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HomeMy WebLinkAboutOrd 38-08 Schaefer Rch DAORDINANCE NO. 38 - 08 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND SCHAEFER RANCH HOLDINGS LLC (APNs 941-2832-027 to 028, and 941-2835-001 to 003, and 052 to 075, and 941-2837-010 to 021) PA 08-005 THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: SF.CTinN 1. RF,C'TTAT,S A. The portion of the Schaefer Ranch development, referred to herein as the "project", is approximately 42.7-acres located south of Dublin Boulevard at the intersection of Dublin Boulevard and Schaefer Ranch Road. The project consists of the area that is subject to Vesting Tentative Map 8000, and Parcels J and K of Final Map 6765. B. A Development Agreement between the City of Dublin and Schaefer Ranch Holdings LLC ("Developer") has been presented to the City Council, Exhibit A, attached hereto. C. A public hearing on the proposed Development Agreement was held before the Planning Commission on October 14, 2008, for which public notice was given as provided by law. D. The Planning Commission has, by Resolution 08-32, recommended that the City Council approve the Development Agreement. E. A public hearing on the proposed Development Agreement was held before the City Council on November 4, 2008 for which public notice was given as provided by law. F. The City Council has considered the recommendation of the Planning Commission, including the Planning Commission's reasons for its recommendation, the Agenda Statement, all comments received in writing, and all testimony received at the public hearing. SECTION 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein; (b) the City of Dublin General Plan; (c) the Planned Development Zoning (PA 08-005); (d) the EIR for Schaefer Ranch (SCH #95033070) certified by the City Council in 1996 by Resolution 76-96; (e) the Addendum to the previously certified EIR prepared for the Schaefer Ranch South project PA 08-005 adopted by City Council Resolution xx-08; (f) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City's General Plan, in that: (a) the General Plan land use designations for the site are Single-Family Residential and Public/Semi-Public; (b) the proposed project is consistent with the designated land uses; (c) the project is consistent with the fiscal policies of the General Plan with respect to the provision of infrastructure and public services; and (d) the Development Agreement includes provisions relating to vesting of development rights, and similar provisions set forth in the General Plan. Page 1 of 2 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located in that the project approvals include Planned Development zoning Stage 2 Planned Development Plan, and Vesting Tentative Map 8000. 3. The Development Agreement is in conformity with public convenience, general welfare, and good land use policies in that the Developer's project will implement land use guidelines set forth in the General Plan which have planned for Single-Family Residential and Public/Semi-Public uses at this location. 4. The Development Agreement will not be detrimental to the health, safety, and general welfare in that the Developer's project will proceed in accordance with all the programs and policies of the General Plan. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan. SECTION 3. APPROVAL The City Council hereby approves the Development Agreement Exhibit A and authorizes the Mayor to execute it. SECTION 4. RECORDATION Within ten (10) days after the Development Agreement is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. SECTION 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this 18th day of November, 2008, by the following votes: AYES: Councilmembers Hildenbrand, Oravetz, Sbranti, and Scholz and Mayor Lockhart NOES: None ABSENT: None ABSTAIN: None ATTEST: P ~~ / G~~~ C~ Mayor City Clerk Ord No. 38-08, Adopted 1 I-18-08, Item 4.2 Page 2 of 2 14~~~ .RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorders use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND SCHAEFER RANCH HOLDINGS LLC (SCHAEFER RANCH SOUTH, PROJECT) Exhibit A ~'D A ~-4~t~n~mor+ '1 .s ~ 44 THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered in the City of Dublin on this day of , 2008, by and between the City of Dublin, a Municipal Corporation (hereafter "City"), and Schaefer Ranch Holdings LLC, a California limited liability company (hereafter "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. California Government Code §§ 65864 et. seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the City to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in.order to establish certain development rights in such property; and B. ~ DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 42.7 acres of land, located in the City of Dublin, 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 C. Developer proposes the development of the Property with 140 residential units (the "Project"); and D. Developer has applied for, and City has approved various land use approvals in connection with the development of the Project,' including an amendment to the General Plan (City Council Resolution No. ), a PD District rezoning and related Stage 2 development plan (City Council Ordinance No. )and Vesting Tentative Map (Planning Commission Resolution No. ) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and E. Development of the Property by Developer maybe subject to certain future discretionary approvals, such as Site Development Review, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective;- and F. City desires the timely, efficient, orderly and proper development of said Project; and G. The City Council has found that, among other things, this Agreement is consistent with its General Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and ' Dublin/Schaefer Ranch Development Agreement Page 2 of 18 For the Schaefer Ranch Holdings LLG (Schaefer Ranch South Project) :,FINAL -Schaefer Ranch South DADOC; 114.260 V ~~~4 H. 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 I. On , 2008, the City Council of the City of Dublin adopted Ordinance No. ~ approving this Agreement. The ordinance took effect on , 2008 ("the Approval. 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: AGREEMENT Description of Property. The Property that is the subject of this Agreement is described in Exhibit A attached hereto. 2. Interest of Developer. The Developer has a legal or equitable interest in the Property in that it owns the Property in fee simple: 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Developer and that the Developer is.not an agent.of City. The City and Developer hereby renounce the existence of any form of joint venture or partnership between them, and agree~that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. 4. Effective Date and Term. 4.1. Effective Date. The effective date of this Agreement shall be the Approval Date. . 4.2. Term. The term of this Agreement shall commence on the Effective Date and extend fifteen (15) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. ~ Use of the Property. Dublin/Schaefer Ranch Development Agreement Page 3 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL'- Schaefer Ranch South D'A.DOC; 114.260 - ~~~4~ 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. Notwithstanding anything to the contrary in this Agreement, the ordinances, resolutions, rules, regulations and official policies governing amendments to the Project Approvals shall be those in force and effect on the Effective Date of this Agreement. ~ ~ . 5.2. Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by City) and other terms and conditions of development applicable to th.e Property, shall be those set forth in this Agreement, the .Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3. Subsequent Discretionary Approvals. At Developer's sole discretion and in accordance with Developer's construction schedule, Developer shall apply for such other permits and approvals as may be required by other governmental orquasi-governmental entities in connection with the development of, or the provision of services to, the Project. City shall cooperate with Developer in its efforts to obtain such. permits and approvals. 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 r~naximum height, bulk and size of proposed buildings shall be those in~force and effect on the Effective Date of the 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 approval, whether the date of that approval is prior to or after the date of this~Agreement. 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 discretionary approval, whether date of approval is prior to or after the date of this Agreement. ~ . Dublin/Schaefer Ranch Development Agreement Page 4 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114.260 ,~~ ~.~ 6.3. Construction Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the City's building, electrical, plumbing, mechanical and housing codes as provided in Chapters 7.28, 7.32, 7.36, 7.40, 7.44 and 7.48 of the Dublin Municipal Code 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. Notwithstanding anything to the contrary in the foregoing, any construction on that certain portion of the Property referred to as Parcels J and IG on the final subdivision map for . Schaefer Ranch (recorded .in the Alameda County Recorder's Office on March 8, 2007 as Series No. 2007-99392 in Map Book 297 Pages 1 through 51) shall not, during the term of this Agreement, be subject to any ordinances, rules or regulations which would require green or sustainable building design and/or construction that may be subsequently enacted by the City. 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: (a) the application of such new or modified ordinances, resolutions, rules., regulations or official policies would not prevent, impose a substantial financial burden on, materially delay development of the Property, or impair the rights of Developer as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions; rules, regulations or official policies are uniformly imposed on all comparable residential projects within the City. 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, a limit on the rate of development or avoter- . approval requirement 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. In the event of a Dublin/Schaefer Ranch Development Agreement Page 5 of 18 . For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114.260 • 4 building moratorium imposed as part of a declaration of a local emergency or state of emergency as described herein, the term of this Agreement shall be automatically extended for the duration of such moratorium. 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 General Plan. shall be those set forth in the Project Approvals and in this Agreement.. The City shall not impose or require payment of any other fees, dedications of land, or~ construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, or impose other exactions in connection with any subsequent discretionary approval for. the Property, except as set forth in the Project Approvals 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 only; and (3) the application of such fees would not prevent, impose a substantial financial burden on, or materially delay development in accordance with~this Agreement. 8.3. New Taxes. Anysubsequently enacted city-wide taxes shall apply to the Project provided that: (1) the. application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. 8.4. Assessments. Nothing herein shall be.construed to relieve the Property from assessments levied against it by City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5. Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and Developer does not return its ballot, Developer agrees, on behalf of itself and its successors, that City may count Developer's ballot as affirmatively voting in favor of such assessment, fee or charge. 9. Amendment or Cancellation. 9.1. Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the Effective Date.of Dublin/Schaefer Ranch Development Agreement Page 6 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114.260 a~~~~~ 10. Term of Project Approvals. 10.1. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described. in Recital D above shall automatically be extended for the term of this Agreement. 11. Development Impact Fees. The,Project shall be subject to the City's Public Facilities Fee, Fire Facilities Fee, Downtown Traffic Impact Fee and Tri-Valley Transportation Development Fee. Developer shall pay such fees in accordance with the resolutions adopting such fees. 12. Credit Against Public Facilities Fee Section 4 of the Improvement Development Agreement for the Schaefer Ranch Project approved in 1998 provides Developer with a credit of 1.47 acres which it can use by March 8, 2017 against the Public Facilities Fee obligation for "Community Parks, Land" and "Neighborhood Parks, Land" for development on' the Property. This credit may also be used against the Project's obligation under Dublin Municipal Code Chapter 9.28 (the "Quimby Act") for dedication of land, provided, it is used by March 8, 201.7. In addition, Developer shall be entitled to two additional "credits" against payment'of the "Community .Parks, Land," "Neighborhood Parks, Land," "Community Parks, Improvements"and "Neighborhood Parks, Improvements" components of the Public Facilities Fee and the dedication provisions of Dublin Municipal Code Chapter 9.28 for the Project. First, Final Map 6765, recorded on March 8, 2007, included an offer of dedication of 4:83 acres which satisfied the "Community Parks, Land" and "Neighborhood Parks, Land" components of the Public Facilities Fee and . Chapter 9.28 for 302 residential units created by Final Map 6765. If 36 of the approved 302 residential lots created by Final Map 6765 are resubdivided by a later recorded final map, resulting in construction of 36 fewer units than allowed by:Final Map 6765, Developer shall be entitled to be "credited" with~the . "Community Parks, Land" and "Neighborhood Parks, Land" dedication of Final Map 6765 with respect to excess dedication and will not have to pay those components of the Public Facilities Fee for the Project. If fewer than 302 building permits but more than 266 building permits are issued for units to be constructed on lots created by Final Map 6765, the credit in this paragraph shall be based on any excess dedication attributable to the reduced number of units. . Dublin/Schaefer Ranch Development Agreement Page 8 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114.260 ~t~~l , ~r~ ~f 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 subject to' approval by the City Council in' accordance with Chapter 8.56. 9.2. Amendment by Mutual Consent.. This Agreement may be amended or extended in writing from time to time by mutual consent of the. parties .hereto and in accordance with the procedures of State law and Chapter 8.56. Any extension shall require additional consideration to the City which shall be negotiated at the time of a proposed extension. 9.3. Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "significant" reservation or dedication ofi land; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f).the maximum height or size of proposed buildings; or (g) monetary contributions by Developer as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the.Planning Commission or the City Council before the parties may execute an amendment hereto. The City Engineer shall determine whether a ~ reservation or dedication is "significant". 9.4: Amendment of Project Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or . requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) monetary contributions by the Developer; or (g) public improvements to be constructed by Developer shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. - . 9.5. Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to this Agreement prior to the date .of cancellation shall be retained by City. Dublin/Schaefer Ranch Development Agreement Page 7 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) . FINAL -Schaefer Ranch South DADOC; 114.260 aa~~!~4~ Second, the Project is entitled to a "credit" in the amount of the "Community Parks, Improvements" and "Neighborhood Parks, Improvements" components of the Public Facilities Fee for up to 36 units if up to 36 fewer units are constructed as part of the Final Map 6765. The credit in this paragraph shall be based on the number of reduced units. 13. Contribution for Dublin Historic Park Developer shall contribute One Million, Five Hundred Thousand dollars ($1,500,000) to the City in two payments, as follows: Developer will contribute $750,000 to City for the Dublin Historic Park when Developer has (a) obtained all discretionary land use entitlements from City for the Project (with the exception of discretionary land use entitlements for. development on Parcels K and J created by Final Maps 6765) and the statute of limitations for a legal challenge to all such entitlements has run without suit having been filed, or if suit is filed, a final judgment has been.entered and the time to appeal has expired or (b) upon issuance of the first building permit for the Project, whether a model or production unit, whichever occurs first. Developer will contribute $750,000 to City for the Dublin Historic Park prior to issuance of the 75th building permit for the Project, whether for a model or production unit.- 14. Fire~Station Site Developer will reserve Parcel K, as shown on Final Map 6765 for use as a fire station site. Upon 60 days' written notice from City, Developer will dedicate Parce{ K to City for use for fire protection and suppression. This reservation and dedication obligation shall terminate two (2) years following the Approval Date but shall survive termination of this Agreement if the Agreement is terminated within two years of the Approval Date. 15. Public Art Program The Project will make a monetary contribution in lieu of acquiring and installing a public art project on the Property, as provided by Dublin Municipal Code section.8.58.050.D. The in lieu contribution shall be as provided in Dublin Municipal Code, Chapter 8.58, and shall be used by the City towards a public art component at the Dublin Historic Park. 16. Inclusionary Zoning Ordinance The Developer shall either (a) construct seventeen. (17) affordable units on the Property and receive a refund of $178,824 previously paid, or (b) construct Dublin/Schaefer Ranch Development Agreement ~ ~ Page 9 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114.260 ten (10) affordable units on the Property and pay in lieu fees in accordance with Dublin Municipal Code Chapter 8.68, at the rate in effect at the time of payment, for seven (7) units. The Developer shall select either (a) or (b) at the time the Developer applies for Site Development Review approval for the Project. At such time Developer may propose to construct some of the seventeen or ten affordable units on lot(s) created by.Final Map 6765, provided Developer applies for and receives Site Development Review for any affordable units to be constructed on lot(s) created by~Final Map 6765. All affordable units can be "granny units" or duplexes but, in either case, the units must comply with the general requirements of Section 8.68.030, including restrictions through either rental controls or resale restrictions recorded against the Property. Developer paid inclusionaty in lieu fees for Final Map 6765 for fifteen (15) units, at $89,412 per unit, for a total of $1,341,180, based on a 302-unit project. Upon recordation of a final map for the Project, 36 of the lots created by Final Map 6765 will be resubdivided and no more than 266 units can be constructed on lots created by Final Map 6765. If this occurs, Developer shall be entitled, pursuant to Dublin Municipal Code Section 8.68.O4O.E, to a credit in the amount of $178,824,, as provided in this paragraph.' If Developer constructs seventeen (17) affordable units as part of the Project, City will refund $178,824, upon issuance of a certificate of occupancy for the seventeenth unit, together with interest at the rate earned by City from the date,Developer paid said $1,341,180 through issuance of such certificate of occupancy on the $178,824. If Developer constructs ten (10) affordable units, City shall provide Developer with a credit in the amount of $178,824 against payment of in lieu fees payable for the Project. The provisions of this Agreement shall constitute-City Council approval. for exceptions to the requirements of Chapter 8.68, as required by Dublin Municipal Code section 8.68.040. 17. Annual Review. 17.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2009 and each July 15 to August 15 thereafter. 17.2 Initiation of Review. The City's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to Developer thirty (30) days' written notice that the City intends to undertake such review. Developer shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Agreement. The burden of proof by substantial evidence of compliance is upon the Developer. Dublin/Schaefer Ranch Development Agreement ~ Page 10 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114.260 a~ . .~-~ 17.3 Staff Reports. To the extent practical, City shall deposit in the mail and fax to Developer a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 17.4 ,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. 18. Default. 18.1 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. 18.2 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 . maytheri 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. 18.3 No Damages Against City. Notwithstanding anything to the contrary contained herein, in no event shall damages be awarded against City upon an event of default or upon termination of this Agreement. 19. Estoppel Certificate. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in-full force and effect and a binding obligation of the parties, (b) this.Agreement has not been amended or modified either orally or in writing,, or if so amended, identifying the amendments, and (c) to the knowledge of the' certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall_be authorized to execute any certificate requested by. Dublin/Schaefer Ranch Development Agreement - ~ Page 11 of 18 ,For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114.260 ~~ ~ y, y~- Developer. Should the party receiving the request not execute and return such - certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. Any request by Developer for a written certification to a third party shall be accompanied by payment to City of a fee for such certification in an amount • established ~by the Council from time to time. 20. Mortgagee Protection; Certain Rights of Cure. 20.1 Mortgaqee 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 trus# 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. 20.2 Mortgaqee Not Obligated. Notwithstanding the provisions of Section 20.1 above, no Mortgagee.shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or~imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 20 3 Notice of Default to Mortgaqee 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 18.2 for not more than an additional sixty (60) days upon request of Developer or a Mortgagee. Dublin/Schaefer Ranch Development Agreement Page 12 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114.260 ~_~~ ~~ ;, 21. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shalt not render the other provisions unenforceable, invalid or illegal. 22.. 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. 23.. Transfers and Assignments. 23.1 Developer's Right to Assign. All of Developer's rights, interests and obligations hereunder may be transferred, sold or assigned in conjunction with the transfer, sale, or assignment of the Property subject hereto, or any portion thereof, at any time during the Term of this Agreement, provided that no transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur without the prior written notice to City and approval by the City Manager of City, which approval shall not be unreasonably withheld or delayed. The City Manager shall consider and decide the matter within ten (10) working days after Developer's notice is given to City and receipt by City Manager of all necessary documents, certifications and other information required by City Manager to decide the matter. In considering the request, the City Manager shall base the decision upon the proposed assignee's reputation, experience, financial resources and access to credit and capability to successfully carry out the development of the Property to completion. The City Manager's approval shall be for the purposes of: ('a) providing notice to City; (b) assuring that all obligations of Developer are fully allocated as between Developer and the proposed purchaser, transferee or assignee; and (c) assuring City that the proposed purchaser, transferee or assignee is capable of performing- Developer's obligations hereunder not withheld by Developer pursuant to Paragraph 23.3. Notwithstanding the foregoing, provided notice is given as specified in Paragraph 24, no City approval shall be required for any transfer, sale, or assignment of this Agreement to: (1) any entity which either (i) is an affiliate or subsidiary of Developer or (ii) results from the merger of Developer or its parent or is the Dublin/Schaefer Ranch. Development Agreement Page 13 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL =Schaefer Ranch South DA.DOC; 114.260 t~~ ~ `~ r purchaser of all, or substantially all, of the assets of Developer or its parent; (2) any Mortgagee; or (3) any transferee of a Mortgagee. 23.2 Release Upon Transfer. Upon the transfer, sale, or assignment of all of Developer's rights, interests and obligations hereunder pursuant to Paragraph 23..1 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 Manager approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or assignee approved by the City Manager expressly assumes all of the rights, interests and obligations of Developer under this Agreement, " Developer shall be released with respect to all such rights, interests and 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 Manager approval. 23.3 Developer's Right to Retain Specified Rights or Obligations. Notwithstanding Paragraphs 23.1 and 23.2 and Paragraph 24, Developer may withhold from a sale, transferor assignment of this Agreement certain rights,. interests and/or obligations which Developer shall retain, provided that Developer specifies such rights,. interests and/or obligations in a written document to be appended to this Agreement and recorded with the Alameda County Recorder prior to the sale; transfer or assignment of the Property. Developer's purchaser, transferee or assignee shall then have no interest or obligations for such rights, interests and obligations and this Agreement shall remain applicable to Developer with respect to such retained rights, interests and/or obligations. 23.4. 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 nn such lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 24. 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, representative's; lessees; and all other persons acquiring the Property, or any portion thereof, or any interest Dublin/Schaefer Ranch Development Agreement ~ Page 14 of 18 . For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114.260 G~ ~ ~~ 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 bother person succeeding to an interest in such properties. 25. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. . 26. Indemnification. Developer agrees to indemnify, defend and hold harmless City, and its elected and appointed. councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which . May arise directly or indirectly as a result of any actions or inactions by the Developer, or any actions or inactions of Developer's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that Developer shall have no indemnification obligation with respect to negligence or wrongful conduct of City, its contractors; subcontractors,; agents or employees or with, respect to the maintenance, use or condition of any 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). 27. Insurance. 27.1 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 aper-occurrence combined single limit of not less than one. million dollars ($1,000,000.00) with a One Hundred Thousand Dollar ($100,000) self insurance retention per claim. The policy so rrtaintained by Developer shall .name the City as an additional insured and shall include either a severability of interest clause orcross-liability endorsement. 27.2 Workers Compensation Insurance. During the term of this Agreement Developer shall maintain Worker's Compensation insurance for all Dublin/Schaefer Ranch Development Agreement Page 15 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114.260 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. 27.3 Evidence of Insurance. Prior to. City Council approval of this Agreement, Developer shall furnish City satisfactory evidence of the insurance required in Sections 27.1 and 27.2 and evidence that the carrier is required to give the. City at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the City, its elective and appointive boards, commissions, officers, agents, employees and representatives and to Developer performing work on the Project. 28.. 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. 29. Notices. All notices required or provided for under this Agreement shall b~ in writing. Notices required to be given to City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: Schaefer Ranch Holdings, LLC 4021 Port Chicago Hwy. Concord, CA 94520 Attn: General Counsel FAX No. (925) 687-3366 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, Dublin/Schaefer Ranch Development Agreement ~ Page 16 of 18 For the Schaefer Ranch Holdings~LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114.260 `? ~ l~~ . C.~~ rr 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. 30. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 31. 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 32. Counterparts. This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. 33. Recordation. City shall record a copy of this Agreement within ten (10) days following execution by all parties. [EXECUTION PAGE FOLLOVI<S] Dublin/Schaefer Ranch Development Agreement Page 17 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) FINAL -Schaefer Ranch South DA.DOC; 114360 r ~~~. 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: Janet Lockhart, Mayor ATTEST: By: City Clerk APPROVED AS TO FORM: City Attorney DEVELOP . r s : eo 1-e S r c~ APPROVED AS TO FORM: I ~~~ A orney for Developer (NOTARIZATION ATTACHED) Dublin/Schaefer Ranch Development Agreement Page 18 of 18 For the Schaefer Ranch Holdings LLC (Schaefer Ranch South Project) 1096320.12; 114.260 ~ ~, ~ ~ . v ~.. 1~ Exhibit A Legal Description of Property Containing 42:7 acres, more or less. That land in the City of Dublin, County of Alameda, State of California, described as follows: Lots 261 through 2.96, Parcels M and N, Schaefer Estates Circle, Schaefer Estates Court, and Parcels J and kC, all as shown on the map for Tract 6765, Schaefer Ranch, filed as Series No. 2007-99392 in Map Book 297 Pages 1 through 51, in the Office the •County Recorder of said County, on March 8, 2007. r ~~~ -~~ ~y ACKNOWLEDGMENT State of California County of Contra Costa On September 29, 2008 before me, Pamela Blessington, Notary Public, personally appeared Albert D. Seeno III, who proved to me on the basis of satisfactory evidence to be the person(~whose name(~is/a,~subscribed to the within instrument and acknowledged to me that he/S~(tb ~ r executed the same. in his/her/their authorized capacity(i~, and that by his/h~~fr signature(,,~on the instrument the person(~.,,or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature PAMELA BLES5INGTON N COAIM.# 1T10054 rn • NOTARY PU81.N;•CALIfORNIA N CONTRA CORA COUNTT TAY CONN. E7tr. DEC. 11, 2010 `' (Seal)