HomeMy WebLinkAboutItem 8.2 MastrDevAgmtE Dublin~ ~''~ • ~ ~ -~ CITY CLERK
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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: November 28, 1995
SUBJECT: Master Development Agreement -- Eastern Dublin
Report prepared by Elizabeth H. Silver, City Attorney
EXHIBITS ATTACHED: 1) Resolution approving Revisions to Master Development
Agreement
2) Master Development Agreement with revisions
3) Master Development Agreement with revisions (red-lined)
4) Resolution No. 109-94
RECOMMENDATION: • Adopt resolution approving revisions to Master Development
Agreement
FINANCIAL STATEMENT: None
DESCRIPTION: One of the implementing actions of the Eastern Dublin Specific Plan
requires the City to enter into a development agreement with developers. The Specific Plan also requires
the City to prepare a"master development agreement" to serve as the format for negotiating development
agreements with developers in Eastern Dublin. On October 10, 1994, the City Council approved a"Master
Development Agreement" by Resolution No. 109-94 (Exhibit 4). During the process of negotiating the
first development agreement in the Eastern Dublin area, the staff identified several changes which staff
believes should be made. A copy of the "Master Development Agreement" with the proposed changes is
attached (E~ibit 2). The changes are mainly for the purposes of clarity.
Staff anticipates receiving at least one application for a development agreement within the next several
months. For this reason, the staffis requesting that the Council consider these revisions at this time.
Proposed Revisions
The suggested revisions and the reasons therefor are as follows. Minor revisions are not discussed below.
A red-lined copy of the Master Development Agreement showing the suggested changes is attached
(Exhibit 3).
Recitals
Staff suggests adding a new Recital G, relating to "Subsequent Approvals." The purpose of the new recital
would be to clarify that any discretionary approvals needed after the development agreement is approved
vest along with the approvals which e~sted at the time of the approval of the development agreement.
COPIES TO:
ITEM NO.
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Paragraph 6.2. Rules re Design and Construction
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Staff suggests replacing existing paragraph 6.2 with new language to clarify that rules re design,
improvement and construction apply to the project approvals at the time of discretionary approval whereas
rules for public improvements are those in effect at the time the permit is approved.
Paragraph 8.1 New Fees .
The suggested language is clearer than the language in the Master Development Agreement. It requires
that the City determine all fees, dedications and exactions at the time of the Development Agreement so
there are no surprises later on. If the City cannot determine all applicable fees and exactions for a
particular project, the last sentence in brackets would be omitted.
Paragraphs 9.3 and 9.4 Amendments
New paragraph 9.3 would allow the Council to approve an amendment to the Development Agreement
which is non-substantive, without requiring a noticed public hearing before both the Planning Commission
and the Council. For example, the provisions relating to breach and the right to cure could be amended to
conform to lenders' requirements which may not be known at the time the agreement is negotiated.
New paragraph 9.4 would eliminate the need to amend the development agreement when there are
amendments to project approvals. If this provision were in the Hansen Ranch development agreement, for
example, it would not have been necessary to amend that agreement when the project approvals were
amended.
Paragraph 12. Default
Staff suggests adding a new subparagraph 12.3 to clarify that in no event shall damages be awarded against .
the City in the event of a default by the City or upon termination of the agreement. Although specific
performance is the most likely remedy available against the City, the agreement would allow a developer to
bring another type of action. It is important to make it clear that damages can never be awarded against
the City, whatever the form of the legal action.
Paragraph 14.3 Extension of Right to Cure
Staff suggests adding the last sentence to paragraph 14.3. This w~:)Uld allow the City Manager to extend
the cure period if a lender requests additional time without requiring an amendment to the agreement.
Paragraph 20. Indemnification
The City's development agreement ordinance (Chapter 8.12) provides in section 8.12.110 (G) that
developers shall hold the city harmless from claims arising out of the development process "including all
legal fees and costs." Paragraph 20, as written, would not obligate the developer to pay the city's legal fees
and costs if the city has to defend an action which arises out of the construction, improvement, operation
or maintenance of the project. Staff suggests adding the phrase "including legal fees and costs," as
indicated.
Exhibit B
Exhibit B would be revised to reference the various fees which will be applicable to developers in Eastern
Dublin. Staffhas listed <all the fees which are in existence or are contemplated. If one or more of these
fees has not been adopted by the Council at the time a development agreement is negotiated for a specific
project, the agreement will have to address that proposed fee specifically.
.
. :ropertl Owners Review
A copy of the proposed revisions to the Master Development Agreement was sent to all property owners
in the Eastern Dublin Specific Plan area on October 12, 1995. Property owners were asked to provide any
comments by October 30. To date, no comments have been received from any property owners.
"ecommendation
Staff recommends that the Council adopt the Resolution (Exhibit 1) approving revisions to the Master
Development Agreement.
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF DUBLIN
A RESOLUTION APPROVING REVISIONS TO
MASTER DEVELOPMENT AGREEMENT
WHEREAS, the Eastern Dublin Specific Plan was adopted in 1993; and
WHEREAS, one of the implementing actions called for in the Specific Plan is a
development agreement with all developers; and
WHEREAS, Development agreements are authorized by statute (Government
Code ~ 65864 et seq.); and
WHEREAS, Chapter 8.12 of the Dublin Municipal Code is the City's enabling
ordinance and provides the procedure for adoption of a development agreement; and
WHEREAS, the Specific Plan calls for the City to develop a "Master Development
Agreement" to serve as the format for all development agreements within the Eastern
Dublin Specific Plan area; and
WHEREAS, a Master Development Agreement (Exhibit 2) was approved by City
Council by Resolution No. 109-94; and
WHEREAS, revisions to the Master Development Agreement have been prepared
by staff.
NOW, THEREFORE, BE IT RESOLVED THAT:
The City Council approves the Master Development Agreement (revised
November 28, 1995) (Exhibit 2) as the format for commencing negotiations with
developers of property within the Specific Plan Area for development agreements.
PASSED, APPROVED, AND ADOPTED THIS _ day of
AYES:
NOES:
ABSENT:
ABSTAIN:
1\1AYOR
ATTEST:
EXHIBIT 1
CITY CLERK
Recording Requested by:
City of Dublin
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94.568
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
FOR THE [
] PROJECT
1
Approved by City Counsel
November 28, 1995
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EXHIBIT 2
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"
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this _ day of _, 19_, by and between the CITY OF DUBLIN, a
Municipal Corporation (hereafter "City"), and , a [e.g. California
corporation, California general partnership, California limited partnership] (hereafter
"Developer"), pursuant to the authority of ~~ 65864 et seq. of the California
Government Code and Dublin Municipal Code, Chapter 8.12.
RECITALS
A. California Government Code ~~ 65864 et seq. and Chapter 8.12 of
the Dublin Municipal Code (hereafter "Chapter 8.12") 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. The Eastern Dublin Specific Plan requires DEVELOPER to enter
into a development agreement; and
D. DEVELOPER desires to develop and holds legal interest in certain
real property consisting of approximately _ acres of land, located in the City of
Dublin [omit if property is in unincorporated area], County of Alameda, State of
California, which is more particularly described in Exhibit A attached hereto and
incorporated herein by this reference, and which real property is hereafter called the
"Property"; and [Note: Alameda County Surplus Property Authority may also be
party to Development Agreement if property is part of the "Santa Rita"
property. ]
E. DEVELOPER proposes the development of the Property with
_ [e.g., single-family/multi-family homes; a_ acre commercial development; a
mixed use development] (the "Project"); and
F. DEVELOPER has applied for, and CITY has approved, various land
use approvals in connection with the development of the Project, including a [e.g. PD
District prezoning and Land Use and Development Plan (Res. No. _), tEntative
map (Res. No._), site development review, conditional use permit (Planning
Commission Resolution No. _)] (collectively, together with any approvals or
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November 28, 1995
",
permits now or hereafter issued with respect to the Project, the "Project Approvals");
and
.
G. Development of the Property by DEVELOPER is subject to certain
future discretionary approvals including, but not limited to, [e.g., tentative map, site
development review], which, if granted, shall automatically become part of the
Proj ect Approvals as each such approval becomes effective; and
H. CITY desires the timely, efficient, orderly and proper development
of said Project; and
I. The City Council has found that, among other things, this
Development Agreement is consistent with its General Plan and the Eastern Dublin
Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.12;
and
J. < CITY and DEVELOPER have reached agreement and desire to
express herein a Development Agreement that will facilitate development of the
Project subject to conditions set forth herein; and
K. Pursuant to the California Environmental Quality Act (CEQA) the City
[e.g., prepared a Supplement to or Subsequent Environmental Impact Report, an .
Addendum, a Negative Declaration, a Mitigated Negative Declaration for the Project]
or [e.g., has found, pursuant to CEQA Guidelines section 15168, that the 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 Council by
Resolution No. 51-93] and found that the [e.g., EIR, ND] was adequate for this
Agreement; and
L.
Ordinance No.
effect on
On [date], the City Council of the City of Dublin adopted
approving this Development Agreement. The ordinance took
[ date].
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained,
CITY and DEVELOPER agree as follows:
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November 28, 1995
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AGREEMENT
1.
Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
2. Interest of Developer.
The DEVELOPER has a legal or equitable interest in the Property in
that it [e.g., owns, has an option on] 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 recorded in the Office of the Alameda
County Recorder. -
4.2 Term. The term of this D~velopment Agreement shall
commence on the effective date and extend (_) years thereafter, unless said
term is otherwise terminated or modified by circumstances set forth in this
Agreement. .
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.
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November 28, 1995
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 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.) (See Exhibit B) or (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) or (Not
Applicable)
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) or (Not
Applicable)
5.3.4 Financing Plan. Financial plans which identify
necessary capital improvements such as streets and utilities and
sources of funding. (See Exhibit B) or (Not Applicable)
5.3.5 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
(See Exhibit B) or (Not Applicable)
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November 28, 1995
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5.3.6 Fees. Dedications. Terms relating to payment of
fees or dedication of property. (See Exhibit B) or (Not
Applicable)
5.3.7. Miscellaneous. Miscellaneous terms.
(See Exhibit B) or (Not Applicable)
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 this Agreement.
6.2 Rules re Design and Construction. Unless otherwise
expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions,
rules, regulations and official policies governing design, improvement and
construction standards and specifications applicable to the Project shall be those in
force and effect at the time of the applicable discretionary 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.
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, and Electrical Codes
and Title 24 of the California Code of Regulations, relating to Building Standards, in
effect at the time of approval of the appropriate building, grading, or other
construction permits for the Project.
7. Subsequently Enacted Rules and Regulations.
7.1 New Rules and Regulations. During the term of this
Agreement, the City may apply new or modified ordinances, resolutions, rules,
regulations and official policies of the City to the Property which were not in force
and effect on the effective date of this Agreement and which are not in conflict with
those applicable to the Property as set forth in this Agreement if the application of
such new or modified ordinances, resolutions, rules, regulations or official policies
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November 28, 1995
would not prevent or materially delay development of the Property as contemplated
by this Agreement and the Project Approvals.
.
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 tho~e set forth in [insert PD Ordinance Number]
and in this Agreement. [The CITY shall not impose or require payment of any other
fees, dedications of land, or construction of any public improvements or facilities, in
connection with any subsequent discretionary appro",:al for the Property, except as set
forth in and this Agreement.]
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
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November 28, 1995
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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.
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 8.12.
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 Dublin Ordinance No. 8-91.
.
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
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 D EVELO PER 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.
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
.
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November 28, 1995
shall require an amendment of this Agreement. 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 8.12. 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 tentative map described in Recital F above shall automatically be
extended for the term of this Agreement. The term of any other Project Approval
shall be extended only if so provided in Exhibit_B.
11. Annual Review.
shall be
11.1
and each
Review Date. The annual review date for this Agreement
thereafter.
.
11.2 Initiation of Review. The CITY's Planning Director shall
initiate the annual review, as required under Section 8.12.140 of Chapter 8.12, by
giving to DEVELOPER thirty (30) days' written notice that the CITY intends to
undertake such review. DEVELOPER shall provide evidence to the Planning Director
prior to the hearing on the annual review, as and when reasonably determined
necessary by the Planning 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 three (3) 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.
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November 28, 1995
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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 CitYs 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, to
the knowledge of the certifying party, (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) 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. Failure to execute
an estoppel certificate shall not be deemed a default.
.
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November 28, 1995
14. Mortgagee Protection: Certain Rights of Cure.
14.1 Mortgagee Protection. This Agreement shall be superior
and senior to any lien placed upon the Property, or any portion thereof after the date
of recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render
invalid, diminish or impair the lien of any Mortgage made in good faith and for value,
but all the terms and conditions contained in this Agreement shall be binding upon
and effective against any person or entity, including any deed of trust beneficiary or
mortgagee ("Mortgagee") who acquires title to the Property, or 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 to construct or complete the construction of improvements, or to
guarantee such construction of improvements, or to guarantee such construction or
completion; 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 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
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November 28, 1995
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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 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'S rights hereunder may be
transferred, sold or assigned in conjunction with the transfer, sale, or assignment of all
or a portion of the Property subject hereto at any time during the term of this
Agreement, provided that no transfer, sale or assignment of DEVELOPER's rights
hereunder shall occur without the prior written notice to CITY and approval by the
City Council, which approval shall not be unreasonably withheld or delayed. The
. City Council shall consider the matter within 30 days after DEVELOPER's notice.
17.2 Release Upon Transfer. Upon the transfer, sale, or
assignment of DEVELOPER's rights and interests hereunder pursuant to the
preceding subparagraph of this Agreement, DEVELOPER shall be released from the
obligations under this Agreement, with respect to the Property transferred, sold, or
assigned, arising subsequent to the date of City Council approval of such transfer,
sale, or assignment; provided, however, that if any transferee, purchaser, or assignee
approved by the City Council expressly assumes the obligations of DEVELOPER
under this Agreement, DEVELOPER shall be released with respect to all such
assumed obligations. In any event, the transferee, purchaser, or assignee shall be
subject to all the provisions hereof and shall provide all necessary documents,
certifications and other necessary information prior to City Council approval.
17.3 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 ~hereof and thereupon and without the
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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. [Omit for commercial/industrial projects.]
.
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 ovvner 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.
1 9. 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.
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November 28, 1995
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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 ($1,000,000) and a deductible of not more than
thousand dollars ($ ) 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 and21.2 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 and each contractor and subcontractor performing work on the
Proj ect.
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 [and that DSRSD does not presently
have adequate water and sewer capacity to issue such permits].(Delete if not
applicable. )
23. Notices.
All notices required or provided for under this Agreement shall be in
writing and delivered in person or sent by certified mail, postage prepaid. Notices
required to be given to CITY shall be addressed as follows:
14
November 28, 1995
:-
City Manager
City of Dublin
P.O. Box 2340
Dublin, CA94568
.
Notices required to be given to DEVELOPER shall be addressed as follows:
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.
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 Prope;rty
Exhibit B
Additional Conditions
26. Counterparts.This Agreement is executed in _ 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.
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November 28, 1995
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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:
Mayor
Date:
DEVELOPER:
By:
Date:
Name:
Its:
APPROVED AS TO FORM:
Date:
City Attorney
(NOTARIZATIQN ATIACHED)
16
November 28, 1995
r
EXHIBIT A
Description of the Property
[INSERT LEGAL DESCRIPTION]
November 28, 1995
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EXHIBITB
Additional Conditions
The following Additional Conditions are hereby imposed pursuant
to Paragraph 5.3 above.
1. Subparagraph 5.3.1 : Subsequent Discretionary
Approvals.[PROVISIONS TO BE TAILORED TO EACH PROJECT.]
2. Subparagraph 5.3.2:Mitigation Conditions. [PROVISIONS
TO BE TAILORED TO EACH PROJECT.]
3. Subparagraph 5.3.3:Phasing. Timing. [PROVISIONS TO BE
TAILORED TO EACH PROJECT.]
4. Subparagraph 5.3.4:Financing Plan. [PROVISIONS TO BE
TAILORED TO EACH PROJECT.]
5. Subparagraph 5.3.5:Reimbursement.[PROVISIONS TO BE
TAILORED TO EACH PROJECT.]
6. Subparagraph 5.3.6:Fees. Dedications.[PROVISIONS TO
BE TAILORED TO EACH PROJECT.]
DEVELOPER agrees to pay the following fees to CITY:
a.Traffic Impact Fees pursuant to Dublin Resolution No. 1-95 [or current
resolution number, if amended] in the amount of $
b.Freeway"Interchange Fee pursuant to Dublin Resolution No. in the
amount of $_;
c.Public Facilities Fees pursuant to Dublin Resolution No. in the
amount of $
d.Noise Mitigation Fee pursuant to Dublin Resolution No. in the
amount of $_;
1
November 28, 1995
e.Eastern Dublin Specific Plan Preparation Fee pursuant to Dublin
Resolution No. in the amount of $
f.Eastern Dublin Specific Plan Implementation Fee pursuant to Dublin
Resolution No. in the amount of $ ; and
g.insert other applicable fees
DEVELOPER acknowledges that payment of school impact fees, fire capital impact
fees, and sewer and water connection fees must be made to other public entities.
DEVELOPER agrees to make the following dedications to CITY: insert property
description and purpose of dedication
7. Subparagraph 5.3.7:Miscellaneous.[PROVISIONS TO BE
TAILORED TO EACH PROJECT.]
2
November 28, 1995
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S tate of California )
) ss.
County of Alameda )
On
before me, a Notary Public,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
NOTARY PUBLIC
November 28, 1995
Recording Requested by:
City of Dublin
When Recorded Mail To:
Ci ty 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
FOR THE [
] PROJECT
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EXHIBIT 3
.
.
.
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this _ day of _, 19_, by and between the CITY OF DUBLIN, a
Municipal Corporation (hereafter "City"), and , a [e.g. California
corporation, California general partnership, California limited partnership] (hereafter
"Developer"), pursuant to the authority of ~~ 65864 et seq. of the California
Government Code and Dublin Municipal Code, Chapter 8.12.
RECITALS
A. California Government Code ~~ 65864 etseq. and Chapter 8.12 of
the Dublin Municipal Code (hereafter "Chapter 8.12") 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. The Eastern Dublin Specific Plan requires DEVELOPER to enter
into a development agreement; and
D. DEVELOPER desires to develop and holds legal interest in certain
real property consisting of approximately _ acres of land, located in the City of
Dublin [omit if property is in unincorporated area], County of Alameda, State of
California, which is more particularly described in Exhibit A attached hereto and
incorporated herein by this reference, and which real property is hereafter called the
"Property"; and [Note: Alameda County Surplus Property Authority may also be
party to Development Agreement if property is part of the "Santa Rita"
property.] ~
E. DEVELOPER proposes. the development of the Property with
_ [e.g., single-family/multi-family homes; a_ acre commercial development; a
mixed use development] (the "Project"); and
F. DEVELOPER has applied for, and CITY has approved, various land
use approvals in connection with the development of the Project, including a [e.g. PD
District prezoning and Land Use and Development Plan (Res. No. _), tentative
map (Res. No._), site development review, conditional use permit (Planning
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October 4, 1994
J:\WPD\MNRSW\114\AGREE\DEVELOPMAGR
Commission Resolution No. _)] (collectively, together with any approvals or
permits now or hereafter issued with respect to the Project, the IIProject Approvalsll);
and
.
H. CITY desires the timely, efficient, orderly and proper development
of said Project; and
1. 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 8.12;
and
J. CITY and DEVELOPER have reached agreement and desire to
express herein a Development Agreement that will facilitate development of the
Project subject to conditions set forth herein; and
K. Pursuant to the California Environmental Quality Act (CEQA) the City .
[e.g., prepared a Supplement to or Subsequent Environmental Impact Report, an
Addendum, a Negative Declaration, a Mitigated Negative Declaration for the Project]
or [e.g., has found, pursuant to CEQA Guidelines section 15168, that the 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 Council by
Resolution No. 51-93] and found that the [e.g., EIR, ND] was adequate for this
Agreement; and
1. On [date], the City Council of the City of Dublin adopted
Ordinance No._ approving this Development Agreement. The ordinance took
effect on [ date].
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained,
CITY and DEVELOPER agree as follows:
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October 4. 1994
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AGREEMENT
1.
Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
2. Interest of Developer.
The DEVELOPER has a legal or equitable interest in the Property in
that it [e.g., owns, has an option on] 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 maldng 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 recorded in the Office of the Alameda
County Recorder.
4.2 Term. The term of this Development Agreement shall
commence on the effective date and extend (~J years thereafter, unless said
term is otherwise terminated or modified by circumstances set forth in this
Agreement.
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.
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October 4, 1994
J:\WPD\MNRSW\114\AGREE\DEVELOPMAGR
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 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?!l.?~;q~~m!::~#.!@'~~!!~~Ii::~'Pt~Y.!!~:I::i:
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.) (See Exhibit B) or (Not
Applicable)
5.3. 2~{t~g~~~9~":,~~~~!Q~~~::~::::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) or (Not
Applicable)
5.3.3E~~i.R.i~:::~~~i.~gi:i:::::::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. ,JSee Exhibit B) or (Not
Applicable)
5.3.4 F~~~!~~~:~::!!~~i;::~:~::::Financial plans which identify
necessary capital improvements such as streets and utilities and
sources of funding. (See Exhibit B) or (Not Applicable)
5.3.5 ~~~~~!r.!~~~~~:::::::Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
(See Exhibit B) or (Not Applicable)
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fees ~~~er:s;~~:(~~~ payment of
Applicable)
5.3. 7 .~~~~~~!~n~!!~ili,!::!:!i!Miscellaneous terms.
(See Exhibit B) or (Not Applicable)
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 this Agreement.
6.2 Rules re Design and Construction. Unless otherwise
expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions,
rules, regulations and official policies governing design, improveme!l:~<<~~<<<<<<<<<<<<<<<<<<<<<<<<<
.
those in force and effect at the time of the applicable permit approval.
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, and Electrical Codes
and Title 24 of the California Code of Regulations, relating to Building Standards, in
effect at the time of approval of the appropriate building, grading, or other
construction permits for the Project.
7. Subsequently Enacted Rules and Regulations.
7.1 New Rules and Regulations. During the term of this
Agreement, the City may apply new or modified ordinances, resolutions, rules,
regulations and official policies of the City to the Property which were not in force
and effect on the effective date of this Agreement and which are not in conflict with
those applicable to the Property as set forth in this Agreement if the application of
.
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such new or modified ordinances, resolutions, rules, regulations or official policies
would not prevent or materially delay development of the Property as contemplated .
by this Agreement and the Project Approvals.
7.2 Denial or Conditional ApprovAl gP!!:~~:::q!::~PP~!!.~~~I.
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 New Fees~::;:~~~~~~!~~::::~~!.~~~~<!?~~. No fees iIrlposed on
nevVi dCv'c!opIrlent, such AS [e.g., child care fees], adopted by the CITY s':l?~<c:.9:u.:<:'J:lt to
9~C:Hcffccti.v'e date of this l....greeIrlent, shall be appliCAble to thc Project. 8iJt~::::~~
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.
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8.3 New Taxes. Any subsequently enacted city-wide taxes shall
apply to the Project provided that: (I) 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.
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 8.12.
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 Dublin Ordinance No. 8-91.
1__*I1~a_
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t1ls.in~8
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 8.12. 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 tentative map described in Recital F above shall automatically be
extended for the term of this Agreement. The term of any other Project Approval
shall be extended only if so provided in Exhibit B.
.
11.
Annual Review.
shall be
g~~:::iw@n::::::if:i~i.I.I;e annual review date for this Agreement
11.2 Initiation of Review. The CITYs Planning Director shall
initiate the annual review, as required under Section__8.12.140 of Chapter 8.12, by
giving to DEVELOPER thirty (30) days' written notice that the CITY intends to
undertake such review. DEVELOPER shall provide evidence to the Planning Director
prior to the hearing on the annual review, as and when reasonably determined
necessary by the Planning 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 three (3) days prior to any annual review.
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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 non defaulting 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.
i___&_._Il_..41~
.
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, to
the knowledge of the certifying party, (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) 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
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authorized to execute any certificate requested by DEVELOPER. Failure to execute
an estoppel certificate shall not be deemed a default.
.
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 :fer-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 to construct or complete the construction of improvements, or to
guarantee such construction of improvements, or to guarantee such construction or
completion; 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 N t. f D f 1 M ::::::::::::::::tf':b;::ill:1{:::::::::::~::::::::::::::::::::::::::r:::<:<'::IJ(:::ii::::t:::::::::::
. 0 ICe 0 e au t to ortgagee:::~??~:~~~~~:!::!!<:::::::<::<<::<.:g<<::.:y:::<<:~
~~i~. 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
.ii~-
15. Severability.
The unenforceability, invalidity or illegality of any provisions,
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.
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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 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'S rights hereunder may be
transferred, sold or assigned in conjunction with the transfer, sale, or assignment of all
or a portion of the Property subject hereto at any time during the term of this
Agreement, provided that no transfer, sale or assignment of DEVELOPER's rights
hereunder shall occur without the prior written notice to CITY and approval by the
City Council, which approval shall not be unreasonably withheld or delayed. The
City Council shall consider the matter within 30 days after DEVELOPER's notice.
17.2 Release Upon Transfer. Upon the transfer, sale, or
assignment of DEVELOPER's rights and interests hereunder pursuant to the
preceding subparagraph of this Agreement, DEVELOPER shall be released from the
obligations under this Agreement, with respect to the Property transferred, sold, or
assigned, arising subsequent to the date of City Council approval of such transfer,
sale, or assignment; provided,however, that if any transferee, purchaser, or assignee
approved by the City Council expressly assumes the obligations of DEVELOPER
under this Agreement, DEVELOPER shall be released with respect to all such
assumed obligations. In any event, the transferee, purchaser, or assignee shall be
subject to all the provisions hereof and shall provide all necessary documents,
certifications and other necessary information prior to City Council approval.
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October 4. 1994
17.3 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. [Omit for commercial/industrial projects.]
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. .
I 9. Bankruptcy.
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
20. Indemnification.
DEVELOPER agrees to indemnify*::::~ifin~ and hold harmless CITY,
and its elected and appointed councils, boards, commissions, ?ff.i~~~.s.,...~g~~~~~................
employees, and representatives from any and all claims, costsImililn,g::i~glt:::ti:I::::!m~
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.
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.
smil): 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.
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 ($1,000,000) and a deductible of not more than
thousand dollars ($ ) 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 s!'tall extend to the CITY, its.
elective and appointive boards, commissions, officers, agents, employees and
representatives and to DEVELOPER and each contractor and subcontractor
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 [and that DSRSD does not presently
have adequate water and sewer capacity to issue such permits]. (Delete if not
14
October 4, 1994
J:\WPD\MNRSW\l I4\AG REE\DEVELOPMAGR
applicable. )
.
23. Notices.
All notices required or provided for under this Agreement shall be in
writing and delivered in person or sent by certified mail, postage prepaid. Notices
required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
P.O. Box 2340
Dublin, CA 94568
Notices required to be given to DEVELOPER shall be addressed as follows:
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.
24. Agreement is Entire Understanding.
This Agrecn-lcnt is executed in _ duplicate originals, each of
vihich is dccmcd to bc an original. This Agreement ~onstitutes 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
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October 4, 1994
]:\WPD\MNRSW\114\AGREE\DEVELOPMAGR
.
Exhibit B
Additional Conditions
. ------
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:
Mayor
Date:
DEVELOPER:
.
By:
Date:
Name:
Its:
APPROVED AS TO FORM:
Date:
Ci ty Attorney
(NOTARIZATION ATTACHED)
.
16
October 4, 1994
]:\WPD\MNRSW\114\AGREE\DEVELOPMAGR
EXHIBIT A
Description of the Property
[INSERT LEGAL DESCRIPTION]
17
October 4, 1994
]:\WPD\MNRSW\114\AGREE\DEVELOPMAGR
.
.
.
.
.
.
. .
EXHIBITB
Additional Conditions
The following Additional Conditions are hereby imposed pursuant
to Paragraph 5.3 above.
1. Subparagraph 5.3.1: ~!~~!~~!:::~!~~!~!~~I::~pp.!:9.Y~~:~:
[PROVISIONS TO BE TAILORED TO EACH PROJECT.]
2. Subparagraph 5.3.2: ~!~g~~!l!::::~!i\~!!!g~~ [PROVISIONS
TO BE TAILORED TO EACH PROJECT.]
3. Subparagraph 5.3.3: ~~~~~gl::::jf.~~~g!::::::::[PROVISIONS TO
BE TAILORED TO EACH PROJECT.]
4. Subparagraph 5.3.4: ~~~~g9p.g':::R~~n;' [PROVISIONS TO
BE TAILORED TO EACH PROJECT.]
5. Subparagraph 5.3.5: ~~!~~w.~~~!g!.;, [PROVISIONS TO
BE TAILORED TO EACH PROJECT.]
6. Subparagraph 5.3.6: ~~~~:~::::~~~~~~9~A [PROVISIONS TO
BE TAILORED TO EACH PROJECT.]
~mIEHII1EI'~ii~"~9-:::piy:::lis:::fw!~9Ing.t~i~::::~9:::m.1
~_.~-
1_IP_~~i._..
----
_~.1II1I1~\1IIffm1!l~Jf\lrur%.~~
18
October 4, 1994
]:\WPD\MNRS\V\114\AGREE\DEVELOPMAGR
.
~
-
i:~::::::::~iml!j::9t.llii:!:aRlli_J.~:::f,_
,-
-
7. Subparagraph 5.3.7: ~!!~~!~~~~!~~ [PROVISIONS TO BE
TAILORED TO EACH PROJECT.]
19
October 4, 1994
J:\ WPD\MNRSW\114\AGREE\DEVELOPMAGR
,"
.
.
.
oJ,
.
State of California )
) ss.
County of Alameda )
On
before me, a Notary Public,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their .
authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
.
WITNESS my hand and official seal.
NOTARY PUBLIC
.
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October 4, 1994
]:\WPD\MNRSW\114\AGREE\DEVELOPMAGR
.
RESOLUTION NO. 109 - 94
'. A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
***************************
APPROVING MASTER DEVELOPMENT AGREEMENT
WHEREAS, the Eastern Dublin Specific Plan was adopted in 1993; and
WHEREAS, one of the implementing actions called for in the
Specific Plan is a development agreement with all developers; and
WHEREAS, Development agreements are authorized by statute
(Government Code Section 65864 et seq.); and
WHEREAS, Chapter 8.12 of the Dublin Municipal Code is the City's
enabling ordinance and provides the procedure for adoption of a
development agreement; and
WHEREAS, the Specific Plan calls for the City to develop a "Master
Development Agreement" to serve as the format for all development
agreements within the Eastern Dublin Specific Plan area; and
WHEREAS, a Master Development Agreement (Exhibit A) has been
411fpared by staff.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Dublin does hereby approve the Master Development Agreement (Exhibit A)
as the format for commencing negotiations with developers of property
within the Specific Plan Area for development agreements.
PASSED, APPROVED AND ADOPTED this 10th day of October, 1994.
AYES:
Councilmembers Burton, Houstol)., Howard, Moffatt, and
Mayor Snyder
NOES:
None
ABSENT:
None
-? . .
/~,~
May r
ATrESTdd te-L
~i tj" CYer'k.
a: resol09. agenda#l 5
.
EXHIBIT .it