HomeMy WebLinkAbout98-063 TollBros EmrldGlen #4 DACITY OF DUBLIN
PLANNING COMMISSION
AGENDA STATEMENT/STAFF REPORT for April 13, 1999
PROJECT:
PREPARED BY:
DESCRIPTION:
RECOMMENDATION:
BACKGROUND:
PA 98-063, Toll Brothers - Emerald Glen #4 - Development Agreement
Eddie Peabody, Jr., Director of Community Development
An Ordinance approving a Development Agreement between the City of
Dublin, Toll Brothers - Emerald Glen #4 and Alameda County Surplus
Property Authority. The Development Agreement is required by the Eastern
Dublin Specific Plan. Items included in the Development Agreement include,
but are not limited to, the financing and timing of infrastructure; payment of
traffic, noise and public facilities impact fees; oversizing of roads and general
provisions.
Recommend that the City Council adopt an Ordinance approving a
Development Agreement for the Toll Brothers - Emerald Glen #4 Project.
The project site is part of the larger 800+ acre property, known as the Santa Rita Property, owned by
the Alameda County Surplus Property Authority. It was formerly used for agricultural and storage purposes by
the U.S. Army for military uses. The County last used the project site area as a hospital. The Eastern Dublin
General Plan Amendment and Specific Plan were approved by the City Council on May I 0, 1993. Adoption of
these plans designated the project site for Low, Medium, and Medium-High Density Residential, as well as
Industrial uses on both the General Plan and the Eastern Dublin Specific Plan. A Specific Plan Amendment
was approved, which configured land uses as they currently are proposed for development with the Industrial
designation being assimilated into other Santa Rita properties. All structures from previous uses have been
removed, with the exception of a few streets remaining from the Camp Parks Reserve Forces Training Area.
ANALYSIS:
Procedural Background:
One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into
Development Agreements with developers in the plan area. The Development Agreement provides security to
the developer that the City will not change its zoning and other laws applicable to the project for a specified
period of time. Additionally, it is a mechanism for the City to obtain commitments from the developer that the
City might not otherwise be able to obtain. The Development Agreement is one means the City has to assure
that the Specific Plan goal, that new development fund the costs of infrastructure and service, is met.
COPIES TO: Toll Brothers
Alameda Co. Surplus Property Authority
In-house distribution
ITEM NO. (~,'L~
CiD' procedure requires that there be three public hearings on Development Agreements. The purpose for the
hearing before the Planning Commission is to recommend the approval for the Agreement to the City Council.
Development Agreement:
Attached to this Staff Report is a Development Agreement (Attachment 1) between the City of Dublin, Toll
Brothers - Emerald Glen #4 and the Surplus Property Authority of the County of Alameda (Alameda County).
This Development Agreement is based on the standard Development Agreement developed by the City
Attorney and adopted by the City Council for Eastern Dublin Projects. In general, the Agreements reflect what
has been determined to be the infrastructure needs for the specific project. These needs are determined based
on submittal of engineering studies and plans.
The Agreement: The City Attorney drafted the proposed Development Agreement with input from City staff,
Toll Brothers - Emerald Glen #4, Alameda County Surplus Property Staff and their attorneys. The
Development Agreement sets forth the agreements between the parties in relation to many items, including, but
not limited to, infrastructure construction and phasing, and the payment of various required impact fees.
The Development Agreement becomes effective for a term of five years from the date it is recorded. The
Development Agreement runs with the land and the rights thereunder can be assigned. The main points of the
Development Agreement can be found in Exhibit B of Attachment I of the Development Agreement and are
highlighted below:
Infrastructure Construction and Traffic Impact Fees: The City requires that Developers in Eastern Dublin
pay traffic impact fees for certain City wide improvements to the circulation system. Additionally, fees are
charged for certain cimulation improvements specific to Eastern Dublin. Developers are also required to make
certain improvements to the circulation system that are required as a result of their project. The City
determines the direct project impact through a traffic study that is conducted.
Based on the traffic study conducted for the Toll Brothers - Emerald Glen #4 project, it was determined that
certain improvements were required to the circulation system as a result of the projected future traffic from the
project. These improvements include improving some roads, widening some roads, the improvement of certain
intersections in Dublin and Eastern Dublin, the ultimate construction of some off-ramp improvements to 1-580
at Tassajara Road/Santa Rita Road.
Other improvements that were identified could be phased and put in as required by traffic warrants or when
other projects come on line. The Agreement sets forth the City, Toll Brothers, Inc. and Alameda County's
understanding in relation to the phasing of infrastructure construction.
Conclusion:
Approval of this Development Agreement will implement provisions of the Eastern Dublin Specific Plan. The
proposal is consistent with both the General Plan and Specific Plan.
GENERAL INFORMATION:
APPLICANT:
PROPERTY OWNER:
LOCATION:
EXISTING ZONING:
GENERAL PLAN
DESIGNATION:
ENVIRONMENTAL
REVIEW:
Toll Brothers
Emerald Glen #4
1501 Bollinger Canyon Road, Suite B
San Ramon, California 94583
Attention: Jon Paynter
Alameda County Surplus Property Authority.
224 West Winton Avenue, Room 151
Hayward, California 94544
28.9 acres located east of Tassajara Creek, south of Central Parkway, north of
Dublin Boulevard, and west of Park Drive, APN 986-0001-001-10 (pot)
Specific Plan Designation; Medium Density Residential (M) Planned
Development (PD) (Eastern Dublin)
Medium Density Residential (M)
This project is within the scope of the Eastern Dublin Specific Plan and
General Plan Amendment, for which a program EIR was certified
(SCH91103064). A Mitigated Negative Declaration (SCH860820092) has
been approved for the Santa Rita Specific Plan Amendment of which this
project is a part. That Mitigated Negative Declaration together with the
Program EIR adequately describes the total project for the purposes of CEQA.
ATTACHMENTS:
1. Development Agreement
g:pa98063~pcsffrpt da
RESOLUTION NO. 98-__
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT A DEVELOPMENT AGREEMENT
FOR PA 98-063 EMERALD GLEN #4 PROJECT
WHEREAS, the Toll Brothers, Inc., and the County of Alameda Surplus Property Authority (Alameda
County) has requested approval of a Development Agreement for the Emerald Glen #4 Project on 28.9 _+
acres at the southeast corner of Tassajara Creek and Central Parkway in the Eastern Dublin Specific Plan
area; and
WHEREAS, a Development Agreement is required as an implementing measure of the Eastern Dublin
Specific Plan; and
WHEREAS, This project is within the scope of the Eastern Dublin Specific Plan and General Plan
Amendment, for which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration (SCH
86082092) has been approved for the Santa Rita Specific Plan Amendment of which this project is a part.
That Mitigated Negative Declaration together with the Program EIR adequately describes the total project for
the purposes of CEQA.
WHEREAS, the Planning Commission did hold a public hearing on said application on April 13, 1999;
and
WHEREAS, proper notice of said public hearing was given in all respects as required by law; and
WHEREAS, the Staff Report was submitted recommending that the Planning Commission recommend
that the City Council approve the Development Agreement; and
WHEREAS, the Planning Commission did hear and use their independent judgment and considered all
said reports, recommendations and testimony hereinabove set forth.
NOW THEREFORE BE IT RESOLVED THAT THE Dublin Planning Commission does hereby make
the following findings and determinations regarding said proposed Development Agreement:
1. Said Agreement is consistent with the objectives, policies, general land uses and programs
specified in the City of Dublin General Plan and the Eastern Dublin Specific Plan in that, a) the General Plan
and Eastern Dublin Specific Plan land use designation for the subject site is Medium Density Residential and
that this is a residential development consistent with that designation; b) the project is consistent with the fiscal
policies in relation to provision of infrastructure and public services of the City's General Plan and Eastern
Dublin Specific Plan; c) the Agreement sets forth the rules the Developer and City will be governed by during
the development process which is required by the Eastern Dublin Specific Plan; and the Mitigation Monitoring
Program of the Eastern Dublin Specific Plan.
2. Said Agreement is compatible with the uses authorized in, and the regulations prescribed for,
the land use district in which the real property is located in that the project approvals include a Planned
Development Rezoning adopted specifically for the Emerald Glen #4 Project.
3. Said Agreement is in conformity with public convenience, general welfare and good land use
practice in that the Emerald Glen #4 Project will implement land use guidelines set forth in the Eastern Dublin
Specific Plan and City of Dublin General Plan which have planned for an office development at this location.
4. Said Agreement will not be detrimental to the health, safety and general welfare in that the
development will proceed in accordance with the Agreement and any Conditions of Approval for the Project;
and
5. Said Agreement will not adversely affect the orderly development of the property or the
preservation of property values in that the development will be consistent with the City of Dublin General Plan
and Eastern Dublin Specific Plan.
NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning Commission does
hereby recommend that the City Council approve the Development Agreement between Toll Brothers, Inc.,
Alameda County Surplus Property Authority and the City of Dublin (Attachment A) for PA 98-063, The
Emerald Glen #4 Project.
PASSED, APPROVED AND ADOPTED this 13th day of April, 1999.
AYES:
NOES:
ABSENT:
Planning Commission Chairperson
ATTEST:
Community Development Director
G:\Pa98-063\pcdares
2
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DUBLIN
APPROVING THE DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF DUBLIN,
TOLL BROTHERS, INC., (PA 98-063) and
ALAMEDA COUNTY SURPLUS PROPERTY AUTHORITY
FOR THE EMERALD GLEN #4 RESIDENTIAL DEVELOPMENT
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The proposed Toll Brothers, Inc., Project (PA 98-063) is located within the boundaries of
the Eastern Dublin Specific Plan ("Specific Plan") in an area which is designated on the General Plan
Land Use Element Map and Eastern Dublin Specific Plan Land Use Map as Medium Density Residential
(M) uses.
B. This project is within the scope of the Eastem Dublin Specific Plan and General Plan
Amendment, for which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration
(SCH 86082092) has been approved for the Santa Rita Specific Plan Amendment of which this project is
a part. That Mitigated Negative Declaration together with the Program EIR adequately describes the total
project for the purposes of CEQA. The analysis indicated that no new effects could occur and no new
mitigation measures would be required for the Toll Brothers, Inc., Project that were not addressed in the
FEIR or Mitigated Negative Declaration. Further, that analysis found that the project is in conformity
with the Eastern Dublin Specific Plan.
C. Implementing actions of the Specific Plan, including Chapter 11 thereof, require that all
projects within the Specific Plan area enter into development agreements with the City.
D. Toll Brothers, Inc., has filed an application requesting approval of a development
agreement for the Emerald Glen #4 Residential Project.
E. A Development Agreement between the City of Dublin, Toll Brothers, Inc., and Alameda
County Surplus Property Authority has been presented to the City Council, a copy of which is attached to
the Staff Report as Attachment I.
F. A public hearing on the proposed Development Agreement was held before the Planning
Commission on April 13, 1999, for which public notice was given as provided by law.
G. The Planning Commission has made its recommendation to the City Council for approval
of the Development Agreement.
H. A public hearing on the proposed Development Agreement was held before the City
Council on __ ,1999, for which public notice was given as provided by law.
J. The City Council has considered the recommendation of the Planning Commission at the
,1999 meeting, including the Planning Commission's reasons for its recommendation, the
Agenda Statement, all comments received in writing and all testimony received at the public hearing.
Section 2. FINDINGS AND DETERMINATIONS
Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of
Dublin's General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the Specific Plan, (e) the
EIR, (f) the 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, as amended by the Eastern Dublin
General Plan Amendment, and in the Specific Plan in that (a) the General Plan and Specific Plan land use
designation for the site is Medium Density Residential (M) uses and the proposed project is a residential
development consisting of three (3) separate unit types consistent with that land use, (b) the project is
consistent with the fiscal policies of the General Plan and Specific Plan with respect to provision of
infrastructure and public services, and (c) the Development Agreement includes provisions relating to
financing, construction and maintenance of public facilities, and similar provisions set forth in the
Specific Plan.
2. The Development Agreement is compatible with the uses authorized in, and the regulations
prescribed for, the land use district in which the real property is located in that the project approvals
include a Planned Development Rezoning, Parcel Map and Site Design Review adopted specifically for
the Emerald Glen//4 Project.
3. The Development Agreement is in conformity with public convenience, general welfare
and good land use policies in that the Emereld Glen #4 Project will implement land use guidelines set
forth in the Specific Plan and the General Plan which have planned for office uses at this location.
4. The Development Agreement will not be detrimental to the health, safety and general
welfare in that the project will proceed in accordance with all the programs and policies of the Eastern
Dublin Specific Plan.
5. The Development Agreement will not adversely affect the orderly development of property
or the preservation of property values in that the project will be consistent with the General Plan and with
the Specific Plan.
Section 3. APPROVAL
The City Council hereby approves the Development Agreement (Attachment 1 to the Staff Report)
and authorizes the Mayor to sign it.
Section 4. RECORDATION
Within ten (10) days after the Development Agreement is executed by the Mayor, the City Clerk
shall submit the Agreement to the County Recorder for recordation.
ATTACHMENT 2
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 AND ADOPTED BY the City Council of the City of Dublin, on this __ day of
,1999, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
MAYOR
CITY CLERK
G:PA 98-063 Ord DA
ATTACHMENT 2
The draft Development Agreement was not attached to the file
copy of this Agenda Statement. Following is a copy of the
recorded Development Agreement,
City of Dublin
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Recorded in OCflcial Records, Rlameda County
Patrick O'Connett, Clerk-Recorder
IllllillflEIIlllE No Fee
99363188 11:53am 09/23/99
885 26866189 26 88
R15 37 7.08 188.88 8.08 0.88 O.OO 8.88 8.88
8.88
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
TOLL CA II, L.P.
AND
THE SURPLUS PROPERTY AUTHORITY
OF THE COLrNTY OF ALAMEDA
FOR THE TOLL BROTHERS PROJECT
99363180
TABLE OF CONTENTS
2.
3.
4.
Description of Property ......................................... 3
Relationship of CITY. COUNTY and DEVELOPER .................... 3
t3ffective Date and Term ......................................... 3
4.1 ~ ............................................ 3
4.2 Term ................................................... 3
Use of the Property ............................................. 3
l gtaxomeg ......................................... 3
5.2 ~ ........................................... 4
5.3 A '' i' . .................................... 4
Applicable Rules. Re~tmlations and Offidal Policies .................... 5
6.1 Rules re Permitted Uses .................................... 5
6.2 Rules re Design and Construction ............................ 5
6.3 Uniform Codes Applicable .................................. 5
Subsequently Enacted Rules and R%tmlations ......................... 5
7.1 New Rules and R%mlations ................................. 5
7.2 Approval of Application .................................... 6
7.3 Moratorium Not Applicable ................................. 6
Subsequently Enacted or Revised Fees. Assessments and Taxes ........... 6
8. I Fees. Exactions. Dedications ................................ 6
8.2 Revised Application Fees ................................... 7
8.3 New Taxes .............................................. 7
8.4 Assessments ............................................. 7
8.5 Vote on Future Assessments and Fees ......................... 7
Amendment or Cancellation ...................................... 7
9.1 Modification Because of Conflict with State or Federal Laws ....... 7
9.2 Amendment by Mutual Consent ............................. 7
Dublin/Toll Brothers, IncJAlameda Table of Contents - Page i of iii
Development Agreement - Toll Brothers Proiect August 18, 1999
99363180
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
9.3 Insubstantial Amendments .................................. 8
9.4 Amendment of Proiect Anorovals ............................. 8
9.5 Cancellation by Mutual Consent ............................. 8
Term of Proiect Aonrovals ....................................... 8
Annual Review ................................................ 9
11.1 B~isay_D_a~ ............................................. 9
1 !.2Initiation of Review ....................................... 9
11.3 5_t aff_~eg9~ ............................................ 9
11.4 Costs .................................................. 9
Default ...................................................... 9
12.1 Other Remedies Available .................................. 9
12.2 Notice and Cure .......................................... 9
12.3 No Damages Against CITY ................................ 10
Mortgagee Protection: Certain Rights of Cure ....................... 10
14.1 ~ ..................................... 10
14.2 Mortgagee Not Obligated .................................. 10
14.3 Ngtjce of Default to Mortgagee and Extension of Right to Cure .... 11
Severability .................................................. 11
Attorneys' Fees and Costs ....................................... 1 1
Transfers and Assiffnments ...................................... 12
17.1 DEVELOPER's Right to Assign ............................. 12
17.2 Release Upon Transfer .................................... 12
17.3 Developer's Right to Retain Spedfied Rights or Obligations ....... 12
17.4 permitted Transfer. Purchase or Assignment ................... 13
A~eement Runs with the Land .................................. 13
Dublin/Toll Brothers, lncJAlameda Table of Contents - Page ii of iii
Development Agreement - Toll Brothers Project August 18, 1999
99363180
21. Insurance ................................................... 14
21.1 Public Liability and Property Damage Insurance ................ 14
21.2 Workers Compensation Insurance ........................... 14
21.3 ~ .................................... 15
22. ~ ............................................. 15
23. Notices ..................................................... 15
25. Agreement is Entire Understanding ............................... 16
26. ~ .................................................... 16
27. Counte~arts ................................................ 16
28. Recordation ................................................. 17
Dublin/Toll Brothers, IncdAlameda Table of Contents - Page iii of iii
Development Agreement - Toll Brothers Project August 18, 1999
99363180
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this 4th day of May, 1999, by and between the CITY OF DUBLIN, a
Municipal Corporation (hereafter "CITY~'), Toll CA II, L.P., a California limited
partnership (hereafter "DEVELOPER") and the Surplus Property Authority of
Alameda County, a public corporation (hereafter "COUNTY") pursuant to the
authority of §§ 65864 et seq. of the California Government Code and Dublin
Municipal Code, Chapter 8.56.
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
tights 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 28.9 acres of land, located in the City of
Dublin, County of Alameda, State of California, which is more particularly described
in ~ attached hereto and incorporated herein by this reference, and which
real property is hereafter called the "Property"; and
E. DEVELOPER acquired its interest in the Property from COUNTY
pursuant to a purchase and sale agreement which allocates tights and obligations as
between COUNTY and DEVELOPER. COUNTY is a party to this Agreement
because COUNTY will dedicate certain land and receive certain credits;
F. DEVELOPER proposes the development of the Property for 143
single-family homes and 152 townhouses (the "Proiect'); and
G. DEVELOPER has applied for, and CITY has approved or is
processing, various land use approvals in connection with the development of the
Project, including a PD District rezoning (Ordinance No. 13-99), Parcel Map 7355
Dublin/Toll Brothe~s, IncJAlameda Page I of 18
Development Agreement - Toll Brothers Project August 18, 1999
99363;80
(Community Development Director Resolution no. 02-99), vesting tentative map
and Site Development Review (Planning Commission Resolution No. 99-04),
(collectively, together with any approvals or permits now or hereafter issued with
respect to the Project, the "Project Approvals"); and
H. Development of the Property by DEVELOPER may be subject to
certain future discretionary approvals, which, if granted, shall automatically become
part of the Project Approvals as each such approval becomes effective; and
I. CITY desires the timely, efficient, orderly and proper development
of said Project; and
J. The City Council has found that, among other things, this
Development Agreement is consistent with its General Plan and the Eastern Dublin
Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56;
and
K. CITY, COUNTY 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
L. Pursuant to the California Environmental Quality Act (CEQA) the
City has found, pursuant to CEQA Guidelines section 15182, 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 the Addenda dated May 4, 1993 and August 22, 1994
(the "EIR") and found that the EIR was adequate for this Agreement; and
M. On May 4, 1999, the City Council of the City of Dublin adopted
Ordinance No. 13-99 approving this Development Agreement. The ordinance took
effect on June 3, 1999.
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained,
CITY, COUNTY and DEVELOPER agree as follows:
Dublin/Toll Brothers, IncdAlameda Page 2 of 18
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99363180
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in ~ attached hereto ("Property").
The DEVELOPER has a legal or equitable interest in the Property.
3. Relationship of CITY. COUNTY and DEVELOPER.
It is understood that this Agreement is a contract that has been
negotiated and voluntarily entered into by CITY, COUNTY and DEVELOPER and
that neither the DEVELOPER nor CITY is an agent of CITY. The CITY, COUNTY
and DEVELOPER hereby renounce the existence of any form of ioint 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,
COUNTY and DEVELOPER joint venturers or partners.
4. Effective Date and Term.
4. I ~. The effective date of this Agreement shall
be the date upon which this Agreement is signed by CITY.
4.2 Tenn. The term of this Development Agreement shall
commence on the Effective Date and extend five (5) years thereafter, unless said term
is otherwise terminated or modified by circumstances set forth in this Agreement.
5. Use of the Property.
5.1 ]~_tO~!13~ql~. 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.
Dublin/Toll Brothers, IncJAlameda Page 3 of 18
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99363180
5.2 Permitted Uses. The permitted uses of the Property, the
density and intensity of use, the maximum height, bulk and size of proposed
buildings, provisions for reservation or dedication of land for public purposes and
location and maintenance of on-site and off-site improvements, location of public
utilities (operated by CITY) and other terms and conditions of development
applicable to the Property, shall be those set forth in this Agreement, the Project
Approvals and any amendments to this Agreement or the Proiect Approvals.
5.3 ' ' '' . Provisions for the following
("Additional Conditions") are set forth in ~ attached hereto and incorporated
herein by reference.
5.3.1 Subsequent DiscretionatT 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.)
Not Applicable
5.3.2 ~. Additional or modified
conditions agreed upon by the parties in order to eliminate or
mitigate adverse environmental impacts of the Project or otherwise
relating to development of the Project.
See Exhibit B
5.3.3 Phasing. Timing. Provisions that the Project be
constructed in specified phases, that construction shall commence
within a specified time, and that the Project or any phase thereof be
completed within a specified time.
See Exhibit B
5.3.4 Finandng Plan. Finandal plans which identify
necessaDr capital improvements such as streets and utilities and
sources of funding.
See Exhibit B
5.3.5 ~[~l~iig~. Terms relating to payment of
fees or dedication of property.
See Exhibit B
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99363180
5.3.6 ~. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.3.7
Miscellaneous. Miscellaneous terms.
See Exhibit B
6. Applicable Rules. Regulations and Offidal Polities.
6. i 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 Des?n and Construction. Unless othenvise
expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions,
rules, regulations and official policies governing design, improvement and
construction standards and specifications applicable to the Project shall be those in
force and effect at the time of the applicable discretionary Project Approval.
Ordinances, resolutions, rules, regulations and official
policies governing design, improvement and construction standards and specifications
applicable to public improvements to be constructed by Developer shall be those in
force and effect at the time of the applicable permit approval for the public
improvement.
6.3 Uniform Codes Applicable. Unless expressly provided in
Paragraph 5 of this Agreement, the Project shall be constructed in accordance with
the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire
Codes and Title 24 of the California Code of Regulations, relating to Building
Standards, in effect at the time of approval of the appropriate building, grading, or
other construction permits for the Project.
7. Subsequently Enacted Rules and Regulations.
7.1 N~w Rules and Regulations. During the term of this
Agreement, the CITY may apply new or modified ordinances, resolutions, rules,
regulations and offidal policies of the CITY to the Property which were not in force
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Development Agreement - Toll Brothers Project August 18, 1999
99363180
and effect on the effective date of this Agreement and which are not in conflict with
those applicable to the Property as set forth in this Agreement if: (a) the application
of such new or modified ordinances, resolutions, rules, regulations or official policies
would not prevent, impose a substantial financial burden on, or materially delay
development of the Property as contemplated by this Agreement and the Project
Approvals and (b) if such ordinances, resolutions, niles, regulations or official policies
have general applicability.
7.2 Approval of Application. Nothing in this Agreement shall
prevent the CITY from denying or conditionally approving any subsequent land use
permit or authorization for the Proiect on the basis of such new or modified
ordinances, resolutions, rules, regulations and policies except that such subsequent
actions shall be subiect 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 othenvise, that
imposes a building moratorium which affects the Proiect on all or any part of the
Property, CITY agrees that such ordinance, resolution or other measure shall not
apply to the Proiect, the Property, this Agreement or the Proiect 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. I Fees. Exactions. Dedications. CITY and DEVELOPER
agree that the fees payable and exactions required in connection with the
development of the Proiect Approvals for purposes of mitigating environmental and
other impacts of the Proiect, providing infrastructure for the Proiect and complying
with the Specific Plan shall be those set forth in the Proiect Approvals and in this
Agreement (including ~). The CITY shall not impose or require payment of
any other fees, dedications of land, or construction of any public improvement or
facilities, shall not increase or accelerate existing fees, dedications of land or
construction of public improvements, in connection with any subsequent
discretionary approval for the Property, except as set forth in the Proiect Approvals
and this Agreement (including E~ibi~, subparagraph 5.3.5).
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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. By so
agreeing, DEVELOPER does not waive its fights to challenge the legality of any such
application, processing and/or inspection fees.
8.3 New T~es. Any subsequendy 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. By so agreeing. DEVELOPER does not waive its
tights to challenge the legality of any such taxes.
8.4 fi~_e_~llgt~. Nothing herein shall be construed to relieve
the Property from assessments levied against it by CITY pursuant to any statutory
procedure for the assessment of property to pay for infrastructure and/or services
which benefit the Property.
8.5 Vote on Future Assessments and Fees. In the event that
any assessment, fee or charge which is applicable to the Property is subject to Article
XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER
agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's
ballot as affirmatively voting in favor of such assessment, fee or charge.
9. Amendment or Cancellation.
9.1 Modification Because of Conflict with State or Federal
Laws. In the event that state or federal laws or regulations enacted after the effective
date of this Agreement prevent or preclude compliance with one or more provisions of
this Agreement or require changes in plans, maps or permits approved by the CITY,
the parties shall meet and confer in good faith in a reasonable attempt to modify this
Agreement to comply with such federal or state law or regulation. Any such
amendment or suspension of the Agreement shall be approved by the City Council in
accordance with Chapter 8.56.
9.2 Amendment by Mutual Consent. This Agreement may be
amended in writing from time to time by mutual consent of the parties hereto and in
accordance with the procedures of State law and Chapter 8.56.
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9.3 Insubstantial Amendments. Notwithstanding the
provisions of the preceding paragraph 9.2, any amendments to this Agreement which
do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the
permitted uses of the Property as provided in paragraph 5.2; (c) provisions for
"significant" reservation or dedication of land as provided in Exhibit B; (d) conditions,
terms, restrictions or requirements for subsequent discretionary actions; (e) the
density or intensity of use of the Proiect; (f) the maximum height or size of proposed
buildings; or (g) monetary contributions by DEVELOPER as provided in this
Agreement, shall not, except to the extent otherwise required by law, require notice or
public hearing before either the Planning Commission or the City Council before the
parties may execute an amendment hereto. CITY's Public Works Director shall
determine whether a reservation or dedication is "significant".
9.4 Amendment of Project Approvals. Any amendment of
Project Approvals relating to: (a) the permitted use of the Property; (b) provision for
reservation or dedication of land; (c) conditions, terms, restrictions or requirements
for subsequent discretionazy 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 Paragraph 5.3 and ~
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 G 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 ~.
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11.1 Review Date. The annual review date for this Agreement
shall be August 15, 2001 and each August 15 thereafter.
I 1.2 ~. The CITYs Community
Development Director shall initiate the annual review, as required under Section
8.56.140 of Chapter 8.56, by giving to DEVELOPER thirty (30) days' written notice
that the CITY intends to undertake such review. DEVELOPER shall provide
evidence to the Community Development Director prior to the hearing on the annual
review, as and when reasonably determined necessary by the Community
Development Director, to demonstrate good faith compliance with the provisions of
the Development Agreement. The burden of proof by substantial evidence of
compliance is upon the DEVELOPER.
11.3 R~laff__Ke_p_o~. To the extent practical, CITY shall deposit
in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits
concerning contract performance at least five (5) days prior to any annual review.
11.4 Costs. Costs reasonably incurred by CITY in connection
with the annual review shall be paid by DEVELOPER in accordance with the City's
schedule of fees in effect at the time of review.
12. Default.
12.1 Other Remedies Available. Upon the occurrence of an
event of default, the parties may pursue all other remedies at law or in equity which
are not otherwise provided for in this Agreement or in City's regulations governing
development agreements, expressly induding the remedy of specific performance of
this Agreement.
12.2 ~. Upon the occurrence of an event of
default by any 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 tights 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
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(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.
Any party may, at any time, and from time to time, request written
notice from the other party requesting such party to certify in writing that, (a) this
Agreement is in full force and effect and a binding obligation of the parties, (b) this
Agreement has not been amended or modified either orally or in writing, or if so
amended, identifying the amendments, and (c) to the knowledge of the certifying
party the requesting party is not in default in the performance of its obligations under
this Agreement, or if in default, to describe therein the nature and amount of any
such defaults. A party receiving a request hereunder shall execute and return such
certificate within thirty (30) days following the receipt thereof, or such longer period
as may reasonably be agreed to by the parties. City Manager of City shall be
authorized to execute any certificate requested by DEVELOPER or COUNTY.
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 dauses (a) through (c)
of this section are true, and any party may rely on such deemed certification.
14. Mo~gagee Protection: Certain Rights of Cure.
14.1 ~l~l~age~P~.~. 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 othenvise.
14.2 Mortgagee Not Obligated. Notwithstanding the provisions
of Section 14.1 above, no Mortgagee shall have any obligation or duty under this
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99363180
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or
complete the construction of improvements, or to guarantee such construction of
improvements, or to guarantee such construction or completion, or to pay, perform or
provide any fee, dedication, improvements or other exaction or imposition; provided,
however, that a Mortgagee shall not be entitled to devote the Property to any uses or
to construct any improvements thereon other than those uses or improvements
provided for or authorized by the Project Approvals or by this Agreement.
14.3 Notice of Default to Mortgagee and Extension of 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 daimed set forth in the CITY's
notice. CITY, through its City Manager, may extend the thirty-day cure period
provided in paragraph 12.2 for not more than an additional sixty (60) days upon
request of DEVELOPER or a Mortgagee.
15. Severability.
The unenforceability, invalidity or illegality of any provisions,
covenant, condition or term of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
16. Attorneys' Fees and Costs.
If CITY, COUNTY 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 attomeys' 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 and COUNTY shall
bear their own costs of defense as a real party in interest in any such action, and
DEVELOPER shall reimburse CITY for all reasonable court costs and attorneys' fees
expended by CITY in defense of any such action or other proceeding.
Dublin/Toll Brothers, IncJAlameda Page 11 of 18
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17. Transfers and Assi~t~nments.
17.1 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 all 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, interests and obligations hereunder shall occur
without the prior written notice to CITY and approval by the City Manager, which
approval shall not be unreasonably withheld or delayed. The City Manager shall
consider and decide the matter within 10 working days after DEVELOPER's notice
provided and receipt by City Manager of all necessary documents, certifications and
other information required by City Manager to decide the matter. The City
Manager's approval shall be for the purpose of assuring City that the proposed
purchaser, transferee or assignee is capable of performing the DEVELOPER's
obligations hereunder.
17.2 Release Upon Transfer. Upon the transfer, sale, or
assignment of all of DEVELOPER's rights, interests and obligations hereunder
pursuant to subparagraph 17.1 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.
17.3 Developer's Right to Retain Specified Rights or
l_O.h!igal~. Notwithstanding subparagraphs 17.1 and 17.2 and paragraph 18,
DEVELOPER may withhold from a sale, transfer or 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.
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17.4 Permitted Transfer. Purchase or Assignment. The sale or
other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to
the exercise of any right or remedy under a deed of trust encumbering
DEVELOPER'S interest in the Property shall not require City Manager approval
pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or
assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall
be subject to the provisions of paragraph 17.1.
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. Ail of the provisions of this Agreement shall be
enforceable as equitable servitude and shall constitute covenants running with the
land pursuant to applicable laws, including, but not limited to, Section 1468 of the
Civil Code of the State of California. Each covenant to do, or refrain from doing,
some act on the Property hereunder, or with respect to any owned property, (a) is for
the benefit of such properties and is a burden upon such properties, (b) runs with
such properties, and (c) is binding upon each party and each successive owner during
its ownership of such properties or any portion thereof, and shall be a benefit to and a
burden upon each party and its property hereunder and each other person succeeding
to an interest in such properties.
19. Bankruptcy..
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
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
Dublin/Toll Brothers, IncJAlameda Page 13 of 18
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99363180
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).
COUNTY 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 daims, costs (including legal fees and costs) and
liability for any personal iniury or property damage which may arise directly or
indirectly as a result of any actions or inactions by the COUNTY, or any actions or
inactions of COUNTY's contractors, subcontractors, agents, or employees in
connection with the construction, improvement, operation, or maintenance of the
Project, provided that COUNTY shall have no indemnification obligation with
respect to negligence or wrongful conduct of CITY, its contractors, subcontractors,
agents or employees or with respect to the maintenance, use or condition of any
improvement after the time it has been dedicated to and accepted by the CITY or
another public entity (except as provided in an improvement agreement or
maintenance bond).
21.1 Public l,iahility and Property Damage Insurance. At all
times that DEVELOPER is constructing any improvements that will become public
improvements, DEVELOPER shall maintain in effect a policy of comprehensive
general liability insurance with a per-occurrence combined single limit of not less than
one million dollars ($1,000,000.00) and a deductible of not more than ten thousand
dollars ($10,000.00) per claim. The policy so maintained by DEVELOPER shall
name the CITY as an additional insured and shall include either a severability of
interest danse or cross-liability endorsement.
21.2 Workers Compensation Insurance. At all times that
DEVELOPER is constructing any improvements that will become public
improvements, DEVELOPER shall maintain Workers 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
Dublin/Toll Brothers, IncdAlameda Page 14 of 18
Development Agreement - Toll Brothers Project August 18, 1999
99363180
any such insurance.
21.3 ~. Prior to commencement of
construction of any improvements which will become public improvements,
DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in
Sections 21.1 and 21.2 and evidence that the carrier is required to give the CITY at
least fifteen days prior written notice of the cancellation or reduction in coverage of a
policy. The insurance shall extend to the CITY, its elective and appointive boards,
commissions, officers, agents, employees and representatives and to DEVELOPER
performing work on the Project.
DEVELOPER acknowledges that it must obtain water and sewer
permits from the Dublin San Ramon Services District ("DSRSD") which is another
public agency not within the control of CITY.
23. Notices.
All notices required or provided for under this Agreement shall be in
writing. Notices required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
P.O. Box 2340
Dublin, CA 94568
Notices required to be given to COUNTY shall be addressed as follows:
and
Patrick Cashman
Project Director
Surplus Property Authority of Alameda County
225 W. Winton Avenue, Room 151
Hayward, CA 94544
Adolph Martinelli
Director of Planning
County of Alameda
399 Elmhurst Street
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Development Agreement - Toll Brothers Project August 18, 1999
99363180
Hayward, CA 94544
Notice required to be given to DEVELOPER shall be addressed as follows:
Toll Brothers, Inc.
1501 Bollinger Canyon Road, Suite B
San Ramon, CA 94583
A party may change address by giving notice in writing to the other party and
thereafter all notices shall be addressed and transmitted to the new address. Notices
shall be deemed given and received upon personal delivery, or if mailed, upon the
expiration of 48 hours after being deposited in the United States Mail. Notices may
also be given by overnight courier which shall be deemed given the following day or
by facsimile transmission which shall be deemed given upon verification of receipt.
24. Recitals.
hereof.
25.
of the parties.
26.
The foregoing Recitals are true and correct and are made a part
A~eement is Entire Understanding.
This Agreement constitutes the entire understanding and agreement
The following docmnents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
~ Legal Description of Property
Exhibit B Additional Conditions
27.
This Agreement is executed in three (3) duplicate originals, each of
which is deemed to be an original.
Dublin/Toll Brothers, IncJAlameda Page 16 of 18
Development Agreement - Toll Brothers Project August 18, 1999
28. Recordation.
99363180
CITY shall record a copy of this Agreement within ten days
following execution by all parties.
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:
Date:
Attest:
Date:~
Approved as to Form:
Cit)~ Attomey
SURPLUS PROPERTY AUTHORITY
OF ALAMEDA COUNTY:
Adolph/Martinelli--
Its Manager
Dublin/Toll Brothers, IncdAlameda Page 17 of 18
Development Agreement - Toll Brothers Project May 6, 1999
99363180
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
~ate ~ ~ ' I jl Name and ~tle of O~icer (e,jg., "Jane Doe, Notary Public'~
personally appeared ~/ ~-~ ~ ~_~../L'~'~/~7-~)/(J ,
Name(s) of Signer(s)
[] personally known to me - OR -~'proved to me on the basis of satisfactory evidence to be the person.{~
whose nameJs')' is/.a~ subscribed to the within instrument
and acknowledged to me that he/,she'/.the~ executed the
same in his~;~e?/.theff authorized capacity..(~, and that by
his/j)et'/~r signature~on the instrument the persor~,
or the entity upon behalf of which the person.(a?"'acted,
executed the instrument.
WITNESS my hand and official seal.
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and rea~tachment of this form to another document.
Description of Attached Document
Title or Type of Document: _r~~
~ /
Document Date: .~. ,~
Signer(s) Other Th;n ~amed~Above~
Capacity(les) Claimed by Signer(s)'
Signer's Name~'~/ ,,..~../~/(~)~/.~7"~),~/ Name:
[] Individual
[] Corporate Officer
Title(s):
[] Partner-- [] Limited [] General
[] Attorney-in-Fact
[] Trustee
[] Guardian or Conservator
[] Other:
Top of thumb here
[]
[]
~tle~
[] Partner-- [] General
[] Attorney
[] Trustee
[] Guardian ~
[] Other: Top of thumb here
Signer Is Representing:
99363180
-_ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
~ersOnally known to me - OR
- [] proved to me on the basis of satisfactory evidence
to be the perso0.(~whose name,(.e')' is,/.a-~
subscribed to the within instrument and ac-
knowledged to me that he/.,she'/~ executed
the same in his/berfU:m,il' authorized
capacity(j.ee'), and that by his/J:~-r/th, e1?'
signature(A~"6n the instrument the perso[:~s~,
or the e~tity upon behalf of which the
personJ~) acted, executed the instrument.
WITNESS my hand and official seal.
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
[] iNDIVIDUAL
[] CORPORATE OFFICER
DESCRIPTION OF ATTACHED DOCUMENT
[] PARTNER(S) [] LIMITED
[] GENERAL
[] ATTORNEY-IN-FACT
[] TRUSTEE(S)
[] GUARDIAN/CONSERVATOR
[] OTHER:
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
SIGNER IS REPRESENTING:
Approved as to Form:
Attorney for Surplus Property
Authority of the County of Alameda
TOLL CA II, L.P.,
a California limited partnership
By: TOLL CA GP CORP.,
a California corporation, its General Partner
ZATION ATI'ACHED)
EHS:rja:gkt
[:\WPD~INRSWM 14\ 125~AGREE~TOLL_DA.322
Dublin/Toll Brothers, lncdAlameda Page 18 of 18
Development Agreement. Toll Brothers Project July 21, 1999
99363180
State of California )
) SS.
County of Alameda )
On~a~ ,5 {[~? before me, a Notary Public,
personally appearecl_ ~)f~m 17~ ~J,
personally known to me (~r~3rvvcd
to be the person~ffwhose name~) is/a~e subscribed to the within instrument and
acknowledged to me that he/~-y executed the same in hisflae4~e~mi~
authorized capacity(4c~), and that by hi~ signature~l0 on the instrument
executed
the person(~,t or the entity upon behalf of which the person~0/acted,
the instrument.
WITNESS my hand and official seal.
99363180
EXHIBIT A
Parcel 2 on Parcel Map 7355, recorded in Alameda County Records on
September 1, 1999 at 99-335919.
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Development Agreement - Toll Brothers Project - Exhibit A July 21, 1999
9363180
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subparagraph 5.3.1 -- Subsequent Discretional. Approvals
None.
Subparagraph 5.3.2 -- Mitigation Conditions
Infrastructure Sequendng Program
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of dedication)
described bdow and those identified in Resolution No. 99-04 of the Planning
Commission Approving the Vesting Tentative Map and Site Development Review
shall be completed by DEVELOPER to the satisfaction of the Public Works Director
at the times and in the manner specified in Resolution No. 9%04 unless otherwise
provided below. All such roadway improvements shall be constructed to the
satisfaction and requirements of CITY's Public Works Director.
A. Miscellaneous
The obligations of Condition Nos. 37, 38 and 45 of Resolution No.
02-99 of the Community Development Director approving Parcel Map 7355 ('q"he
Deferred Conditions") shall be of no force or effect until DEVELOPER records a final
map or building permit (whichever comes first) for the Project. Once effective, such
obligations shall survive termination of this Agreement.
COUNTY shall provide CITY with security for the costs of design and
construction of The Deferred Conditions in an amount satisfactory to the Public
Works Director. The security shall be as follows:
Dublin/Toll Brothers, IncJAlameda Page 1 of 11
Development Agreement -- Toll Brothers Project - Exhibit B May 6, 1999
99363~80
~ [Widen Dublin Boulevard to 6 lanes,
Dougherty Road to SP ROW]
Unless previously provided by COUNTY, a payment
to CITY in cash in the amount of the deficiency, if
any, between funds available to CITY for CIP Project
#9689 [widen Dublin Boulevard to 6 lanes, Dougherty
Road to SP ROW] and the cost of such project, such
payment to be made within 30 days of written notice
from the Public Works Director to be given following
bid opening;
Condition 37 [Dougherty Road/Dublin Blvd. Intersection]
Unless previously provided by COUNTY, a payment
to CITY in cash in the amount of the deficiency, if
any, between funds available to CITY for CIP Proiect
#9689 [Dougherty Road/Dublin Blvd. Intersection]
and the cost of such project, such payment to be made
within 30 days of written notice from the Public
Works Director to be given following bid opening;
Dublin/Toll Brothers, IncdAlameda Page 2 of 11
Development Agreement -- Toll Brothers Project - Exhibit B May 6, 1999
· Condition 38 [EB offramp at Tassajara/Santa Rita,
Pimlico Drive]
Unless previously provided by COUNTY, a payment
to CITY in cash in the amount of the deficiency, if
any, between funds available to CITY to construct the
EB offramp at Tassajara/Santa Rita, Pimlico Drive
improvements (restriping/left turn lane) and the cost of
such project, such payment to be made within 30 days
of written notice from the Public Works Director to be
given following bid opening;
DEVELOPER and COUNTY shall be responsible for transitioning
existing improvements to match improvements required by this Agreement, including
dedications, to the satisfaction of the CITY's Public Works Director.
(ii) Sewer
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with the tentative
subdivision map and DSRSD requirements.
(iii) Water
An all weather roadway and an approved hydrant and water supply
system shall be available and in service at the site in accordance with the tentative
subdivision map to the satisfaction and requirements of the CITY's fire department.
All potable water system components to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with the tentative
subdivision map and DSRSD requirements.
Recycled water lines shall be installed in accordance with the tentative
subdivision map.
(iv)
Prior to issuance of the fLrst Certificate of Occupancy for any building
which is part of the Project, the storm drainage systems off site, as well as on site
Dublin/Toll Brothers, IncdAlameda Page 3 of 11
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99363180
drainage systems to the areas to be occupied, shall be improved to the satisfaction
and requirements of the Dublin Public Works Department applying CITY's and Zone
7 (Alameda County Flood Control and Water Conservation District, Zone 7)
standards and policies which are in force and effect at the time of issuance of the
permit for the proposed improvements and shall be consistent with the Drainage
Plan. The site shall also be protected from storm flow from off site and shall have
erosion control measures in place to protect downstream facilities and properties from
erosion and unclean storm water consistent with the Drainage Plan. As used herein,
"Drainage Plan" shall refer to CITY's master drainage plan.
(v) Other Utilities te.g. gas. electtici .ry. cable televisions, telephone)
Construction of other utilities shall be completed by phase prior to
issuance of the first Certificate of Occupancy for any building within that specific
phase of occupancy.
Miscellaneous
(i) Completion May be Deferred.
Notwithstanding the foregoing, CITY's Public Works Director may, in
his or her sole discretion and upon receipt of documentation in a form satisfactoty to
the Public Works Director that assures completion, allow DEVELOPER or COUNTY
to defer completion of discrete portions of any of the public improvements required
for the Project tmtil after issuance of Certificate of Occupancy for the first building
for the Project if the Public Works Director determines that to do so would not
jeopardize the public health, safety or welfare.
(ii) Improvement A~eement
Prior to constructing the Improvements described in Subparagraph
5.3.2(a)(i)(A) above, DEVELOPER or COUNTY shall submit plans and
specifications to CITY's Public Works Director for review and approval and shall
enter into an improvement agreement with CITY for construction and dedication of
the public facilities. All such improvements shall be constructed in accordance with
City's standards and policies which are in force and effect at the time of issuance of
the permit for the proposed improvements including, but not limited to, "Precise
Plans".
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Development Agreement -- Toll Brothers Project - Exhibit B May 6, 1999
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(iii) Bonds
Prior to execution of the Improvement Agreement, DEVELOPER or
COUNTY (or its assignee) shall provide a cash monument bond, a performance bond
and labor and materials bond or other adequate security to insure that the
Improvements described in Subparagraph 5.3.2(a)(i)(A) (The Deferred Conditions)
will be constructed prior to the times specified above. The performance bond or
other security shall be in an amount equal to 100% of the engineer's estimate of the
cost to construct the improvements (including design, engineering, administration,
and inspection) and the labor and materials bond shall be in an amount equal to 50%
of the engineers estimate. The bonds shall be written by a surety licensed to conduct
business in the State of California and approved by CITY's City Manager.
(iv) Right to Construct Additional Road Improvements
With the prior written consent of CITY's Public Works Director,
DEVELOPER or COUNTY may construct roadway improvements which are not
described in this Exhibit B ff such improvements are described in the resolution
establishing the Eastern Dublin Traffic Impact Fee and if such improvements are
constructed in their ultimate location.
DEVELOPER or COUNTY shall be required to enter into an
Improvement Agreement and provide bonds for such improvements, as provided in
Subsection (b)(ii) and (iii) above, prior to construction. CITY shall provide a credit
to DEVELOPER or COUNTY for the cost of such improvements in the manner and
subject to the conditions provided in Subparagraph 5.3.6, Subsections (a), (b) and
(c).
Subpara~aph 5.3.3 -- Phasing. Timing
With the exception of the road improvements described in Subparagraph
5.3.2(a)(i), this Agreement contains no requirements that DEVELOPER must initiate
or complete development of the Project within any period of time set by CITY. It is
the intention of this provision that DEVELOPER be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
Subparagraph 5.3.4 -- Finandng Plan
DEVELOPER will install all street improvements necessary for the Project
Dublin/Toll Brothers, IncJAlameda Page 5 of 11
Development Agreement -- Toll Brothers Project - Exhibit B May 6, 1999
99363180
at its own cost (subject to credits for certain improvements as provided in
Subparagraph 5.3.6 below).
Other infrastructure necessary to provide sewer, potable water, and recycled
water services to the Project will be made available by the Dublin San Ramon
Services District. COUNTY has entered into an "Area Wide Facilities Agreement"
with the Dublin San Ramon Services District to pay for the cost of extending such
services to the Project. Such services shall be provided as set forth in Subparagraph
5.3.2(a)(ii) and (iii) above.
Subparagraph 5.3.5 -- Fees. Dedications
DEVELOPER shall pay all traffic impact fees applicable to the Project
which are in effect at the time of issuance of any building permit for the Project.
Such fees include the Traffic Impact Fee for Eastern Dublin established by Resolution
No. 41-96, including any future amendments to such fee.
DEVELOPER, COUNTY and CITY acknowledge that COUNTY is entitled
to certain credits ("1991 Credits") against payment of the Traffic Impact Fee for
Eastern Dublin by separate agreements previously entered into between COUNTY
and CITY in 1991. COUNTY is also entitled to certain other credits ("Prior
Agreement Credits") against payment of the Traffic Impact Fee for Eastern Dublin by
other development agreements entered into between COUNTY and CITY.
COUNTY agrees that, notwithstanding its entitlement to such 1991 Credits, its
1991 Credits cannot be applied against payment of the "Section 2" portion of the
Traffic Impact Fee for Eastern Dublin for the Project. DEVELOPER will, rather, pay
the "Section 2" portion of the fee in cash.
COUNTY further agrees that it (and its assignee) will use the 1991 Credits
and/or Prior Agreement Credits against at least one-half (1/2) of the "Section 1"
portion of the Traffic Impact Fee for Eastern Dublin for the Project provided that it
has sufficient such credits. CITY shall determine which of the 1991 Credits and/or
Prior Agreement Credits shall be used pursuant to this paragraph.
Notwithstanding anything herein to the contrary, DEVELOPER further
agrees that it (and its assignee) will pay at least seven percent (7%) of the "Section 1"
portion of the Traffic Impact Fee for Eastern Dublin in cash.
Dublin/Toll Brothers, IncJAlameda Page 6 of 11
Development Agreement -- Toll Brothers Project - Exhibit B May 6, 1999
99363180
Traffic Impact Fee to Reimburse Pleasanton for Freeway
DEVELOPER shall pay the Eastem Dublin 1-580 Interchange Fee
established by City of Dublin Resolution No. 11-96 as amended by Resolution No.
155-98 and by any subsequent resolution which revises such Fee.
DEVELOPER shall pay a Public Facilities Fee in the amounts and at the
times set forth in City of Dublin Resolution No. 32-96, adopted by the City Council
on March 26, 1996, or in the amounts and at the times set forth in any resolution
revising the amount of the Public Facilities Fee.
Notwithstanding the preceding sentence, the amount of the Public Facilities
Fee shall be reduced by the "Community Parks, Land" and "Neighborhood Parks,
Land" component of the Public Facilities Fee. The amount of the "Community Parks,
Land" and "Neighborhood Parks, Land" dedication for the Proiect is 2.95 acres.
DEVELOPER shall satisfy such obligation in two ways.
First, by using COUNTY's remaining credit of 1.89 acres to which
DEVELOPER is entitled under the "Development Agreement Between the City of
Dublin and the Surplus Property Authority of the County of Alameda for the
Jefferson at Dublin Project" (recorded July 17, 1998).
Second, COUNTY shall convey to CITY in fee simple 1.06 acres of land for
the City Park located east of Tassaiara Creek (Emerald Glen Park). The exact
location of the land to be conveyed shall be determined by CITY. The land to be
conveyed and underlying groundwater shall be free of hazardous substances. The use
of the existing credit of 1.89 acres and the conveyance of 1.06 acres shall satisfy
DEVELOPER's obligation under Dublin Municipal Code Chapter 9.28 (CITY's
Quimby Act ordinance) for community park land and neighborhood park land and
shall be a credit against the portion of the Public Facilities Fees for "Community
Parks, Land" and "Neighborhood Parks, Land" for the Proiect.
Additional Park Land Conveyance
In addition to the conveyance described in Subsection (c) above, COUNTY
agrees to dedicate to CITY in fee simple 4.607 acres to be used by CITY for the City
Dublin/Toll Brothers, IncdAlameda Page 7 of 11
Development Agreement -- Toll Brothers Project - Exhibit B May 6, 1999
99363180
Park (Emerald Glen Park). The exact location of the land to be conveyed shall be
determined by CITY. The land to be conveyed and underlying groundwater shall be
free of hazardous substances.
The conveyance of such 4.607 acres by COUNTY may be used by
COUNTY as a credit against its obligation under Dublin Municipal Code Chapter
9.28 for community park land and neighborhood park land and the portion of the
Public Facilities Fee for "Community Parks, Land" and "Neighborhood Parks, Land"
for any of COUNTWs future projects (residential or non-residential) on its remaining
Santa Rita property and on any other property within the Eastern Dublin Specific
Plan or General Plan Amendment Areas. Use of such credit shall be governed by
guidelines to be adopted by CITY for credits and reimbursement for the Public
Facilities Fee.
Noise Mitigation Fee.
DEVELOPER shall pay a Noise Mitigation Fee in the amounts and at the
times set forth in City of Dublin Resolution No. 33-96, adopted by the City Council
on March 26, 1996, and any amendments thereto.
School Impact Fees.
School impact fees shall be paid by DEVELOPER in accordance with
Government Code section 53080 and the existing agreement between~COUNTY and
the Dublin Unified School District.
Fire Impact Fees.
DEVELOPER shall pay a fire facilities fee in the amounts and at the times
set forth in City of Dublin Resolution No. 37-97 or any subsequent resolution which
revises such fee.
~ Tri-Valley Transportation Development Fee.
DEVELOPER shall pay the Tri-Valley Transportation Development Fee in
the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any
subsequent resolution which revises such fee. COUNTY agrees that its 1991 Credits
and Prior Agreement Credits cannot be applied against payment of this fee.
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Development Agreement -- Toll Brothers Project - Exhibit B May 6, 1999
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Subparagraph 5.3.6 -- Credit
Traffic Impact Fee Improvements Credit
CITY shall provide a credit to COUNTY for the those improvements
described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such
improvements are constructed by the DEVELOPER in their ultimate location
pursuant this Agreement. All aspects of credits shall be governed by CITY's
Administrative Guidelines regarding credits (Resolution No. 23-99).
Traffic Impact Fee Right-of-Way Dedications Credit
CITY shall provide a credit to COUNTY for any TIF area right-of-way
dedicated by COUNTY to CITY which is required for roadway improvements which
are described in the resolution establishing the Eastern Dublin Traffic Impact Fee.
All aspects of credits shall be governed by CITY's Administrative Guidelines regarding
credits (Resolution No. 23-99).
Credits for Pa.vments for CITY Pro!ects
COUNTY will be entitled to a credit in the amount of any payments made
by COUNTY to CITY for projects, as provided in Subparagraph 5.3.2(a)(i)(B)(2)
above, provided such Projects are TIF projects. The credit will be in the .amount of
the payment and may be used by COUNTY in accordance with CITY's
Administrative Guidelines for Credits and Reimbursements (Resolution No. 23-99).
Use of Excess Credits
In the event that credits referred to in Subsections (a) to (c) of this
Subparagraph 5.3.6 are in excess of the amount of credits which can be applied
against the traffic impact fee payable pursuant to Subsection (a) of Subparagraph
5.3.5 (i.e., one-half of the "Section I" portion of the Traffic Impact Fee for Eastern
Dublin, less 7% of the "Section 1" portion), COUNTY shall be entitled to "bank" such
credits (referred to as "Excess Credits") and may use them as provided in CITY's
Administrative Guidelines for Credits and Reimbursements (Resolution No. 23-99).
Dublin/Toll Brothers, IncYAlameda Page 9 of 11
Development Agreement -- Toll Brothers Project - Exhibit B May 6, 1999
99B63 BO
Subparagraph 5.3.7 -- Miscellaneous
Subsection a. Landscaping Maintenance Along Streets and Creek
CITY has formed a landscape maintenance district known as the
"Landscape Maintenance Assessment District No. 97-1 (Santa Rita Area)" pursuant
to a petition from COUNTY, and imposed an assessment against the Property to pay
for street and creek landscape maintenance. In addition, on September 24, 1996,
COUNTY recorded a Declaration of Covenants, Conditions and Restrictions which
covers the Property, whereby COUNTY, on behalf of itself and its successors
(including DEVELOPER), has covenanted to pay a "Deed Assessment" to CITY for
maintenance of street and creek landscaping.
Subsection b. One-time Increase in Credits and TIF Fees
It is contemplated that CITY will amend the TIF to increase the amount of
the TIF fee due to increases in construction costs and land values. In the event that
CITY so amends the TIF in 1999, and notwithstanding CITY's Administrative
Guidelines, CITY will make a one-time adjustment to the amount of any credit which
COUNTY has previously been given pursuant to this agreement so that the amount
of the credit shall be based on the construction costs used by CITY in its updated TIF
if the credit is for constructing improvements and/or on the land values used by CITY
in its updated TIF if the credit is for dedicating land. The revised credit shall not be
increased for inflation nor shall interest accrue on it.
If DEVELOPER has paid any TIF fees prior to the date the credit is
increased, DEVELOPER will pay to CITY the difference between the TIF fees
previously paid and the amount that DEVELOPER would have paid if the revised
TIF fees had been in effect at the time of payment. DEVELOPER may use TIF
credits purchased from COUNTY for such payments.
The following example illustrates the provisions of the preceding
paragraphs. Assume that COUNTY dedicated land for Dublin Boulevard (a Section
t improvement) on May 1, 1999 and that the amount of credit COUNTY received
was $2,000,000, which amount was based on the land value included in the TIF as of
May i, 1999. Assume further than on May 15, 1999, the City Council amends the
TIF, to be effective on July 15, 1999, to increase land values. Assume further that
the land value for the dedicated land in the revised TIF is $3,000,000. On July 15,
1999, CITY will increase the amount of credits for COUNTY from $2,000,000 to
Dublin/Toll Brothers, IncdAlameda Page 10 of I 1
Development Agreement - Toll Brothers Project - Exhibit B May 6, 1999
99363180
$3,000,000. In this example, DEVELOPER pulled 100 building permits on May 5,
1999 and had paid Section 1 TIF fees in the total amount of $300,000 ($3000 per
unit). If the Section i TIF fee is increased to $4000 per unit effective July 15, 1999,
DEVELOPER will owe CITY an additional $100,000 on July 15.
Subsection c.
Notice of Private Roads and Facilities
The Project includes private roads and other private facilities (including a pocket
park). DEVELOPER will provide notice, in a form approved by CITY's Community
Development Director, to prospective purchasers that the private roads and private
facilities are not owned by CITY and will not be maintained by CITY.
Subsection d.
The Project shall be constructed in accordance with the Uniform Building Code
in effect in the City of Dublin at the time of issuance of the first building permit for
the Project.
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Development Agreement -- Toll Brothers Project - Exhibit B May 6, 1999