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HomeMy WebLinkAboutItem 6.2 DubRanA1 DA CITY CLERK File#0600-60 AGENDA STATEMENT CITY COUNCIL MEETING DATE: March 19, 2002 SUBJECT: PUBLIC HEARING PA 01-010 Toll Brothers - Dublin Ranch A-1 Development Agreement 1st Reading Report Prepared by: Michael Porto, Planning Consultant ATTACHMENTS: 1. Ordinance Approving Development Agreement between the City of Dublin and Toll CA II, L.P (Toll Brothers) with the Development Agreement attached as Exhibit A 2. Planning Commission Staff Report with the Resolution RECOMMENDATION: 1. Open public hearing and hear staff presentation 2. Receive staff presentation and take public testimony. 3. Question staff, applicant, and the public. 4o Close public hearing and deliberate. 5. Waive Reading and introduce Ordinance (Attachment 1) approving the Development Agreement. FINANCIAL STATEMENT: None PROJECT DESCRIPTION: An Ordinance approving a Development Agreement between the City of Dublin and Toll Brothers is required by the Eastern Dublin Specific Plan. Items in the Development Agreement include, but are not limited to, the financing and timing of infrastructure; payment of traffic, noise and public facilities impact fees; oversizing of roads and general provisions. BACKGROUND: This project is part of Dublin Ranch Area A comprised of 369+/- acres of mixed-use development including Single Family Residential, Open Space / Golf Course with appurtenant structures, and a Neighborhood Recreation Facility. The Planning Commission, on August 28, 2001 approved a Site Development Review for Neighborhood A-1 of Dublin Ranch Area A. The Tentative Maps, (Tract 7136 for Neighborhood A-l) setting the lot patterns for these subdivisions were approved by the Planning Commission on July 25, 2000 (Resolutions 00-37). Dublin Ranch Areas A-1 is located west of Fallon Road and northerly of the existing L,5 subdivision. The project site is also easterly and northeasterly of the existing L-6 and L-1 neighborhoods in Dublin Ranch Phase 1. The project site is completely surrounded by the "front nine" of the proposed Dublin G:\pa\01-010\ccsrdalst reading COPIES TO: Applicant In House Distribution ITEM NO. Ranch Golf Course. Either open space or golf courses physically separate the homes from the above- described neighborhoods. Grading has occurred to create the proposed lots and streets. The proposed Development Agreement between the City of Dublin and Toll Brothers is Exhibit A of Attachment 1 to this staff report. The Development Agreement is based on the standard Development Agreement developed by the City Attorney and adopted by the City Council for Eastem Dublin Projects. City procedure requires that there be three public hearings on Development Agreements: one before the Planning Commission and two before the City Council. The purpose for the hearing before the Planning Commission is to recommend approval of the Development Agreement to the City Council. ANALYSIS: One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into Development Agreements with developers in the plan area. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project for a specified period of time. Additionally, it is a mechanism for the City to obtain commitments from the developer that the City might not otherwise be able to obtain. The Development Agreement is one means the city has to assure that the Specific Plan goal, that new development funds the costs of infrastructure and service, is met° The Agreement: The City Attorney drafted the proposed Development Agreement with input from City Staff, Toll Brothers and their attorneys. The Development Agreement sets forth the agreements between the parties in relation to many items, including, but not limited to, infrastructure construction and phasing, and the payment of various require impact fees. The Development Agreement becomes effective for a term of five years from the date it is recorded. The Development Agreement runs with the land and the rights hereunder can be assigned. The main points of the Development Agreement can be found in Exhibit A of Attachment 1, Development Agreement and are highlighted below: Infrastructure Construction and Traffic Impact Fees: The City requires that Developers in Eastern Dublin pay Traffic Impact Fees for certain Citywide improvements to the circulation system. Additionally, fees are charged for certain ciculation improvements specific to Eastern Dublin. The City determines the direct project impact through a traffic study that has been conducted for the development. Other Fees and Funding Requirements The Development Agreement also provides for the construction of certain other improvements to serve the project site such as a fire station, off-site sewer, water, storm drainage and other utility services as required by the tentative parcel map approval. CONCLUSION: The Planning Commission considered the Development Agreement at the March 12, 2002 meeting and made its recommendation to the City Council for approval of the Development Agreement. Approval of this Development Agreement will implement provisions of the Eastern Dublin Specific Plan. The proposal is consistent with both the General Plan and the Specific Plan. RECOMMENDATION: Staff recommends that the City Council open the public hearing, deliberate and: 1. Waive the reading and introduce an Ordinance (Attachment 1) approving a Development Agreement (Exhibit A) between the City of Dublin and Toll CA II L.Po 2. Schedule the second hearing of the Ordinance for April 2, 2002 ORDINANCE NO. /' ~ ~' AN ORDINANCE OF THE CITY OF DUBLIN APPROVING THE SUPPLEMENTAL DEVELOPMENT AGREEMENT FOR PA 01-010 TOLL BROTHERS (TOLL CA II, L.P.) FOR NEIGHBORHOOD A-1 OF DUBLIN RANCH AREA A TIlE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The proposed Neighborhood A- 1 of Dublin Ranch Area A 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 Resolution No. 51-93, and the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR") (SCH 91103064). C. A Development Agreement between the City of Dublin and Toll CA II, L.P. has been presented to the City Council, a copy of which is attached to the Staff Report as Exhibit A of Attachment 1. D. A public hearing on the proposed Development Agreement was held before the Planning Commission on March 12, 2002, 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 heating on the proposed Development Agreement was held before the City Council on March 19, 2002 and April 2, 2002, for which public notice was given as provided by law. G. The City Council has considered the recommendation of the Planning commission who considered the item at the March 12, 2002 meeting, including the Planning Commission's reasons for its recommendation, the Agenda Statement, all comments received in writing and all testimony received at the public hearing. Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin's General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the Specific Plan, (e) the EIR, (f) the 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 specified and contained in the City's General Plan, as amended by the Eastern Dublin General Plan Amendment, and in the Specific Plan in that (a) the General Plan and Specific Plan land use designation for the site is Single Family Density Residential Land Uses and the proposed project is~t ATTACHMENT1 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 Development Agreement includes provisions relating to vesting of development rights, and similar provisions set forth in the Specific Plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located in that the project approvals include a PD District Overlay Zone for Dublin Ranch Area A, and vesting tentative tract map 7136. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies in that Neighborhood A-1 of Dublin Ranch Area A 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 (Exhibit A of Attachment 1 to the Staff Report) and authorizes the Mayor to sign it. Section 4. RECORDATION Within ten (10) days after the Development Agreement is executed by the Mayor, the City Clerk shall submit the Agreement to the County Recorder for recordation. 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 2nd day of April 2002, by the following votes: AYES: NOES: ABSENT: ABSTAIN: ATTEST: MAYOR CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY G:01-010 Ord daa-1 City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND TOLL CA II, L.P. FOR AREA A-1 OF DUBLIN RANCH AREA A EXHIBIT A THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this day of ,2002, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and Toll CA II, L.P. a California limited partnership (hereafter collectively "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. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and C. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 38.746 acres of land, located in the City of Dublin, County of Alameda, State of California, which is designated as Parcel A-1 on the Master Tentative Map for Tract 7135 and is more particularly described in Exhibit A attaChed hereto and incorporated herein by this reference, and which real property is hereafter called the "Property"; and D. DEVELOPER acquired its interest in the Property from DR Acquisitions I, LLC, which acquired its interest in the .Property from Chang Su-O- Lin, Hong Lien Lin and Hong Yao Lin (the "Lins"); and E. The Lins and CITY are parties to a "Master Development Agreement Between the City of Dublin and The Lin Family for the Dublin Ranch Project (Areas A, B, C, D, E, F, G and H) ("Master Development Agreement")", section 7 of which requires DEVELOPER to enter into this development agreement; provided however, this Agreement shall not impair any of developer's · rights under the Master DA; and F. The Eastern Dublin Specific Plan also requires DEVELOPER to enter into this development agreement; provided however, this Agreement shall not impair any of developer's rights under the Master DA; and G. DEVELOPER proposes the development of the Property with 110 single family detached homes (the "Project"); and H. DEVELOPER has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the Project, including an amendment to the General Plan and Eastern Dublin Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 Page 2 of 16 March 7,' 2002 Specific Plan (City Council Resolution No. 53-98), PD District rezoning (City Council Ordinance No. 23-97), general provisions for the PD District rezoning including the Development Plan (City Council Resolution No. 139-97), Master Vesting Tentative Map for Tract 7135 (Planning Commission Resolution No. 00- 36), Vesting Tentative Map for Tract 7136 (Neighborhood A-l) (Planning Commission Resolution 00-37), and site development review (Planning Commission Resolution No. 01-021 [for neighborhood A-l] (with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and I. Development of the Property by DEVELOPER may be subject to certain future discretionary approvals, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective; and J. CITY desires the timely, efficient, orderly and proper development of said Project; and K. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and L. CITY and DEVELOPER have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein; and M. Pursuant to the California Environmental Quality Act (CEQA) the Planning Commission adopted Resolution Nos. 00-36 and 00-37 finding that the Project is within the scope of the Final Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was certified by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR"); and N. On adopted Ordinance No. ordinance took effect on 2002, the City Council of the City of Dublin approving this Development Agreement. The 2002. 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: Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 Page 3 of 16 March 7, 2002 AGREEMENT 1. Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property in that it is owns the Property in fee simple. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by CITY and DEVELOPER and that the DEVELOPER is not an agent of CITYo 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. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by City. 4.2 Term. The term of this Development Agreement shall commence on the effective date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Property. 5.1 Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 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. Dublin/Toll Development Agreement For Dublin Ranch Area A / A:I Page 4 of 16 March 7, 2002 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 other approvalS from regulatory agencies.) Not Applicable 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. See Exhibit B 5.3.6 Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B 5.3.7 Miscellaneous. Miscellaneous terms. See Exhibit B Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 Page 5 of 16 March 7, 2002 6. Applicable Rules, Re.qulations 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 Master Development Agreement. 6.2 Rules re Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary Project Approval. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable permit approval. 6.3 Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Re,qulations. 7.1 New Rules and Regulations. During the term of this Agreement, the City may apply new or. modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, 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 Approval of Application. Nothing in this Agreement shall prevent the CITY from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements expressly set forth herein. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 Page 6 of 16 March 7, 2002 7.3 Moratorium Not Applicable~ Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of CITY, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or 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. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1 Fees, Exactions, Dedications CITY and DEVELOPER agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the 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; and (3) the application of such fees would not prevent 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 City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5 Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's ballot as affirmatively voting in favor of such assessment, fee or charge. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 · Page 7 of 16 March 7, 2002 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance 'with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8°56, 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Chapter 8.56. 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 Project Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) monetary contributions by the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them,'shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the Dublin/roll Development Agreement For Dublin Ranch Area A / Page 8 of 16 March 7, 2002 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 CITY. 10o Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described in Recital H 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, 2003 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 Development Director prior to the hearing on the annual review, as and when reaSonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CITY in connection with the annual review shall be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly 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 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 Page 9 of 16 March 7, 2002 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. In no event shall damages be awarded against 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 City shall be authorized to execute any certificate 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. Mortgagee Protection; Certain Rights of Cure. 14.1 Mort.qa.qee 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 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 Page 10 of 16 March 7, 2002 construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to Mortgagee and Extension of Right to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereunder and specifying the address for service thereof, then CITY shall deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any notice given to DEVELOPER with respect to any claim' by CITY that DEVELOPER has committed an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to commence to cure or remedy, the event of default 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. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. DEVELOPER shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse CITY for all reasonable court costs and attorneys' fees expended by CITY in defense of any such action or other proceeding. 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, 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 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 Page 11 of 16 March 7, 2002 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. 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, 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 Assignment. DEVELOPER shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to subparagraph 17.1 of this 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 Assignment. The sale or other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to the exercise of any'right or remedy under a deed of trust encumbering DEVELOPER'S interest in the Property shall not require City Manager approval pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 17.1. 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 d°cument 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 Dublin/Toll Development Agreement For Dublin Ranch Area A ! A-1 Page 12 of 16 March 7, 2002 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 servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upOn each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the DEVELOPER, or any actions or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation with respect to negligence or wrongful conduct of CITY, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 Page 13 of 16 March 7, 2002 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 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 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 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 CITY. 23. NOtices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 Page 14 of 16 Mamh 7, 2002 Notices required to be given to DEVELOPER shall be addressed as follows: Toll CA II, LP Jon Paynter, Assistant Vice President 100 Park Place, Suite 140 San Ramon, CA 9483 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. A,qreement 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 26. Counterparts. This Agreement is executed in two (2) 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. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 Page 15of16 March 7, 2002 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN: By: Date: Mayor ATTEST: By: Date: City Clerk APPROVED AS TO FORM: City Attorney TOLL CA II, LP a California limited partnership By: Print: Its: General Partner Date: (NOTARIZATION ATTACHED) J:\wpd\Mnrsw~114\188V~,gree\toll area a-1 da 030702.doc Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 Page 16 of 16 March 7, 2002 MAR ~? 20~2~ PM FR HEYERS NAVE 5~0 35: 448:~ EXHIBIT "A" PAGE 1 OF 1 TO !S£5S33~28 19155-tt 02_/27/02 F.C.I. 2' . DESCRIPTION DEVELOPMENT AGREEMEN'[_ BEING' ALL OF THAT CERTAIN PARCEL OF LAND KNOWN AS: "PARCEL 'A'" AS SHOWN UPON THAT CERTAIN FINAL MAP .ENTITLED: "TRACT 7252" AS. FILED ON THE ,2002 IN BOOK OF MAPS, AT PAGES ~ DAY OF ., OFFICIAL RECORDS OF ALAMEDA COUNTY, C~LIFORNIA, FOR PURPOSES OF DEVELOPMENT AGREEMENT, LYING AND BEING IN THE CITY OF DUBLIN, ALAMEDA COUN'f~, CALIFORNIA. CONTAINING 38.746 ACRES, MORE OR LESS, PORTIONS OF: ASSESSOR'S PARCEL. NUMBERS 985,,0002.,IX13-06, 985.-0010-004~S, 985-.0007..,01~-17, AND'985-tXI08"021!i'03. END OF DESCRIPTION PROFE$81ONAL LAND SURVEYOR NO, 5859 (EXP. 12/81/2004) STATE OF CALIFORNIA BAeKAY &SOBPS (92G) 225-0690 MAR-07-2002 02: 32PM TEL)SiO 351 4481 ' ID)CITY DF DUBLIN . PAGE: 002 R=99~. EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparagraph 5.3.1 -- Subsequent Discretionary Approvals None. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Sequencinq Program 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 Nos. 00-37 and 02-09 of the City of Dublin Planning Commission approving the Vesting Tentative Map for Neighborhood A-1 (Tract 7136) (hereafter "TM Resolution"), and those described below shall be completed by DEVELOPER to the satisfaction of the Public Works Director at the times and in the manner specified in the TM Resolution unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public Works Director. Tract 7136/A-1' -- Condition 54 [Offsite] Traffic Signals: Condition 54 reads as follows: [Offsite]Traffic Signals. If not constructed by previous developer, APPlicant/Developer is responsible for the traffic signal design and installation of conduit for the future signalization at the fo/lowing intersections to the satisfaction of the Director of Public Works: a_. Kingsmill Terrace and Fa/ion Road. b_. Turnberry Drive and Fa/Ion Road (modified) c_. Antone Way and Fallon Road The signal improvements shall accommodate conversion to serve an ultimate three and four-legged intersections to the extent possible, minimizing replacement or relocation of improvements. The cost of the conduit shall be the responsibility of Applicant/Developer, with no TIF credits given for intersections Dublin/Toll Development Agreement For Dublin Ranch Area A1 A-1 - EXHIBIT B Page 1 of 9 March 7, 2002 listed above. Applicant/Developer shall be responsible for constructing and/or funding all interim improvements as determined by the Director of Public Works. In the event that an improvement agreement for the installation of the ultimate traffic signals fails to be reached, Applicant/Developer shall be responsible for the installation of the future traffic signals. When Required: 312th Certificate of Occupancy Notwithstanding the provisions of Section 4 of this Agreement, this Condition 54 shall survive termination of this Agreement. --Condition 74 [Other Conditions] Condition 74 reads as follows: Homeowners Association. Applicant/Deveioper shall establish a Neighborhood Homeowners Association and/or a Community Homeowners Association that will monitor and provide oversight to the maintenance of owner-maintained streets, street landscape areas and common areas including community walls and theme fences. Maintenance responsibilities shall be as shown on the submitted "Open Space and Ownership and Maintenance Plan" dated December 1999 and revised February '14, 2001. In the event that any such streets and landscape area falls into a state of disrepair, the City will have the right but not the obligation to take corrective measures and bill the homeowners association for the cost of such repair and corrective maintenance work plus City overhead. These requirements shaft be included in the project Conditions, Covenants and Restrictions documents (CC&Rs). The Developer shall submit the project CC&Rs for review and approval by the Director of Public Works and the Director of Community Development. --Condition 75 [Other Conditions] Condition 75 reads as follows: Covenants, Conditions and Restrictions (CC&Rs). Covenants, Conditions and Restrictions (CC&Rs) shall be established for this development. The CC&Rs shall be approved by the Director of Community Development to assure that: Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 - EXHIBIT B Page 2 of 9 March 7, 2002 a. A Homeowners Association is established for this development complete with Bylaws. b. There is adequate provision for at least the maintenance, in good repair, of all commonly owned facilities, property and landscaping, including but not limited to open space areas, lighting, recreation facilities, landscape and irrigation facilities, fencing, and drainage and erosion control improvements. c. The parking of recreational vehicles between a building and a street and along a street shall not occur. Recreational Vehicles are defined as a motorhome, travel trailer, utility trailer, boat on a trailer, horse trailer, camper where the living area overhangs the cab, camping trailer, or tent trailer, with or without motive power. d. The landscaping and irrigation on individual parcels developed with a single-family unit shall be maintained and kept in good order by the resident and/or owner of each residence. e. Homeowners Association complies with the City's Wildfire Management Plan for covering long-term maintenance of the urban/open-space interface. f. Homeowners Association shall keep community walls clear of graffiti vandalism on a regular and continuous basis at all times. Graffiti resistant materials and foliage shall be used. g. Purchasers are notified that the streets and entries are private and are not maintained by the City. The developer shall post signs at all entries notifying purchasers and users that these private streets are not subject to City of Dublin maintenance and traffic enforcement. --Condition 81 [Master CC&R's]: Condition 81 reads as follows: The Developer shall prepare a master covenants conditions and restrictions (CC&R) document specifying that a Community Homeowner's Association covering ali parcels within the Tentative Map shall be formed, covering maintenance of the private open space parcels, pedestrian trails, creeks, and recreational facility. The document shall be reviewed and approved by City Attomey and Director of Public Works and shaft then be recorded. Developer shall not transfer title to any lots to individual purchasers until Developer has satisfied Conditions 74, 75 (as revised) and 81. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 - EXHIBIT B Page 3 of 9 March 7, 2002 --Condition 84 [Dublin Boulevard/Dougherty Road InterSection Improvements]: Condition 84 reads as follows: Dublin Boulevard/Dougherty Road Intersection Improvement. The Applicant/Developer shall be responsible for the project fair share contribution towards the City Capital improvements project for the following improvements to the Dublin Blvd. and Dougherty Road intersection: a. Eastbound Dublin Boulevard, exclusive right- turn lane to Southbound Dougherty Road. b. Northbound Dougherty Road, exclusive right- turn lane to eastbound Dublin Boulevard. c. Westbound Dublin Boulevard restriped to provide an additional left turn lane to southbound Dougherty Road. d. Modifications to the Traffic Signal. This is a category 2 TIF improvement. In the event that the City has a shortfall of category 2 funds available to complete the above list of improvements, the Developer shall contribute the remaining balance of the funds needed' to complete the specified improvements to the satisfaction of the Director of Public Works. To the extent practical, the notice shall be timed so that the work shall be completed immediately prior to the point where the Level of Service E occurs. These funds will be based on the percent of trip contribution to the intersection defined and approved by the Director of Public Works. This intersection improvement is a TIF improvement. Therefore costs spent may be credited against the payment of traffic impact fees in accordance with City TIF Guidelines. DEVELOPER shall provide CITY with DEVELOPER's fair share, as determined by CITY on the basis of the Project's trips, for the costs of design and construction of Dublin Boulevard/Dougherty Road Intersection Improvements by a payment to CITY in cash in the amount of the Project's fair share of the deficiency, if any, between funds available to CITY for CIP Project #9689 [Dougherty Road/Dublin Blvd. Intersection] and the cost of such project, such payment to be made within 30 days of written notice from the Public Works Director to be given following bid opening. Notwithstanding the provisions of Section 4 of this Agreement, Condition 84 shall survive termination of this Agreement. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 - EXHIBIT B Page 4 of 9 March 7, 2002 --Condition 85 [Gleason Drive]: Condition 85 reads as follows: Prior to issuance ora certificate of occupancy for the 421st unit in Area A, Developer/Applicant shall construct either 2 lanes of Gleason Drive from Tassajara Road to Fa/Ion Road in accordance with approved precise alignment prepared by MacKay and Somps dated August 1999 or as defined by the Director of Public Works or the extension of Dub/in Blvd. from Dub/in Ranch Area G to Fa/Ion Road or as defined by the Director of Public Works. The Developer shall be responsible for the installation of the new traffic signal at the intersection of Fa/Ion road and Gleason Drive. With the extension of Dublin Boulevard to Fallon Road, Developer shall be responsible for the traffic signal required by Condition 99 of Tentative Tract Map 7135. Condition 99 of Tentative Tract Map 7135 states: "Applicant/Developer shall construct Fallon Road Interchange signals at eastbound and westbound off ramps of 1-580 and Fallon Road as approved by Caltrans and the Director of Public Works". If Developer constructs Gleason Drive through to Fallon Road, Developer shall complete Fallon Road in its ultimate state from existing Antone Way to Gleason Road and transition Fallon Road from Gleason Road south to Bent Tree Drive as approved by the Director of Public Works. Notwithstanding the provisions of Section 4 of this Agreement, the requirements of Condition 85 shall survive termination of this Agreement and shall be deemed satisfied when DEVELOPER enters into an improvement agreement and provides security for improvements which satisfy this condition. (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. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 - EXHIBIT B Page 5 of 9 March 7, 2002 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 The storm drainage systems off site, as well as on site drainage systems to 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. The site shall also be protected from storm flow from off site and shall have erosion control measures-in place to protect downstream facilities and properties from erosion and' unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to the updated master drainage plan for Dublin Ranch referenced in Condition 40 of Planning Commission Resolution 00-36. If determined to be necessary by CITY, DEVELOPER agrees to participate in a drainage benefit district orsuch other mechanism as may be established by CITY in the future to reimburse other developers for oversizing drainage facilities that benefit the Property. (v) Other Utilities (e.g..qas, electricity~ cable televisions, telephone) 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) Completion May Be Deferred. Notwithstanding the foregoing, CITY's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form 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. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 - EXHIBIT B Page 6 of 9 March 7, 2002 Subpara.qraph 5.3.3 -- Phasing, Timin~ This Agreement contains no requirements that DEVELOPER must initiate or complete development of the Project within any period of time set by CITY. It is the intention of this provision that DEVELOPER be able to develop the Property in accordance with its own time schedules and the Project Approvals. Subparagraph 5.3.4 -- Financin~ 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. 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 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 a minimum of three percent (3%) of the "Section l/Category 1" portion of the TIF in cash. DEVELOPER also agrees that it will pay 12.4% 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 12.4% of total Section 2/Category 2 improvements, the DEVELOPER shall pay such reduced percentage of the "Section 2/Category 2" portion of the TIF in cash. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchan_cles. 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 resolution which revises 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. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 - EXHIBIT B Page 7 of 9 March 7, 2002 Subsection c. Public Facilities Fees. DEVELOPER shall pay a Public Facilities Fee established by City of Dublin Resolution No. 60-99, 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 then-current amount of the fee. DEVELOPER may use the credits for payment of the Community Park Land portion of the Public Facilities Fee granted to the Lin Family by the Master Development Agreement in accordance with City's Public Facilities Fee Guidelines (Resolution 195-99). Subsection d. Noise Mitigation 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 interest 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. 208-00 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 _Cl. Tri-Valley Transportation Development Impact Fee. DEVELOPER shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89~98 or any subsequent resolution which revises such fee. 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. Subparagraph 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 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 - EXHIBIT B Page 8 of 9 March 7, 2002 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 Right-of-Way 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. Subparagraph 5.3.6 -- Miscellaneous Subsection a. Conditions 106 to 111 of Resolution 00-36 and Effect of Payment of Fire Impact Fee As provided above (5.3.5, subsection f), DEVELOPER shall pay the Fire Impact Fee at the time of issuance of each building permit. All such fees paid by DEVELOPER for the Project shall reduce the amount of the security to be provided by DR Acquisitions, LLC pursuant to the Improvement Agreement for Fire Station 18 between City of Dublin and DR Acquisitions, LLC for construction of Fire Station 18, provided that at the time DR Acquisitions, LLC provides security pursuant to said improvement agreement, there shall be no such further offset and DEVELOPER may then apply any Fire Impact Fee credit it owns against payment of Fire Impact Fees. Subsection b. Inclusionary Zoninq Ordinance The Project shall be subject to the Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68) as in effect on July 25, 2000 (the date of approval of Resolution 00-37). The DEVELOPER shall pay fees in lieu of constructing inclusionary units. The in lieu fees shall be paid at issuance of building permits in accordance with Resolution No. 131-01 of the City Council and the affordable housing agreement to be entered into between DEVELOPER and CITY. J:\wpd\Mnrsw\114\188~Agree\toll area a-1 ex_b 030702.doc Dublin/Toll Development Agreement For Dublin Ranch Area A / A-1 - EXHIBIT B Page 9 of 9 March 7, 2002 AGENDA STATEMENT PLANNING COMMISSION MEETING DATE: March 12, 2002 SUBJECT: PUBLIC HEARING PA 01-010 Toll Brothers - Dublin Ranch Area A-l, Development Agreement (Report Prepared by: Michael Porto, Planning Consultant) ATTACHMENTS: Draft Resolution recommending that the City Council adopt an Ordinance approving a Development Agreement between the City of Dublin and Toll Brothers (Development Agreement attached as Exhibit A to Attachment O RECOMMENDATION: 2. 3. 4. 5. 6. Hear Staff Presentation Open Public Hearing Hear Applicant's Presentation Question Staff, Applicant and the Public Close Public Hearing and Deliberate Adopt Resolution (Attachment 1) recommending City Council adopt an Ordinance approving a Development Agreement between the City of Dublin and Toll Brothers PROJECT DESCRIPTION: An Ordinance approving a Development Agreement between the City of Dublin and Toll Brothers is required by the Eastern Dublin Specific Plan. Items in the Development Agreement include, but are not limited to, the financing and timing of infrastructure; payment of traffic, noise and public facilities impact fees; oversizing of roads and general provisions. BACKGROUND: This project is part of Dublin Ranch Area A comprised of 369+/- acres of mixed-use development including Single Family Residential, Open Space / Golf Course with appurtenant structures, and a Neighborhood Recreation Facility. The Planning Commission, on August 28, 2001 approved a Site Development Review for Area A-1. The Tentative Map, (Tract 7136 -Neighborhood A-l) setting the lot pattern for these subdivisions were approved the Planning Commission on July 25, 2000 (Resolutions 00-37). Dublin Ranch Areas A-1 is located west of Fallon Road and northeasterly of the existing Dublin Ranch Phase I subdivisions (L-1, L-5 and L-6. Proposed Holes 1 through 9 of the Golf Course surround this subdivision. The project area is entirely vacant with no structures. Grading has occurred to create the proposed lots and streets and some street pavement has been installed. Upon completion of the Development Agreement process by the City Council, building permits can be issued. COPIES TO: ATTACHMENT The Applicant The Property Owner PA File ITEM NO. ANALYSIS: One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into Development Agreements with developers in the plan area. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project for a specified period of time. Additionally, it is a mechanism for the City to obtain commitments from the developer that the City might not otherwise be able to obtain. The Development Agreement is one means the City has to assure that the Specific Plan goal, that new development fund the costs of infrastructure and service, is met. The proposed Development Agreement between the City of Dublin and Toll Brothers is Exhibit A of Attachment 1 to this staff report. The Development Agreement is based on the standard Development Agreement developed by the City Attorney and adopted by the City Council for Eastern Dublin Projects. City procedure requires that there be three public hearings on Development Agreements. The purpose for the hearing before the Planning Commission is to recommend approval of the Development Agreement to the City Council° The Agreement: The City Attorney drafted the proposed Development Agreement with input from City Staff, Toll Brothers and their attorneys. The Development Agreement sets forth the agreements between the parties in relation to many items, including, but not limited to, infrastructure construction and phasing, and the payment of various required impact fees. The Development Agreement becomes effective for a term of five years from the date it is recorded. The Development Agreement runs with the land and the rights thereunder can be assigned. The main points of the Development Agreement can be found in Exhibit A of Attachment 1, Development Agreement and are highlighted below: Infrastructure Construction and Traffic Impact Fees: The City requires that DeveloPers in Eastern Dublin pay traffic impact fees for certain City wide improvements to the circulation system. Additionally, fees are charged for certain circulation improvements specific to Eastern Dublin. The City determines the direct project impact through a traffic study that has been conducted for the development. Other Fees and Funding Requirements: The Development Agreement also addresses the payment of the Public Facilities Fee, Noise Mitigation Fee, School Fees, Fire Impact Fees and the Tri-Valley Transportation Development Impact Fee as well as a yearly contribution to the City for the extension of the Development Agreement to tenyears. Other Infrastructure Improvements: The Development Agreement also provides for the construction of certain other improvements to serve the project site such as a fire station, off-site sewer, water, storm drainage and other utility services as required by the tentative parcel map approval. ENVIRONMENTAL REVIEW: This project is within the scope of the Eastern Dublin Specific Plan and General Plan Amendment, for which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration was prepared for the entire project. The project will not have environmental effects which were not examined in the Program EIR. No new effects will occur and therefore no revisions to the Program EIR are required. That Mitigated Negative Declaration, together with the Program EIR, adequately describes the total project for the purposes of CEQA. CONCLUSIONS: Approval of this Development Agreement will implement provisions of the Eastern Dublin Specific Plan. The proposal is consistent with both the General Plan and the Specific Plan. RECOMMENDATION: Staff recommends the Planning Commission open the Public Hearing, deliberate and Adopt Resolution (Attachment 1) recommending City Council adopt an Ordinance approving a Development Agreement between the City of Dublin and Toll Brothers° G:~oa\01-010~pcsr DA A-1 GENERAL INFORMATION APPLICANT: OWNER: LOCATION: ASSESSOR PARCEL: GENERAL PLAN DESIGNATION: SPECIFIC PLAN DESIGNATION: EXISTING ZONING AND LAND USE: Bill Morrison Toll Brothers 100 Park Place, Suite 140 San Ramon, CA 94587 H. Jon Paynter, Assto Vice President Toll Brothers CA II, L.Po 100 Park Place, Suite 140 San Ramon, CA 94587 East of Tassajara Road adjacent to the furore Fallon Road extension, approximately 4,500 feet north of 1-580 Portions of the following Parcels: 985-2-3,985-3-3-2, 985-7-2-15, 985-7-2-6, 985-7-2-7, 985-7-2-9, 985-6-7, 985-6-8. Single Family Residential (0.9 to 6.0 du/ac) and open space Single Family Residential (0.9 to 6.0 du/ac) Zoning: Single Family Residential Planned Development and Open Space Land Use: Vacant 4 RESOLUTION NO. 02 - 15 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT A DEVELOPMENT AGREEMENT FOR PA 01-010 TOLL BROTHERS - DUBLIN RANCH AREA A-1 DEVELOPMENT AGREEMENT WHEREAS, Jon Paynter on behalf of Toll CA, L.P. has requested approval of a Development Agreement for the proposed Dublin Ranch Area A-1 residential neighborhood located east of Tassajara Road adjacent to the future Failon Road extensions, approximately 4,500 feet north of 1-580. WHEREAS~ a Development Agreement is required as an implementing measure of the Eastern Dublin Specific Plan; and WHEREAS, this project is within the scope of the Eastern Dublin Specific Plan and General Plan Amendment, for which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration was prepared for the entire project. The project will not have environmental effects, which were not examined in the Program EIR. No new effects will occur and therefore no revisions to the Program EIR are required. That Mitigated Negative Declaration together with the Program EIR adequately describes the total project for the purposes of CEQA; and WHEREAS, the text of the Draft Development Agreement is attached to this resolution as Exhibit A; and WHEREAS, the Planning Commission did hold a public hearing on said application on March 12, 2002; and WHEREAS, proper notice of said public hearing was given in ail 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 Mitigated Negative Declaration, all said reports, recommendations and testimony hereinabove set forth. NOW THEREFORE BE IT RESOLVED THAT THE Dublin Planning Commission does hereby make the following findings and determinations regarding said proposed Development Agreement: 1. Said Agreement is consistent with the objectives, policies, general land uses and programs specified in the Eastern Dublin Specific Plan/General Plan in that, a) the Eastern Dublin Specific Plan/General Plan land use designation for the subject site is proposed to be Planned Development and that the Toll Brothers Dublin Ranch Area A-1 is consistent with that designation; b) the project is consistent with the fiscal policies in relation to provision of infrastructure and public services of the City's Eastern Dublin Specific Plan/General Plan; c) the Agreement sets forth the rules the Developer and City will be governed by during the development process which is required by the Eastern Dublin Specific Plan; and the Mitigation Monitoring Program of the Eastern Dublin Specific Plan. 2. Said Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located in that the project approvals include a Planned Development Rezone and Site Development Review. 3. Said Agreement is in conformity with public convenience, general welfare and good land use practice in that the Toll Brothers Dublin Ranch Area A-1 residential neighborhood project will implement land use guidelines set forth in the Eastern Dublin Specific Plan/General Plan, as proposed. 4. Said Agreement will not be detrimental to the health, safety and general welfare in that the development will proceed in accordance with the Agreement and any Conditions of Approval for the Project; and 5. Said Agreement will not adversely affect the orderly development of the property or the preservation of property values in that the development will be consistent with the City of Dublin Eastern Dublin Specific Plan/General Plan. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning Commission does hereby recommend that the City Council approve the Development Agreement between Toll CA, L.P. and the City of Dublin for PA 01-010, Toll Brothers, Dublin Ranch Area A-1. pASSED, APPROVED AND ADOPTED this 12th day of March, 2002. AYES: Cm. Musser, Jennings, Fasulkey & Nassar NOES: ABSENT: Cm. Johnson ABSTAIN: Planning Commission Chairperson ATTEST: Planning Manager G:\pa\01-010\pcresoda a-1 2