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HomeMy WebLinkAboutPC Reso 12-13 Brannigan Str Rec to CC DARESOLUTION NO. 12 -13 A RESOLUTION OF THE PLANNING COMMISSION OF THE. CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT FOR A 3-ACRE SITE ON BRANNIGAN STREET NORTH OF GLEASON DRIVE (APN 985-0052-021) PLPA-2011-00039 WHEREAS, Lennar Homes of California, Inc. ("Applicant") submitted applications fora 3- acre site located along the west side of Brannigan Street north of Gleason Drive ("Project Site"). The applications include: 1) General Plan and Eastern Dublin Specific Plan amendments to change the land use from its current designation of Public/Semi-Public to Medium Density Residential; 2} Planned Development rezoning with related Stage 1 Development Plan Amendment and new Stage 2 Development Plan; 3) Site Development Review (SDR) to construct 19 single-family detached homes; 4) Vesting Tentative Tract Map 8093 to create 19 residential lots; and 5) Development Agreement. The Project Site and the applications are collectively known as the "Project," and WHEREAS, the project is located within the Eastern Dublin Specific Plan area; and WHEREAS, Development Agreements are required as an implementing measure of the Eastern Dublin Specific Plan; and WHEREAS, a CEQA Addendum to prior environmental review documents has been prepared pursuant to the California Environmental Quality Act (CEQA) and the GEQA Guidelines; and WHEREAS, on March 27, 2012, the Planning Commission held a public hearing on the Project, including the Development Agreement, and recommended that the City Council adopt the CEQA Addendum, adopt General Plan and Eastern Dublin Specific Plan Amendments for the project as stated above from Public/Semi-Public to Medium Density Residential, and recommended that the City Council adopt a Planned Development (PD} rezoning with related Stage 1 Development Plan amendment and new Stage 2 Development Plan to guide development of the proposed residential project; and WHEREAS, a proposed Ordinance to adopt a Development Agreement and the text of the draft Development Agreement ("Agreement") are attached to this Resolution as Exhibit A; 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 the CEQA Addendum and prior CEQA documents, all said reports, recommendations, and testimony prior to taking any action on the Project. NOW, THEREFORE, BE IT RESOLVED THAT the City of Dublin Planning Commission does hereby make the following findings and determinations regarding the draft Development Agreement: 1. The Agreement is consistent with the objectives, policies, general land uses and programs specified in the Eastern Dublin Specific Plan/General Plan in that: a) the Agreement addresses a Medium Density Residential subdivision on the Project site consistent with the proposed General Plan and Eastern Dublin Specific Plan land use designations; b) the project is consistent with the fiscal policies in relation to the provision of infrastructure and public services of the City's General Plan and Eastern Dublin Specific Plan; and c) the Agreement sets forth the rules the Applicant and the 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. The Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the property is located and consistent with the approvals for the Project. 3. The Agreement is in conformity with public convenience, general welfare and good land use practice in that the Applicant's project will implement land uses and policies set forth in the General Plan and Eastern Dublin Specific Plan for Eastern Dublin generally and the Project site spec"rfically. 4. The Agreement will not be detrimental to the health, safety and general welfare in that the development will proceed in accordance with the applicable Planned Development zoning, the Agreement and any Conditions of Approval for the Project. 5. The Agreement will not adversely affect the orderly development of the property or the preservation of property values in that the development wilt be consistent with the City of Dublin General Plan and Eastern Dublin Specific Plan. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT the City of Dublin Planning Commission does hereby recommend that the City Council adopt an Ordinance approving the Development Agreement between the City of Dublin and Lennar Homes of California, Inc. for the Lennar Brannigan Project (PLPA-2011-00039), which documents are attached as Exhibit A to this resolution and are incorporated herein by reference. PASSED, APPROVED AND ADOPTED this 27th day of March of 2012. AYES: Wehrenberg, Schaub, O'Keefe, Bhuthimethee NOES: ABSENT: Brown ABSTAIN: '~~nD.,fl' f~~ ~a~~ ,~, Planning Commissi~air Page 2 of 3 ATTEST: r,.. f __. Planning ger G:IPA#120111PLPA-2011-00039 Lennar Homes Brannigan GPA EDSPAIPC Mtg 3.27.121pc reso recommending da for brannigan_Iennar.DOC Page 3 of 3 ORDINANCE NO. XX -12 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN ***************************** APPROVING A DEVELOPMENT AGREEMENT FORA 3-ACRE SITE ON BRANNIGAN STREET NORTH OF GLEASON DRIVE BETWEEN THE CITY OF DUBLIN AND LENNAR HOMES OF CALIFORNIA, INC. (PLPA-2011-00039) The City Council of the City of Dublin does ordain as follows: Section 1. RECITALS A. The proposed project known as Brannigan Street, Lennar Homes is located within the boundaries of the Eastern Dublin Specific Plan, and is included in the approval for Planned Development under PLPA-2011-00039. B. A Development Agreement for Brannigan Street, Lennar Homes between the City of Dublin and Lennar Homes ("Developer") has been presented to the City Council, Exhibit A, attached hereto. C. Consistent with CEQA Section 21166 and CEQA Guidelines Sections 15162 and 15163, an Initial Study was prepared by the City, as the Lead Agency, to determine whether there would be significant environmental impacts occurring as a result of the current project beyond or different from those already addressed in the previous CEQA documents. Consistent with CEQA Guidelines Section 15164, a determination was made to prepare an Addendum to the environmental documents certified previously. D. A public hearing on the proposed Development Agreement was held before the Planning Commission on March 27, 2012 for which public notice was given as provided by law. E. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreement by Resolution 11 - XX. F. A public hearing on the proposed Development Agreement was held before the City Council on XX, 2012 for which public notice was given as provided by law. G. The City Council has considered the recommendation of the Planning Commission, including the Planning Commission's reasons for its recommendation, the Addendum, the Staff Report, all comments received in writing, and all testimony received at the public hearing. Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin General Plan, (c) the Eastern Dublin Specific Plan, (d) the Addendum, (e) the Staff Report, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: EXHIBIT A TO ATTACHMENT 5 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 General Plan and Eastern Dublin Specific Plan Amendment in that: (a) the General Plan and Eastern Dublin Specific Plan land use designation for the site is Medium Density Residential, (b) the proposed project is consistent with the designated land use; (c) the project is consistent with the fiscal policies of the General Plan and Eastern Dublin Specific Plan with respect to the provision of infrastructure and public services; and (d) the Development Agreement includes provisions relating to vesting of development rights, and similar provisions set forth in the Eastern Dublin Specific Plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located in that the project approvals include, Stage 1 Development Plan Amendment and Stage 2 Development Plan, Site Development Review, and Vesting Tentative Map. 3. The Development Agreement is in conformity with public convenience, general welfare, and good land use policies in that the Developer's project will implement land use guidelines set forth in the Eastern Dublin Specific Plan and the General Plan which have planned for Medium Density Residential, and infrastructure uses at this location. 4. The Development Agreement will not be detrimental to the health, safety and general welfare in that the Developer's project will proceed in accordance with all the programs and policies of the 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 Eastern Dublin Specific Plan. Section 3. APPROVAL The City Council hereby approves the Development Agreement (Exhibit A to the Ordinance) and authorizes the Mayor to execute it. Section 4. RECORDATION Within ten (10) days after the Development Agreement is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this XX day of XX, 2012 by the following votes: 2of3 AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk G:IPA#120111PLPA-2011-00039 Lennar Homes Brannigan GPA EDSPAIPC Mtg 3.27.121CC Ord adopting da for Brannigan.docx 3of4 BOO P17 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 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND LENNAR HOMES OF CALIFORNIA, INC. FOR THE LENNAR BRANNIGAN PROJECT EXHIBIT A THIS DEVELOPMENT AGREEMENT (this "Agreement" or this "Development Agreement") is made and entered in the City of Dublin on this day of , 2012, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City") and Lennar Homes of California, Inc., a California corporation (hereafter "Developer") pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. City and Developer are, from time-to-time, individually referred to in this Agreement as a "Party," and are collectively referred to as "Parties." RECITALS A. California Government Code §§65864 et seq. ("Development Agreement Statute") and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the City to enter into a Development Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property. B. Developer intends to purchase, desires to develop, and holds an equitable interest in, in that it has the right to purchase, certain real property consisting of approximately _ gross acres of land, located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property." C. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property. The Eastern Dublin Specific Plan requires Developer to enter into a development agreement as a condition of the development of the Property. D. The Property is within Area F of Dublin Ranch, which is subject to a Master Development Agreement between the City of Dublin and the Lins dated June 29, 1999 and recorded in Official Records Alameda County on July 8, 1999 as Instrument No. 99251790, and a Supplemental Development Agreement between the City of Dublin and the Lins dated April 18, 2000 and recorded in Official Records of Alameda County on November 13, 2000 as Instrument No. 200335772. E. Developer proposes the development of the Property as a residential project consisting of 19 detached single-family units ("the Project"). F. DEVELOPER has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the Project, including, without limitation, a General Plan Amendment (City Council Resolution No. ~, an amendment to the Eastern Dublin Specific Plan (City Council Resolution No. ~; a PD District rezoning (Ordinance No. ); a Stage 1 Development Plan for Area F (Ord. No. 12-04 as amended by Ord. No. Dublin/Lennar Homes of California, Inc. Development Agreement Page 2 of 16 for the Lennar Brannigan Project ~; a Stage 2 Development Plan (Ord. No. ~; a vesting tentative map that would create the parcels on which the Project would be constructed (Planning Commission Resolution No. ; and Site Development Review (Planning Commission Resolution No. All such approvals collectively, together with any approvals or permits now or hereafter issued with respect to the Project are referred to as the "Project Approvals." G. City desires the timely, efficient, orderly and proper development of the Project. H. 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 the Development Agreement Statute and Chapter 8.56. I. City and Developer have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein. J. Pursuant to CEQA the City Council adopted Resolution No. _-12 approving an Addendum for the Lennar/Brannigan project. K. On ,the City Council of the City of Dublin adopted Ordinance No. approving this Development Agreement ("the Approving Ordinance"). The Approving Ordinance will take effect on ' ("the Approval Date"). NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, City and Developer agree as follows: AGREEMENT 1. Description of Property. The Property that is the subject of this Agreement is described in Exhibit A attached hereto. 2. Interest of Developer. The Developer has a legal or equitable interest in the Property in that it has the right to purchase the Property under the Purchase and Sale Agreement. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by the City and Developer and that the Developer is not an agent of the City. The City and Developer hereby renounce the existence Dublin/Lennar Homes of California, Inc. Development Agreement Page 3 of 16 for the Lennar Brannigan Project of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the Approval Date. 4.2 Term. The term of this Agreement shall commence on the Effective Date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Prooertv. 5.1 Ripht to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. Such amendments, such as to Site Development Review or Tentative Map project approvals, once effective shall become part of the law Developer is vested into without an additional amendment of this Agreement. Notwithstanding the foregoing or anything to the contrary herein, any amendment to the General Plan, Specific Plan and PD zoning applicable to the Property and in effect on the Effective Date shall not become part of the law Developer is vested into under this Agreement unless an additional amendment of this Agreement is voluntarily entered into between Developer and City in accordance with State and City laws. 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 the 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 Project Approvals (subject to the provisions of Section 5.1). 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1 Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin or other approvals from regulatory agencies.) Dublin/Lennar Homes of California, Inc. Development Agreement Page 4 of 16 for the Lennar Brannigan Project None 5.3.2 Mitigation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmental impacts of the Project or otherwise relating to development of the Project. See Exhibit B 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 Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5 Fees, Dedications. Terms relating to payment of fees or dedication of property. None 5.3.6 Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. None 5.3.7 Miscellaneous. Miscellaneous terms. See Exhibit B 6. Applicable Rules. Regulations and Official Policies. 6.1 Rules Regarding 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 Approval Date of the Agreement. 6.2 Rules Regarding Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary approval, whether the date of that approval is prior to or after the date of this Agreement. Dublin/Lennar Homes of California, Inc. Development Agreement Page 5 of 16 for the Lennar Brannigan Project Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable discretionary approval, whether date of approval is prior to or after the date of this Agreement. 6.3 Uniform Codes Applicable. 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 the Developer submits its application for the appropriate building, grading, encroachment, or other construction permits for the Project. 7. Subsequently Enacted Rules and Regulations. 7.1 New Rules and Regulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the Effective Date of this Agreement and the Project Approvals 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, rules; regulations or official policies have general applicability. Consistent with Government Code Section 66498.2 (applicable to vesting tentative maps), in the event City subsequently changes its ordinances, policies or standards during the term of this Agreement, such .changed ordinances, policies, or standards shall automatically apply to secure the vested right for Developer to proceed with the Project under such changes, provided Developer notifies City in writing that it elects to apply such changes and clearly specifies such changes to the City's ordinances, policies and standards. 7.2 Approval of Application. Nothing in this Agreement shall prevent the City from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies as permitted by Section 7.1. 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 the City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, the City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the. building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. Dublin/Lennar Homes of California, Inc. Development Agreement Page 6 of 16 for the Lennar Brannigan Project 7.4 Rights under Vesting Tentative Map. Notwithstanding anything to the contrary contained herein, this Agreement shall not supersede any rights Developer may obtain pursuant to City's approval of the vesting tentative map for the Project. 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1 Fees, Exactions, Dedications. The City and Developer agree that this Agreement does not limit the City's discretion to impose or require payment of any fees in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, dedication of any land, or construction of any public improvement or facilities. Furthermore, Developer agrees that, notwithstanding any rights it may obtain under its vesting tentative map, the City may impose or increase any such fees on the Project, payment of which is typically required at building permit or final map approval, even if those fees or charges were increased or first enacted after Developer's application for the vesting tentative map was deemed complete. 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective only; and (3) the application of such fees would not prevent, impose a substantial financial burden on, or materially delay development in accordance with this Agreement. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. 8.4 Assessments. Nothing herein shall be construed to relieve the Property from assessments levied against it by the 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 the 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 Dublin/Lennar Homes of California, Inc. Development Agreement Page 7 of 16 for the Lennar Brannigan Project City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be subject to approval by the City Council in accordance with Chapter 8.56. 9.2 Amendment by Mutual Consent. This Agreement may be amended 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. 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 Project; (f) the maximum height or size of proposed buildings; or (g) monetary contributions by Developer as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. The City's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4 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 Exhibit B of this Agreement prior to the date of cancellation shall be retained by the City. 10. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of any vesting tentative map described above shall automatically be extended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2013 and thereafter between each July 15 and August T5 during the Term. 11.2 Initiation of Review. The City's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to Developer thirty (30) days' written notice that the City intends to undertake such review. Developer shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to Dublin/Lennar Homes of California, Inc. Development Agreement Page 8 of 16 for the Lennar Brannigan Project demonstrate good faith compliance with the provisions of the Agreement. The burden of proof by substantial evidence of compliance is upon the Developer. 11.3 Staff Reports. To the extent practical, the 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 the 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. Defa u It. 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 the City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however; that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damages Against City. Notwithstanding anything to the contrary contained herein, in no event shall damages be awarded against the City upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (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 the City shall be authorized to execute any certificate requested by Developer. Should the party receiving the request not execute and return Dublin/Lennar Homes of California, Inc. Development Agreement Page 9 of 16 for the Lennar Brannigan Project such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mortgagee Protection: Certain Rights of Cure. 14.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, 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 the 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 the City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to .Developer with respect to any claim by the City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the City's notice. The 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. Dublin/Lennar Homes of California, Inc. Development Agreement Page 10 of 16 for the Lennar Brannigan Project 16. Attornevs' Fees and Costs. If the City or Developer initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. Developer shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse the City for all reasonable court costs and attorneys' fees expended by the City in defense of any such action or other proceeding. 17. Transfers and Assignments. .17.1 Right to Assign. Developer may wish to sell, transfer or assign all or portions of its Property to other developers (each such other developer is referred to as a "Transferee"). In connection with any such sale, transferor assignment to a Transferee, Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer arising hereunder and that pertain to the portion of the Property being sold or transferred, to such Transferee, provided, however, that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur without prior written notice to City and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, provided notice is given as specified above, no City approval, shall be required for any transfer, sale; or assignment of this Agreement to: 1) any entity which is an affiliate or subsidiary of Developer; 2) any Mortgagee; or 3) any transferee of a Mortgagee. 17.2 Approval and Notice of Sale, Transfer or Assignment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) days after Developer's notice, provided all necessary documents, certifications and other information are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform the Developer's obligations hereunder. Notice of any such approved sale, transferor assignment (which includes a description of all rights, interests and obligations that have been transferred, and those which have been retained by Developer) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transferor assignment. 17.3 Release Upon Transfer. Upon the transfer, sale, or assignment of all of Developer's rights, interests and obligations hereunder pursuant to Paragraph 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, Dublin/Lennar Homes of California, Inc. Development Agreement Page 11 of 16 for the Lennar Brannigan Project 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. 17.4 Developer's Right to Retain Specified Rights or Obligations. Notwithstanding Paragraphs 17.1, 17.2 and 17.3 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. 17.5 Termination of Agreement Upon Sale of Individual Lots to_ Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the purchaser or user thereof and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or until the termination of this Agreement, if. earlier, at which time this Agreement shall terminate as to such lot. 18. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitudes 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. Dublin/Lennar Homes of California, Inc. Development Agreement Page 12 of 16 for the Lennar Brannigan Project 19. Bankruptcy The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. Developer agrees to indemnify, defend and hold harmless the City, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the Developer, or any actions or inactions of Developer's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that Developer shall have no indemnification obligation with respect to negligence or wrongful conduct of the 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). If City is named as a party to any legal action, City shall cooperate with Developer, shall appear in such action and shall not unreasonably withhold approval of a settlement otherwise acceptable to Developer. 21. Insurance. 21.1 Public Liability and Property Damage Insurance. During the term of this Agreement, Developer shall maintain in effect a policy of comprehensive general liability insurance with aper-occurrence combined single limit of not less than one million dollars ($1,000,000.00) with a One Hundred Thousand Dollar ($100,000) self insurance retention per claim. The policy so maintained by Developer shall name the City as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2 Workers Compensation Insurance. During the term of this Agreement Developer shall maintain Worker's Compensation insurance for all persons employed by Developer for work at the Project site. Developer shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. Developer agrees to indemnify the City for any damage resulting from Developer's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to City Council approval of this Agreement, Developer shall furnish the 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 Dublin/Lennar Homes of California, Inc. Development Agreement Page 13 of 16 for the Lennar Brannigan Project the City, its elective and appointive boards, commissions, officers, agents, employees and representatives and to Developer performing work on the Project. 22. Sewer and Water. Developer acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of the City. 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to the City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: Doug Rich, Vice President of Finance Lennar Homes of California, Inc. 6111 Bollinger Canyon Road, Suite 550 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. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 25. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions Dublin/Lennar Homes of California, Inc. Development Agreement Page 14 of 16 for the Lennar Brannigan Project 26. Counterparts. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. 27. Recordation. City shall record a copy of this Agreement within ten days following execution by all parties. Failure of the City to comply with this Paragraph shall not affect the rights and obligations of the parties under this Agreement. 29. Legal Authority. Each individual executing this Agreement on behalf of Developer hereby represents and warrants that he or she .has full power and authority under the entity's governing documents to execute and deliver this Agreement in the name of and on behalf of the company and to cause the entity to perform its obligations under this Agreement. [Execution Page Follows] Dublin/Lennar Homes of California, Inc. Development Agreement Page 15 of 16 for the Lennar Brannigan Project 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 BV: Joni Pattillo, City Manager Attest: Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney 1799316.2 DEVELOPER Lennar Homes of California, Inc., a California corporation ~ Dale Billy Its: Vice President (NOTARIZATION ATTACHED) Dublin/Lennar Homes of California, Inc. Development Agreement Page 16 of 16 for the Lennar Brannigan Project CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of _~ On t`(1f~1 _m~. 2t~, 2012 before me, L- = r'~t2-P.r ~l ~Etsn., ~talnl i e _ , Date Here Insert Name d ills of the icer personally appeared ~ ~ ~i ~ l4 Name(s) of Si9nerft:) s who proved to me on the basis of satisfactory evidence to be the person( whose name(,s') is/a~ subscribed to the within instrument and acknowledged to me that he/~ executed the same in his/NeN#+~eir authorized ~,~,,,~ capacity(ies), and that by his/I~eer~F~eir signature(s') on the L. BITTER instrument the person(, or the entity upon behalf of connnktloa ae tast2eo which the erson s acted, executed the instrument. tlotrt, IPYbNc • CalilorNa p ( ) cooly cotta Cowgy Cmalw. OctS 5 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my ha(nd~a~nd -offic\ial seal. Signature ~ `t(,r~ Place Notary Seal Above Signature of Notary Public 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 reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): _ ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing Top of thumb here Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here ®2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotaryorg Item #5907 Reorder:Call Toll-Free 1-800-876.6827 Exhibit A Legal Description of Property Parcel 1 of Parcel Map 9451 as filed for record on August 9, 2007 in Book 300 of Parcel Maps at Pages 53 through 54, Alameda County Records, California. EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparagraph 5.3.1 -Subsequent Discretionary Apurovals None. Subparagraph 5.3.2 -Mitigation Conditions Subsection a. Infrastructure Sequencing Program The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: Sidewalk and Landscape Improvements The project-specific sidewalk and landscape improvements (and offers of dedication) identified in Planning Commission Resolution No. approving Site Development Review and Vesting Tentative Map 8903 (the "SDR Resolution") shall be completed by Developer to the satisfaction and requirements of the Public Works Director at the times and in the manner specified in the SDR Resolution unless otherwise provided below. (ii) Sewer: All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with 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 map conditions of approval to the satisfaction and requirements of the City's fire department. All potable water system components to serve the project site shall be completed in accordance with the DSRSD requirements. Recycled water lines shall be installed in accordance with the tentative map conditions of approval. (iv) Storm Drainage: Dublin/Lennar Homes of California, Inc. Development Agreement Page 1 of 5 for the Dublin Transit Center Site C Project Exhibit B The storm drainage systems off-site, as well as on-site drainage systems for the areas to be occupied, shall be improved consistent with the tentative map conditions of approval and to the satisfaction and requirements of the Dublin Public Works Department applying the 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. Pursuant to Alameda County's National Pollution Discharge Elimination Permit (NPDES) No. CAS0029831 with the California Regional Water Quality Control Board, or pursuant to subsequent permits adopted by the Board, all grading, construction and development activities within the City of Dublin must comply with the provisions of the Clean Water Act. Proper erosion control measures must be installed at development sites within the City during construction, and all activities shall adhere to Best Management Practices. (v) Other Utilities (e.a. aas, electricity, cable televisions, teleahonel: Construction shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy for the Project. Subsection b. Miscellaneous (i) Completion May Be Deferred. Notwithstanding the foregoing, the City's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow Developer to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subgaraaraph 5.3.3 -Phasing, Timina This Agreement contains no requirements that Developer must initiate or complete development of the Project within any period of time set by the 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. Dublin/Lennar Homes of California, Inc. Development Agreement Page 2 of 5 for the Dublin Transit Center Site CProject-Exhibit B Subparagraph 5.3.4 - Financina Plan Developer will install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits 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. If so required by Dublin San Ramon Services District, Developer. will enter 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 None. Subparagraph 5.3.6 -Reimbursement None. Subparacraph 5.3.7 -Miscellaneous Subsection a. Community Benefit Contributions Developer has agreed to provide the following Community Benefit Contributions in consideration of the City's approval of Developer's proposed amendments to the General Plan and to the Eastern Dublin Specific Plan. (i) Payment. Developer shall make a $50,000 community benefit payment to the City within thirty days after the Approval Date. (ii) Contribution of Improvements. Although it is not a component of its project, Developer agreed to complete the ultimate street frontage improvements on the west side of Brannigan Street from the southern boundary of the property to Brannigan Street's intersection with Gleason Drive as a tentative map condition. These improvements consist of (a) widening the street to match the improvements on the portion of Brannigan Street fronting the Property (56' curb face to curb face) and (b) constructing the ultimate curb return for the northwestern portion of the Brannigan Street/Gleason Drive intersection. Improvements shall include grading as needed, full pavement structural section, concrete curb and gutter, a 6-foot Dublin/Lennar Homes of California, Inc. Development Agreement Page 3 of 5 for the Dublin Transit Center Site C Project Exhibit B temporary asphalt concrete walkway (including a connection to the existing walkway on the northern portion of Gleason Drive), and an accessible curb ramp with domes at the intersection. The existing pedestrian push button pole at the intersection shall be relocated behind the new curb face. A drainage inlet shall be installed at the northerly end of the curb return and pipe installed to tie the inlet to the existing system unless the need for the inlet is waived by the City Engineer during final design. 1799316.4 Dublin/Lennar Homes of California, Inc. Development Agreement Page 4 of 5 for the Dublin Transit Center Site C Project Exhibit B