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HomeMy WebLinkAboutItem 6.1 PulteHomesDubRchAreaF2 CITY CLERK File # D~[Q]lQ]~~~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: July 5, 2005 SUBJECT: PUBLIC HEARING: PA 04-043 Dublin Ranch Area F North Site F-2 Development Agreement for Pulte Homes for Dublin Ranch Area F-2 North - 2nd Reading Report Prepared by: MjchaelPorto, Planning Consultant C~ ATTACHMENTS: I. Ordinance approving a Development Agreement between the City of Dublin and Pulte Homes (Development Agreement attached as Exhibit A) RECOMMENDATION: ¥ I. Open Public Hearing and receivc Staff presentation; 2. Take testimony from the Applicant's Representative and the Public; 3. Close the Public Hearing and deliberate; and, 4. Waive reading and adopt Ordinance (Attaelunent I) approving a Development Agreement FINANCIAL STATEMENT: None PROJECT DESCRIPTION In March 2004, PA 01-037 was approved by the City Council relating to Dublin Ranch Area F North which serves as the basis for the current proposal. Actions taken by the City Council on March 16, 2004, includc: a) Resolution No. 47-04 approving Amendments to both the General Plan land use designations and the Eastern Dublin Specific Plan; b) Ordinance No. 12-04 approving Planned Development (PD) Rezoning - Stage I Planned Development Plan for the entire 285.4-acre Dublin Ranch Area F North and Stage 2 Planed Development Plan for the 88.5~acre Development Area north of Gleason Drive, including Neighborhoods FI & F2; and c) Resolution No. 43-04 certifying an Addendum to the Eastern Dublin Environmental Impact Report (ErR), a program EIR, initially certified by the City of Dublin in 1993 (SCH#91103064). On June 7,2005, the City Council approved an Interim Agreement with Pulte Homes to allow them to begin construction on no more than 60 homes at their own risk while the Development Agreement was being processed. Development Aflreement One of the implementing measures of the Eastern Dublin Specific Plan is the requirement that the City enter into a Development Agreement 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. The benefit to the City of entering into a Development Agreement _________________.___________w_____________~__________~___-----------------~---------------------.----------- COPIES TO: üoIPA#'2004\04-<J43 Dublin RJlnch Area F210AICCSR DA2.doc 1003 Applicant!1'roperty Owner Developer In-House Distribution . r I ITEM NO.~ C-- with thc property owner is that the document is a contract that ensures that the goals of the Eastern Dublin Specific Plan are met and the infrastructure facilities for the area are constructed with each development phase. Additionally, it ensures that dedications of property and easements are made, project phasing is followed, the appropriate fees arc paid for the development, and any additional tenns of the agreement are met as the development proceeds. Approval of development agreements is by adoption of an ordinance by the City Council upon a recommcndation by the Planning Commission. The proposed Dcvelopment Agreement between the City of Dublin and Pulte Homes is contained in Exhibit A of Attachment I, the Ordinance approving the Development Agreement. The format and structure ofthe Development Agreement for the Pulte Homes project is based on thc standard Development Agreement developed by the City Attorney and adopted by the City CouncH for projects within the Eastern Dublin Speçj fic Plan Area. The City Attorney drafted thc proposed Development Agreement for Pulte Homes with input from City Staff, representatives of the property owner and Developer, and their attorneys. The Development Agreement sets forth the agreement between the parties in relation to many items, including, but not limited to, phasing, project and off-site infrastructure, and payment or waiver of fees. The Development Agreement runs with the land and the rights there under can be assigned. The Development Agreement becomes effecti ve for a term of five (5) years from the date of the signing of the agreement. City Council Action: The City Council held a public hearing on this item at the City Council meeting of June 2I, 2005. At that meeting the City CouncH opened the public hearing, heard Staff's representation, waived the reading and introduced the Ordinance approving the Development Agreement. ENVIRONMENTAL REVIEW An EIR Addendum was certified on March 16,2004 by City Council Resolution No. 43-04 pursuant to CEQA Guidelines section 15164. The Addendum addressed the following: a) General Plan Land Use Amendment; b) Eastern Area Specific Plan amendment; c) Vcsting Tentative Tract Map Nos. 7281, 7282, and 7283; and d) the Site Development Review proposed. At that time it was determined that the project would cause no environmental impacts beyond those previously identified in the Eastern Dublin EIR and the subsequent Mitigated Negative Declaration and Negative Declaration. This project is within the Dublin General Plan's Eastern Extended Planning Area and the Eastern Dublin Specific Plan area, which was the subject of an Environmental Impact Report, certified by the City of Dublin in 1993 including revisions to Part I of the Responses to Comments relating to the Kit Fox, and Addendum to the DEIR dated May 4, 1993 and a DKS Associates Traffic Study dated December 15, 1992 (SCH#91103064) (nEastem Dublin EIRn). The Eastern Dublin EIR is a program EIR, which anticipatcd several subsequent actions related to future development in Eastern Dublin. The EIR did identifY some impacts from implementation of the General Plan/Specifíc Plan that could not be mitigated. Upon certification of the EIR, the City adopted a statement of overriding considerations for such impacts. Pursuant to the recent Citizens for a Better Enviromnent case, the City Council will be required to adopt a new Statement of Overriding Considerations for significant unavoidable impacts identified by the Eastern Dublin EIR as applicable to the proposed project. The City also adopted a mitigation-monitoring program, which included numerous measures intended to reduce impacts from the development of the Eastern Dublin arca. The timing for implementation ofthese mitigation measures is summarized in the adopted Mitigation and Monitoring Program matrix. Related environmental reviews include City approval of a Negative Declaration on November 18, 1997 through Resolution 140-97 which evaluated an of area approximately 453 acre, consisting of Dublin 2 ce,'?;:¡ Ranch Areas 8 through E and proposed tor a variety of residential and non-residential uses, as wcll as an approximately 42 acre community park. For thc portions of the project within Area F, the City approved a Mitigatcd Negative Declaration on February 15, 2000 through Resolution 34-00. The Area F application included approximately 147 acres, and proposed to relocate residcntial and commercial uses (the Village Center) south to Dublin Ranch Area G. The amendment of March 2004 increased the Community Park size to approxinJately 65 acres. CONCLUSION: Approval of this Development Agreement will implement provisions of the Eastern Dublin Specific Plan, and the conditions of approval specific to the Pulte Homes project. The proposal is consistent with both thc General Plan and the Specific Plan. RECOMMENDATION: Staff recommends the City Council: 1) Open Public Hearing and hear Statlpresentation; 2) Take testimony from the Applicant and the Public; 3) Close the Public Hearing and deliberate; and, 4) Waive the reading and adopt Ordinance (Attachment 1 with Development Agreement attached as Exhibit A) approving a Development Agreement between the City of Dublin and Pultc Homes for Dublin Ranch Area F -North. 3~~ ORDINANCE NO. xx - 05 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN ***************************** \Db-¿~ APPROVING THE DEVELOPMENT AGREEMENTS FORPA 04-043 PUL TE HOMES FOR DUBLIN RANCH AREA F -2 NORTH THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The proposed Pulte Homes for Dublin Ranch Area F -2 North 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 Single Family land uses. B. Pursuant to the California Environmental Quality Act (CEQA), CEQA Guidelines Section 15182, the proposed 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 City Council by Rcsolution No. 51-93, and the AddCDda dated May 4,1993 and August 22, 1994 (the "EIR") (SCH 91103064). C. A Development Agreement between the City of Dublin and Pulte Homes has becn presented to the City Council, Ex.hibit A, attached hereto. D. A public hearing on the proposed DevelopmCllt Agreements was hcld before the Planning Commission on June 14,2005, 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. F. A public hearing on the proposed Development Agreements was held before the City Council on June 21,2005 and July 5, 2005, for which public notice was given as provided by law. G. The City Council has considered the reeommendation of the Planning Commission who considered the item at the June 14, 2005 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, (e) the Eastern Dublin General Plan Amendment, (d) the Specific Plan, (e) the EIR, (f) the individual Mitigated Negative Declarations (g) 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 specificd 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 Single Family Density Residential Land Uses and the proposed project is a project 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 AITÁCHMËNÿDí "2..()h '2..~ Development Agreement includes provisions relating to vesting of development rights, and simirnr provisions set forth in the Specific Plan. 2. The Development Agreements are 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 a PD District Overlay Zone for Dublin Ranch Area F, a Site Development Review, and General Plan and Specific Plan Amendments. 3. The Development Agreement are in conformity with public convenience, general weltare and good land use policies in that Pulte Homes for Area F-2 North will implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for residential, commercial, parks, schools, public and semi-public, open space and campus 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 (Exhibits A) and authorizes the Mayor to sign. 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 5th day of July 2005, by the following votes: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk g:lpaJ/\2004104-043 dublin ranch area f2ldalordimlllce.doc 2 3 Do"2..3 RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GO 27383 Space above this line for Recorder's use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND AND PUL TE HOME CORPORATION FOR AREA F2 OF DUBLIN RANCH AREA F EXHIBIT A y ~L..~ THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered in the City of Dublin on this 17th day of May, 2005, by and between the City of Dublin, a Municipal Corporation (hereafter "City"), and and Pulte home corporation, a Michigan corporation (hereafter "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the City to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 33.4 acres of land, located in the City of Dublin, County of Alameda, State of California, which is designated as Tract 7283 and is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "F2 Property"; and C. The City Council adopted the Eastem Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and D. The Eastern Dublin Specific Plan requires Developer to enter into this development agreement; and E. DEVELOPER acquired its interest in the F2 Property from Chang Su-O-Lin, Hong Lien Un and Hong Vao Lin (the "Uns") or the Lins successors in interest; and F. The Lins and CITY are parties to a "Master Development Agreement Between the City of Dublin and The Un Family for the Dublin Ranch Project (Areas A, S, C, 0, E, F, G and H) ("Master Development Agreement"), section 7 of which requires DEVELOPER to enter into a project-specific development agreement in accordance with the Eastem Dublin Specific Plan; and G. DEVELOPER has applied for, and CITY has approved various land use approvals in connection with the development of the Project, including an amendment to the General Plan and Eastern Dublin Specific Plan (City Council Resolution No. 47-04), PO District rezoning (City Council Ordinance No. 12-04), Dublin/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 762012.1 Page 2 of 16 DRAFT; June 8, 2005 5 D[:)"'2.. ~ Master Vesting Tentative Map for Tract 7281 (Planning Commission Resolution No. 04-14), Vesting Tentative Map for Tract 7283 (Neighborhood F2) (Planning Commission Resolution 04-14), and site development review (Planning Commission Resolution No. 04-073) (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 effeclive; 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 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 and Developer have reached agreement and desire to express herein a development agreemenl that will facilitate development of the Project subject to conditions set forth herein; and L. On , the City Council of the City of Dublin adopted Ordinance No. _ approving this Agreement. The ordinance took 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 Prooertv. The Property that is the subject of this Agreement is described in Exhibit A attached hereto. 2. Interest of Developer. The Developer has a legal or equitable interest in the Property in that it owns the Property in fee simple. Dublin/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 762012.1 Page 3 of 16 DRAFT: June 8, 2005 0°b?.~ 3. Relationship of Citv and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Developer and that the Developer is not an agent of City. The City and Developer hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. 4. Effective Date and Term. 4.1. Effective Date. The effective date of this Agreement shall be the Approval Date. 4.2. Term. The term of this Agreement shall commence on the effective date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Propertv. 5.1. Richt to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and condilions 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. 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 Project Approvals. 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. Subseauent Discretionarv 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 other approvals from regulatory agencies.) Not Applicable Dublin/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 162011,1 Page 4 of 16 DRAFT: June 8, 2005 -¡°bL.~ 5.3.2. Mitioation Conditions. Additional or modified condilions agreed upon by the parties in order to eliminale or mitigate adverse environmental impacts of the Project or otherwise relating to development of the Project. See Exhibit B 5.3.3. Phasino. Timino. Provisions thaI 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. Financino 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. See Exhibit B 5.3.6. Reimbursement. Terms relating to subsequenf reimbursement over time for financing of necessary public facilities. See Exhibit B 5.3.7. Miscellaneous. Miscellaneous terms. See Exhibit B 6. Applicable Rules. Reaulations and Official Policies. 6.1. Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Property, governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the effective date of the Agreement. 6.2. Rules re Desian and Construction. Unless olherwise expressly provided in Paragraph 5 of this Agreernent, 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 DublinlPulte Homes Development Agreement For Dublin Ranch Area F I F2 762012,1 Page 5 of 16 DRAFT: June 8, 2005 ß~"2..~ that approval is prior to or after the date of this Agreement. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable discretionary approval, whether date of approval is prior to or after the date of this Agreement. 6.3. Uniform Codes Aoolicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with Ihe 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. Subsequentlv Enacted Rules and Reaulations. 7.1. New Rules and Reaulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, 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. 7.2. Aooroval of Aoplication. Nothing in this Agreement shall prevent the City from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject 10 any conditions, terms, restrictions, and requirements expressly set forth herein. 7.3. Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on Ihe rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 8. Subsequentlv Enacted or Revised Fees. Assessments and Taxes. DUblin/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 762012.1 Page 6 of 16 DRAFT: June 8, 2005 qC3Q¿'~ 8.1. Fees, Exactions. Dedications City and Developer agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement (including Exhibit B). The City shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, or impose other exactions in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 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 if by City pursuant to any statulory 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 stale law or regulation. Dublin/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 762012.1 Page 7 of 16 DRAFT: June 8, 2005 \O~""L? Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56. 9.2. Amendment bv 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. City's Public Works Director shall determine whether a reservation or dedication is "significant" . 9.4. Amendment of Proiect ADDrovals. Any amendment of Project Approvals relating to: (a) the permitted use ofthe Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) monetary contributions by the Developer; or (g) public improvements to be constructed by Developer shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by fhe amendment of the Project Approval. Any other amendment of the Projecl Approvals, or any of them, shall not require amendmenl of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5. Cancellation bv 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 ª of this Agreement prior to the date of cancellation shall be retained by City. Dublin/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 762012.1 Page 8 of 16 DRAFT: June 8. 2005 \ \ tJO"2-~ 10. Term of Proiect Aoorovals. 10.1. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described in Recital F above shall automatically be extended for Ihe 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, 2006 and each July 15 to August 15 thereafter. 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 Developmenl Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Direclor, to 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, City shall deposit in the mail and fax to Developer a copy of all staff reports, and related exhibits conceming contract perfolTTlance 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 developmenl 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 nondefaulling party shall serve written notice of such defaull 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 Dublin/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 762012.1 Page 9 of 16 DRAFT: June 8, 2005 \L. Db "2.:~ 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 Damaaes Aaainst Citv. In no event shall damages be awarded against City upon an event of default or upon terminalion of this Agreement. 13. Estoppel Certificate. 13.1. Either party may, at any time, and from time to tîme, 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 certifîcate requested by Developer. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mortaaaee Protection: Certain Riahts of Cure. 14.1. Mortaaaee 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 telT11s 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. Mortaaaee Not Obliaated. 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 Dublln!Pulte Homes Development Agreement For Dublin Ranch Area F! F2 762D12.1 Page 10 of 16 DRAFT: June 8, 2005 \-~ oo-¿~ 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 Mortaaaee and Extension of Riaht to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the City's notice. City, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of Developer or a Mortgagee. 15. Severabilitv. 15.1. 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. Attornevs' Fees and Costs. 16.1. If City or Developer initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. Developer shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse Cily for all reasonable court costs and attorneys' fees expended by City in defense of any such action or other proceeding. 17. Transfers and Assianments. 17.1. Riaht to Assian. 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, transfer or 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 Dublin/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 762012.1 Page 11 of 16 DRAFT: June 8, 2005 IY ~"L~ without prior written notice to City and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. 17.2. Approval and Notice of Sale, Transfer or Assianment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) days atter 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, transfer or 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, transfer or assignment. 17.3. Effect of Sale, Transfer or Assianment. Developer shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to subparagraph 17.1 ofthis Agreement, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to subparagraph 17.1 of this Agreement; and b) such obligations are expressly assumed by Transferee and provided that such Transferee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval pursuant to subparagraphs 17.1 and 17.2 of this Agreement. 17.4. Permitted Transfer. Purchase or Assianment. 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. 17.5. Termination of Aareement Upon Sale of Individual Lots to Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as tö 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. Aareement Runs with the Land. Dublin/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 762012.1 Page 12 of 16 DRAFT; June 8, 2005 16 Db '2..3 18.1. 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 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 olher person succeeding to an interest in such properties. 19. BankruDtcv. 19.1. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. 20.1. 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, subconlractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that Developer shall have no indemnification obligation with respect to negligence or wrongful conduct of City, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the City or another public entity (except as provided in an improvement agreement or maintenance bond). 21. Insurance. 21.1. Public Liabilitv and ProDertv Damaoe Insurance. During the term of this Agreement, 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) with a Twenty Five Thousand Dollar ($25,000) self insurance retention per claim. The policy so maintained by Dublin/Pulle Homes Development Agreement For Dublin Ranch Area F / F2 762012,1 Page 13 of 16 DRAFT: June 8. 2005 \ La 0b'-:- 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 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 Cily, its elective and appointive boards, commissions, officers, agents, employees and representatives and to Developer performing work on the Project. 22, Sewer and Water. 22.1. 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. 23.1. 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 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: Rodger Miller, Director of Land Pulte Home Corporation 6210 Stoneridge Mall Rd., 5th FI. Pleasanton, CA 94588 FAX No. (925) 249-4373 Dublin/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 762012.1 Page 14 of 16 DRAFT; June 8, 2005 \1 Db "2.. ~ 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 atter 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. Aç reement is Entire UnderstandinQ. 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 setJorth in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions 26. Counterparts. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. 27. Recordation. Cily shall record a copy of this Agreement within ten days following execution by all parties. Dublin/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 762012.1 Page 15 of 16 DRAFT: June 8, 2005 I '2:> Db"2..-; IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year firsl above written. CITY OF DUBLIN: . By: Mayor Date: ATTEST: By: City Clerk Date: APPROVED AS TO FORM: City Attorney DEVELOPER Date: Dr. Sabri Arac (NOTARIZATION ATTACHED) Dublin/Pulte Homes Development Agreement For Dublin Ranch Area F / F2 762ú12.1 Page 16 of 16 DRAFT: June 8, 2005 IC\ O'Ö2"3 Exhibit A Legal Description of F2 Property Real property in the City of Dublin, County of Alameda, State of California, described as follows: Parcel 4 as shown on the Final Map of Tract 7281, filed September 3, 2004, Map Book 277, Pages 82 to 85 inclusive, Alameda County Records. Dublln/Pulte Homes Development Agreement For Dublin Ranch Area F I F2 ~ EXHIBIT B 762012.1 Page 2 of4 DRAFT: June 8, 2005 "Zo ~ '- ~ EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparaaraph 5.3.1 -- Subseauent Dlscretionarv Approvals None. Subparaaraph 5.3.2 -- Mitiaation Conditions Subsection a. Infrastructure Seauencina Proaram The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) identified in Resolution No. No. 04-073 of the City of Dublin Planning Commission approving Site Development Review for PA 04-043 (hereafter "SDR Resolution") shall be completed by Developer to the satisfaction of the Public Works Director at the times and in the manner specified in the SDR Resolution unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of 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 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 Dralnaae. Dublin!Pulte Homes Development Ageement For Dublin Ranch Area F! F2 - EXHIBIT B 762012,1 Page 1 of 4 DRAFT: June 8, 2005 "Z\~'Z..3 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 Drainage Plan and tentative map conditions of approval and 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. Pursuant to Alameda County's National Pollution Discharges Elimination Permit (NPDES) No. CAS0029831 with the California Regional Water Quality Control 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. electricitv. cable televisions. teleøhone) Construction shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous (i) Comøletlon Mav 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 satisfactory to the Public Works Director thaI 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. SubDaraaraDh 5.3.3 -- Phasina. Tlmlna This Agreement contains no requiremenls 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 wilh its own time schedules and the Project Approvals. SubDaraaraDh 5.3.4 -- Flnancina 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 SIJhparagraph 5 3 6 below) DUblin/Pulte Homes Development Agreement Page 2 of 4 For Dublin Ranch Area F I F2 - EXHIBIT B DRAFT: June 8, 2005 762012.1 2"2. DD"~ 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. 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. SubparaClraph 5.3.5 -- Fees. Dedications Subsection a. Traffic Impact Fees. Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 225-99. including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Developer further agrees that it will pay eleven percent (11 %) of the "Section 1/Category 1" portion of the TIF in cash. Developer also agrees that it will pay twenty-five percent (25%) of the "Section 2/Category 2" portion of the TIF in cash. If City amends its TIF fee and as a result the City's outstanding balance due on loans is less than 25% of total Section 2/Calegory 2 improvements, the Developer shall pay such reduced percentage of the "Section 2/Category 2" portion of the TI F in cash. Subsection b. Traffic Impact Fee to Reimburse Pieasanton for Freewav interchanQes. Developer shall pay the Eastern 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 resolulion which revises such Fee. Developer will pay such fees no later than the lime of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Public Facilities Fees. Subsection c. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any future amendments to such fee. Developer will pay such fees no later than the lime of issuance of building permits and in the then-current amount of the fee. Dublin/Pulte Homes Development Ag-eement For Dublin Ranch Area F I F2 - EXHIBIT B 762<112.1 Page 3 of 4 DRAFT: June 8, 2005 -z.~ ~"Z..3 Subsection d. Noise Mltlaation Fee. Developer shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Subsection e. School Impact Fees. School impact fees shall be paid by Developer in accordance with Government Code section 53080 and the agreement between Developer's predecessor in interesl and the Dublin Unified School District regarding payment of mitigation fees. Subsection f. Fire Impact Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Subparaaraph 5.3.6 -- Credit Subsection a. Traffic Impact Fee Improvements -- Credit City shall provide a credit to Developer for 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. All aspects of the credit shall be covered by City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 ("TIF Guidelines"). Subsection b. Traffic Impact Fee Riaht-of-Wav Dedications -- Credit City shall provide a credit to Developer for any TIF area right-of-way to be dedicated by Developer to City which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. Dublin/Pulle Homes Development Ag-eemenl For Dublin Ranch Area F I F2 - EXHIBIT B 76:ro12.1 Page 4 of 4 DRAFT: June 8. 2005