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HomeMy WebLinkAboutReso 061-99 InterminAg MSSH RESOLUTION NO. 61 - 99 A RESOLUTION OF THE CITY OF DUBLIN APPROVING A~ INTERMIN AGREEMENT BETWEEN MSSI:I DUBLIN DEVELOPMENT LLC AND THE CITY OF DUBLIN FOR PA 98-045 DUBLIN RANCH PHASE I PROJECT WHEREAS, it is a City requirement that no building permit can be issued prior to the effective date of the development agreement for the Dublin Ranch Phase I project; WHEREAS, it is the desire of the developers of the Dublin Ranch Phase I Project to obtain building permits prior to the effective date of the development agreement; and WHEREAS, the interim agreement, attached to this resolution as Exhibit A would authorize the issuance of up to 125 building permits prior to the effective date of the development agreement and would place all risk resulting from the issuance of such building permits prior to the effective date of the development agreement on the developers; and WHEREAS, a staff report was submitted recommending the City Council approve the interim agreement; and WHEREAS, the City Council did hear and used its independent judgement and considered all said reports, recommendations and testimony here and above set forth. .NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Dublin does hereby approve the interim agreement between the City of Dublin, MSSH Dublin Development LLC, Centex Homes, Standard Pacific Corp, and MSSH Mayfield, LLC for the Dublin Ranch Phase I project, a copy of which is attached here as Exhibit A. PASSED, APPROVED, AND ADOPTED, this 6th day of April, 1999. AYES: Councilmembers Howard, Loclihart, Zika and Mayor Houston NOES: Councilmember McCormick ABSENT: None ABSTAIN: None ATTEST~~ ~ K2/G/4-6-99/reso-intrmagmt-rnssh INTERIM AGREEMENT BET~.qEEN THE CITY OF DUBLIN AND MSSH DUBLIN DEVELOPMENT, LLC AND CENTEX HOMES AND STANDARD PACIFIC CORP. AND MSSH MAYFIELD LLC FOR THE DUBLIN RANCH - PHASE I PROJECT THIS AGREEMENT is made and entered in the City of Dublin on this 6th day of April, I999, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), MSSH Dublin Development LLC, a California limited liability company '(MSSH"), Centex Homes, a Nevada general partnership ("CENTEX"), MSSH Mayfield LLC, a Delaware limited liability company ("MAYFIELD), and Standard Pacific Corp., a Delaware corporation ("STANDARD PACIFIC"). MSSH, CENTEX, MAYFIELD and STANDARD PACIFIC are each referred to individually as "DEVELOPER" and collectively as ~'DEVELOPERS"). RECITALS A. MSSH, CENTEX, MAYFIELD and STANDARD PACIFIC desire to develop and hold legal interest in certain real property located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibits A-1 (MSSH), A-2 (CENTEX), A-3 (MAYFIELD, and A-4 (STANDARD PACIFIC), respectively, attached hereto and incorporated herein by this reference, and which real property is hereafter collectively called the "Properties"; and B. MSSH, CENTEX, MAYFIELD and STANDARD PACIFIC have proposed the development of the Properties with a maximum of 847 homes in nine neighborhoods, including a 5-acre neighborhood park, a 1 O-acre elementary school, a stream corridor, and several pocket parks and community Open space, all as depicted generally on Exhibit A-5 (the "Project"); and C. CITY has approved various land use approvals in connection with the development of the Project, including a PD District rezoning (Ordinance No. 2-96), general provisions for the PD District rezoning including the Land Use and Development Plan (Res. No. 12-96); and a Master Vesting Tentative Map for Tract 6925 (Planning Commission Resolution No. 98-01) (collectively, together with any approvals or permits now or hereafter issued [including those referred to in Recital D] with respect to the Project, the "Project Approvals"); and D. MSSH, CENTEX, MAYFIELD and STANDARD PACIFIC have received approval to develop eight neighborhoods, which are shown on the Master Vesting Tentative Map for Tract 6925, as follows: Dublin/MSSH Interim Agreement for Dublin Ranch - Phase I Project Page 1 of 9 March 31, 1999 Max. Number of Tentative Map Site Development Neighborhood Owner/Developer Units (Planning Review (Planning Comm. Reso.) Comm. Reso.) M-i STANDARD 111 multi-family 98-57 98-57 PACIFIC units M-2 STANDARD 45 multi-family 98-58 98-58 PACIFIC units M-3 STANDARD 123 multi-family 98-59 98-59 PACIFIC units L- 1 MS SH 91 single-family 98-52 none units L-2 MAYFIELD 69 single-family 98-53 98-53 units L-3 MAYFIELD 86 single-family 98-54 98-54 units L-4 MSSH 92 single-family 98-55 none units L-5 CENTEX 113 single-family 98-56 98-56 units E. DEVELOPERS have applied for and are processing a development agreement with CITY which requires approval by CITY by ordinance; and F. CITY has introduced an ordinance approving a development agreement with DEVELOPERS; and G. DEVELOPERS wish to pull building permits -for the Project prior to the date the development agreement will be effective; and H. The purpose of this agreement is two fold: first, to allow for the issuance of a limited number of building permits prior to the date the development agreement becomes effective; second, to clarify that in asldng CITY to issue a building permits prior to the Effective Date of the development agreement DEVELOPERS act at their own risk. Dublin/MSSH Interim Agreement for Dublin Ranch - Phase I Project Page 2 of 9 March 3 I, 1999 NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPERS agree as follows: AGREEMENT 1. Description of Property. The property which is the subject of this agreement is described in Exhibit A-1, A-2, A-3 and A-4 attached hereto (collectively, the "Properties"). 2. Interest of Developer. MSSH, CENTEX, MAYFIELD and STANDARD PACIFIC each has a legal or equitable interest in one of the Properties in that each owns such property as described in Exhibits A-1, A-2, A-3 and A-4 respectively 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 DEVELOPERS and that the DEVELOPERS are not agents of CITY or each other. The CITY and DEVELOPERS 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 DEVELOPERS (collectively or individually) joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by City. 4.2 Term. The term of this Agreement shall commence on the Effective Date and extend until the sooner of (a) the Effective Date of the development agreement between CITY and DEVELOPERS (with a "footer" date of March 18, 1998) which has been recommended for approval by the Planning Commission and which is being considered by the City Council for approval, or (b) the issuance of 125 building permits. Dublin/MSSH Interim Agreement for Dublin Ranch - Phase I Project Page 3 of 9 March 3 I, 1999 5. MSSH to Perform Certain Off-Site Improvements. MSSH has previously entered into an agreement with CITY, entitled "Improvement Agreement for Tassajara Road" to conduct improvements to Tassajara Road. The improvements to the Neighborhood Park which MSSH is to perform pursuant to the proposed Development Agreement will not be required to be secured hereunder because the park will not be required until 250 homes have been constructed. 6. Building Permits. DEVELOPERS may apply for any permits which may be required for construction on the Properties, including building permits, prior to the Effective Date of the development agreement and CITY agrees i3 will not withhold issuance of such permits due to the fact that a development agreement between CITY and DEVELOPERS is not effective. 7. Limit on Number of Permits. agreement. 8. No more than 125 building permits may be issued pursuant to this No Guaranty That Permits Will Issue. Nothing in this agreement shall be construed as an entitlement to issuance of any building permits. Any application for a building permit will be considered by CITY in the same manner it considers issuance of any other permits. 9. No Damages Against CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. I 0. S everability. 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. Dublin/MSSH Interim Agreement for Dublin Ranch - Phase I Project Page 4 of 9 March 31, 1999 1 1. Attorneys' Fees and Costs. If CITY or a 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 entided 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. DEVELOPERS shall bear their own costs of defense as real parties 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. I2. Right to Assign. DEVELOPERS shall not assign their obligations hereunder. 13. Indemnification. Each 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 such DEVELOPER, or any actions or inactions of such DEVELOPER's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that such DEVELOPER shall have no indemnification obligation with respect to negligence or wrongful conduct of CITY, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). 14. · DEVELOPERS to Bear Risk DEVELOPERS agree individually and collectively, that they will bear all risks associated with the issuance by CITY of any permits to allow work on the Project prior to the Effective Date of the Development Agreement including, but not limited to, the risk that the DEVELOPERS, or any of them, will not be able Dublin/MSSH Interim Agreement for Dublin Ranch - Phase I Project Page 5 of 9 March 3 i, 1999 to construct or continue to construct the Project because the Development Agreement never becomes effective (due to a referendum or otherwise). DEVELOPERS agree, if CITY issues any building permits prior to the Effective Date of the development agreement, that DEVELOPERS will not claim that they have a vested right to proceed with construction of the Project on account of the issuance of such building permit(s). 15. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin P.O. Box 2340 Dublin, CA 94568 Notices required to be given to MSSH shall be addressed as follows: Kevin Peters Shea Homes 2155 Las Positas Court, Suite T Livermore, CA 94550 With a copy to: Clark Morrison Morrison & Foerster, LLP 101 Ygnacio Valley Road, Suite 450 Walnut Creek, CA 94596-8130 Notices required to be given to CENTEX shall be addressed as follows: John Ocshner 1855 Gateway Boulevard Concord, CA 94520 Notices required to be given to STANDARD PACIFIC shall be addressed as follows: Dublin/MSSH Interim Agreement for Dublin Ranch - Phase I Project Page 6 of 9 March 3 I, 1999 Doug Krah 3825 Hopyard Road, Suite Pleasanton, CA 94588 195 Notices required to be given to MAYFIELD shall be addressed as follows: Kevin Peters Shea Homes 2155 Las Positas Court, Suite T Livermore, CA 94550 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and .received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 16. Recitals. hereof. The foregoing Recitals are true and correct and are made a part 17. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties regarding obligations to be secured prior to the Effective Date of the development agreement. 18. Counterpartd. This Agreement is executed in five (5) duplicate originals, each of which is deemed to be an original. IN WITNESS WHEREOF, the parties hereto have caused this A~eement to be executed as of the date and year first above written. Dublin/MSSH Interim Agreement for Dublin Ranch - Phase I Project Page 7 of 9 March 31, 1999 CITY OF DUBLIN: By: Mayor Date: ATTEST: By: City Clerk APPROVED AS TO FORM: Date: City Attorney MSSH DEVELOPMENT LCC, a California limited liability Company By: Its Date: CENTEX HOMES, a Nevada general partnership By: Centex Real Estate Corporation David Barkely, Division President Date: Dublin/MSSH Interim Ageement for Dublin Ranch - Phase I Project Page 8 of 9 March 31, 1999 MSSH Mayfield LLC, a Delaware limited liability company By: Its Date: STANDARD PACIFIC, a Delaware corporation By: Its Date: J:\WPDVvlNRSVCxl 14\080~a~G1LEE~INTERIMA.326 EHS:rja Dublin/MS S H Interim Agreement for Dublin Ranch - Phase I Project Page 9 of 9 March 31, 1999 EXHIBIT "A 1' - 19100-1 rAGE 1 O1:2 3/17/99 [MSSH-SHEA] F.C.I. DESCRIPTION BEING ALL OF LOTS I THROUGH 91, INCLUSIVE. AND PARCEL 'A' AS SHOWN UPON THAT CERTAIN FLNAL MAP ENTITLED' "TRACT 6956" AS FTLED ON TIZ/.E ~'n.t DAY OF ., 19~ IN BOOK ~ OF MAPS. AT PAGES ~ TO ~, INCLUSIVE, ALAMEDA COUNTY RECORDS. CALIFORNIA, LYING AND BEING IN THE CITY OF DUBLIN', COUNTY OF ALAMEDA. STATE OF CAL.~ORNIA. PORTION OF: ASSESSOR'S PARCEL NUMBER 985-0003-003-08. BEING ALL OF PARC,ELS 'A' THROUGH 'H', DqCLUSIVE, AS SHOWN 'UPON TrclAT CERTAI'N FLNAL MAP ENTITLED: "I'RACT 6957" AS Fl[ ED ON THE _ '~'f DAY OF ,19~ IN BOOK _ . O1:: Mt~r'S, AT PAGES ~ TO ~. INCLUSIVE, · AL.~DA COUNTY RECORDS, CALIFORNIA, LY1NG AND BEING IN TI~ CJTY OF DUBLIN. COUNTY OF ALA.M. EDA, STATE OF CALIFORNIA. A PORTION OF: ASSESSOR'S PARCEL NUMBER 985-0003-003-09. BEING ALL OF LOTS I TIq~ROU'GH 92. INCLUSIVE, AND PARCEL 'A' AS SHOWN UPON THAT CERTAIN FINAL MAP ENTITLED: "tRACT 6959" AS FILED ON THE m DAY OF · 19~ iN BOOK ~ OF MAPS, AT PAGES ~ TO ~, INCLUSIVE, ALAMEDA COUNTY RECORDS, CALIFORNIA, LYING AND BEING [N TIlE CITY OF DUBL17N, COUNTY OF ALAMEDA, STATE OF CALIIk'ORNiA. A PORTION OF: ASSESSOR'S PARCEl. NUMBER 985-0003-003-05. BEING ALL OF' PARCELS 'A' THROUGH 'Y', INCLUSIVE, AS SHOWN UPON THAT CERTAIN '61NAL MAP ENTITLED: "TRACT 6960" AS FILED ON THE ~+' DAY' OF · ,19, IN BOOK ~ OF MAPS. AT PAGES ~ TO ~, INCLUSYVE. AT. AMEDA COUNT~CORDS, CALWORN'iA, LYING AND BEING iN THE CiTY OF DUBLIN. COUNTY OF ALAMEDA, STATE OF CALIFORNIA. PORTION OF: ASSESSOR'S PARCEL NUMBER 985-0003-003-05. BELNG ALL OF LOTS .I THROUGH 117. I. NCLUSIVE, AND PARCE~ 'A' AS SHOWN UPON THAT CERTAIN FINAL MAP ENTITLED: "TRACT 6961" AS IaTI.g_D ON TH]E v, DAY OF , , 19....~ IN BOOK ~ OF MAPS. AT .,PAGES TO ~, INCLUSIVE, ~d.A.MEDA COUNTY RECORDS, CALIFORNIA. LYING- AND BEI~NG IN THE CITY OF DUBLIN. COUNTY OF At. AMEDA, STATE OF CALIFORNIA. A PORTION OF: ASSESSOR'S P~ZR. CF.L NUMBER 995-0003-003-08. BELNG ALL OF PARCELS 'A' IT-tROUGH 'K', INCLUSIVE, AS SHOWN UPON T~IAT CERTAIN FINAL MAP ENTITLED: 'q'RACT 69(;2" 3..q FJJ..ED ON THE .n, DAY OF . .. 19~ IN BOOK ~ OF MAPS, AT PAGES __ TO 7'7-INCLUSIVE. ~Ii'.'ANLEDA COUNTY RECORDS, CALIFORNIA, LY'fNG A~ND BEING iN T]flE CTTY OF DUB LLN. COUNTY OF ,KLA.MEDA. STATE OF CALIFORNIA. A PORTION OF: ASSESSOR'S PARCEL NYMBER 985-0003-003-08. MACKAY & SOMPS 5't42 FR,4NK£/N D~IVE. SOlTE B PLEASANTOIV, CA D4E,88.3355 f9251 225-069o EXHIBIT "A-l" 19100-1 PAGE 2 OF 2 3/17/99 IMSSH-SHEA] F.C.I. BEING ALL OF PARCELS 'A' T/-I:ROUGH 'G', INCLUSIVE, AS SHOWN UPON THAT CERTAIN FINAL MAP ENTITLED: "TRACT 6963" AS FILED ON TIlE ~'m DAY OF , 19__._ IN BOOK ~ OF MAPS. AT PAGES TO _ , INCLUSIVE, ALAMEDA COUNTY P-.ECORDS, CALI}'tORNIA, LYING AND BEING L'N THE CITY OF DUBLfN. COUNTY OF ALAMEDA, STATE OF CALIFORNIA. A PORTION OF: ASSESSOR'S PARCEL NLrM. BER 985-0003-003-09. BEING ALL OF PARC, F_LS 'A' THROUOH 'S'. INCLUSIVE, AS SHOWN UPON THAT CERTAIN FINAL MAP ENTITLED: "TRACT 6964" AS FILED ON TIlE ~m DAY OF 19.._._. IN BOOK-~ OF MAPS, AT PAGES TO ~. INCLUSIVE, M_AMEDA C6U~TY RECORDS, CALIFORNIA, LYING AND ~EING IN' TI-[E CITY OF DUBLiN, CoI.rNTY OF ALAMEDA, STATE OF CALIFORNIA. PORTION OF: ASSESSOR'S PARCEL NLrM~ER 985-0003-003,05. END OF DESCRIPTION fEXP, 12/31/2000) STATE OF CALIFORNIA DAT~ MACKAY & SOMPS 3142 FRANKLIN DRIVE, SUITE B P£EASANTON. CA 94,588-3355 (~$) 225-0690 EX_HIBIT_"A-2': 19100-1 PAGE 1 OF: 3/17/99 [C~'q'z~J F.C.I. DESCRIPTION' BEING ALL OF LOTS I THROUGH 1 I3, INCLUSIVE, AS SHOWN UPON THAT CERTAIN FINAL 'MAP ENTITLED: "TRACT 6960" AS FILED ON THE .~._~n DAY OF 19.~ IN BOOK OF MAPS. AT PAGES TO INCLUSIVE, ALAMED~ COUNTY RECORDS, CALIFORNIA, LYING AND BE'~' IN THE '~iT¥ OF DU~BLIN, COUNTY OF ALAMEDA. STATE OF CALIFORNIA. ^ PORTION OF: ASSESSOR'S PARCEL NUMBER 985-0003-003-08. END OF DESCRIPTION PROFES$'(ONAL LAND SURVEYOR NO. 5859 (EXP. 12/31 t2000) STATE OF CALIFORNIA MACKAY & SOMPS 51.42 gRAIVKLIN ORIVE, SUITE B t::'LEASAIVTON. CA D AT£ EXHIBIT "A-3' 19100-I PAGE 1 OF 1 3/17/99 [MAYFtELOI F.C.I. DESCRIPTION BEING ALL OF LOTS I THROUGH 69, ENCLUSlVE, AS SHOWN UPON THAT CERTA/N FINAL MAP ENTITLED: "TRACT 695?" AS FILED ON THE -m DAY OF 19~ IN BOOK~ OF MAPS, AT PAGES ~ TO ~, INCLUSIVE. ALAMEDA COUNTY R.ECORDS, CALIFORNIA, LYING AND BEING iN TI-rE CITY OF DUBLIN, COU'NTY OF ALAMEDA, STATE OF CALII~ORNIA. PORTION OF: ASSESSOR'S PARCEL NUMBER 995-0003-003-09. BELNG ALL OF LOTS I TI-[ROUGH 86, INCLUSIVE, AS SHOWN UPON THAT CERTAIN FINAL MAP ENTITLED: "£RACT 6955" AS FILED ON THE ~'" DAY OF 19 IN BOOK OF MAPS. AT PAGES ~ TO ~, [NCLUSI'VE, ALAMEDA C~Y RECOP, DS~ C~.[FORNIA, LYING AND BEING IN THE CITY OF DUBLIN, COUNtrY OF ALANIEDA. STATE OF CALIFORNIA. ^ ?ORT~ON OF: ASSESSOR'S PARCEL NUMBER 985-0003-003-09. END OF DESCRIPTION FRED C. LNG~ LICENSED PROFESSJONAL LAND SURVEYOR NO. $859 ('EXP. 1.2/31/2000) STATE OF CALIFORNIA MACKAY & SOMPS 5142 FRANKLIN DRIVE, .qUITE 8 PLEASANTON, CA 9a588,.3355 r_/7-47 DATE EXHIBIT "A-4' PAGE 1 OF 1 ISTANDARD PACIFICI 19100-1 3/17/99 F.C.I. DE;SCRIPT[ON BEING ALL OF LOTS I THROUGH I I 1, INCLUSIVE. AS SHOWN UPON THAT CERTAIN FINAL MAP ENTITLED: "TRACT 6962" AS FI. LED ON THE _ TM DAY OF , £9~ IN' BOOK ~ OF MAPS. AT PAGES~ TO ~, INCLUSIVE, ALA_M'EDA COUN'TY RECORDS, CALIFORNIA, LYING AND BEING I-N THE CITY OF DUBLIN, COUNTY OF ALA~MEDA. STATE OF CALIFORNIA. PORTION OF: ASSESSOR'S PARCEL NUMBER 9g5-0003-003-05. BEING ALL OF LOTS I THROUGH 45. iNCLUSIVE. AS SHOWN' U?ON TI-tAT CERTAL~ F'LNAL MAP ENTITLED: "TRACT 6963" AS .FILED ON T'HIE 'm DAY OF 19~ 'IN BOOK ~ OF MAPS. AT PAGES ~ TO ~, .INCLUSIVE, ALAMEDA COUNTY RECORDS., CAlIFORNiA, LYING AND BEING IN' TILE CITY OF DUBLIN. COUNTY OF ALAM-EDA, STATE OF CALIFORNIA. PORTION OF: ASSESSOR'S PARCEL NU~,i. BER 985-0003-003-09. BEING AiL OF LOTS t TH. ROUGH 123. INCLUSIVE, AS SHOWN UPON TI~IAT CERT~d,4 FINAL MAP ENTITLED: "TRACT 696a" AS FILED ON THE x~ DAY OF tg~ IN BOOK~ OF MAPS, AT PAGES ~ TO ~, INCLUSIVE, ALAMEDA COUNTY RECORDS, CALIFORNIA, LYING AND BEING IN THE CITY OF DUBLIN, COUNTY OF ALA~MEDA. STATE OF CALIFORNIA. PORT[ON OF: ASSESSOR'S PARCEL N'UMBER 985-0003-003-08. END OF DESCRIPTION PROFESSIONAL LAND SURVEYOR NO. 5859 (EXP. 12/31/'2000') STATE OF CALIFOI~I~IA MACKAY & SOMPS 7--- DATE DUBLIN RANCH- PHASE 1 J