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HomeMy WebLinkAboutItem 8.1 EDublinSchlMitigation -, . . CITY CLERK File # . AGENDA STATEMENT CITY COUNCIL MEETING DATE: May 6,1997 SUBJECT: Eastern Dublin School Mitigation Agreement between the Dublin Unified School District and Jennifer Lin u...v (Report Prepared by: Carol R. Cirelli, Senior Planner) EXHIBITS ATTACHED: 1. School Mitigation Agreement 2. Revised School Site Location Map RECOMMENDATION: /7 ^/ Approve the Dublin Unified School District and Jennifer Lin School ( V' Mitigation Agreement; or give Staff direction and continue the matter. FINANCIAL STATEMENT: None .' DESCRIPTION: In October of 1994, the City Council approved a Planned Development (PD) Prezone (P A 94-030) for the 1,538 acre Eastern Dublin annexation area (City Council Reso. No. 104-94). A condition of the PD Prezone resolution requires the mitigation of schoo,l facilities within the Eastern Dublin Specific Plan area. This annexation and prezone area includes Eastern Dublin property owner Jennifer Lin's Dublin Ranch property. The school facilities mitigation condition states that prior to approval of a Land Use and Development Plan and PD Rezone for any land within the 1,538 acre area, all developers of property subject to the Land Use and Development Plan shall enter into a written mitigation agreement with the affected school district and the City. This agreement will establish the method and manner of financing and/or constructing school facilities necessary to service the student population generated by Eastern Dublin development. The agreement will address the level of mitigation necessary, the amount of any school impact fees and the time of payment of any such fees, and similar matters. The condition also states that the City shall be a party to any such agreement only for purposes of assuring uniformity among the different property owners and appropriate land use planning, and that the agreement is not effective until approved by the City. Although the City approved the Dublin Ranch Phase I PD Rezone project (P A 95-030) in February of 1996 without a school mitigation agreement, the City applied the same school mitigation condition with a slight modification regarding the timing of when the condition will be implemented. The revised ..-: ...........-- - - - - - -.--.--& - -- - -............... - ------- - -- - - - - - ------- - - -- - - --- COPIES TO: In-House Distribution ITEMNO.~ g: \eastdubl\schools\5-6ccsr ..(,'~ condition requires that the developers enter into a mitigation agreement prior to the tentative subdivisiRn map approval for all or any part of the approved Dublin Ranch Phase I PD Rezone - Land Use and Development Plan. In order to satisfy the requirements of the school mitigation condition, attached for your review and ... _ ....: consideration is the school mitigation agreement between the Dublin Unified School District (School District) and Eastern Dublin property owner, Jennifer Lin (see agreement, Exhibit 1). This agreement, which includes mitigation fee schedules (exhibits band d) and school site dedication provisions, complies with the school mitigation zoning conditions explained above and Action Program 6B of the Eastern Dublin Specific Plan. This action program requires the City to work with appropriate school district(s) to ensure that the development of new facilities is provided for through the dedication of school sites and/or the payment of development fees. A map of the area covered by the agreement is included in exhibit a of the agreement. The agreement applies to Jennifer Lin's Wallis Property and the Dublin Ranch property, if Dublin Ranch is annexed into the Dublin Unified School District territory. Last Fall, Jennifer Lin filed a petition for a territory transfer to the Dublin school district of Dublin Ranch, which is currently within the Livermore Valley Joint Unified School District. The City supported this petition. The Alameda County and State Boards of Education are still considering this petition. JeIUlifer Lin has agreed to enter into this school mitigation agreement in exchange for the Dublin school district's support for the land transfer petition. If the territory transfer for Dublin Ranch never takes place, the agreement will still apply to the Wallis Property. The Wallis Property is already within the Dublin school district territory, but is currently outside the Dublin city limits. At this time the City action on the attached school mitigation agreement satisfies only the requirement of Resolution No. 104-94 for Jennifer Lin's Dublin Ranch portion only. The City will need to re-evaluate school mitigation requirements when considering any future annexation .>:': request for the Wallis Property.'" The attached school mitigation agreement includes a land use map (exhibit c) that depicts the locations of the proposed school sites on-the Jennifer Lin property. Two school sites on the Jennifer Lin property have been slightly relocated from the original Eastern Dublin Specific Plan school site locations (see attached Exhibit 2). As written, the Specific Plan contemplates future changes in school site locations as long as development plans reserve school sites to accommodate future Eastern Dublin school development. A specific plan amendment or rezone is not required for the revised school site locations. A conditional use permit may be required for projects where zoning with a Land Use and Development Plan has already been approved, such as Dublin Ranch Phase I Rezone. Planning staff and some of the Eastern Dublin property owner representatives met with the Dublin Unified School District and Livermore Valley Joint Unified School District staff to discuss acceptable school site locations. The agreement (exhibit c) reflects school site locations acceptable to both districts. These sites were chosen because they are more centrally located within designated residential areas and away from major roadways. The School District prepared the agreement and City staff (Planning Department and City Attorney) and the Jennifer Lin property owner representatives reviewed the agreement and provided comments. Both the School District and Jennifer Lin property owner representatives have approved the attached version of the agreement. ..-:: Future development agreements between the School District and other property owners within the Eastern Dublin annexation area will be substantially similar. The only differences would be in the area o~ school. 2 . .' .> ,. dedication requirements if their properties do not contain any school sites. The school mitigation fees may also change due to inflation, availability or nonavailability of state funding, and class size changes. Staff recommends City Council approval of the school mitigation agreement between the Dublin Unified School District and Eastern Dublin property owner, Jennifer Lin. 3 . .-' ,;". .-:;.: AGREEMENT FOR THE MITIGATION OF DEVELOPI\1El\7 Th1PACTS UPON THE SCHOOL FACILITIES OF DUBLIN UNIFIED SCHOOL DISTRICT THIS AGREEMENT FOR THE MITIGATION OF DEVELOPMENT IMPACTS UPON SCHOOL FACILITIES (hereinafter "Agreement"), is entered into by aod between Jennifer Lin (hereinafter "Owner") and the Dublin Unified School District (hereinafter "D istrict"). RECIT ALS "'HEREAS, on October 1, 1995, territory in Eastern Dublin was annexed to the City of Dublin (hereinafter "Dublin"); WHEREAS, Owner is the record owner of uninhabited property in Eastern Dublin (hereinafter "Subject Property"), a portion of which was recently annexed to the City of Dublin (hereinafter "City"). The Subject Property is more thoroughly described in the boundary map attached hereto as Exhibit "A" and incorporated by reference; "'HEREAS, a portion of the Subject Property is currently in the Livermore V alley Joint Unified School District (hereinafter "Livermore"); WHEREAS, Owner desires, and has petitioned for, a territory transfer to the District (hereinafter "Land Transfer") of that portion of the Subject Property which is currently in Livermore; WHEREAS, Owner has agreed to enter into this Agreement in exchange for the District's support for the petition to effect the Land Transfer; WHEREAS, school facilities are a part of the infrastructure necessary to serve future residents of the Subject Property; WHEREAS, both new residential and commercial/industrial development (collectively "New Development") in the Subject Property will have a direct impact on existing and future school facilities within District boundaries. These impacts will require the construction of new facilities to house the additional student population generated by the New Development; ~EREAS, Owner and District (collectively referred to as "Parties") agree that state funding for school construction is extremely limited and not likely to provide adequate monies for the construction of new school facilities; '\VHEREAS, the City of Dublin's General Plan and the prezoning and zoning conditions of approval for the Subject Property, require Owner to fully mitigate the impact on school facilities caused by New Development in the Subject Property; Fii!: RC/Dubhn,((\4 031797 DEV"K15.CLJ\ EXHIBIT 1 Page 1 " WHEREAS, the City of Dublin's General Plan and the prezoning and zoning conditions of appwval for the Subject Propeny, require the City's participation in this Agreement for the limited purpose of ensuring adequate and uniform school mitigation in Eastern Dublin; . WHEREAS, this Agreement shall not be effective until approved by City, and such approval shall be evidenced on page 17 of this Agreement; WHEREAS, in November 1996, the District prepared a study entitled" 1996 Facilities Master Plan Addendum" (hereinafter "Nexus"). The purpose of the Nexus was to establish a mitigation amount which, if paid by a developer, would constitute full mitigation of the impacts of development on schools. The full mitigation amounts justified by the Nexus are set forth in Exhibit "B" which is attached hereto and incorporated by reference. WHEREAS, Owner, in order to proceed with planned development, may be required to obtain approval of maps, permits, annexations, rezoning application from a local government agency, and other approvals or actions which may be subject to opposition from the District; WHEREAS, Owner desires that development move forward without opposition from District, and District desires to secure a binding and enforceable Agreement from Owner which provides sufficient funding for school facilities necessary to serve the residents of the development; . ..' WHEREAS, Owner desires to both fully mitigate the anticipated impacts caused by the New Development on school facilities and assure the existence of adequate school facilities for the student population generated by this development of the Subject Property by entering into this Agreement with District; WHEREAS, Owner has the resources to assist in securing State and other funds ,and agree to use their best efforts to obtain the cooperation and coordinate the efforts of other owners in offering their resources and expertise; and WHEREAS, City, District and Owner desire that school facilities be timely funded and developed to provide adequate facilities for K-12 students expected to be generated by the planned development consistent with the Nexus. NOW, THEREFORE, in consideration of the foregoing recitals, and the mutual promises and covenants of the Parties contained in this Agreement, and in exchange for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereto agree as follows: e. File: RClDubhn,(Xl.: 032797 DEV~KtS,CLN Page 2 ,- . .~- .:-:- AGREEl\1ENT 1. Recitals The preceding recitals are incorporated herein as though fully set forth. 2. Schooll\1itigation By executing this Agreement, Owner agrees to fully mitigate the school impacts created by New Development in the Subject Property. Accordingly, Owner shall pay the District the mitigation amounts (hereinafter "School Mitigation Amount") as set forth in Exhibit B. The School Mitigation Amount for new commercial/industrial development shall be the maximum statutory school impact fees set forth in Government Code sections 53080 and 65995. This amount shall be adjusted for inflation as set forth in Govenunent Code section 65995. If Government Code sections 65995 and 53080 are either repealed or amended to change the maximum statutory school impact fees for commercial/industrial development, the Parties expressly agree that the School Mitigation Amounts for commercial/industrial development shall be the amounts set forth in this Agreement as adjusted for inflation. The School Mitigation Amounts for residential development in the Subject Property shall be increased annually, beginning January, 1998. This increase shall be determined according to the adjustment for inflation set forth in the statewide cost index for class B construction (hereinafter "Index"), as determined by the Office of Public School Construction at its January meeting. If the Index discontinues publication, the index used by the Office of Public School Construction shall be applied. For the purposes of computing inflationary increases for residential development, Baseline is 1987 := 1. 00. The Index for January, 1997 is 1. 24. The inflationary adjustment shall be computed with reference to the Baseline. Accordingly, increases shall equal the Index's aIU1Ual difference. For example, if the Index is 1.30 in January 1998, the inflationary Index would equal 4.8% (1.30-1.24 := .06; .06/1.24 := .048; .048xlOO% = 4.8%). Except as provided in this Section, and in Sections 5, 12, 13 and 17, the School Mitigation Amount shall not be modified during the term of this Agreement. Except as provided in this Agreement, no additional or other mitigation for residential, commercial or industrial development shall be requested of Owner by the District. 3. School Site Dedication Owner shall offer to dedicate property to District for use as school sites (hereinafter "Sites"). These shall be two Sites, of not be less than ten (10) usable acres each, and a portion of a third Site, currently designated as a high school in the Eastern Dublin Specific Fil<; RClDublin,oo; 032797 DEV-K\S.CLN Page 3 Plan (hereinafter "EDSP"). The ponion of this third Site on Owner's property comprises sixteen (16) acres .of a total Site of forty (40) acres. Should the District elect to reduce the Site size to accommodate a K-8 school, the portion of the Site to be dedicated by Owner shall be reduced proportionately. The general location of the Sites shall be as shown in Exhibit C. Exhibit C also describes the portion of the forty acre Site that Owner shall be required to dedicate. . The acreages described herein shall include the adjacent public rights-of-way (one-half srreet) on two sides of the Site, whether or not said rights-of-way have been dedicated or offered for dedication to the City of Dublin. The Sites shall: (i) be acceptable to both City and District, and (ii) conform to the requirements of the State of California for school sites. Dedications will be accepted only after State approval of the Sites. The Parties shall use their respective best efforts, and will cooperate, to obtain State approval of the Sites. If a Site offered for dedication is not acceptable to the District, Owner shall offer other Sites until an acceptable Site is identified. District shall not unreasonably withhold approval of a school site. Each Site shall be dedicated free of all off-site improvement requirements for roads and utilities, defined as improvements outside the back-of-curb line. These improvements shall be provided by Owner at no cost to District. .-, ...- a. Credit for Dedication If owner dedicates Sites accepted by the District, Owner shall be granted a credit (hereinafter "Dedication Credit") against the mitigation requirements set forth in this Agreement. The Dedication Credit shall be inclusive of all back-of-curb line improvements and adjacent public rights-of-way (one-half street) on two sides of the Site. Owner shall withhold adjacent public rights-of-way from dedication to the District in order to both facilitate the dedication of these rights-of-way to the City and assume the obligation to construct improvements within these rights-of-way. The Dedication Credit shall be $7.00 per square foot of dedicated property. b. Inflation Factor Dedication Credit shall be adjusted annually pursuant to the Index beginning January, 1998. If the Index discontinues publication, the index used by the Office of Public School Construction shall be applied. e>. '- Fil<: RClDublin_OOl 032797 DEV.K IS.CLN Page 4 e: ./, e:.:. c. Material Breach Failure to dedicate Sites as set forth in this Section shall constitute a material breach of this Agreement. 4. Use of School Mitigation Collected Subject only to the District's agreement with the Alameda County Surplus Property Authority, District agrees to use the monies collected pursuant to this Agreement to fmance the construction of facilities for students generated by New Development on the Subject Property in accordance with the Nexus. The District further agrees to have schools available when needed for children in the Subject Property in accordance with the Nexus. 5. No Offset District and Owner agree and acknowledge that the School Mitigation Amounts specified in this Agreement take into account current levels of funding from the State of California. Because of these State funding levels, additional funds must be raised from New Development. Should additional State or Federal funding sources become available for school construction and site purchase, District shall make every reasonable effort to pursue these. additional funding sources. a. Except as noted in this.Section, the School Mitigation Amount shall not be offset by the receipt of any monies or the waiver of any fees or expenses by the State, the City or District and/or any funds that may be received by the District that are required to or could be designated for school construction. Additionally. except as noted in this Section, the School Mitigation Amount shall not be offset for bond monies that have been or may in the future be issued by the State, the City, the District or any other unit of government. b. If the District receives State or Federal monies which may only be used for new school construction, these dollars shall first be used to reduce and/or eliminate any cash shortfall (hereinafter II Shortfall ") in school construction costs incurred by the District. c. For the purposes of this Section, a Shortfall exists when the sum of the revenue from the mitigation actually collected, the anticipated mitigation to be generated by the remaining undeveloped properties in the Subject Property and available State and/or Federal funding is insufficient to build the facilities contemplated by the Nexus. Shortfall may be actual, anticipated and/or projected. Determinations of anticipated and/or projected Shortfall shall be based on the District's latest adopted Nexus when such State or Federal monies are received. Fil:: RClDublin,(X).: 032797 DEV"KI5_CLN Page 5 d. If one hundred percent (100%) of the Shortfall is eliminated pursuant to Section e~,-" S.b., the District shall amend the Mitigation Amounts to reflect the excess dollars. Any reduction in the Mitigation Amounts in accordance with this Section shall be prospective. Accordingly, Owner shall not be entitled to a credit for previously paid Mitigation Amounts. e. If, after the Mitigation Amounts are amended in accordance with Section S.d, the District incurs a Shortfall, the District may increase the Mitigation Amounts to eliminate the Shortfall. Any increase in Mitigation Amounts shall not exceed the Mitigation Amounts (adjusted for inflation) set forth in Exhibit B. Such increases shall be applied prospectively. Accordingly, the District shall not be entitled to collect additional mitigation for previously underpaid Mitigation Amounts. 6. In-Kind Contributions Alternatively, Owner's impact on the District's school facilities may be mitigated by providing agreed upon services (hereinafter "In-Kind Contributions") for the construction of school facilities. With prior approval of the District, and in the manner set forth below, Owners shall be granted a dollar for dollar credit by the District against the mitigation obligations established by this Agreement. In-Kind Contributions by Owner pursuant to this Section shall be accompanied by a surety bond, or other comparable security to the satisfaction of the District, in an amount not less than the 110 % of the amount of the credit to be earned. e:- a. Construction of a School With the District's consent, Owner may elect to construct a school for the District. This school shall meet the reasonable specifications of District. Any such school shall, at a minimum, include core facilities which have a sufficient number of classrooms to accommodate students proportionate to New Development. Elementary school core facilities shall include, but are not limited to, classrooms, school administration facilities, a library, a multipurpose room, and rest room facilities. Core facilities for middle school and/or ltigh schools shall be developed by the District as requested. Construction, to the extent possible, should be incremental so that the facilities are completed when needed by the children. ." .' , Fi!:: RClDublin,(X).I 032797 DEV~KlS,CLN Page 6 >- .' .:, ..:': b. Other Contributions With the District's consent, Owner may elect to provide agreed upon services required for the construction of any school facilities contemplated by this Agreement. Such contributions may include, by way of example and not limitation, the grading of a school site, furnishings at a school site, architecrural services, construction of a library or other portion of the plalUled school facility. c. Calculation of the Credit for In-Kind Contributions Prior to commencing any In-Kind Contribution (6(a) and/or 6(b), above), District shall provide Owner with a written statement which sets forth an agreed upon dollar credit (hereinafter "In-Kind Credit") which will be earned by the In-Kind Contribution. In-Kind Credit shall be deemed earned when the District issues a written notice of acceptance of a completed school facility or other activity. Full mitigation will be achieved if the agreed upon value for the In-Kind Credit is greater than or equal to the same dollar amount as that generated by the payment of the School Mitigation Amount. If the In-Kind Credit does not achieve full mitigation, the credit earned shall be deducted from the full mitigation obligation set forth in Section 2 of this Agreement. d. In-Kind Credit Disputes District shall not unreasonably withhold acceptance of a completed In-Kind Contribution. In the event of a dispute regarding such acceptance, if the City issues a certificate of occupancy prior to the District's issuance of a notice of acceptance, In- Kind Credit shall be deemed earned for the In-Kind Contribution(s) which are not in dispute. In-Kind Credit for that portion of the In-Kind Contribution which remains in dispute shall not be earned until the District issues a written notice of acceptance, of a completed school facility or other activity. 7. Limitation on Credits Unless expressly approved by District, the sum of the total Dedication Credit granted pursuant to Section 3 plus the total In-Kind Credit earned pursuant to Section 6 shall not exceed fifty percent (50%) of the Subject Property's anticipated revenue. For the purposes of this Section, anticipated revenue is the sum of the Mitigation paymentS which are anticipated to be generated by the remaining undeveloped properties in the Subject Property. The District may deny In-Kind Contribution requests which, when added to the total credit granted, would exceed fifty percent (50%) of the anticipated revenues. Fill!: RCtDublin.ro. 03!797 DE\'-K15.CLN Page 7 8. Full :Mitigation . Compliance with this Agreement will fully mitigate Owner's impact on the school facilities of the District, and will relieve Owner of any responsibility for additional school mitigation. 9. Certificate of Compliance As an express condition precedent to the receipt of a building permit, Owner shall tender to the District payment of the School Mitigation Amount. Unless District has expressly approved a greater credit pursuant to Section 7, above, up to fifty percent (50 %) of the School Mitigation Amount may be composed of a Dedication Credit and/or In-Kind Credit. Upon payment of the full School Mitigation Amount, which may include a Dedication Credit and/or an In-Kind Credit as set forth above, District shall provide Owner with a "Certificate of Compliance" indicating payment of the School Mitigation Amount in full. District shall also forward copies of such Certificates of Compliance to the City. No building permit shall be issued by City absent presentation by Owner to City of a Certificate of Compliance. In the event that City issues a building permit without determining whether a Certificate of Compliance has been issued, Owner shall pay the School Mitigation Amount in accordance with the terms of this Agreement upon demand of District. In no event shall such payment occur later than issuance by City of a Certificate of Occupancy. .., - :._~ 10. Alternative Mitigation Option As an alternative to payment of the Mitigation Amount, Owner may participate in the formation of a Mello-Roos Community Facilities District (hereinafter "CFD") to finance Site acquisition and school construction. CFD formation shall require approval of the District. The CFD, if formed, shall fully mitigate Owners' impacts on school facilities for those homes included in the CPD and no further mitigation shall be required of Owner. Accordingly, all aspects of CFD formation and administration shall be subject to approval by the District. Full mitigation shall be based on the Mitigation Amounts set forth in Exhibit B. CFD formation, however, shall not relieve Owner of the Site dedication requirement set forth in Section 3, above. 11. Non-Opposition by Owner Owner agrees to pay the School Mitigation Amount and/or provide approved In-Kind Contributions as required by this Agreement even if future legislation or a final court judgment limits the type or amount of fees or charges that can be collected by the District. .,. - ..-. Filt:: RCfDublin,(J(l.: 031797 DEV-I,: 15,CLN" Page 8 .- ... .''-:' , , Failure or refusal by Owner to pay the School Mitigation Amount or provide approved In- Kind Contributions shall constitute a material breach of this Agreement. By executing this Agreement, Owner further agrees not to challenge the validity, amount or application of the School Mitigation Amount, In-Kind Contributions, school site dedication or CFD formation to New Development in the Subject Property. Additionally, Owner shall not challenge the existing Nexus or any subsequently adopted Nexus report, provided the District does not attempt to impose a School Mitigation Amount greater than that established in Exhibit "B" as adjusted for inflation pursuant to Section 2, above. Participation in any challenge referenced above shall constitute a material breach of this Agreement. 12. Non-Opposition by District In consideration of Owner's agreement to provide funding for adequate school facilities, the District shall not oppose New Development in the Subject Property and shall inform the City that Owner made provision, by execution of this Agreement, to fully mitigate the anticipated impacts caused by their development on school facilities. Additionally, District shall support Owner's reorganization petition urging the Land Transfer. District recognizes that Owner may, in the future, apply to the City for modifications to the EDSP regarding the location, number, and density of residential units permitted on the Subject Property to reflect changes in market conditions. The Parties agree that, if such modifications occur, the Mitigation Amount may not fully mitigate the impacts caused by New Development. Accordingly, District shall not oppose (including taking any action described in the first Paragraph of this Section) such modifications so long as the proposed total number of units and/or the number of units within each of the density ranges on the Subject Property are within 10% of both the total number of units and/or the number of units within each of the density ranges of the Subject Property as set forth in the EDSP, dated January 7, 1994, .and as amended on October 28, 1996. If these proposed modifications exceed the 10% limit, District may withhold the issuance of Certificates of Compliance until Owner makes additional provisions to fully mitigate the impacts, if any, caused by New Development. 13. Uniform School Mitigation Amounts The District shall use its best effortS to uniformly apply the School Mitigation Amounts set forth in Exhibit "B", or as subsequently modified as provided in Section 2, above, to other owners of property subject to the EDSP. Owner and successor owners of the Subject Property shall not be obligated to pay School Mitigation Amounts (or otherwise provide mitigation) which are greater than that which the District voluntarily requires of owners of other properties subject to the EDSP. For the purposes of this Section, "voluntarily requires" shall mean that the District (absent future legislation, final court judgment or requirement by the City which limits the type or amount of fees or charges that the District can collect) File: RClDublin,1)): 032797 DEY-': IS.CLN Page 9 willingly entered into an agreement which provides for lower mitigation than the amounts set forth in this Agreement. .' Owner agrees that the District's duties imposed pursuant to this Section shall not apply to the following two projects: i) California Creekside/Brookside (City of Dublin Tract Map No. 6822) ii) Villa Santa Rita (City of Dublin Tentative Parcel Map No. 7125). 14. Disclosure by Owners Owner shall disclose this Agreement and its obligations to all successors, assigns, and/or subsequent purchasers, if any, who purchase property subject to this Agreement. This disclosure shall be made prior to Owner's assignment or sale of all or any of its interest in the Subject Propeny. This disclosure shall state that the obligations hereunder must be satisfied by direct disbursement of Mitigation (less any applicable credits) to the District. If this Agreement and its obligations are not disclosed to a subsequent purchaser, Owner shall be liable for the payment of the School Mitigation Amount as though they still owned the Subject Property (or portion thereof). In such situations, Owner shall indemnify Defendants for all costs in collecting the School Mitigation Amount, including, but not limited to, attorney's fees. . Owner's duty of disclosure pursuant to this section shall be extinguished when all Mitigation Amounts for the Subject Property have been paid to the District. If Owner sells or assigns a portiones) of the Subject Property. the duty of disclosure for that portiones) shall be extinguished when the Mitigation Amount for that portiones) has been paid. Disclosure may be accomplished by recordation of the Agreement pursuant to Section 26. 15. Material Breach by Owner The District is entering into this Agreement in reliance upon the representation of Owner that during the term of this Agreement Owner will not individually or collectively challenge, or participate, encourage or support any challenge to the validity, amount, and/or applicability of the School Mitigation Amount, approved In-Kind Contributions, Site dedications or any existing Nexus to residential properties located within Dublin. The District is also entering into this Agreement in reliance upon the representation of Owner that Owner will not challenge any future Nexus, provided the District does not attempt to impose a School Mitigation Amount greater than that established in Exhibit "B" as adjusted for inflation pursuant to Section 2, above. If Owner violates the conditions or covenants set forth in this .. File: RC/Dublin,oo,: 032797 DEV-K 15,CLN Page 10 . .'.'. .- .' Agreement, or engages in any other conduct which constitutes a material breach of the Agreement, the following consequences shaH result: a. Material Breach If Owner's action or inaction constitutes a material breach of this Agreement, District shaH immediately suspend the issuance of Certificates of Compliance to Owner, and shaH notify City of such suspension. This suspension shaH remain in effect until the breach is cured. If the breach is not cured within sixty (60) calendar days after notification to Owner by the District, Owner shall pay the D~strict liquidated damages in the amount set forth in Exhibit B of this Agreement. Nothing herein shall affect the validity of a building permit issued prior to notification to City of notice of suspensIOn. b. Liquidated Damages The Parties expressly agree that the liquidated damages provisions contained herein are reasonable under the circumstances existing on the effective date of this Agreement. The amount of the District's liquidated damages is based on the full school mitigation amount justified by the Nexus. The liquidated damages amounts- shall be increased alIDually pursuant to the Index beginning January 1, 1996. If the Index discontinues publication, the index used by the Office of Public School Construction (or its successor) for school mitigation issues shall be applied. c. Soecific Performance The Parties agree that the subject matter of this Agreement is unique. Therefore, in addition to any and all other remedies, If Owner violates the conditions or covenants set forth in this Agreement, or engages in any other conduct which constitutes a material breach of the Agreement, District shall have the right to obtain specific perfonnance of this Agreement. 16. Material Breach by District Owner is entering into this Agreement in reliance upon the representation of District that during the term of this Agreement, District: i) will not oppose New Development in the Subject Property and shall inform the City that Owner made provision, by execution of this Agreement, to fully mitigate the anticipated impacts on school facilities caused by Owner's development; and File: RC/Dublin,(l.).\ 032797 DEV"Kt5,CLN Page 11 ii) upon compliance with the mitigation obligations set forth in this Agreement that District would issue to Owner a Certificate of Compliance in accordance with Section 9. .. The Parties agree that the subject matter of this Agreement is unique. Therefore, in addition to any and all other remedies, If District violates the conditions or covenants set forth in this Agreement, or engages in any other conduct which constitutes a material breach of the Agreement, Owner shall have the right to obtain specific perfonnance of this Agreement, including, but not limited to, the issuance of a Certificate of Compliance. 17. Binding Agreement a. This Agreement shall be binding upon the parties hereto. All of the covenants, stipulations, promises, and agreements contained in this Agreement by or on behalf of, or for the benefit of either of the parties hereto, shall bind and inure to the benefit of their respective successors or assigns. b. Owner agrees to pay, and not to challenge, protest or pay under protest, any mitigation amounts required by this Agreement. Owner further agrees to pay these amounts even if future legislation or a [mal court judgment invalidates the required. mitigation payment (or any portion thereof). c. This Agreement shall rtln with the land and be binding upon all successors of . Owner. Any material breach by a successor, representative or assign of this Agreement shall have the same force and effect as provided for in Paragraph 15 above. d. This Agreement shall apply to all of the Subject Property in the District's boundaries. If no additional portion of the Subject Property is transferred to the District, the Mitigation Amounts shall be amended as set forth in Exhibit D. 18. Entire Agreement a. This Agreement constitutes the entire agreement between the Owner and the District regarding school mitigation. As long as there is no material breach of this Agreement, this Agreement supersedes any and all other agreements, either oral or in writing, between the Parties with respect to school mitigation. Each party to this Agreement acknowledges that representations by any party with respect to the subjects identified in this paragraph which are not embodied herein, or any other agreements, statements or promises not contained in this Agreement shall not be valid and binding. b. The Parties represent, warrant and agree that in executing and entering into this Agreement they are not relying upon, and have not relied upon, any representation, promise or statement made by anyone which is not recited, contained or embodied herein. The Parties agree and assume the risk that any fact not verified, contained or . File: RC/Dublin,(X).I 032797 DEV"K15,CLN Page 12 . ." , , .,:.'-' embodied in this Agreement may turn out to be other than, different from, or contrary to, the facts now known to them and believed by them to be true. The Parties further agree that this Agreement shall be effective in all respects notwithstanding, and shall not be subject to termination, modification or rescission by reasons of any such differences in fact. c. Each party executing this Agreement hereby acknowledges and agrees that they have carefully read all of its terms and provisions, have been advised of its many consequences by its attorneys, and signs this Agreement of their own free will and with advice of counsel. 19. Third Party Beneficiaries The Parties agree that this Agreement is by and between the parties named herein, and/or their successors and assigns, and no third party (including, but not limited to, future homeowners) is intended, expressly or by implication, to be benefitted by this agreement. 20. Amendment and '-'Taiver No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all the Parties. No waiver of one provision of this Agreement shall be deemed to constitute a waiver of any other provision(s), whether or not similar, nor shall any waiver constitute a continuing waiver: No waiver shall be binding unless executed in writing by the Party making the waiver. 21. Invalid Term Except as set forth in Sections 11 and 17 above, if any provision of this Agreement is declared or determined by any court of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining portions hereof shall not, in any way, be affected or impaired thereby. 22. Applicable Law a. The Parties understand and agree that this Agreement shall be governed by, and interpreted under, the laws of the State of California. b. In the event of a dispute concerning the terms of this Agreement, the Parties expressly agree that the venue for any legal action shall be with the appropriate court in the County of Alameda, State of California. File: RCIDublin,004 032797 DEY.KIS.CLN Page 13 23. Interpretation .~~ All Parties warrant that they participated at arms length in drafting this Agreement. The tenns of this Agreement shall not be construed for or against any party by reason of authorship of this Agreement, but shall be construed in accordance with the meaning of the language used herein. 24. Additional Matters Each party will execute, promptly upon request from another party, any further papers or documents not herein specifically mentioned which may be reasonably necessary to carry out the letter and spirit of this Agreement, and will do all things necessary to carry out and effectuate the terms and intent of this Agreement. 25. Effective Date of This Agreement This Agreement, regardless of when executed, shall be deemed to be dated on and effective as of the thirty first day of March, 1997. 26. Recording of Agreement Owner shall record a copy of this Agreement in the official records of Alameda County. .~': '.-.- 27. Attorney's Fees The prevailing party in any action or proceeding to enforce, interpret or otherwise, arising out of or relating to, this Agreement or any provision thereof (including, but not limited to, any trial, arbitration, administrative hearing or appeal) shall be entitled to recover from the other party (or parties) all of the costs and expenses, including but not limited to reasonable attorney's fees and expert's fees. 28. Notices, Communications and Demands Formal notices, conununications or demands to a party shall be sufficiently given if: a. personally delivered; or b. mailed by registered or certified mail, first class postage prepaid, rerum receipt requested to the principal office of the Parties; c. delivered by Federal Express or other reliable private express delivery service to the principal office of the affected Parties. .. File; RClDublin,(Xl.l 031797 DEV." lS,CLN Page 14 " ", . .', .,. , . 29. Identical Counterparts This Agreement may be executed in three identical counterparts, each of which shall constitute a duplicate original. 30. Headings The headings contained herein are for the purpose of convenience only, and shall not be constructed to limit or extend the meaning of this Agreement. 31. Exhibits All Exhibits attached hereto are incorporated into this Agreement by reference. 32. Term of Agreement Unless there is a material breach as set forth in Sections 15 and 16, this Agreement shall expire upon completion of full build out as described in the EDSP, dated January 7, 1994, and as amended on October 28, 1996. With respect to Owner or any developer who has paid the full School Mitigation Amount (including, if applicable, Dedication Credit and/or In-Kind Credit) applicable to Owner's property, if Owner's Site dedication requirement pursuant to Section 3 has been satisfied, Owner's obligations pursuant to this Agreement shall cease, but Owner's rights to accrued Dedication and In-Kind credit shall survive. 33. Authority to Execute Each signatory to this Agreement warrants that he or she is authorized to enter into this Agreement on behalf of his or her principa1. File: RC/Dubhn,(IJ.l 032197 DEV'KI5,CLN Page 15 IN \VITNESS WHEREOF, the Parties have caused this Agreement to be properly executed as of the date hereinabove set forth. DISTRICT: DUBLIN UNIFIED SCHOOL DISTRICT By: Date: Title: Superintendent APPROVED AS TO FORM FOR DISTRICT: PINNELL & KINGSLEY By: Title: Attorney for District PROPERTY OWNER: JENNIFER UN By: Title: Owner PROPERTY OWNER: FREDERIC LIN By: Title: Owner PROPERTY OWNER: KEVIN LIN By: Title: Owner Date: Date: Date: APPROVED AS TO FORM FOR PROPERTY OWNER: MARTIN W. INDERBITZEN By: Title: Attorney for Owner File; RClDublin.OC>> 032797 DEV.K1S.Ct.N Page 16 .. e: . ." . . . . . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ :>:>.:....::~ . . . . . . . . '. ~: ".' ...~. . . . ..:,. .'" A?R-28-87 MON 14:16 PINNELL & KINGSLEY CITY OF Du'BUN APPROVAL FAX NO. 9165679420 P. Uc/Uc City of Dublin Resolution No. 10~94 requires all developers of property within the Ea:it~m Dublin Annexation No. 10 area to enter into mitigation agreements with affected school districts to mitigate impacts on affcctcd school districts required to serve student population generated by new development. For purposes of this Agreement, said Resolution applies only to the Owner's Dublin Ranch portion of the Subject Properry and does not apply to the portion of the Subject Property shown as the "Wallis Propertyn _ Resolution No_ 104-94 further states that the City shall be a party to all mitigation agreements for the purposes of assuring unifonnity with respect to different property owners and appropriate land use planning. The signature of the Mayor below indicates that the foregoing mitigation agreement satisfies the requirement of Resolution No. 104-94 for a Written mitigation agreement with the Dublin Unified School District for the Dublin Ranch portion of the Subject Property I if one is required with that District. Guy S. Houston, Mayor F.lc: RCIDubli1LDX fJ!I1'n DEV'"K!5.CLN Page 17 Date: a.J'..... - ...... '.'~ . ,- 00\'1-0 ----- COs\ I>- C::------ cot-lifll>- ~-.-- \ll-l-0 ----Of>. CO \..f>.w.E. f>. , AREA 0 ....""'...--.. , ;' ......, I L'N ) 1 .. .. r..A UIl EXISTING - u ,-l ~--'.1 ... (J CITY OF p~~"5MnON n ! . UN 2 PHASE I ~~ - -AREA E I I I i i I I i i I I I I I ,----; I ;::XISTING CrN OF DUBliN "C' g t::; '" '" " :; .. I-- BOUNDAR" LINE OF EASTERN ...' :-;------.., ! , DUBLIN ANNEXATION NO, 10 J"\ \1 i ~.- j! . .~I."_._:,, ' ......,.:.. --~.-'--l EXISTING CITY OF PLEASANTO'I i If Exhibit "A" ~ W-ALLlS PROPERTY ...~, .. '" llN '..---- 12 AREA A L'N 11 , LIN \. 8 , , UN .... .... .... ...., 6, , ~ AREA B L'N 5 AREA C . L.JI'ij ",D"~RT" .... .... ", I - A","UU1QN HD. ;0 tE45:TfIlllN DUll'''''' AREA E e:,:, 7 DUBLIN RANCH AREA A, 8, C, D, E ., . ~\, ~,~ Cro"L: Ror.-ct ._-~.._~ PLEASE SEE THE FOLLOWING PAGE FOR ASSESSOR PARCEL NUMBERS PROVIDED BY LOT Int..r~'a\" 5e~ .. ~; ~. ,- . Assessors Parcel Number Information by Lot 1. APN 985-0002-003 2. Recently underwent lot line adjustment. Actual APN is unknown at this time. Number will be provided when assigned. 3. Recently underwent lot line adjustment. Actual APN is unknown at this time. Number will be provided when assigned. 4. Recently underwent lot line adjustment. Actual APN is unknown at this time. N umber will be provided when assigned. 5. APN 985-0006-001 6. APN 985-0006-008 7. APN 985-0006-007 8. APN 985-0007-002-09 9. APN 985-0007-002-08 10. APN 985-0007-002-07 11. APN 985-0007-002-06 e:. 12. APN 985-0007-002-15 .-. ,.. 11 AGREEMENT FOR THE MITIGATION OF DEVELOPMEI\7 IMPACTS UPON THE SCHOOL FACILITIES OF DUBLIN UNIFIED SCHOOL DISTRICT EXHIBIT B MITIGATION FEE SCHEDULE (March 1997) Unit Type School Mitigation Amount Sim~le FamiIv/Low Density: $1O,866.00/unit · Single family detached units on lots 4,000 square feet or greater In SIZe. Medium Densitv: · Single family detached units on lots less than 4,000 square feet in size, or attached units with a gross density greater than 6 units to the acre and less than or equal to 14 units to the acre. . $5,873.00/unit Medium High Density: · Attached units with a gross density greater than 14 units to the acre and less than or equal to 25 units to the acre. $3,324.00/unit Hi!:!h Density: · Attached units with a gross density greater than 25 units to the acre. $2, 745. OO/unit Commercial/Industrial: $0.30/square foot NOTES: Both the Residential School Mitigation Amounts and the Commercial/Industrial School Mitigation Amount are subject to modification in accordance with Paragraphs 2 and 4 of the Agreement. The amounts set forth above include the statutory school fees set forth in Government Code Section 53080 and 65995. The Commercial/Industrial School Mitigation Amount shall be applied to all chargeable covered and enclosed commercial/industrial space as dermed in Government Code Section 65945(b)(2). Fil<: RC/Dublin,004 032797 DEV-KlS,CLN ~D . e:, . . ---i "~\Jt', ______ ~~';~ i- l,-:..---- "~-;..~" ,...,,~.,. "l ,.~ .. ,.O'Jl"~ ..00 :...I..t\.ft'.... , , ..-- W'ALLlS PROPERTY AREA 0 ,'.. ;," ~"'..,' I LIH ) 1 , , ,"" ... '..... l,IN \. ...-..--, ~- , 12 AREA A UN ; :~:.:~:~:.'~ - ~.- -_.~ .(J 2 LIH :::,..~. '.;.r :..;....,,.~:....,:..;~1:~1 11 .., 3 ~. LIH ~ ... 8 , , , Ii PHASE I 9 " :;" .. UN ~~. ....,.... ,~ ......... -AREA E ~' AREA B '.;; !! ;---;'~ ; i _.: ~p~ !'-'.: __"':"':'H .':'~ -:--i 7'.' : i f i ~ , .~ :r. "7 i ~ j LlN .----...- ~ I I I 5 ....--------- . .. r .... '. ": ~.- =- -.~ ::""-:.: AREA C ':',.:~:. .. --~.:=-- :. ;'.:~~,; -; .-', : ,." ;.. ; ~" "-1' ,:.. ~i:~",,:,:, Ci'T! ~~ 1"":_; ~s:~ ..''7:...... : .... .'" I ___ ,.~~.. LIN ~O~fRT'T DU.8UN I I "l\ I ;. . .. '. .-No:' i d' if' - ......,.,0. .0, .. ....TO.. ouO".. Fl.US.,.JOH VICIN~.Y MAP ~ AREA E 7 DUBLIN RANCH AREA A, B, C, D, E PLEASE SEE THE FOllOWING PAGE FOR ASSESSOR PARCEL NUMBERS PROVIDED BY lOT .' _ General Location of School Site ;AI Exhibit "c" AGREEMENT FOR THE MITIGATION OF DEVELOPMENT Th1PACTS UPON THE SCHOOL FACILITIES OF DUBLIN UNIFlED SCHOOL DISTRICT . EXHIBIT D MITIGATION FEE SCHEDULE IF NO ADDITIONAL PORTION OF SUBJECT PROPERTY IS TRANSFERRED TO DISTRICT Unit Type School Mitigation Amount Single Familv/Low Densitv: $4.44/square foot . Single family detached units on lots 4,000 square feet or greater m SIze. Medium Densirv: . Single family detached units on lots less than 4,000 square feet in size, or attached units with a gross density greater than 6 units to the acre and less than or equal to 14 units to the acre. $2.611square foot e, Medium High Densitv: . Attached units with a gross density greater than 14 units to the acre and less than or equal to 25 units to the acre. $1.73/square foot High Density: . Attached units with a gross density greater than 25 units to the acre. $2.45/square foot Commercial/Industrial: $O.30/square foot NOTES: Both the Residential School Mitigation Amounts and the Commercial/Industrial School Mitigation Amount are subject to modification in accordance with Paragraphs 2 and 4 of the Agreement. The amounts set forth above include the statutor:y school fees set forth in Government Code Section 53080 and 65995. The Residential School l\fitigation Amount shall be applied to all residential assessable space as defined in Government Code Section 65995(b)(1). The CommerciallIndustrial School Mitigation Amount shall be applied to all chargeable covered and enclosed commercial/industrial space as defmed in Government Code Section 65945(b)(2). .. Fii<: RClDublin,OO< 031797 DEV"KlS.CLN ~~ . "-".;"~ ~." <~:---- ...~~." ,--~ >'- ~. ;.:-....~' . ~- , 13 I '" , I ~ 6, VI' AREA 0 -- WALLIS PROPERTY ...... ,,'" ....~....' I L1N " 1 , , ~~, ,. '\ UH '---....--...', 12 AREA A ~ ';'" :: :- ~ . , -: .() 2 LIN ::::': ,:.~ :-_~.e..::.~:r.."...;~: 11 .' ' PHASE I 3 ~ "... UN , \, 8 , , 9 uN ~.... .... UN .... 6 ~"'" ~ AREA B _;:_, ~S"'l ~. _~ ::-:--.. .... ~ ~j.:;:.:.. ~ l ~.; F: , " LIN ,_..____..j 5 : , -----...---- ::,:.::,".:;,':_',="4 I~'~\S -:~ C::.~~~~~'J .ir~--'" :\....'~:.. ..::.~=-'':.;'Cl~: ::~: AREA C ., . _....r _._-~~ ..7:.-:"~.' ._~. &- .. ~ .~- - ;,-~".:-; -.,::-;-,;" ,.o:,.="_n~_ ~:~~!... ~~ -:;r.\,-. ." ". :?..:~~.:~ .:::'T .. ~:- ~:...:.- .:..Sf~':'.;:2L ..cal..~.\- "a.t~~~\..,a 01..;;;>'< .~.~'~~ ."..~.-. : r~:..;~L1~ pAo~fAT't' ---'\ ~UiUN ~ -....- .; 1;'::. : \. I I I,; \" ! \ ' i d' if" - ....uno..o ".,..".. DU.".' plWAN,a; VICIN~:.Y MAP ~ AREA E 7 DUBLIN RANCH AREA A, B, C, D, E PLEASE SEE THE FOLLOWING PAGE FOR ASSESSOR PARCEL NUMBERS PROVIDED BY LOT _ Genera~ Location of School Site o FORMER SCHOOL SITES .' Exhibit "c" }//; EXHIBIT 2