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HomeMy WebLinkAboutReso 177-09 Dub Rch No PreAnnx AgmtRESOLUTION NO. 177- 09 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING APRE-ANNEXATION AGREEMENT FOR DUBLIN RANCH NORTH BETWEEN THE City OF DUBLIN AND HONG YAO LIN AND HONG LIEN LIN APN: 985-0028-003-02 PA 08-045 WHEREAS, aPre-Annexation Agreement between the City of Dublin and Hong Yao Lin and Hong Lien Lin has been negotiated for Dublin Ranch North Property and included as Exhibit A; and WHEREAS, the Project site is in Eastern Dublin for which the City adopted the 1993 Eastern Dublin General Plan Amendment and Specific Plan to provide a comprehensive planning framework for future development in the area. In connection with this approval, the City certified a program EIR pursuant to CEQA Guidelines section 15168 (SCH No. 91103064, Resolution 51-93, hereafter "Eastern Dublin EIR") that is available for review in the Dublin Community Development Department and is incorporated herein by reference. The Eastern Dublin EIR was integral to the planning process and examined the direct and indirect effects, cumulative impacts, broad policy alternatives, and areawide mitigation measures for developing Eastern Dublin. The Eastern Dublin EIR identified significant unavoidable impacts from development of Eastern Dublin, some of which would apply to the Project. Pursuant to the Communities for a Better Environment case, any City Council approval of the project must be supported by a new Statement of Overriding Considerations with respect to these previously identified impacts; and WHEREAS, the Eastern Dublin EIR identified potentially significant environmental impacts and related mitigation measures, which the City adopted together with mitigation findings and a Mitigation Monitoring Program (Resolution 53-93.) The mitigation measures and monitoring program continue to apply to development in Eastern Dublin; and WHEREAS, pursuant to CEQA and the CEQA Guidelines, the City as the Lead Agency prepared a Mitigated Negative Declaration for the Dublin Ranch North Property entitled "Initial Study/Mitigated Negative Declaration for the Dublin Ranch North Annexation Area" dated October 2009 and incorporated herein by reference, and circulated it for review; and WHEREAS, separate Staff Reports, dated November 10, 2009 and incorporated herein by reference, described and analyzed the Mitigated Negative Declaration, Annexation, General Plan and Specific Plan Amendments, prezoning with a related Stage 1 and Stage 2 Development Plan, Vesting Tentative Tract Map and Development Agreement for Dublin Ranch North for the Planning Commission; and WHEREAS, at its November 10, 2009 hearing, the Planning Commission adopted Resolution 09-45 incorporated herein by reference, recommending that the City Council adopt the Mitigated Negative Declaration for the Project; and Page°'F.of..2.,. WHEREAS, at its November 10, 2009 hearing, the Planning Commission adopted Resolution 09-43, recommending Annexation, Resolution 09-42 recommending approval of General Plan and Specific Plan Amendments for Dublin Ranch North, Resolution 09-44 recommending that the City Council prezone the properties and adopt a related Stage 1 and Stage 2 Development Plan, Resolution 09-46 approving Vesting Tentative Tract Map 8016, and Resolution 09-41 recommending the City Council adopt the Development Agreement, which are incorporated herein by reference; and WHEREAS, a Staff Report dated December 1, 2009, and incorporated herein by reference, described and analyzed the Mitigated Negative Declaration, annexation, General Plan and Specific Plan Amendments, prezoning with a related Stage 1 and Stage 2 Development Plan, Pre-Annexation Agreement, and Development Agreement (hereafter the "Project") for the City Council; and WHEREAS, the City Council reviewed the Project at a properly noticed public hearing on December 1, 2009, at which time all interested parties had the opportunity to be heard; and WHEREAS, the Applicant, James Tong on behalf of the Lin family, has executed said Pre-Annexation Agreement. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY RESOLVE AS FOLLOWS: Said Pre-Annexation Agreement, attached as Exhibit A, is hereby approved and the Mayor of Dublin is hereby authorized to execute it. PASSED, APPROVED AND ADOPTED this 1St day of December 2009, by the following vote: AYES: Councilmembers Biddle, Hart, Hildenbrand, Scholz, and Mayor Sbranti NOES: None ABSENT: None ABSTAIN: None Mayor ATT T: ~~ ~~'" U City Clerk Reso No. 177-09, adopted 12-1-os, icem .l, Page 2 of Z q3 ~- ~-lo 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 Recorder's use PRE-ANNEXATION AGREEMENT BETWEEN CITY OF DUBLIN AND THE LIN FAMILY FOR THE DUBLIN RANCH NORTH PROPERTY THIS AGREEMENT is made and entered in the City of Dublin on this 1st day of December 2009, by and between the City of Dublin, a Municipal Corporation ("the City") and Hong Yao Lin (also known as Kevin Lin) and Hong Lien Lin (also known as Frederich or Frederic Lin), referred to in this Agreement as "the Developer." City and Developer are, from time-to-time, individually referred to in this Agreement as a "Party," and are collectively referred to as the "Parties." Recitals 1. In 1993, the City Council of the City adopted the Eastern Dublin General Plan Amendment and Eastern Dublin Specific Plan ("the Specific Plan"). 2. Developer is the owner of certain property within the Specific Plan Area described more particularly in Exhibit A ("the Dublin Ranch North Property" or "the Annexation Area"), which is incorporated herein by reference. 3. Developer has filed an application with the City to, among other things, prezone and annex to the City the Annexation Area. 4. The General Plan and the Specific Plan include goals and policies to prevent development within the Eastern Extended Planning Area and the Specific Plan Area (collectively "Eastern Dublin") from drawing upon acrd diluting the fiscal base of the remainder of the City. Pre-Annexation Agreement Between Page 1 of 6 City of Dublin and the Lin Family for Dublin Ranch North Property December 1, 2009 F,XHiBiT A ~~I { ~I~lo 5. The City currently anticipates that the cost of providing public services to the Eastern Dublin at a level consistent with services provided within the City wi[I not exceed revenues generated to the City from property within Eastern Dublin. However, it is possible that, due to the expenses related to the operation of Fire Station 18, which serves Eastern Dublin and which opened in July 2003, the costs of providing services to Eastern Dublin may exceed revenues generated in the area. 6. Even if such a deficit does occur, as development takes place within Eastern Dublin as anticipated, it is expected to generate revenues to the City that will reduce and, in the near future, eliminate the above-described deficit. Nonetheless, consistent with the goals and policies of the General Plan and Specific Plan, this agreement provides that Developers will pay to City the Developers' proportionate shares of any such deficits, as provided herein. Developers' aggregate proportionate share shall be 4.77%, which is the percentage that the Annexation Area (157 acres) bears to the lands within the Specific Plan area that had not been annexed to the City as of July 25, 2000, the date of Resolution 00-36 (1,929.84 acres) plus the Dublin Ranch Project (1,363.29 acres). AGREEMENT NOW THEREFORE, in consideration of the mutual promises and conditions contained herein, the Parties agree as follows: Section I. General Fund Shortfalls A. The Developer's Payment Obligations; Definitions. Developer shall pay the City 4.77% of the deficit, if any, between Public Service Costs and General Revenues. "Public Service Costs" shall mean the General Fund cost of providing public services to the Eastern Dublin Area at a level consistent with public services provided within the incorporated area of the City prior to the annexation. "General Revenues" shall mean those revenues deposited to the City's General Fund from property and inhabitants within the Eastern Dublin Area. "Eastern Dublin Area" shall include all lands within the Eastern Dublin General Plan Amendment area (see map attached as Exhibit that are within the City limits of Dublin. B. Duration of Payment Obligations. The Developer's payment obligation under this Section I shall begin when a deficit exists and shall terminate when there is no longer a deficit but in no event shat! the obligation extend beyond June 30, 2010 ("Deficit Period"). The Developer's payment obligation may be terminated only by detachment of the Dublin Ranch North Property from the City or by separate agreement approved by the City. C. Annual Fiscal Analyses. The City shall prepare a fiscal analysis each year during the Deficit Period to estimate the amount by which the Public Service Costs Pre-Annexation Agreement Between Page 2 of 6 City of Dublin and the Lin Family for Dublin Ranch North Property December 1, 2009 X15 ~ ~I~I~ will exceed General Revenues. The fiscal analysis will be prepared on a fiscal year basis (July 1 to June 30} and wilt, calculate the deficit for the preceding fiscal year. D. Payments to the City. No later than April 1 of the next fiscal year, Developer shall pay to City 4.77% of the deficit between Public Services Costs and General Revenues for the preceding fiscal year, based on the fiscal analysis, plus 4.77% of the cost of the fiscal analysis described in Section I.C. E. Security for Payment. At such time as requested by the City Manager, Developer will provide the City with security in an amount and form satisfactory to the City Manager, to become effective once the Annexation Area becomes part of the City, to secure the payments to the City described in Section I.D above. The security may consist of a letter of credit or similar instrument. Developer agrees that the City shall be under no obligation to continue processing any land use entit{ement applications for Developer if security has not been provided when requested by the City Manager. Section ll. Payment of Development Impact Fees Notwithstanding any vested rights Developer may later obtain, Developer hereby agrees to pay all lawfully enacted development impact fees that are in effect at the time building permits are issued, or at such subsequent time that the fees are otherwise due, for each individual structure within the Project. Section III. Approval of Annexation This Agreement shall take effect when the City adopts a resolution of application to annex the Annexation Area, with or without conditions or, if the Developer files a petition to annex, upon the LAFCO Executive Officer's acceptance of the annexation application for filing. Upon adoption of a resolution of application, the City shall take reasonable steps to facilitate annexation of the Annexation Area in a timely manner. This Agreement shall become ineffective, however, if the annexation is not approved by LAFCO or the voters or does not become effective for any other reason. Section IV. Additional Provisions A. Correctness of the Recitals. The Recitals set forth in this Agreement are true and correct and are a part hereof. B. Further Assurances. The Parties shall execute, acknowledge, and deliver such additional documents or instruments as may be necessary to carry out the intent of this Agreement, including but not limited to, those expressly referred to in this Agreement. C. Construction by California Law. This Agreement is entered into in the State of California and shall be construed and interpreted in accordance with its laws. Pre-Annexation Agreement Between Page 3 of 6 City of Dublin and the Lin Family for Dublin Ranch North Property December 1, 2009 ~~ ~ ~~Io D. Representation of Comprehension of Document. In entering into this Agreement, the Parties represent that they have relied upon the legal advice of their attorneys who are the attorneys of their choice. The Parties further represent that the terms of this Agreement have been completely read by and explained to them by their attorneys, and that they fully understand and voluntarily accept those terms. E. Authorship. Each Party and counsel for each Party has reviewed and revised this Agreement, and accordingly, the normal rule of construction. to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement or any amendment of it. F. Authority to Execute. Each of the persons executing this agreement on behalf of a legal entity represents and warrants that each has full power to enter into this Agreement on behalf of the entity and that the Agreement is binding on the entity. G. Entire Agreement; Amendment. This Agreement contains the entire agreement between the Parties with regard to the matters set forth. There are no additional written or oral agreements or promises between the Parties concerning these matters which are not expressly set forth in this Agreement. Notwithstanding anything to the contrary in the foregoing, the Parties acknowledge the existence of that separate development agreement pertaining to the property within the Annexation Area. This Agreement may be amended or modified only by an agreement in writing executed in the same manner as this Agreement. H. Attorneys' Fees. In the event a Party to this Agreement is found in a court of law to have breached this Agreement, said Party shall pay the opposing Party's reasonable attorneys fees and costs incurred in litigating the breach of contract action. I. Approval of Project. By entering into this Agreement, City makes no commitment that it will approve the Project. J. Notices. All notices shall be by certified mail or hand delivered to the Parties as follows: If to City, to: Joni Pattilfo City Manager City of Dublin 100 Civic Plaza Dublin, CA 94569 Pre-Annexation Agreement Between Page 4 of 6 Citv of Dublin and the Lin Family for Dublin Ranch North Property December 1, 2009 q~ ~ ~~o If to Developer, to: Martin W. Inderbitzen P.O. Box 1537 Pleasanton, CA 94566 With Copies to: James Tong Charter Properties 4690 Chabot Dr., Suite 100 Pleasanton, CA 94588 K. Waivers. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of City and the Developer. L. Recordation. This Agreement shall be recorded against the Property described in Exhibit A (the Dublin Ranch North Property). [Execution page follows.] Pre-Annexation Agreement Between Page 5 of 6 City of Dublin and the Lin Family for Dublin Ranch North Property December 1, 2009 `~8 ~ ~I~Io IN WITNESS WHEREOF, the parties have executed this agreement the day and year first above written. CITY OF DUBLIN DEVELOPER Hong Yao Lin (also known as Kevin Lin) Ho ien Lin (also known as Frederich or Fr ~ d i Lin) Tim Sbranti, Mayor `~ `~ Ja s (Author :e Representative) Approved as to form: John D. Bakker, City Attorney Attest: City Clerk Approved as`to Form: ~~ Martin W. Inderbitzen Attorney for Hong Yao Lin and Hong Lien Lin [NOTARIZATIONS ATTACHED] 1240741.8 Pre-Annexation Agreement Between Page 6 of 6 City of Dublin and the Lin Family for Dublin Ranch North Property December 1, 2009 ~tq ~f ~lyo STATE OF CALIFORNIA ) COUNTY OF ~ L A-/YJ ~~ ) On N01/ l $ aGi'~9 before me, ~A-2 -~- L . e:5 ~~ ht o S ~ Notary Public, personally appeared __~~4-m b-S -7aN U who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. S my hand and official seal. Signature of Notary Public DARA 1. ESPINOSJI ~' Commisston # 1622921 -d Notary Publ(c - CaAtomia Alameda County MVC«nrn.>E1~ilw Nov l9, (Seal) WASOI 41740104v2 334166-00042 -oo ~~yQ EXHIBIT A Dublin Ranch North Property Description Real property in the County of Alameda, State of California, described as follows: The northwest'/4 of Section 27, in Township 2 South, Range 1 East, Mount Diablo Base and Meridian. Excepting therefrom that portion as granted in the deed to Dublin San Ramon Services District, recorded April 13, 2004 as Instrument No. 2004-156119 of Official Records 10~ of t~1.~0 EXHIBIT B Map of Eastern Dublin General Plan Amendment Area Parka Reserve Forces Tralniny Area (Camp Parks)