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HomeMy WebLinkAboutItem 6.5 Toll Bros, AGMT (2) " CITY CLERK File # D[b]0J[Z2]-~[Q] . AGENDA STATEMENT CITY COUNCIL MEETING DATE: April 20, 1999 SUBJECT: PUBLIC HEARING PA 98-063 Toll Brothers, Development Agreement (Prepared by Eddie Peabody, Jr., Community Development Director) A TT ACHMENTS: I. Development Agreement for Toll Brothers, Inc. 2. Ordinance adopting Development Agreement for Toll Brothers, Emerald Glen #4. RECOMMENDATION: l. (1Il~~: 4. 5. Open Public Hearing. Receive Staff presentation and receive public testimony. Question Staff and the public Close Public Hearing and deliberate. Waive reading and introduce Ordinance _-99 (Attachment 2) approving the Development Agreement. FINANCIAL STATEMENT: . DESCRIPTION: No financial impact anticipated. An Ordinance approving a Development Agreement between the City of Dublin, Toll Brothers, Inc., and Alameda County Surplus Property Authority. The Development Agreement is required by the Eastern Dublin Specific Plan. Items included in the Development Agreement include, but are not limited to, the financing and timing of infrastructure; payment of traffic, noise and public facilities impact fees; oversizing of roads and general provisions. BACKGROUND: The project site is part of the larger 800+ acre property, known as the Santa Rita Property, owned by the Alameda County Surplus Property Authority. It was formerly used for agricultural and storage purposes by the U.S. Army for military uses. The County last used the project site area as a hospital. The Eastern Dublin General Plan Amendment and Specific Plan were approved by the City Council on May 10, 1993. Adoption of these plans designated the project site for Low, Medium, and Medium-High Density Residential, as well as Industrial uses on both the General Plan and the Eastern Dublin Specific Plan. A Specific Plan Amendment was approved, which configured land uses as they currently are proposed for development with the Industrial designation being assimilated into other Santa Rita properties. All ------------------------------------------------------------------------------------------------------------- . COPIES TO: Toll Brothers, Inc. Alameda County Surplus Properly Authority In House Distribution ITEM NO. 6.; . structures from previous uses have been removed, with the exception of a few streets remaining from the Camp Parks Reserve Forces Training Area. ANALYSIS: . Procedural Background: One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into Development Agreements with developers in the plan area. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project for a specified period oftime. 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. City procedure requires that there be three public hearings on Development Agreements. The purpose for the hearing before the Planning Commission is to recommend the approval for the Agreement to the City Council. The first Public Hearing before the City Council is to introduce the Ordinance and the second public hearing is to adopt the Ordinance. The Ordinance will become effective 30 days after the second reading. The Planning Commission heard the Development Agreement at their April!3, 1999 meeting and recommended that the City Council adopt the attached ordinance. Development Agreement: Attached to this Staff Report is a Development Agreement (Attachment I) between the City of Dublin, . Toll Brothers, Inc., and the Surplus Property Authority of the County of Alameda (Alameda County). This Development Agreement is based on the standard Development Agreement developed by the City Attorney and adopted by the City Council for Eastern Dublin Projects. In general, the Agreements reflect what has been determined to be the infrastructure needs for the specific project. These needs are determined based on submittal of engineering studies and plans. The Agreement: The City Attorney drafted the proposed Development Agreement with input from City staff, Toll Brothers, Inc. Alameda County Surplus Property Staff and their attorneys. The Development Agreement sets forth the agreements between the parties in relation to many items, including, but not limited to, infrastructure construction and phasing, and the payment of various required impact fees. The Development Agreement becomes effective for a term of five years from the date it is recorded. The Development Agreement runs with the land and the rights thereunder can be assigned. The main points of the Development Agreement can be found in Exhibit B of Attachment 1 of the Development Agreement and are higWighted 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. Developers are also required to make certain improvements to the circulation system that are required as a result of their project. The City determines the direct project impact through a traffic study that is conducted. . Based on the traffic study conducted for the Emerald Glen #4 project, it was determined that certain improvements were required to the circulation system as a result of the projected future traffic from the project. These improvements include improving some roadways, widening some roads, the improvement .' - of certain intersections in Dublin and Eastern Dublin, the ultimate construction of the Tassajara Road/Santa Rita Road/I-580 interchange. . Other improvements that were identified could be phased and put in as required by traffic warrants or when other projects come on line. The Agreement sets forth the City and Alameda County's understanding in relation to the phasing of infrastructure construction. RECOMMENDATION: Staff recommends that the City Council open the Public Hearing, take testimony from Staff and the public, deliberate, waive the first reading and introduce the Ordinance adopting a Development Agreement for the Toll Brothers Emerald Glen #4 project. G:98063 ccsrapril20da . . "'- -;J . . . City of Dublin / ~ $ t/ \Vhen Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA. 94568 Space above this line for Recorder's Use DEVELOPMENT AGREE1\1ENT BETVvEEN THE CITY OF DUBLIN AND TOLL BROTHERS, INC. AND THE SURPLUS PROPERTY AUTHORITY OFTHECOUNTYOF~EDA FOR THE TOLL BROTHERS PROJECT ATTACHMENT 1 ;2.qS3'1 . TABLE OF CONTENTS . I. Description of Property. ........................................ 3 2. Interest of Developer. . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . 3 3. Relationship of CITY. COUNIT and DEVELOPER. . . . . . . . . . . . . . . . . . . . 3 4. Effective Date and Term. ........................................ 3 4.1 Effective Date. ........................................... 3 4.2 Term.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5. Use of the Propeny. .......... _ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5.1 Ri~ht to Develop .......... _ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5.2 Permitted Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5.3 Additional Conditions ..................................... 4 6. Applicable Rules. Re~lations and Official Policies ....... - . . . . . . . . . . . . 5 6.1 Rules re Permitted Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6.2 Rules re Design and Construe-Jon ............ .-. . . . . . - . . . . . . . . 5 6.3 Uniform Codes Applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . 7. Subsequently Enacted Rules and Regulations. . . . . . . . . . . . . . . . . . . . . . . . . 5 7.1 New Rules and Regulations ................................. 5 7.2 Approval of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 7.3 Moratorium Not Applicable. . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . 6 8. Subsequently Enacted or Revised Fees. Assessments and Taxes. . . . . . . . . . . 6 8.1 Fees. Exactions. Dedications ................................ 6 8.2 Revised Application Fees ................................... 7 8.3 New Taxes .............................................. 7 8.4 Ac;sessments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8.5 Vote on Future Assessments and Fees ......................... 7 9. Amendment or Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 9.1 Modification Because of Conflict 'with State or Federal Laws ....... 7 9.2 .Amendment by Mutual Consent ............................. 7 Dublirv'Toll Brothers. IncJ.A.larneda Development Agreement - Toll Brothers Project Table of Contents * Page i of iii April 6, 1999 . . . . '3~'8i 9.3 Insubstantial Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.4 Amendment of Project Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.5 Cancellation by Mutual Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . S 10. Term of Project Approvals ....................................... 8 II. Annual Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 11.1 Review Date . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . 9 11.2 Initiation of Review . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 11.3 Staff Repons ............................................ 9 11.4 Costs .................................................. 9 12. DefauJt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.1 Other Remedies Available .................................. 9 12.2 Notice and Cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.3 No Darna~es A~ainst CITY ................................ 10 13. Estoppel Certificate ........................................... 10 14. Mort~a~ee Protection: Certain Ri~hts of Cure ....................... 10 14.1 :rv1ort~a~ee Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 14.2 ^1ort~a~ee Not Obli~ated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 14.3 Notice of Default to ^1ortEa~ee and EA.-tension of Right to Cure .... II 15. Severabiliry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11 16. Attome:vs' Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 17. Transfers and Ac;si~TUnents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 17.1 DEVELOPER's Ri~ht to Ac;sign ......................... . . . . 12 17.2 Release Upon Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 17.3 Developer's Right to Retain Specified Rights or Obligations ....... 12 17.4 Permitted Transfer. Purchase or Ac;si ~ment ............... . . . . 13 18. A~eement Runs '\1th the Land .................................. 13 19. B ankroptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 20. Indemnification. . . . ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 DublinlToll Brothers, IncJAlameda Development Agreement. Toll Brothers Project Table of Contents. Page ii of Hi April 6. 1999 tj crQ :3 tf 5.2 Permitted Uses. The permitted uses of the Propeny, 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 Clm and other terms and conditions of development applicable to the Propeny, shall be tl}ose 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 Ar1DTOvals. ... . .. - Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect DEVELOPER's responsibility to obtain all other land use apprO\'als required by the ordinances of the City of Dublin.) Not Applicable 5.3.2 Miti~ation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or . mitigate adverse environmental impacts of the Project or otheT"i'iise relating to development of the Project. See Exhibit B 5.3.3 PhasinE. Timing. PrO\isions 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 Financin~ 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 payrnent of fees or dedication of property. See Exhibit B DublinlToll Brothers, IncJl>J.ameda Development Agreement ~ Toll Brothers Project Page 4 of 18 April 6, 1999 . . . . 5 c3 :3V 5.3.6 Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B 5.3.7 :MiscelIaneous. Miscellaneous terms. See Exhibit B 6.' Allplicable Rules. Re~lations 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 this Agreement. " 6.2 Rules re Desi~ and Construaion. Unless othen\ise e.\.'}lressly 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 Approyal. 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 i:1 force and effect at the time of the applicable permit approval for the public improvement. 6.3 Uniform Codes Applicable. Unless eA'}lressly 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~lations. 7.1 New Rules and Re~lations. 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 v,rere not in force DublirvToll Brothers, IncJ.AJameda Development Agreement. Toll Brothers Project Page 5 of 18 April 6. 1999 6 ~ 31" 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 pennit 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 eA-pressly set forth herein. - 7.3 lvforatonum Not Applicable. Notwithstanding anyIhing to tl1e contrary contained herein, in the event an ordinance, resolution or other measure is enacted, 'ivhether by action of CITY, by initiative, referendum, or otherwise, that imposes a building moratorium 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. Ac;sessments 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 Approvals for purposes of mitigating environmental-and other impacts of the Project, providing infrastructure for the Project and complying 'ivith 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, 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). Dublin/Toll Brothers, IncjAlameda Development Agreement. Toll Brothers Project . Page 6 of 18 April 6. 1999 . . . ?~;3V 8.2 Revised Application Fees. Any ellsting application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (I) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. By so agreeing, DEVELOPER does not waive its rights to challenge the legality of any such application, processing and/or inspection fees. 8.3 New Taxes. .t\ny subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Properry is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. By so agreeing. DEVELOPER does not waive its rights to challenge the legality of any such taxes. 8.4 J~.ssessments. Nothing herein shall be construed to relie\'e the Property from assessments levied against it by ern' pursuant to any statutOry procedure for the assessment of property to pay for infrastructure and/or senices which benefit the Properry. 8.5 Vote on Future AC)sessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to i\rtide 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 federalla'\\'S 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 ,vith 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. DublinlToll Brothers, IncJAlameda Development Agreement . Toll Brothers Project Page 7 of 1 S April 6, 1999 g ~ 31 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 eA.'tent othervvise 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 "Vorks 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 Propeny; (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 Ll1e Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Appro\.al(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 ,vhole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by CITY. 10. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the tentative map described in Recital G above shall automatically be e>..'tended for the term of this Agreement. The term of any other Project Approval shall be e>..'tended only if so provided in Exhibit B. DublinIToll Brothers, IncJ.t\1ameda Development Agreement - Toll Brothers Project Page 8 of 18 April 6, 1999 . . . . . . u 90)3/ II. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be August 15,2001 and each August 15 thereafter. 11.2 Initiation of Review. The CIITs Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER thiny (30) days' VITInen notice that the CITY intends to undenake 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 e).'1ent prac-Jcal, CIIT shall deposit in the mail and fax to DEVELOPER a copy of all staff repons, and related exhibits concerning contract perf o ffi1an ce at least five (5) days prior to any annual re\iew. IIA Costs. Costs reasonably incurred by CIIT 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 A,'ailable. Upon the occurrence of an event of default, the parries may pursue all other remedies at law or in equity 'Nhich are not otherwise provided for in this Agreement or in City's regulations governing development agreements, o..'Pressly incluqing the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by any pany, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting pany vvithin thirty (30) days after service of such notice of default, the nondefaulting pany 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 thiny (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 thiny DublinIToll Brothers, Incl.Alameda Development Agreement - Toll Brothers Project Page 9 of 1 S April 6, 1999 /0 % '31 (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 Darna~es Against CrTI'". In no event shall damages be awarded against CITY upon an event of default or upon tennination of this Agreement. . 13. Estoppel Certificate. .Any parry may, at any time, and from time to time, request wTinen 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 'Hiting, or if so amended, identifying the amendments, and (c) to the knowledge of the cenif:>ing party the requesting pany is not in default in the perfoffi1ance 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 follmving the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City !vfanager of City shall be authorized to execute any certificate requested by DEVELOPER or COUNTI. Should the pany 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. Mort~a~ee Protection: Certain Ri~hts of Cure. 14.1 Mort~a~ee 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 othenvise. 14.2 1\10rtgagee Not Obligated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this DublinlToll Brothers, IncJ.A.lameda Development Agreement - Toll Brothers Project Page lOaf 18 Apri16.1999 . . . . /1 ~ :3 ( Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to Mort~a~ee and EA"tension of Ri~hT TO Cure. If CITI' 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 haye the right during the same period available to DEVELOPER to cure or remedy, or to conunence to cure or remedy, the event of default claimed set fonn in the CITY's notice. CITY, through its City lv1anager, may u"tend the thiny-day cure period provided in paragraph 12.2 for not more than an additional sb.."ty (60) days upon request of DEVELOPER or a Mortgagee. 15. Severabilhv. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render t.."1e ot.."1er prmisior.s unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If CITY, COUNTY or DEVELOPER initiates any action at lav{ 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 othenvise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. DEVELOPER and COUNTY shall bear their own costs of defense as a real party in interest in any such action, and DEVELOPER shall reimburse CITY for all reasonable court costs and attorneys' fees " u-pended by CITY in defense of any such action or other proceeding. DubllivToll Brothers, IncJ.t\lameda Development Agreement - Toll Brothers Project Page 11 of 1 8 April 6, 1999 /cJ, c6 :3 t( , 17. Transfers and Ac;sip;nments. 17.1 DEVELOPER's Right to Ac;sign. All of DEVELOPER'S . rights, interests and obligations hereunder may be transferred, sold or assigned in conjunction with the transfer, sale, or assignment of all of the Property subject hereto , at any time during the term of this Agreement, provided that no transfer, sale or assignment of DEVELOPER's rights, interests and obligations hereunder shall occur without the prior written notice to CITY and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. The City !\.1anager shall consider and decide the matter within 10 working days after DEVELOPER's notice provided and receipt by City Manager of all necessary documents, certifications and other information required by City Manager to decide the matter. The City l\1anager's approval shall be for the pwpose of assuring City that the proposed purchaser, transferee or assignee is capable of performing the DEVELOPER's obligations hereunder. 17.2 Release Upon Transfer. Upon the transfer, sale, or assignment of all of DEVELOPER's rights, interests and obligations hereunder pursuant to subparagraph 17.1 of this Agreement, DEVELOPER shall be released from the obligations under this Agreement, 'with respect to the Property transferred, sold, or assigned, arising subsequent to the date of City Manager approval of SUd1 transfer, sale, or assignment; provided, huwever, that if any transfere~ purchaser, or . assignee approved by the City Manager o..'Pressly assumes all of the rights, interests and obligations of DEVELOPER under this Agreement, DEVELOPER shall be released with respect to all such rights, interests and assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof and shall provide all necessary documents, cenifications and other necessary information prior to City Iv1anager approval. 17.3 Developer's Right to Retain Specified Ili~hts or Obli~ations. Notwithstanding subparagraphs 17.1 and 17.2 and paragraph 18, DEVELOPER may withhold from a sale, transfer or assigrunent of this Agreement certain rights, interests and/or obligations which DEVELOPER shall retain, provided that DEVELOPER specifies such rights, interests and/or obligations in a written document to be appended to this Agreement and recorded ,vith the Alameda County Recorder prior to the sale, transfer or assignment of the Property. DEVELOPER's purchaser, transferee or assignee shall then have no interest or obligations for such rights, interests and obligations and this Agreement shall remain applicable to DEVELOPER with respect to such retained rights, interests and/or obligations. OublirvToll Brothers. IncJ.A.lameda Developm~nt Agreement - Toll Brothers Project Page 12 of 1 8 April 6. 1999 . . . . /j :t !J( 17.4 Permitted Transfer. Purchase or Ac:;siV1ment. The sale or other transfer of any interest in the Propeny to a purchaser ("Purchaser") pursuant to the exercise of any right or remedy under a deed of trust encumbering DEVELOPER'S interest in the Propeny shall not require City Manager approyal pursuant to the provision of paragraph 17.1. .Any subsequent transfer, sale or assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 17.1. 18. A~eement Runs v\~th the Land. .All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respectiye 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 Propeny hereunder, or ,,\rith respect to any owned propeny, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs ,\~th such properties, and (c) is binding upon each party and each successive owner during its O\vnership of such propenies or any ponion 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 S1.1c.'I1 properties. 19. Bankruptcy. The obligations of this Agreement sh2.11'not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold hannless 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 '\\i.th the construction, improvement, operation, or DublinlToll Brothers. InclA.lameda Development Agreement - Toll Brothers Project Page 13 of 18 April 6, 1999 /1'ff3f, maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation with respect to negligence or wrongful conduct of CIIT, . 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 eIn or another public entity (except as provided in an improvement agreement or maintenance bond). COUNIT agrees to indemnify, defend and hold harmless CIIT, 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 COUNTY, or any actions or inactions of COUNTY's contractors, subcontractors, agents, or employees in connection 'lI,rith the construction, improvement, operation, or maintenance of the Project, provided that COUNTY shall have no indemnification obligation with respect to negligence or viTongful 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 Puhlic Liability and Pmrert;T Da!na~e Inmrance. At all times that DEVELOPER is constructing any improvements that will become public improvements, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars'($l,OOO,OOO.OO) and a deductible of not more than ten thousand dollars ($10,000.00) per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2 ,,yorkers Compensation Insurance. At all times that DEVELOPER is constructing any improvements that will become public improvements, 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 DublirvToll Brothers, IncJAlameda Development Agreement - Toll Brothers Project Page 14 of 18 April 6, 1999 . . . . /5 i 51 any such insurance. 21.3 Evidence of Insurance. Prior to commencement of construction of any improvements which will become public improvements, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the eIn' at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall o..'tend to the CITY, its elective an~ appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER acknuwledges that it must obtain v..ater and sewer permits from the Dublin San Ramon Services District ("DSRSD") ",,"hich is another public agency not within the control of CITY. 23. Notices. }Jl notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as folIuws: City Manager City of Dublin , P.O. Box 2340 Dublin, CA 94568 Notices required to be given to COUNTI shall be addressed as follows: Patrick Cashman Project Director Surplus Property Authority of Alameda County 225 Vv. Winton Avenue, Room 151 Ha)~Yard, CA 94544 and Adolph Maninelli Director of Planning CoUnty of Alameda 399 Elmhurst Street DublinIToll Brothers, IncJj>Jameda Development Agreement" Toll Brothers Project Page 15 of 18 April 6, 1999 /6 ~ ,C/' U 3( . Hayward, CA 94544 Notice required to be given to DEVELOPER shall be addressed as follows: . Toll Brothers, Inc. 1501 Bollinger Canyon Road, Suite B San Ramon, Ci\ 94583 A party may change address by giving notice in 'writing to the other pany 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 e.\:piration of 48 hours after being deposited in the United States ]v1:ail. Notices may also be given by overnight courier which shall be deemed given the fol1oviing day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Recitals. The foregoing Recitals are true and correct and are made a part hereof. ?- _:J. A~eement is Entire Understanding. . This Agreement constitutes the entire understanding and agreement of the parries. 26. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set fonh in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions 27. Counterparts. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. DublinIToll Brothers, lnc./Alameda Development Agreement ~ Toll Brothers Project Page 16 of 18 April 6. 1999 . /JI( 5(' . 28. Recordation. CITY shall record a copy of this Agreement 'within ten days following execution by all parties. IN '^fITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above 'written. CITY OF DUBLIN: By: Mayor Date: Attest: By: City Clerk . Approved as to Form: Date: City Attorney SURPLUS PROPERTY AUTHORlTY OF .AL\lvfEDA COUNTY: Date: Adolph Martinelli Its Manager . DublinIToll Brothers, IncJAlameda Development Agreement. Toll Brothers Project Page 17 of 18 April 6, 1999 Approved as to Form: Attorney for Surplus Property Authority of the County of Alameda TOLL BROTHERS, INC. By: Its (NOTARlZ:\TION ATTACHED) EHS:rja:gkt J :\vVPD\MNRSVv\114\125\A.GREE\TOll_DA322 DublirvToll Brothers, IncJAlameda Development Agreement . Toll Brothers Project /7 of" 4'1/ i'::' ~'7' ~ . Page 18 of 18 April 6, 1999 . . . . . . Ii 1f 31 EXHIBIT A Leg-al Description Parcel 2 on Parcel Map 7355, recorded in Alameda County Records on at DublinlToll Brothers, InclAlameda Developm:ntAgreement - Toll Brothers Project - Exhibit A Page 1 of 1 April 6, 1999 ~o it' 31 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 ~M :Mitigation Conditions Subsection a. Infrastructure Sequencing Pro~rarn The Infrastructure Sequencing Program for the Project is set fonh belo'w. (i) Roads: The project-specific road,,'ay improvements (and offers of dedication) described below and those identified in Resolution No. 99-04 of the Planning Commission Approving the Vesting Tentative Map and Site Development Review shall be completed by DEVELOPER to the satisfaction of the Public Vvorks Director at the times and in the manner specified in Resolution No. 99-04 unless otherwi~e provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of CITI' 5 Public Vvarks Director. . A. Miscellaneous The obligations of Condition Nos. 37, 38 and 45 of Resolution No. 02-99 of the Community Development Director approving Parcel Map 7355 ("The Deferred Conditions") shall be of no force or effect until DEVELOPER records a final map or building permit (v,rhichever comes first) for the Project. Once effective, such obligations shall survive termination of this Agreement. COUNTY shall provide CITY 'with security for the costs of design and construction of The Deferred Conditions in an amount satisfactory to the Public Vlorks Director. The security shall be as follows: Dublin! Toll Brothers, IncJ.AJameda Development Agreement - Toll Brothers Project - Exhibit B Page 1 of 11 April 6. 1999 . . . . ;1./ ~ 3( . Condition 45 [Widen Dublin Boulevard to 6 lanes, Dougherty Road to SP ROVv] Unless previously provided by COUNTY, a payment to CITY in cash in the amount of the deficiency, if any. between funds available to CITY for CIP Project #9689 [widen Dublin Boulevard to 6 lanes, Dougheny Road to SP ROV/J and the cost of such project, such payment to be made \\rithin 30 days of written notice from the Public Works Director to be given follo'wing bid opening; . Condition 37 [Dougherty RoadJDublin Blvd. Intersection] Unless previously prO\rided by COUNTY, a payment to CITY in cash in the amount of the deficiency, if any, between funds available to CITY for eIP Project #9689 [Dougheny RoadlDublin Blvd. Intersection] and the cost of such project, such payment to be made within 30 days of written notice from the Public Vv orks Director to be given folloviring bid opening; Dublin! Toll Brothers, Inc./l>Jameda Development Agreement -- Toll Brothers Project - Exhibit B Page 2 of 11 April 6, 1999 J). vO" '3 '/ . Condition 38 [EB offramp at TassajaralSanta Rita, Pimlico Drive] . Unless previously provided by COUNTY, a payment to CITY in cash in the amount of the deficiency, if any, benveen funds available to CITY to construct the EB offramp at TassajaralSanta Rita, Pimlico Drive improvements (restripinglJeft turn lane) and the cost of such project, such payment to be made within 30 days of written notice from the Public VVorks Director to be given following bid opening: DEVELOPER and COUNTI shall be responsible for transitioning e..tisting improvements to match improvements required by this Agreement, including dedications, to the satisfaction of the CITY's Public "Vorks Director. (ii) Sewer .All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with the tentative subdivision map and DSRSD requirements. . (iii) Water An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative subdivision map to the satisfaction and requirements of the CITY's fire depanment. All potable water system components to serve the project site (or any recorded phase of the Project) shall be completed in accordance Virith the tentative subdivision map and DSRSD requirements. Recycled water lines shall be installed in accordance Virith the tentative subdhrision map. (iv) Storm Drainage Prior to issuance of the first Certificate of Occupancy for any building which is part of the Project, the storm drainage systems off site, as well as on site Dublin! Toll Brothers, IncJAlameda Development Agreement - Toll Brothers Project. Exhibit B Page 3 of 11 April 6, 1999 . . . . J3 t6 :3t drainage systems to the areas to be occupied, shall be improved to the satisfaction and requirements of the Dublin Public \Vodes Depanment applying CITY's and Zone 7 (Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements and shall be consistent 'with the Drainage Plan. The site shall also be protected from storm flow from off site and shall have erosion control measures in place to protect dovmstream facilities and propenies from erosion and unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan. (v) Other Utilities (e.g. gas. electricity, cable televisions. telephone) Construction of other utilities shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous (i) Completion May be Deferred. Nonvithstanding the foregoing, CITYs Public \Vorks Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assrnes completion, allow DEVELOPER or COUNTY to defer completion of discrete portions of any of the public improvements required for the Project until after issuance of Certificate of Occupancy for the first building for the Project if the Public Vlorks Director detennines that to do so ivould not jeopardize the public health, safety or welfare. (ii) Improvement Agreement Prior to constructing the Improvements described in Subparagraph 5.3.2(a)(i)(A) above, DEVELOPER or COUNTY shall submit plans and specifications to CITY's Public Works Director for review and approval and shall enter into an improvement agreement with CITY for construction and dedication of the public facilities. All such improvements shall be constructed in accordance with City's standards and policies which are in force and effect at the time of issuance of the pennit for the proposed improvements including, but not limited to, "Precise Plans". Dublin! Toll Brothers, IncJ.Alameda Development Agreement -- Toll Brothers Project - Exhibit B Page 4 of 11 April 6. 1999 ;2 tj z5 :s.y (iii) Bonds Prior to execution of the Improvement Agreement, DEVELOPER or . COUNTY (or its assignee) shall provide a cash monument bond, a performance bond and labor and materials bond or other adequate security to insure that the . Improvements described in Subparagraph 5.3.2(a)(i)(A) (The Deferred Conditions) will be constructed prior to the times specified above. The performance bond or other security shall be in an amount equal to 100% of the engineer's estimate of the cost to construct the improvements (induding design, engineering, administration, and inspection) and the labor and materials bond shall be in an amount equal to 50% of the engineer's estimate. The bonds shall be 'written by a surety licensed to conduct business in the State of California and approved by CIITs City Manager. (iv) Right to Construct Additional Road Improvements 'Vith the prior written consent of CITY's Public 'Vorks Director, DEVELOPER or COUNTI may construct roadway improvements which are not described in this Exhibit B if such improvements are described in the resolution establishing the Eastern Dublin Traffic Impact Fee and if such improvements are constructed in their ultimate location. DEVELOPER or COUNTY shall be required to enter into an . Improvement Agreement and provide bonds for such improvements, as provided in Subsection (b )(ii) and (iii) above, prior to construction. CITY shall provide a credit to DEVELOPER or COUNTY for the cost of such improvements in the manner and subject to the conditions provided in Subparagraph 5.3.6, Subsections (a), (b) and (c). Subparagraph 5.3.3 -- Phasing. Timing With the exception of the road improvements described in Subparagraph 5.3.2(a)(i), this Agreement contains no requirements that DEVELOPER must initiate or complete development of the Project within any period of time set by CITY. It is the intention of this provision that DEVELOPER be able to develop the Property in accordance with its O\vn time schedules and the Project Approvals. Subparagraph 5.3.4 -- Financine Plan DEVELOPER .will install all street improvements necessary for the Project Dublin! Toll Broth~rs, IncJl>Jameda D~velopm~ntAgre~ment - Toll Brothers Project - Exhibit B Page 5 of 11 April 6, 1999 . . . ;J.. 5 "6 j I at its own cost (subject to credits for certain improvements as provided in Subparagraph 5.3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project 'will be made available by the Dublin San R2.mon Services District. COUNTY has entered into an "Area \Vide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of eA'tending such services to the Project. Such services shall b~ provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Subpara~raph 5.3.5 -- Fees. Dedications Subsection a. Traffic Impact Fees. DEVELOPER shall pay all traffic impact fees applicable to the Project which are in effect at the time of issuance of any building permit for the Project. Such fees include the Traffic Impact Fee for Eastern Dublin established by Resolution No. 41~96, including any future amendments to such fee. DEVELOPER, COUNTY and CITY acknowledge that COUNIT is entiued to certain credits ("1991 Credits") against payment of the Traffic Impact Fee for Eastern Dublin by separate agreements previously entered into between COUNTY and CIIT in 1991. COUNTY is also entitled to certain other credits ("Prior .. Agreement Credits") against payment of the Traffic tmpact Fee for Eastern Dublin by other development agreements entered into between COUNTY and CITY. COUNTY agrees that, notwithstanding its entitlement to such 1991 Credits, its 1991 Credits cannot be applied against payment of the "Section 2" portion of the Traffic Impact Fee for Eastern Dublin for the Project.- DEVELOPER Virill, rather, pay the "Section 2" portion of the fee in cash. COUNTY further agrees that it (and its assignee) Virill use the 1991 CreditS and/or Prior Agreement Credits against at least one-half (V2) of the "Section I" portion of the Traffic Impact Fee for Eastern Dublin for the Project provided that it has sufficient such credits. CITY shall determine which of the 1991 Credits and/or Prior Agreement Credits shall be used pursuant to this paragraph. Notwithstanding anything herein to the contrary, DEVELOPER further agrees that it (and its assignee) will pay at least seven percent (7%) of the "Section 1" . portion of the Traffic Impact Fee for Eastern Dublin in cash. Dublin! Toll Brothers, IncJi\lameda DevelopmentAgreement -- Toll Brothers Project - Exhibit B Page 6 of 11 April 6. 1999 :<6 of 3( Subsection h. Traffic Impact Fee to Reimburse Pleasanton for FTeewa,~ . Interchanges. DEVELOPER shall pay the Eastern Dublin 1.580 Interchange Fee established by City of Dublin Resolution No. 11.96 as amended by Re.5olution No. 155-98 and by any subsequent resolution which revises such Fee. ~ubsection c. Public Facilities Fe~. DEVELOPER shall pay a .Public Facilities Fee in the amounts and at the times set forth in City of Dublin Resolution No. 32-96, adopted by the City Council on March 26, 1996, or in the amounts and at the times set forth in any resolution revising the amount of the Public Facilities Fee. Notwithstanding the preceding sentence, the amount of the Public Facilities Fee shall be reduced by the "CommurUty Parks, Land" and "Neighborhood Parks, Land" component of the Public Facilities Fee. The amOunt of the "Commtmity Parks, Land" and "Neighborhood Parks, Land" dedication for the Project is 2.95 acres. DEVELOPER shall satisfy such obligation in two ways. First, by using COUN1Ys remaining credit of 1.89 acres to which . DEVELOPER is entitled under the "Development Agreement' Between the City of Dublin a.nd the Swplus Property Authority of the County of Alameda for the Jefferson at Dublin Project" (recorded July 17, 1998). . Second, COUNTY shall convey to CITY in fee simple 1.06 acres of land for the City Park located east of Tassajara Creek (Emerald Glen Park). The exact location of the land to be conveyed shall be detennined by CITY. The land to be conveyed and underlying groundwater ~hall be free of hazardous substances. The use of the existing credit of 1.89 acres and the conveyance of 1.06 acres shall satisfy DEVELOPER's obligation under Dublin Munidpal Code Chapter 9.28 (CITY's Quimby Act ordinance) for community park land and neighborhood park land and shall be a credit against the portion of the Public Facilities Fees for "Community Parks, Land" and "Neighborhood Parks, Land" for the Project. Subsection d. Additional Park Land Conv~ancc In addition to the conveyance described in Subsect.ion (c) above, COUNTY agrees to dedicate to CITY in fee simple 4.607 a.cres to be used by CITY for the City Dublin! Toll Brothers, Ine/Alameda Development Agreement - Toll Brothers Project. Exhibit B Page 7 of 11 April 13. 1999 . I . '4 ?,J rf 5Y . Park (Emerald Glen Park). The exact location of the land t.o be conveyed shall be determined by CITY. The land to be conveyed and underlying groundwater shall be free of hazardous substances. The conveyance of such 4.607 acres by COUNTY may be used by COUNTY as a credit against its obligation Wlder Dublin Municipal Code Chapter 9.28 for community p~rk land and neighborhood park land and the portion of the Public Facili~es Fee for "Conununity Parks, Land" and "Neighborhood Parks, Land" for any of COUNTY's future projects (residential or non-residential) on its remaining Santa Rita property and on any other prop~ within the Eastern Dublin Specific Plan or General Plan Amendment Areas. Use of such credit shall be governed by guidelines to be adopted by CITY for credits and reimbursement for the Public Facilities Fee. Subsection e. Noise Mitigation Fee. DEVELOPER shall pay .a Noise Mitigation Fee in the amounts a.nd at the times set forth in City of Dublin Resolution No. 33-96, adopted by the City Council on March 26, 1996, and any amendments thereto. . Subsection f. School Impact Fees. School impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080 and the ~..o.sting agreement between COUNTY and the Dublin Unified School District. Subsection g. Fire Impact Fees. DEVELOPER shall pay a fire facilities fee in the amounts and at the times s.et forth in City of Dublin Res-olution No. 37-97 or any subsequent resolution which revises such fee. Subsection h~ Tn-Valley Transportation Development Fee. DEVELOPER shall pay the Tn-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89~98 or any subsequent resolution which revises such fee. COUNTY agrees that its 1991 CreditS and Prior Agreement Credits cannot be applied against payment of this fee. . DubJin! Toll Brothers, IncJAlameda Development Agreement - Toll Bn.>thers Project ~ Exhibit B Page 8 of 11 April 13. 1999 (7 J :3( ;<~ 'J Subsection a. Traffic Impact Fee Improvements Credit CITY shall provide a credit to COUNTY for the those improvements . described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such improvements are constructed by the DEVELOPER in their ultimate location pursuant this Agreement. .All aspects of credits shall be governed by CITY s Administrative Guidelines regarding cred~ts (Resolution No. 23-99). Subsection b. Traffic Impact Fee Right-of-'rVay Dedications Credit CITY shall provide a credit to COUNTY for any TIF area right-of-'way dedicated by COUNTY to CITY which is required for roadv\ray improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. .All aspects of credits shall be governed by CITY~s Administrati~e Guidelines regarding credits (Resolution No. 23p99). Subsection c. Credits for Pa~rrnents for ern'" Projects COUNIT will be entitled to a credit in the amount of any payments made by COUNTY to CITY for projects, as provided in Subparagraph 5.3.2(a)(i)(B)(2) above, provided such Projects are TIF projects. The credit "will be in the amount of the payment and may be used by COUNTY in accordance with CITY's Administrative Guidelines for Credits and Reimbursements (Resolution No. 23-99). . Subsection d. Use of Excess Credits In the event that credits referred to in Subsections (a) to (c) of this Subparagraph 5.3.6 are in excess of the amount of credits which can be applied against the traffic impact fee payable pursuant to Su.bsection (a) of Subparagraph 5.3.5 (i.e., one-half of the "Section I" portion of the Traffic Impact Fee for Eastern Dublin, less 7% of the "Section 1" portion), COUNTY shall be entitled to "bank" such credits (referred to as "Excess Credits") and may use them as provided in CI1Ys Administrative Guidelines for Credits and Reimbursements (Resolution No. 23-99). Dublin! Toll Brothers, IncJi\lameda Development Agreement - Toll Brothers Project p Exhibit B Page 9 of 11 April 6, 1999 . :?-9 c-t '37 . Subparagraph 5.3.7 -- Miscellaneous . . Subsection a. Landscaping TVfaintenance Along Streets and Creek CITY has formed a landscape maintenance district knO'wn as the "Landscape I\1aintenance .Assessment District No. 97-1 (Santa Rita Ju-ea) " pursuant to a petition from COUNTY, and imposed an assessment against the ~ropeny to pay for street and creek landscape maintenan.ce. In addition, on September 24, 1996, COUNTI recorded a Declaration of Covenants, Conditions and Restrictions 'which covers the Property, whereby COUNTY, on behalf of itself and its successors (including DEVELOPER), has covenanted to pay a "Deed Assessment" to Cln: for maintenance of street and creek landscaping. Subsection b. One-time Increase in Credits and TIF Fees It is contemplated that CITY will amend the TIF to increase the amount of the TIF fee due to increases in construction costs and land values. In the event that CITY so amends the TIF in 1999, and notwithstanding CIIT's Administrative Guidelines, CITY ,vill make a one-time adjustment to the amount of any credit which COUNTY has previously been given pursuant to this agreement so that the amount of the credit shall be based on the construction costs used by CIIT in its updated TIF if the credit is for constructing improvements and/or on the land values used by CITY in its updated TIF if the credit is for dedicating land. The revised credit shall not be increased for inflation nor shall interest accrue on it. If DEVELOPER has paid any TIF fees prior to the date the credit is increased, DEVELOPER will pay to CITY the difference between the TIF fees previously paid and the amount that DEVELOPER would have paid if the revised TIF fees had been in effect at the time of payment. DEVELOPER may use TIF credits purchased from COUNTY for such payments. The following example illustrates the provisions of the preceding paragraphs. i\ssume that COUNTY dedicated land for Dublin Boulevard (a Section I improvement) on May I, 1999 and that the amount of credit COUNTY received was $2,000,000, which amount was based on the land value included in the TIF as of :May 1, 1999. i\ssume further than on May 15, 1999, the City Council amends the TIF, to be effective on July IS, 1999, to increase land values. .Assume funher that the land value for the dedicated land in the revised TIF is $3,000,000. On July 15, 1999, CITY will increase the amount of credits for COUNTY from $2,000,000 to Dublin! Toll Brothe:rs, IncJluarneda Development Agreement -- Toll Brothers Project - Exhibit B Page 10 of 11 April 6, 1999 30 15 :5;/ $3,000,000. In this example, DEVELOPER pulled 100 building permits on May 5, . 1999 and had paid Section 1 TIF fees in the total amount of $300,000 ($3000 per unit). If the Section 1 TIF fee is increased to $4000 per unit effective July 15, 1999, DEVELOPER will owe CITY an additional $100,000 on July 15. Subsection c.' Notice of Private Roads and Facilities The Project indudes private ro~ds and other private facilities (induding a pocket park). DEVELOPER v\riIl provide notice, in a form approved by CI1Y's Community Development Director, to prospective purchasers that the private roads and private facilities are not owned by CITY and will not be maintained by CI1Y. Subsection d. Building Code The Project shall be constructed in accordance with the Uniform Building Code in effect in the City of Dublin at the time of issuance of the first building pem1it for the Project. . EHS:rja. J:\WPD\M.~R5\N\114\12sv..GREE\TOll_EXB.326 . Dublin! Toll Brothers. Inc./Alameda Development Agreement - Toll Brothers Project p Exhibit B Page 11 of 11 April 6. 1999 ;"."" ... -..-.. ~ 3/0-6 -?;Y . State of California ) ) ss. County of Alameda ) On before me, a Notary Public, personally appeared personally knovm to me (or proved to me on the basis of satisfactory evidence) to be the person(s) 'whose name(s) is/are subscribed to the within instrument and acknovdedged to me that he/shelthey executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of,\,,'hich the person(s) acted, executed . the instrument. WITNESS my hand and official seal. NOTARY PUBLIC . ORDINANCE NO. 3d-. ~ st. AN ORDINANCE OF THE CITY OF DUBLIN APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN, TOLL BROTHERS, INC., (p A 98-063) and ALAMEDA COUNTY SURPLUS PROPERTY AUTHORITY FOR THE EMERALD GLEN #4 RESIDENTIAL DEVELOPMENT . THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. REcrT ALS A. The proposed Toll Brothers, Inc., Project (P A 98-063) is located within the boundaries of the Eastern Dublin Specific Plan ("Specific Plan") in an area which is designated on the General Plan Land Use Element Map and Eastern Dublin Specific Plan Land Use Map as Medium Density Residential (M) uses. B. This project is 'within the scope of the Eastern Dublin Specific Plan and General Plan Amendment, for which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration (SCH 86082092) has been approved for the Santa Rita Specific Plan Amendment of which this project is a part. That Mitigated Negative Declaration together with the Program EIR adequately describes the total project for the purposes of CEQA. The analysis indicated that no new effects could occur and no new mitigation measures would be required for the Toll Brothers, Inc., Project that were not addressed in the . FEIR or Mitigated Negative Declaration. Further, that analysis found that the project is in conformity with the Eastern Dublin Specific Plan. C. Implementing actions of the Specific Plan, including Chapter 11 thereof, require that all projects within the Specific Plan area enter into development agreements with the City. D. Toll Brothers, Inc., has filed an application requesting approval of a development agreement for the Emerald Glen #4 Residential Project. E. A Development Agreement between the City of Dublin, Toll Brothers, Inc., and Alameda County Surplus Property Authority has been presented to the City Council, a copy of which is attached to the Staff Report as Attachment 1. F. A public hearing on the proposed Development Agreement was held before the Planning Commission on April 13, 1999, for which public notice was given as provided by law. G. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreement. H. A public hearing on the proposed Development Agreement was held before the City Council on April 20, 1999, for which public notice was given as provided by law. . ATTACHMENT 2 :35 15 31 1. The City Council has considered the recommendation of the Planning Commission at the April 20, 1999 meeting, including the Planning Commission's reasons for its recommendation, the . Agenda Statement, all comments received in writing and all testimony received at the public hearing. Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin's General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the Specific Plan, (e) the EIR, (f) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City's General Plan, as amended by the Eastern Dublin General Plan Amendment, and in the Specific Plan in that (a) the General Plan and Specific Plan land use designation for the site is Medium Density Residential (M) uses and the proposed project is a residential development consisting of three (3) separate unit types consistent with that land use, (b) the project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to provision of infrastructure and public services, and (c) the Development Agreement includes provisions relating to financing, construction and maintenance of public facilities, and similar provisions set forth in the Specific Plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located in that the project approvals . include a Planned Development Rezoning, Parcel Map and Site Design Review adopted specifically for the Emerald Glen #4 Project. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies in that the Emereld Glen #4 Project will implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for office uses at this location. 4. The Development Agreement will not be detrimental to the health, safety and general welfare in that the project will proceed in accordance with all the programs and policies of the Eastern Dublin Specific Plan. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan and with the Specific Plan. Section 3. APPROVAL The City Council hereby approves the Development Agreement (Attachment 1 to the Staff Report) and authorizes the Mayor to sign it. 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. // ~ (/. .3~?f I Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. . PASSED AND ADOPTED BY the City Council of the City of Dublin, on this _ day of May 1999, by the following votes: A YES: NOES: ABSENT: ABSTAIN: MAYOR ATTEST: CITY CLERK . A:tassameaddaord .