March 20, 2002
2. Interest of Developer.
The DEVELOPER has a legal or equitable interest in the Property in that it
is 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
date upon which this Agreement is signed by City.
4.2 Term. The term of this Development Agreement shall commence
on the effective date and extend five years thereafter, unless said term is
otherwise terminated or modified by circumstances set forth in this Agreement.
4.3 Optional Extension. Prior to the termination of this Development
Agreement, as provided in Section 4.2, DEVELOPER may extend the term of the
Development Agreement. To do so, DEVELOPER shall give CITY written notice
at least 90 days prior to the termination date of the Development Agreement. At
the time DEVELOPER provides such notice, DEVELOPER shall make a
contribution to CITY in the amount of One Hundred Thousand Dollars
($100,000). Upon receipt of the notice and the contribution, the City Manager
shall approve the extension and shall notify the DEVELOPER in Writing that the
term of the Development Agreement has been automatically extended for an
additional one-year pedod, commencing on the date the Development
Agreement would otherwise have terminated. The DEVELOPER may exercise
its option to extend the Development Agreement no more than five times, for a
maximum total term of the Development Agreement of .ten years. The total
contribution for the maximum extension of five years will be Five Hundred
Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this
Section, if DEVELOPER provides the notice and contribution to extend one of the
other Development Agreements in Area G (Neighborhoods MH-1, MH-2, or H-
2), DEVELOPER shall not be required to provide the $100,000 contribution to
extend the term of this Development Agreement.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 4 of 16
March 20, 2002
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.
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.
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
other approvals from regulatory agencies.)
Not Applicable
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 Phasinq; 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 5 of 16
March 20, 2002
5.3.5 Fees, Dedications. Terms relating to payment of fees or
dedication of property.
See Exhibit B
5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.3.7 Miscellaneous. Miscellaneous terms.
See Exhibit B
6. Applicable Rules, Regulations and Official Policies.
6.1 Rules 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 Supplemental DA.
6.2 Rules re Desiqn 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 Project Approval. 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 permit approval-for the public improvement.
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 Requlations. 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 6 of 16
March 20, 2002
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.
7.2 Approval of Application. Nothing in this Agreement shall prevent
the CITY from denying or conditionally approving any subsequent land use
permit or authorization for the Project on the basis of such new or modified
ordinances, resolutions, rules, regulations and policies except that such
subsequent actions shall, be subject to any conditions, terms, restrictions, and
requirements expressly set forth herein.
7.3 Moratorium Not Applicable..Notwithstanding anything to the
contrary contained herein, in the event an ordinance, resolution or other measure
is enacted, whether by action of CITY, by initiative, referendum, or otherwise,
that imposes a building moratorium 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, 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; and (3) the application of
such fees would not prevent 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.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 7 of 16
March 20, 2002
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.
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
XlIID 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 approved by the
City Council in accordance with Chapter 8.56.
9.2 Amendment by Mutual co'nsent. 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. CITY's Public
Works Director 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)
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 8 of 16
March 20, 2002
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
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.
Pursuant to California Government Code Section 66452.6(a), the term of
the vesting tentative map described in Recital H above shall automatically be
extended for the term of this Agreement and any extensions thereto pursuant to
Section 4.3 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
August 15, 2003 and each 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
Development 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.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 9 of 16
March 20, 2002
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.
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, In no event shall damages be
awarded against CITY upon an event of default or upon termination of this
Agreement.
13. Estoppel Certificate. ,.
Either party may, at any time, and from time to time, reqUest written notice
from the other party requesting such party to certify in writing that, (a) this
Agreement is in full force and effect and a binding obligation of the parties,
(b) this Agreement has not been amended or modified either orally or in writing,
or if so amended, identifying the amendments, and (c) to the knowledge of the
certifying party the requesting party is not in default in the performance of its
obligations under this Agreement, or if in default, to describe therein the nature
and amOunt of any such defaults. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days following the receipt
thereof, or such longer period as may reasonably be agreed to by the parties.
City Manager of 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 Riqhts 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 10 of 16
March 20, 2002
of recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding' the foregoing, no breach hereof shall defeat,
render invalid, diminish' or impair the lien of any Mortgage made in good faith and
for value, but all the terms and conditions contained in this Agreement shall be
binding upon and effective against any person or entity, including any deed of
trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or
any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or
otherwise.
14.2 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 14.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to
construct or complete the construction of improvements, or to guar;antee such
construction of improvements, or to guarantee such construction or completion,
or to pay, perform or provide any fee, dedication, improvements or other exaction
or imposition; Provided, however, that a Mortgagee shall not be entitled to devote
the Property to any uses 'or to construct any improvements thereon other than
those .uses or improvements provided for or authorized by the Project Approvals
or by this Agreement.
14.3 Notice of Default to Mortgagee and Extension of Riqht 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.
The unenforceability, invalidity or illegality of any provisions, covenant,
condition or term of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
16. Attorneys' Fees and Costs.
If 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 11 of 16
March 20, 2002
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.
17. Transfers and Assiqnments.
17.1 Ri.qht to Assiqn. DEVELOPER may wish to sell, transfer or assign
all or portions of its Property to other developers (each such other developer, is
referred to as a "Transferee"). In connectiOn with any such sale, transfer or
assignment to a Transferee, DEVELOPER may sell, transfer or assign to such
Transferee any or all rights, interests and obligations of DEVELOPER arising
hereunder and that pertain to the portion of the Property being sold or
transferred, to such Transferee, provided, however, that: no such transfer, sale or
assignment of DEVELOPER's rights, interests and obligations hereunder shall
occur without prior written notice to CITY and approval by the City Manager,
which approval shall not be unreasonably withheld or delayed.
17.2 Approval and Notice of Sale, Transfer or Assignment. The City
Manager shall consider and decide on any transfer, sale or assignment within ten
(10) days after DEVELOPER's notice, provided all necessary documents,
certifications and other information are provided to the City Manager to enable
the City Manager to determine whether the proposed Transferee can perform the
DEVELOPER's obligations hereunder. Notice of any such approved sale,
transfer or assignment (which includes a description of all rights, interests and
obligations that have been transferred and those which have been retained by
DEVELOPER) shall be recorded in the official records of Alameda County, in a
form acceptable to the City Manager, concurrently with such sale, transfer or
assignment.
17.3 Effect of Sale, Transfer or Assiqnment. DEVELOPER shall be
released from any obligations hereunder sold, transferred or assigned to a
Transferee pursuant to subparagraph 17.1 of this Agreement, provided that: a)
such sale, transfer or assignment has been approved by the City Manager
pursuant to subparagraph 17.1 of this Agreement; and b) such obligations are
expressly assumed by Transferee and provided that such Transferee shall be
subject to all the provisions hereof and shall provide all necessary documents,
certifications and other necessary informatiOn prior to City Manager approval
pursuant to subparagraphs 17.1 and 17.2 of this Agreement.
17.4 Permitted Transfer, Purchase or Assiqnment. The sale or other
transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to
the exercise of any right or remedy under a deed of trust encumbering
DEVELOPER'S interest in the Property shall not require City Manager approval
pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 12 of 16
March 20, 2002
assignment by the Purchaser to a subsequent transferee, purchaser, or assignee
shall be subject to the provisions of paragraph 17.1.
!7.5 Termination of A,qreement 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 hei:rs,
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.
The .obligations of this Agreement shall not be dischargeable in
bankruptcy.
20. Indemnification.
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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 13 of 16
March 20, 2002
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 a per-occurrence combined single limit of not less
than one million dollars ($1,000,000.00) with a Twenty Five Thousand Dollar
($25,000) 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.
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/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 14 of 16
March 20, 2002
23. Notices.
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
P.O. Box 2340
Dublin, CA 94568
FAX No. (925) 833-6651
Notices required to be given to DEVELOPER shall be addressed as follows:
Toll - Dublin, LLC
Attn: Jon Paynter
100 Park Place, Suite 140
San Ramon, CA 94583
FAX No. (925) 855-9927
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 Understandinq.
This Agreement constitutes the entire understanding and agreement of the
parties.
25. Exhibits.
The following documents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
Exhibit A Legal Description of Property
Exhibit B Additional Conditions
26. Counterparts.
This Agreement is executed in two (2) duplicate originals, each of which is
deemed to be an original.
DublinFFoll Development Agreement
For Dublin Ranch Area G 1 Neighborhood MH-2
Page 15 of 16
March 20, 2002
27. Recordation.
CITY shall record a copy of this Agreement within ten days following
execution by all parties.
28. Corporate Authority.
If either party is a corporation, each individual signing this Agreement on
behalf of that corporation represents and warrants that each of them is duly
authorized to execute and deliver this Agreement on behalf of the corporation
and that the Agreement is binding on the corporation in accordance with its
terms.
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: Date:
Mayor
ATTEST:
By: Date:
City Clerk
APPROVED AS TO FORM:
City Attorney
TOLL CA II, LP
a California limited liability company
By: Date:
Jori Paynter
Assistant Vice President
g:\pa\01-009\darnh2 3-20
(NOTARIZATION ATTACHED)
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2
Page 16 of 16
March 20, 2002
EXHIBIT ",A','
PAGE 1 OF 1
1 9180-03
O3/21/02
F.C.I.
DESCRIPTION "
DEVELOPMENT AGREEMENT
BEING ALL OF THAT. CERTAIN PARCEL OF LAND KNOWN AS: "PARCEL 4" AS
SHOWN UPON THAT CERTAIN FINAL MAP ENTITLED: "TRACT 7148"AS FILED ON THE
14TM DAY OF FEBRUARY, 2001 IN BOOK 257 OF MAPS, AT PAGES 3 - 7, OFFICIAL
RECORDS OF ALAMEDA COUNTY, CALIFORNIA, FOR PURPOSES OF AN
DEVELOPMENT AGREEMENT, LYING AND BEING IN THE CITY O? DUBLIN, ALAMEDA
COUNTY, CALl FORNIA. ,
SAID "PARCEL 4"CONTAINING 11.616 ACRES, MORE OR LESS;
A PORTION OF: ASSESSOR'S PARCEL NUMBER 985-0009-00403.
END OF DESCRIPTION
PR RED
FRED C. ~
PROFESSIONAL LAND SURVEYOR No. 5859
(EXP. 12/31/2004)
STATE OF CALIFORNIA
DATE
P:\tegals\19180\dev-agmt-4.aoc
IllAI KAY & SIIIiIPS
CIVIL ENGINEERING~ LAND PLANNING' LAND SURVEYING
5142 Franklin Drive Suffe B, Pleasanton, CA. 94588-3355
(925) 225-0690
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subparagraph 5.3.1 --'Subsequent Discretionary Approvals
None.
Subpara,clraph 5.3.2 -- Mitigation Conditions
Subsection a.
Infrastructure Seauencin.cl 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 Nos. 00-14, and 02-04 of the City of Dublin
Planning Commission approving the Tentative Maps for the Master Parcel (Tract
7148) and Neighborhood MH-2 (Tract 7325) respectively (hereafter collectively
"TM Resolutions"), and those described below shall be completed by
DEVELOPER to the satisfaction of the Public Works Director at the times and in
the manner specified in the TM Resolutions unless otherwise provided below. All
such roadway improvements shall be constructed to the satisfaction and
requirements of CITY's Public Works Director.
--Condition 63 [(Offsite) Traffic Siqnals]
Condition 63 states that the timing of installation of the
improvements it requires, if not otherwise constructed by another
developer, shall be as specified in this development agreement or When
deemed necessary by the Director of Public Works. Pursuant to Condition
63, and notwithstanding anything to the contrary in Condition 63, unless
otherwise constructed by another developer, Developer shall install the
traffic signals required by condition 63 prior to the issuance of the first
Certificate of Occupancy in Neighborhood MH-2.
--Conditions 66 and 67 [Tassaiara Road, Additional Northbound Lane; and
Intersection Improvements of Dublin Boulevard and Tassaiarra Road]
Conditions 66 and 67 state that the timing of the completion of
improvements required by Conditions 66 and 67 shall be as determined by
the Director of Public Works or as specified in the development
agreement. Pursuant to Conditions 66 and 67, and notwithstanding
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2 -- Exhibit B
Page 1 of 6
March 20, 2002
anything to the contrary in.Conditions 66.and 67, 'the improvements
required by Conditions 66 and 67 shall be completed as required by the
triggering traffic study or updated traffic study required by Conditions 66
and 67 ("the Triggering Traffic Study"), but in no case later than the timing
of completion of improvements as specified in the Tract Developer
Agreement for Neighborhood MH-2, if the improvements required by
Conditions 66 and 67 are required by the Triggering Traffic Study.
Notwithstanding the foregoing, the Director of Public Works may extend
the obligation to construct the improvements required by condition 66 until
such time as the property to the west (owned by the Dublin Land
Company) develops.
--Condition 70 [Intersection of Dougherty Road & Dublin Blvd.1
Condition 70 of Tract Map 7325 is hereby superseded by Condition
110 in the TM Resolution for tract 7148, which reads as follows:
Intersection of Doughtery Road & Dublin Blvd.
The City shaft determine the Applicant/Developer's fair share
contribution to the above-referenced intersection with each
subsequent entitlement application. In the event that the City does
not have sufficient Category 2 TIF funds, Applicant/Developer shaft
advance their fairshare Section 2 TIF fees for future widening,
signal modification and improvement to the intersection of
Doughtery Road and Dublin Blvd., at the time of the first building
permit. These funds will be based on the percent of trip
contribution to the intersection defined and approved by the
Director of Public Works.
This intersection improvement is a TIF improvement. Therefore
costs spent may be credited against payment of traffic impact fees
in accordance with City TIF Guidelines.
DEVELOPER shall provide'CITY with DEVELOPER's fair shars,
as determined by CITY on the basis of the Project's trips, for the costs of
design, and construction of Dublin Boulevard/Dougherty Road Intersection
Improvements by a payment to CITY in cash in the amount of the Project's
fair shars of the deficiency, if any, between funds available to CITY for CIP
Project #9689 [Dougherty Road/Dublin Blvd. Intersection] and the cost of
such project, such payment to be made within 30 days of written notice
from the Public Works Director to be given following bid opening.
Notwithstanding the provisions of Section 4 of this Agreement,
Condition 70 and this paragraph shall survive termination of this
Agreement.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2 Exhibit B
Page 2 of 6
March 20, 2002
(ii) Sewer
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with DSRSD
requirements.
(iii) Water
An all weather roadway and an approved hydrant and water supply
system shall be available and in service at the site in accordance with the tentative map
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 to the areas to be occupied, shall be improved consistent with the Drainage
Plan and tentative map conditions of approval and to the satisfaction and requirements
of the Dublin Public Works Department applying CITY and Zone 7's (Alameda County
Flood Control and Water Conservation District, Zone 7) standards and policies which
are in force and effect at the time of issuance of the permit for the proposed
improvements. The site shall also be protected from storm flow from off site and shall
have erosion control measures in place to protect downstream facilities and properties
from erosion and unclean storm water consistent with the Drainage Plan. As used
herein, "Drainage Plan" shall refer to CITY's master drainage plan referenced in
Condition 40 of Planning Commission Resolution 00-36.
If determined to be necessary by CITY, DEVELOPER agrees to
participate in a drainage benefit district or such other mechanism as may be established
by CITY in the future to reimburse developers for oversizing drainage facilities that
benefit the Property.
(v)
Other Utilifies:(e.g. gas, electricity, cable televisions,
telephone)
Construction shall be complete by phase prior to issuance of the
first Certificate of Occupancy for any building within that specific phase of occupancy.
Subsection b.
Miscellaneous
(i) Completion May be Deferred.
Dublin/Toll Development'Agreement
For Dublin Ranch Area G / Neighborhood MH-2 -- Exhibit B
Page 3 of 6
March 20, 2002
NOtwithstanding the foregoing, CITY's Public Works Director may,.
in his or her sole discretion and upon receipt of documentation in a form satisfactory to
the PUblic Works Director that assures completion, allow DEVELOPER to defer
completion of discrete portions of any public improvements for the Project if the Public
Works Director determines that to do so would not jeopardize the public health, safety
or welfare.
Subparagraph 5,3.3 -- Phasing, TiminR
This Agreement contains no requirements that DEVELOPER must initiate' or
complete development of the Project within any period of time set by CITY. It is the
intention of this provision that DEVELOPER be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
Subpara,qraph 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. 225-99, including any future amendments to 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.
DEVELOPER further agrees that it will pay three percent (3%) of the
"Section l/Category 1" portion of the TIF in cash.
DEVELOPER also agrees that it will pay 12.4% of the "Section 2/Category
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 12.4% of total Section 2/Category 2
improvements, the DEVELOPER shall pay such reduced percentage of the "Section
2/Category 2". portion of the TIF in cash.
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2 -- Exhibit B
Page 4 of 6
March 20, 2002
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway
Interchanges.
DEVELOPER shall pay the Eastern Dublin t-580 Interchange Fee
established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155-
98 and by any subsequent resolution which revises such Fee. DEVELOPER will pay
such fees no later than the time of issuance of building permits and in th~ 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. 60-99, including any future amendments to such fee.
DEVELOPER will pay such fees no later than the time of issuance of building permits
and id the amount of the fee in effect at time of building permit issuance. DEVELOPER
may use the credits for payment of the Community Park Land portion of the Public
Facilities Fee granted to the Lin Family by the Master Development Agreement in
accordance with City's Public Facilities Fee Guidelines (Resolution 195-99).
Subsection d.
Noise Mitigation Fee.
DEVELOPER shall' pay a Noise Mitigation Fee established by Ci_ty of
Dublin Resolution No. 33-96, including any future amendments to such fee.
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
mitigation fees.
Subsection f.
Fire Impact Fees.
DEVELOPER shall pay a fire facilities fee established by City of Dublin
Resolution No. 208-00 including any future amendments to such fee. DEVELOPER will
pay such fees no later than the time of issuance of building permits and in amount of the
fee in effect at time of building permit issuance.
Subsection .q. Tri-Valley Transportation Development Impact 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
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2 -- Exhibit B
Page 5 of 6
March 20, 2002
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. 23-99 ("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.
Subparagraph 5.3.6 -- Miscellaneous
None.
G:\pa\01-009\daexb mb2 3-20
Dublin/Toll Development Agreement
For Dublin Ranch Area G / Neighborhood MH-2 w Exhibit B
Page 6 of 6
March 20, 2002
AGENDA STATEMENT
PLANNING COMMISSION MEETING DATE: March 26, 2002
SUBJECT:
ATTACHMENTS:
PUBLIC HEARING PA 01-009 Toll Brothers - Dublin Ranch Area
G Neighborhoods MH-1, MH-2, H-1 & H-2, Development Agreements
(Report Prepared by: Michael Porto, Planning Consultant)
Draft Resolution recommending that the City Council adopt an
Ordinance approving four Development Agreements between the
City of Dublin and Toll Brothers (Development Agreements
attached as Exhibit A, B, C & D to Attachment 0
RECOMMENDATION:
2.
3.
4.
5.
6.
Hear staff Presentation
Open Public Hearing
Hear Applicant's Presentation
Question Staff, Applicant and the Public
Close Public Hearing and Deliberate
Adopt Resolution (Attachment 1) recommending City Council
adopt an Ordinance approving four Development Agreements
between the City of Dublin and Toll Brothers
PROJECT DESCRIPTION:
An Ordinance approving a Development Agreement between the City of Dublin and Toll Brothers is
requii:ed by the-Eastern Dublin Specific Plan. Items in the Development Agreement .include, but are not
limited to, the financing and timing of infrastructure; payment of traffic, noise and public facilities
impact fees; oversizing of roads and general provisions.
BACKGROUND:
This project is part of Dublin Ranch Area G comprised of 86.4 acres of medium high and high density
residenfml, Village cente~ mixed uses, a neighborhood ~part~antt a neighborhOOd, square. TheP~
Commission, on January 8, 2002 and January 22, 2002 approved a Site Development Review for Area G
neighbo '~a)odS MHz 1, MH~2~.HzF~H~2,. The TentatiVe Maps, (T~acts 7324, 73~5, 7326 84 73'27)
setting the lot pattern for these subdivisions were also approved by the Planning Commission on January
'8~ 2002 tor.Neighborho6/l~ ;'IVIH.-. I:~'tV}-H~ 'and H- 1 (Res~niion§"02z03, 02z0~; O2z05) and on January 22,
2002 for Neighborhood H-2 (Resolutions 02-6).
Dublin Ranch Areas G is located east of Tassajara Road and north of I-580. The project area is entirely
vacant with no structures, Grading has occurred to create'the proposed lots and streets and some street
pavement has been installed. Upon completion of the Development Agreement process by the City
Council, building permits can be issued.
COPIES TO:
The Applicant
The-ProperS, ~ Owner
PA File
ITEM NO.
ANALYSIS:
One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into
Development Agreements with developers in the plan area. The Development Agreement provides
security to the developer that the City will not change its zoning and other laws applicable to the project
for a specified period of time. Additionally, it is a mechanism for the City to obtain commitments from
the developer that the City might not otherwise be able to obtain. The Development Agreement is one
means the City has to assure that the Specific Plan goal, that new development funds, the costs of
infrastructure and service, is met.
The proposed Development Agreements between the City of Dublin and Toll Brothers are Exhibits A,
B, C & D of Attachment 1 to this staff report. The Development Agreement is based on the standard
Development Agreement developed by the City Attorney and adopted by th'e City Council for Eastern
Dublin Projects.
City procedure requires that there be three public hearings on Development Agreements. The purpose
for the hearing before the Planning Commission is to recommend approval of the Development
Agreement to the City Council.
The Agreement:
The City Attorney drafted the proposed Development Agreements with input from City' Staff, Toll
Brothers and their attorneys. The Development Agreements set forth the agreement between the parties
in relation to many items, including, but not limited to, infrastructure construction and phasing, and the
payment of various required impact fees.
The Development Agreement becomes effective for a term of five years from the date it is recorded
unless otherwise agreed. The Development Agreement runs with the land and the rights thereunder can
be assigned. The main points of the Development Agreement can be found in Exhibit A of Attachment
1, Development Agreement and are highlighted below:
Infrastructure Construction and Traffic Impact Fees:
The City requires that Developers in Eastern Dublin pay traffic impact fees for certain City wide
improvements to the circulation system. Additionally, fees are charged for certain circulation
improvements specific to Eastern Dublin. The City determines the direct project impact through a traffic
study that has been conducted for the development.
Other Fees and Funding Requirements:
The Development Agreement also addresses the payment of the Public Facilities Fee, Noise Mitigation
Fee, School Fees, Fire Impact Fees and the Tri-Valley Transportation Development Impact Fee as well
as a yearly contribution to the City for the extension of the Development Agreement to ten years.
Other Infrastructure Improvements:
The Development Agreement also provides for the construction of certain other improvements to serve
the project site such as a fire station, off-site sewer, water, storm drainage and other utility services as
required by the tentative parcel map approval.
ENVIRONMENTAL REVIEW:
This project is within the scope of the Eastern Dublin Specific Plan and General Plan Amendment, for
which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration was prepared
for the entire project. The project will not have environmental effects which were not examined in the
Program EIR. No new effects will occur and therefore no revisions to the Program EIR are required.
That Mitigated Negative Declaration, together with the Program EIR, adequately describes the total
project for the purposes of CEQA.
CONCLUSIONS:
Approval of these Development Agreements will implement provisions of the Eastern Dublin Specific
Plan. The proposal is consistent with both the General Plan and the Specific Plan.
RECOMMENDATION:
Staff recommends the Planning Commission open the Public Hearing, deliberate and Adopt Resolution
(Attachment 1) recommending City Council adopt an Ordinance approving four Development
Agreements between the City of Dublin and Toll Brothers for Area G Neighborhoods MH-1, MH-2, H-1
& H-2.
G:\pa\01-009\pcsr DA
GENERAL INFORMATION
APPLICANT:
OWNER:
LOCATION:
ASSESSOR PARCEL:
GENERAL PLAN
DESIGNATION:
SPECIFIC PLAN
DESIGNATION:
EXISTING ZONING
AND LAND USE:
Jon Paynter
Senior Vice President
Toll Brothers, LLC, Inc.
100 Park Place, Ste 140
San Ramon, CA 94587
DR Acquisition I LLC
6601 Owens Drive #100
Pleasanton, CA 94588
East of Tassajara Road adjacent to the future Fallon Road extension,
approximately 4,500 feet north of 1-580
985-0005-001 (Portions)
Medium High Density and High Density Residential
Medium High Density and High Density Residential (14.1 to 25.0 du/ac)
Zoning: Planned Development (PA 98-069)
Land Use: Vacant
4
RESOLUTION NO. 02 - 16
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT FOUR DEVELOPMENT
AGREEMENTS FOR PA 01-009 TOLL BROTHERS - DUBLIN RANCH AREA G
(NEIGHBORHOODS MH-1, MH-2, H-1 & H-2) DEVELOPMENT AGREEMENT
WHEREAS, Jon Paynter on behalf of Toll CA, L.P. has requested approval of four
Development Agreements for the proposed Dublin Ranch Area G residential neighborhoods
located east of Tassajara Road and north of 1-580.
WHEREAS, a Development Agreement is required as an implementing measure of the
Eastern Dublin Specific Plan; and
WHEREAS, this project is within the scope of the Eastern Dublin Specific Plan and
General Plan Amendment, for which a Program EIR was certified (SCH 91103064). A Mitigated
Negative Declaration was prepared for the entire project. The project will not have
environmental effects, which were not examined in the Program EIR. No new effects will occur
and therefore no revisions to the Program EIR are required. That Mitigated Negative Declaration
together with the Program EIR adequately describes the total project for the purposes of CEQA;
and
WHEREAS, the text of the Draft Development Agreements is attached to this resolution
as Exhibit A, B, C & D; and
WHEREAS, the Planning Commission did hold a public hearing on said application on
March 26, 2002; 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 adopt an Ordinance approving the Development
Agreements; and
WHEREAS, the Planning Commission did hear and use their independent judgment and
considered the Mitigated Negative Declaration, all said reports, recommendations and testimony
hereinabove set forth.
NOW THEREFORE BE IT RESOLVED THAT THE Dublin Planning Commission
does hereby make the following findings and determinations regarding said proposed
Development Agreements:
1. Said Agreements are 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 Toll Brothers Dublin Ranch Area G 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
Agreements set forth the rules the Developer and City will be govemed 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 Agreements are 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 include a Planned Development Rezone, tentative tract map and Site Development
Review.
3. Said Agreements is in conformity with public convenience, general welfare and
good land use practice in that the Toll Brothers Dublin Ranch Area G residential neighborhood
project will implement land use guidelines set forth in the Eastem Dublin Specific Plan/General
Plan, as proposed.
4. Said Agreements 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; and
5. Said Agreements 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 Eastern Dublin Specific Plan/General Plan.
NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning
Commission does hereby recommend that the City Council adopt an Ordinance approving the
four Development Agreements between Toll CA, L.P. and the City of Dublin for PA 01-009,
Toll Brothers, Dublin Ranch Area G.
PASSED, APPROVED AND ADOPTED this 26th day of March, 2002.
AYES:
Cm. Johnson, Jennings, Musser, Nassar & Fasulkey
NOES:
ABSENT:
ABSTAIN:
Planning Commission Chairperson
ATTEST:
Planning Manager
G:\pa\O 1-O09\pcresoda