HomeMy WebLinkAboutItem 6.4 Dev Agmt Greenbriar CITY CLERK
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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: April 20, 2004
SUBJECT: PUBLIC HEARING - PA 02-048 Tassajara Creek Phase III
(Greenbriar Homes Communities Residential Development)
Development Agreement 2nd Reading
(Report Prepared by: Deborah Ungo-McCormick, Contract Planner
ATTACHMENTS: 1. 'Ordinance approving a Development Agreement between the City of
Dublin and GHC Roxbury, LLC for Greenbriar Homes Communities,
Inc. (with Development Agreement attached as Exhibit A)
RECOMMENDATION: 1. Open public hearing
2. Receive Staff presentation
/~~~ 3. Take public testimony.
4. Question Staff, applicant, and the public.
5. Close public hearing and deliberate.
6. Waive the reading and adopt Ordinance (Attachment 1) approving a
Development Agreement for the Tassajara Creek Phase III (Greenbriar
Homes Communities Residential Development and authorize the Mayor
to execute the Development Agreement..
FINANCIAL STATEMENT: None
PROJECT DESCRIPTION:
Thc proposed Tassajara Creek Phase III project is part of a larger 5-phase project for the Tassajara Creek-
Greenbriar project (PA98-048) that has been approved in phases since March 2000 by the City of Dublin.
In March 2000, the City Council approved a General Plan/Specific Plan Amendment to remove a
Public/Semi-Pul~lic designation from the site and approved a Planned Development Rezoning and Stage 1
Development Plan for the entire site. The Stage 1 Development Plan provided for construction of 445
dwelling units in five phases at a Medium Residential Density of 6.9 units per acre.
The City Council approved a Stage 1 and Stage 2 Development Plan and Vesting Tentative Map for Phase
I that consisted of 126 single-family residential lots on 18.85 acres and 4.63 acres of creek corridor. On
March 13, 2001 the City Council approved a Stage 2 Development Plan for Phase II that consisted of 46
single-family units on 5.66 acres and included 2.3 acres of creek open space corridor. Construction of
Phases I and II of the Greenbriar development is nearly complete, with all improvements installed and
housing construction nearly finished.
The action for thc city Council is approval of a Development Agreement for Phase III of the Tassajara Creek
COPIES TO: Applicant
In House Distribution
Project between the City of Dublin and GHC R°xbury, LLC for Greenbriar Homes Communities, Inc. This
Phase of the project consists of an approximate 20.3-acre site divided into 100 single-family detached and 8
attached residential lots on 20.3 acres with eight open space parcels that total approximately 11.5 acres.
The Development Agreement 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; improvement, maintenance and dedication of roads, trails and open
space parcels, and payment of in-lieu fees and modification of inclusionary units as required to conform
to the Inclusionary Zoning Ordinance.
ANALYSIS:
One of the implementing actions of the Eastem 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 is attached as 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. 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 City Attomey drafted the proposed Development Agreement with input from City Staff, the project
developer, and their respective 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,
maintenance of trail and landscaping, reimbursement for public service costs as a result of the Lin Family
and City of Dublin Annexation Agreement, and the payment of various required, impact fees.
Additionally, during the public hearing on the Stage 1 and Stage 2 Development Plan, the City Council
required that the inclusionary units be redesigned to include a ½ bathroom in the lower level of the units
and directed Staff to include this in the Development Agreement.
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 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 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.
City Council Action:
On April 6, 2004, the City Council heard the Ordinance approving a Development Agreement for the
Tassajara Creek III project (Greenbriar Homes Communities Residential Development).
As required by the City of Dublin Municipal Code, a second reading of the proposed Ordinance is
necessary prior to final adoption of the Development Agreement.
Environmental Review:
Pursuant to the California Environmental Quality Act (CEQA) the City Council adopted Resolution No.
225-03 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, the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR"), the
Mitigated Negative Declaration for PA 98-062 Greenbriar Land Company Tassajara Creek Residential
Project (SCH 99102104) and Addendum dated October 22, 2003, and adopted a Statement of Overriding
Considerations for the Project.
Conclusion:
Approval of this Development Agreement will implement provisions of the Eastern Dublin Specific Plan
and the Vesting Tentative Map and Site Development Permit for the project. The proposal is consistent
with both the General Plan and the Specific Plan.
RECOMMENDATION:
Staff recommends that the City Council: hear Staff Presentation, open Public Heating; question Staff,
Applicant and the Public; close Public Hearing; deliberate; and waive the reading and adopt an Ordinance
(Attachment 1) approving a Development Agreement for the Tassaj ara Creek Phase III (Greenbriar
Homes Communities Residential Development) and authorize the mayor to execute the development
agreement.
ORDINANCE NO. xx - 04
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE DEVELOPMENT AGREEMENT FOR
PA 02-048 TASSAJARA CREEK PHASE III
GREENBRIAR HOMES COMMUNITIES RESIDENTIAL DEVELOPMENT
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The proposed Tassajara Creek Phase III Greenbriar Homes Communities Residential
Development 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 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, the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR") (SCH
91103064), and the Mitigated Negative Declaration for development of the Greenbriar Land Company
Tassajara Creek Residential Project (SCH 99102104) consisting of five phases (PA98-062). Additionally,
an Addendum was prepared for Phase III and V of the project and the City Council adopted on December
2, 2003 stating that the project will not have environmental effects, which were not examined in the
Program EIR and the Mitigated Negative Declaration. The City Council adopted a Statement of
Overriding Considerations for the Project consistent with the Program EIR.
C. A Development Agreement between the City of Dublin and GHC Roxbury, LLC for
Greenbriar Homes Communities, Inc. has been presented to the City Council, Exhibit A, attached hereto.
D. A public hearing on the proposed Development Agreement was held before the Planning
Commission on March 23, 2004, for which public notice was given as provided by law.
E. The Planning Commission has made its recommendation to the City Council for approval
of the Development Agreement.
F. A public hearing on the proposed Development Agreement was held before the City
Council on April 6, 2004 and April 20, 2004, 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 23, 2004 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
ATTACHMENT 1
EIR, (f) the individual Mitigated Negative Declarations (g) the Addendums and (h) 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 Land Uses and the proposed project is a project
consistent with that land use, (b) the project is consistent with the fiscal policies of the General Plan and
Specific Plan with respect to provision of infrastructure and public services, and (c) the 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
Stage 1 Development Plan Amendment, Stage 2 Development Plan, Site Development Permit and Vesting
Tentative Map.
3. The Development Agreement is in conformity with public convenience, general welfare
and good land use policies in that Tassajara Creek Phase III Greenbriar Homes Communities Residential
Development will implement land use guidelines set forth in the Specific Plan and the General Plan which
have planned for medium density residential and open space 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) and authorizes the
Mayor to sign.
Section 4. RECORDATION
Within ten (10) days after the Development Agreement is fully executed by all parties, the City
Clerk shall submit the Agreement to the County Recorder for recordation.
Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of its
passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3)
public places in the City of Dublin in accordance with Section 36933 of the Government Code of the
State of California.
PASSED AND ADOPTED BY the City Council of the City o£Dublin, on this 20th day of April
2004, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
g:\pa#X2002\02-048 tassajara creek (greenbriar)\da\ordinance.doc
3
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
GHC ROXBURY, LLC.
FOR TRACT 7414
TASSAJARA CREEK PROJECT PHASE III
EXHIBIT
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this day of ,2004, by and between the CITY OF DUBLIN, a
Municipal Corporation (hereafter "CITY") and GHC Roxbury LLC. a Delaware
Limited Liability Company ("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. GHC Investments, LLC and CITY are parties to a development
agreement for Phase I of the TasSajara Creek Project which consists of Lots 1 to
126, which development agreement is dated November 2, 2000 and was
recorded on April 9, 2001 at 2001118832. GHC Investments, LLC and CITY are
also parties to a development agreement for Phase II of the Tassajara Creek
Project which consists of Lots 127, 128, Parcels B, D and E, as shown on the
Map of Tract 7075, recorded on April 18, 2001, in Map Book 257, Pages 47
through 61, which development agreement is dated September 4, 2001 and was
recorded on November 9, 2001 at 2001440501.
D. The Eastern Dublin Specific Plan requires a development
agreement for all phases of the Tassajara Creek Project; and
E. DEVELOPER desires to develop and holds legal interest in
approximately 20.3 acres of certain real property consisting of approximately
64.39 acres of land, located in the City of Dublin, County of Alameda, State of
California. The following land use have been approved applicable to all or
portions of the 64.39 acres: General Plan and Eastern Dublin Specific Plan
amendment (Council Resolution No. 32-00) (applicable to all 64.39 acres); PD
District Rezone and Stage 1 Development Plan (Council Ordinance No. 7-00)
(applicable to all 64.39 acres); PD District Rezone and Stage 2 Development
Plan for Phase I (Council Ordinance No. 7-00) (applicable to 52.95 acres of the
64.39 acres); Vesting Tentative Map for Tract 7075 (Planning Commission
Resolution No. 00-10) (applicable to 64.39 acres, creating 131 lots and Parcels A
through J); final map for Tract 7075; PD District Rezone and Stage 2
Development Plan for Phase II (Council Ordinance No. 4-01) (applicable to 8.31
acres of the 64.39 acres); Vesting Tentative Map for Tract 7279 (Planning
Commission Resolution No. 01-04) which further subdivided Lots 127 and 128
Dublin/GHC Roxbury Page I of 24
Development Agreement for April 6, 2004
Tassajara Creek Project Phases III 681346v5/114-220
into 46 lots, and site development review for Phase II (Planning Commission
Resolution No. 01-04) and
F. DEVELOPER has received more specific approvals for 20.3 acres
of the total 64.39 acres (which 20.3 acres consist of Lots 130 and Parcels A, F,
and J, as shown on the Map of Tract 7075, recorded on the 18th day of April,
2001, in Map Book 257, Pages 47 through 61 inclusive, Series No. 2001129065,
Alameda County Records, which are more particularly described in Exhibit A
attached hereto and incorporated herein by this reference, and which real
property is hereafter called the "Property"; and
G. DEVELOPER proposes the development of the Property with 108
single family homes on Lot 130 (the "Project" or "Phase III 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 PD District rezoning and Stage 2 Development Plan (City
Council Ordinance No. 18-03), Vesting Tentative Map for Tract 7414 (Planning
Commission Resolution No. 03-51) for Phase III which further subdivided Lot 130
into 108 lots, and site development review for Phase III (Planning Commission
Resolution No. 03-51) (collectively, together 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 Phase III 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
City Council adopted Resolution No. 225-03 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, the Addenda dated May 4, 1993 and August
22, 1994 (the "EIR"), the Mitigated Negative Declaration for PA 98-062
Dublin/GHC Roxbury Page 2 of 24
Development Agreement for April 6, 2004
Tassajara Creek Project Phases III 681346v5/114-220
Greenbriar Land Company Tassajara Creek Residential Project (SCH
99102104), adopted an Addendum dated October 22, 2003 and adopted a
Statement of Overriding Considerations for the Project; and
N. On ,2004, the City Council of the City of Dublin adopted
Ordinance No. -04 approving this Development Agreement. The ordinance
took effect on i, 2004.
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein
contained, CITY and DEVELOPER agree as follows:
AGREEMENT
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
2. Interest of Developer.
DEVELOPER has a legal or equitable interest in the Property in that it is
the fee simple owner of the Property.
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 CITY. The CITY and DEVELOPER hereby
renounce the existence of any form of joint venture or partnership between them,
and agree that nothing contained herein or in any document executed in
connection herewith shall be construed as making the CITY and DEVELOPER
joint venturers or partners.
4. Effective Date and Term.
4.1 Effective Date. The effective date of this Agreement shall be the
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.
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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.
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 Phasinq, 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 t° payment of fees or
dedication of property.
See Exhibit B
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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
6. Applicable Rules, Regulations 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 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 Regulations.
7.1 New Rules and Regulations. During the term of this Agreement,
the CITY may apply new or modified ordinances, resolutions, rules, regulations
and official policies of the CITY to the Property which were not in force and effect
on the effective date of this Agreement and 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.
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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.
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 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 facilitiesi
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).
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.
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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
XlIID of the Constitution and DEVELOPER does not return its ballot,
DEVELOPER agrees, on behalf of itself and its successors, that CITY may count
DEVELOPER's ballot as affirmatively voting in favor of such assessment, fee or
charge.
9. Amendment or Cancellation.
9.1 Modification Because of Conflict with State or Federal Laws. In the
event that state or federal laws or regulations enacted after the effective date of
this Agreement prevent or preclude compliance with one or more provisions of
this Agreement or require changes in plans, maps or permits approved by the
City, the parties shall meet and confer in good faith in a reasonable attempt to
modify this Agreement to comply with such federal or 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; (¢) 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
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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
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 CodeSection 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
August 15, 2005 and each 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.
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12.2 Notice and Cure. Upon the occurrence of an event of default by
either party, the nondefaulting party shall serve written notice of such default
upon the defaulting party. If the default is not cured by the defaulting party within
thirty (30) days after service of such notice of default, the nondefaulting party
may then commence any legal or equitable action to enforce its rights under this
Agreement; provided, however, that if the default cannot be cured within such
thirty (30) day period, the nondefaulting party shall refrain from any such legal or
equitable action so long as the defaulting party begins to cure such default within
such thirty (30) day period and diligently pursues such cure to completion.
Failure to give notice shall not constitute a waiver of any default.
12.3 No Damages Against CITY. 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 Riqhts of Cure.
14.1 Mortgagee Protection. This Agreement shall be superior and
senior to any lien placed upon the Property, or any portion thereof after the date
of recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat,
render invalid, diminish or impair the lien of any Mortgage made in good faith and
for value, but all the terms and conditions contained in this Agreement shall be
binding upon and effective against any person or entity, including any deed of
trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property,
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or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure,
or otherwise.
14.2 Mortgagee Not Obliqated. Notwithstanding the provisions of
Section 14.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to
construct or complete the construction of improvements, or to guarantee such
construction of improvements, or to guarantee such construction or completion,
or to pay, perform or provide any fee, dedication, improvements or other exaction
or imposition; provided, however, that a Mortgagee shall not be entitled to devote
the Property to any uses or to construct any improvements thereon other than
those uses or improvements provided for or authorized by the Project Approvals
or by this Agreement.
14.3 Notice of Default to Mortqa,qee 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.
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17. Transfers and Assiqnments.
17.1 Right to Assiqn. It is anticipated that DEVELOPER may sell,
transfer or assign portions of its Property to other developers (each such other
developer is referred to as a "Transferee"). In connection with any such sale,
transfer or assignment to a Transferee, DEVELOPER may sell, transfer or assign
to such Transferee any or all rights, interests and obligations of DEVELOPER
arising hereunder and that pertain to the portion of the Property being sold or
transferred, to such Transferee, provided, however, that: no such transfer, sale or
assignment of DEVELOPER's rights, interests and obligations hereunder shall
occur 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 tothe 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.
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17.5 Termination of A,qreement Upon Sale of Individual Lots to Public.
Notwithstanding any provisions of this Agreement to the contrary, the
burdens of this Agreement shall terminate as to any lot which has been finally
subdivided and individually (and not in "bulk") leased (for a period of longer than
one year) or sold to the purchaser or user thereof and thereupon and without the
execution or recordation of any further document or instrument such lot shall be
released from and no longer be subject to or burdened by the provisions of this
Agreement; provided, however, that the benefits of this Agreement shall continue
to run as to any such lot until a building is constructed on such lot, or until the
termination of this Agreement, if earlier, at which time this Agreement shall
terminate as to such lot.
18. Agreement Runs with the Land.
All of the provisions, rights, terms, covenants, and obligations contained in
this Agreement shall be binding upon the parties and their respective heirs,
successors and assignees, representatives, lessees, and all other persons
acquiring the Property, or any portion thereof, or any interest therein, whether by
operation of law or in any manner whatsoever. All of the provisions of this
Agreement shall be enforceable as equitable 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 arisedirectly 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
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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).
Certain of the project conditions, including but not limited to Condition no.
3 of the Planning Commission Resolution 01-04, require DEVELOPER to obtain
necessary permits from other agencies prior to project activity specified in the
condition. Should DEVELOPER fail to obtain all necessary permits,
DEVELOPER agrees to indemnify CITY, as set forth above, even if CITY issued
permits for the specified project activity.
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 alI
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.
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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
Notices required to be given to DEVELOPER shall be addressed as follows:
Patrick Costanzo, Jr.
GHC Roxbury, LLC
43160 Osgood Road
Fremont, CA 94539
Fax: (510) 497-8259
A party may change address by giving notice in writing to the other party and
thereafter all notices shall be addressed and transmitted to the new address.
Notices shall be deemed given and received upon personal delivery, or if mailed,
upon the expiration of 48 hours after being deposited in the United States Mail.
Notices may also be given by overnight courier which shall be deemed given the
following day or by facsimile tranSmission which shall be deemed given upon
verification 'of reCeipt,
24. Agreement is Entire Understanding.
This Agreement constitutes the entire understanding and agreement of the
parties.
25. Exhibits.
The following documents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
Exhibit A Legal Description of Property
Exhibit B Additional Conditions
26. Counterparts.
This Agreement is executed in two (2) duplicate originals, each of which is
deemed to be an original.
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27. Recordation.
CITY shall record a copy of this Agreement within ten days following
execution by all parties.
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
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APPROVED AS TO FORM:
City Attorney
GHC ROXBURY, LLC
a Delaware Limited Liability Company
By: Greenbriar Homes Communities, Inc.
A California Corporation, Its Manager
By: Date:
Its:
(NOTARIZATION ATTACHED)
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EXHIBIT A
Property Description
All that certain real property situate in the City of Dublin, County of Alameda,
State of California, more particularly described as follows:
All of Lot 130 and Parcels A, F, and J, as shown on the Map of Tract 7075,
recorded on the 18th day of April, 2001, in Map Book 257, Pages 47 through 61
inclusive, Series No. 2001129065, Alameda County Records.
Containing 20.3 Acres, more or less.
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EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subpara.qraph 5.3.1 -- Subsequent Discretionary Approvals
None.
Subpara,qraph 5.3.2 -- Mitiqation Conditions
Subsection a. Infrastructure Sequencin,q Pro,qram
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of dedication) identified in
Resolution No. 03-51 of the City of Dublin Planning Commission approving the
Vesting Tentative Map for Tract 7414) (hereafter "TM Resolution"), shall be
completed by DEVELOPER to the satisfaction of the City Engineer 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 City Engineer.
(ii) Sewer:
All sanitary sewer improvements to serve the project site (or any recorded phase
of the Project) shall be completed in accordance with DSRSD requirements.
(iii) Water:
An all weather roadway and an approved hydrant and water supply system shall
be available and in service at the site in accordance with the tentative map
conditions of approval to the satisfaction and requirements of the CITY's fire
department.
All potable water system components to serve the project site shall be
completed in accordance with the DSRSD requirements.
Recycled water lines shall be installed in accordance with the tentative
map conditions of approval.
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(iv) Storm Drainaqe:
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 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..
(v) Other Utilities (e.g. gas, 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 City Engineer may, in his or her
sole discretion and upon receipt of documentation in a form satisfactory to the
City Engineer that assures completion, allow DEVELOPER to defer completion of
discrete portions of any public improvements for the Project if the City Engineer
determines that to do so would not jeopardize the public health, safety or welfare.
Subparagraph 5.3.3 -- Phasinq, Timing
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 -- Financing 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.
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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 for Phase III. 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 or more than 12.4% of total
Section 2/Category 2 improvements, the Developer shall pay such reduced or
increased percentage of the "Section 2/Category 2" portion of the TIF in cash.
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for
Freeway Interchanges.
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 for Phase III.
. 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.
Subsection c. Public Facilities Fees.
DEVELOPER shall pay a Public Facilities Fee established by City of
Dublin Resolution No. 214-02, including any future amendments to such fee for
Phase III. DEVELOPER will pay such fees no later than the time of issuance of
building permits and in the then-current amount of the fee. Payment of such fee
shall satisfy TM Resolution Conditions Nos. 53 (for tentative map) and 38 (Phase
III) (for SDR).
Subsection d. Noise Mitiqation Fee.
DEVELOPER shall pay a Noise Mitigation Fee established by City of
Dublin Resolution No. 33-96, including any future amendments to such fee for
Phase III. 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.
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Subsection e. School Impact Fees.
School impact fees shall be paid by DEVELOPER in accordance with
Government Code section 53080 for Phase III.
Subsection f. Fire Impact Fees.
DEVELOPER shall pay a fire facilities fee established by City of Dublin
Resolution No. 12-03 including any future amendments to such fee for Phase III.
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 g. 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 for Phase III. 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.
Subsection h. Reimbursement for Annexation Area Public Service
Costs
CITY and the Lin Family are parties to an agreement entitled "Annexation ..
Agreement Between City of Dublin and the Lins" (hereafter "Annexation
.... ~-~ Agreement") dated October 10, 1994 and recorded at #95053080 on March 9,
1995. The Annexation Agreement requires the Lins to pay to the CITY each year
a certain amount for the CITY's costs of providing public services to the area
annexed by CITY in 1995, pursuant to applications filed by the Lins and Clyde
Casterson, owners of affected property. The amount to be paid by the Lins to
CITY is, generally, the difference between the cost of providing public services to
the area annexed and the revenues derived from such area.
The Property was included in the 1995 annexation to the CITY which
included the Lins' property. The Property represents 1.3202% of the property
annexed to the CITY in 1995 (DEVELOPER'S 20.3 acres out of a total of 1,537.6
acres). It is agreed that DEVELOPER has benefited from the annexation 'of the
Property to CITY in 1995.
Accordingly, prior to issuance of the first building permit for the Project,
DEVELOPER agrees to pay to CITY the amount of $4,786.75 which represents
1.3202% of the Annexation Area Public Service Costs paid by the Lins from
Fiscal Year 1995-96 to Fiscal Year 98-99 (the date payments ceased under the
Annexation Agreement) which totaled $362,578.
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All monies received by CITY from DEVELOPER pursuant to this
subsection shall be remitted by CITY to the Lins pursuant to Section I(F) of the
Annexation Agreement.
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 DEVELOPER in their ultimate location.
All aspects of the credit shall be covered by CITY's Administrative Guidelines for
Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 ("TIF Guidelines").
Subsection b. Traffic Impact Fee Riqht-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. Inclusionary Zoning Ordinance
The Project shall be subject to the CITY's Inclusionary Zoning Ordinance (Dublin
Municipal Code Chapter 8.68). DEVELOPER shall comply with the provisions of
Ordinance No. 18-03 by paying fees in lieu of constructing five (5) inclusionary
units. The in lieu fees shall be paid with issuance of the first building permit for
the Project. DEVELOPER shall construct eight (8) affordable units, in
accordance with the Inclusionary Zoning Ordinance and shall enter into an
affordable housing agreement with the CITY, as required by such ordinance.
DEVELOPER will revise the floor plan of the eight affordable units to include a
half-bathroom (a sink and a toilet) on the first floor of each unit, so that each
affordable unit will include four bedrooms and two and one-half bathrooms.
Subparagraph 5.3.7 -- Miscellaneous
Subsection a. Landscaping Maintenance Along Somerset Lane ~
Maymont Lane and Creek Parcels A-G
DEVELOPER will annex Lots 1,108 of Tract 7414 to the Tassajara Creek
Maintenance Association formed as part of Phases I and II no later than issuance
of the first building permit for each phase. The Maintenance Association shall
maintain the landscaping within the public right-of-way along and within
Somerset Lane and Maymont Lane, within Creek Parcels A, B, C, D, E, F, and
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G, and within the portion of Lot 131 located within the existing open space
easement. The Homeowner's Association to be created by Condition 129 of
Planning Commission Resolution 03-51 will own Creek Parcels E, F, and G and
Open Space Parcel H, and will maintain all landscaping within Parcel H.
Subsection b. Landscaping Maintenance Along Streets
The Homeowners Association to be formed by recorded CC&R's on Lots 1-108
of Tract 7414 ("Homeowners Association") will maintain all landscaping along
private streets and within Open Space Parcel H as provided in Condition No. 129
of Resolution No. 03-51, and the Maintenance Association will perform all other
landscape maintenance required by Condition No. 129.
Subsection c. Tassaiara Creek
DEVELOPER shall reserve parcels A, B, C and D as shown on the
Tentative Map for Tract 7414 for Zone 7 of the Alameda County Flood Control
and Water Conservation District in Final Map for Tract 7414. DEVELOPER
anticipates that Zone 7 will accept ownership of Parcels A,B,C, and D after the
required Tassajara Creek improvements and trail improvements are constructed
in each parcel as specified in the conditions of approval for the Tentative Map
7414. The alignment of the trail shall be located reasonably close to the existing
creek and be continuous from the northerly property to the southerly property
line.
Prior to occupancy of the first building in Tract 7414, the DEVELOPER
shall Obtain a letter from Zone 7 stating that Zone 7 intends to accept the ~
dedication of Parcels A, B, C and D upon completion of the required
improvements as conditioned with Tentative Map 7414. All creek and trail
improvements within Parcels A, B, C and D shall be guaranteed prior to CITY
approval of Final Map for Tract 7414 and offered to Zone 7 for acceptance when
the tract improvements (e.g. roads) are offered to CITY. All creek and path
improvements within Parcels A, B, C and D shall be guaranteed prior to CITY
approval of Final Map 7414 and shall be constructed within one year thereafter
along with subdivision improvements.
In the event that Zone 7 does not accept ownership of Parcels A, B, C and
D and the improvements to such parcels when they are offered, the parcels shall
be owned by DEVELOPER or a homeowners association for Lots 1-108 of Tract
7414 ("Association") and maintained by the Association until such time that Zone
7 will accept ownership. During its ownership of the above parcels (A, B, C and D
the Association will be responsible to maintain the creek, regional trail and the
parcels to standards established by the City of Dublin.
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Subsection d. Reqional Trail
The regional trail along Tassajara Creek, which is referred to in Condition
· No. 39 of Resolution No. 03-51 shall be constructed by the DEVELOPER no later
than the time allowed by the Tract Developer Agreement to be executed prior to
approval of Final Map for Tract 7414 but prior to dedication of Parcels A, B, C
and D to Zone 7.
Maintenance of the trail shall be by the East Bay Regional Park District
(EBRPD), pursuant to Condition 43 of Resolution No. 03-51. In the event that the
EBRPD does not accept the regional trail for maintenance, maintenance shall be
by the Maintenance Association. In such event, no later than acceptance of the
tract improvements, DEVELOPER will enter into a sublicense agreement with
CITY, as described in Condition 43, and shall assign such agreement to the
Maintenance Association. The sublicense agreement shall allow the CITY to
maintain the regional trail if the Maintenance Association fails to provide
adequate maintenance, as defined in said sublicense, and the CC&R's to be
recorded pursuant to Conditions 128 and 129 of Resolution 03-51 shall provide
for an annual assessment to reimburse the CITY for such costs.
Subsection e. Local Trail
The local trail along Tassajara Creek, which is referred to in Condition No.
40 of Resolution No. 03-51, shall be constructed by the DEVELOPER no later
than the time allowed by the Tract Developer Agreement to be executed prior to
· ~ · ~ approval of Final Map for Tract 7414, and prior to dedication of parcels A, B, C,'
and D to Zone 7.
Maintenance of the trail shall be by the Maintenance Association, per
Condition 43 of Resolution No. 03-51.
Dublin/GHC Roxbury Page 24 of 24
Development Agreement for April 6, 2004
Tassajara Creek Project Phases III 681346v5/114-220