Loading...
HomeMy WebLinkAboutItem 8.1 - 2440 Lyon AQ General Plan Amendment Study Initia Page 1 of 6 STAFF REPORT CITY COUNCIL DATE: February 19, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Lyon AQ General Plan Amendment Study Initiation Request Prepared by: Mandy Kang, Senior Planner EXECUTIVE SUMMARY: The City Council will consider a request by William Lyon Homes to initiate a General Plan Amendment Study for approximately 22 acres primarily located east of the Terrace Ridge development and west of Fallon Road. The Study would evaluate a proposal to change the existing General Plan land use designation of 22 acres from Rural Residential/Agriculture to 12 acres designated Single-Family Residential and 10 acres designated Open Space in order to accommodate an age restricted commun ity for persons 55 years and older that would consist of 57 single-family homes. STAFF RECOMMENDATION: Adopt the Resolution Approving the Initiation of a General Plan Amendment Study to Evaluate Changing the Land Use Designation of Approximately 22 Acres from Rural Residential/Agriculture to 12 acres Designated Single-Family Residential and 10 Acres Designated Open Space; OR adopt the Resolution Denying the Initiation of a General Plan Amendment Study to Evaluate Changing the Land Use Designation of Approximately 22 Acres from Rural Residential/Agriculture to 12 Acres Designated Single-Family Residential and 10 Acres Designated Open Space. FINANCIAL IMPACT: There will be no financial impact to the City. All costs associated with preparing the General Plan Amendment Study, if authorized by the City Council, would be borne by the Project Proponent. DESCRIPTION: Background The Lyon AQ (“Age Qualified”) project is proposed on an undeveloped site currently owned by the Wildlife Management LLC. The 22 -acre project site is located in the northwest corner of a larger 49.8-acre area located west of Fallon Road and east of Page 2 of 6 Tassajara Road, as shown in Figure 1 below. This 22-acre area has a General Plan Land Use Designation of Rural Residential/Agriculture and is located in the Eastern Dublin Specific Plan (EDSP) area. The site consists of vacant land and is generally sloping in two directions toward a stream at the southern portion of the larger area. The site is vegetated with low lying native and non-native grasses. The northwestern 12 acres of the project site have been previously graded. The site is generally surrounded by residential uses and Open Space as shown in Figure 1 and Table 1 below. Figure 1. Vicinity Map QUARRY LANE SCHOOL TERRACE RIDGE DUBLIN RANCH Fallon Road Tassajara Road SILVERA RANCH Page 3 of 6 Table 1. Adjacent Uses Existing Uses Land Use Designations North Silvera Ranch – detached and attached homes Medium Density & Medium/High Density Residential South Dublin Ranch Golf Course & single-family detached homes Open Space Single-Family Residential East Fallon Road -- West Terrace Ridge – single-family detached homes & Quarry Lane School Single-Family Residential & Medium Density Residential Figure 2. Existing Land Uses It is the City Council’s policy to initiate all General Plan Amendment Studies pri or to accepting an application and beginning work on such a request (Attachment 1). The City received a letter from William Lyon Homes requesting that the City Council consider initiating a General Plan Amendment Study (Attachment 2) to change the Land Use Designation of 22 acres from Rural Residential/Agriculture to 12 acres designated as Single-Family Residential and 10 acres designated as Open Space. This request was originally scheduled for consideration by the City Council on December 5, 2017. Page 4 of 6 However, prior to considering the request, the applicant requested the item to be continued to a future date. The applicant is now ready to proceed and submit ted a new letter request dated December 2018. ANALYSIS: The Applicant proposes to develop an age r estricted community for persons 55 years and older consisting of 57 homes. The existing Rural Residential/Agriculture Land Use Designation allows for 1 unit per 100 gross residential acres which would allow for 1 home on this site. In order to accommodate the proposed project, the applicant has proposed a General Plan Amendment to designate 12 acres of the site to Single-Family Residential and 10 acres to Open Space (please see Figure 3). The balance of the 49.8-acre area will remain designated as Open Spa ce and continue to be held in a permanent conservation easement as mitigation for the Dublin Ranch development. Figure 3. Proposed Land Uses One of the City Council’s policies related to General Plan amendments is to notify the Dublin Unified School District (DUSD) of any approved initiation requests; however, in this case, DUSD already entered into a mitigation agreement with the Applicant on January 8, 2019 (Attachment 3). The Applicant agreed to pay beyond the required Statutory Commercial Fee amount, which is otherwise applicable to “Senior Citizen Housing” developments. Under the agreement, the Applicant will pay Level II impact Single-Family Residential Open Space Page 5 of 6 fees of $11 per square foot (estimated to be approximately $1,400,000) instead of the commercial impact fee of $0.61 per square foot (estimated to be approximately $80,000). At this time, the Applicant is requesting initiation of a General Plan Amendment Study. Development of the site would require additional entitlements including: a) Eastern Dublin Specific Plan Amendment; b) Planned Development Rezone with a Stage 1 and Stage 2 Development Plan, c) Tentative Map, and d) Site Development Review Permit. If the City Council initiates a General Plan Amendment Study, Staff would then: 1. Determine the associated impacts from the land use change; 2. Explore proposed community benefits associated with the project; 3. Complete a fiscal impact analysis of the proposed land use changes; 4. Conduct the appropriate level of environmental review and documentation; 5. Perform any additional studies that may be required; and 6. Prepare an analysis of the project for consideration by the Planning Commission and the City Council. Work on the General Plan Amendment Study would be completed concurrently with processing the other entitlements that are requested by the Applicant. Once the General Plan Amendment Study is complete, Staff would then bring the application to the Planning Commission for their recommendation to the City Council. The project would then move forward to the City Council for their consideration. Staff has prepared draft Resolutions approving and denying the initiation of the proposed General Plan Amendment Study. The draft Resolutions are included in this report as Attachments 4 and 5. NOTICING REQUIREMENTS/PUBLIC OUTREACH: Although a public notice is not required to review a request to initiate a General Plan Amendment Study, the City mailed a notice to surrounding property owners and tenants within 300 feet of the subject project site. Also, as is practice, notices were sent to the list of interested parties. A public notice was published in the East Bay Times and posted in the designated posting places. A copy of this Staff Report was provided to the applicant and was made available on the City’s website. ENVIRONMENTAL REVIEW: Staff recommends that the initiation of the General Plan Amendment be found exempt from the California Environmental Quality Act (CEQA) under Section 15306, Class 6 of the State CEQA Guidelines (Information Collection). ATTACHMENTS: 1. General Plan Amendment Study Policy Page 6 of 6 2. Request Letter 3. Agreement between DUSD and Lyon Homes 4. Resolution Approving the Initiation of GPA Study 5. Resolution Denying the Initiation of a GPA Study 6. Active General Plan Amendment Study-Status Report CITY Of DUBLIN General Plan Amendment Study Policy June 18, 2013 Purpose: Applicants periodically request the initiation of a General Plan Amendment (GPA) Study to consider amending the City's adopted General Plan. This policy identifies the steps necessary to initiate a GPA Study and identifies what is required of the project proponent and Staff, and the related time table after the City Council has authorized the initiation of a GPA Study. Actions to Initiate a General Plan Amendment Study 1. The project proponent submits a letter and applicable exhibits requesting that the City Council initiate a General Plan Amendment Study. 2. Staff prepares a brief Staff Report to the City Council requesting consideration to authorize the initiation of a General Plan Amendment Study. 3. The City Council, by majority vote, determines whether or not to authorize the initiation of a General Plan Amendment Study. Actions by the project proponent within 12 months of initiation Commence Planning and Environmental Studies within 6 months of initiation. a. Refine the project type and scope; b. Begin environmental reconnaissance analysis of the site; c. Start land use feasibility of the proposed use and the benefits of the project to the City; and d. Begin discussing project alternatives with Staff. 2. Submit a GPA application and Environmental Checklist within 12 months of initiation. Actions by Staff following initiation 1. Notify the Dublin Unified School District regarding any General Plan Amendment Study to change a residential land use designation and provide a report back to the City Council if the DUSD is not able to support the proposed Amendment. Within 6o days of the notification to DUSD, the DUSD shall provide a preliminary response. 2. Authorization of a GPA Study will expire if the activities by the applicant, as described above, have not occurred within 12 months of initiation. Staff will notify the City Council when such expirations have occurred. 3. Applications where no substantive activity has occurred in the prior 12 months may be deemed by Staff to be inactive and withdrawn. Staff will notify the City Council when such actions have been taken. 4. Staff will provide the City Council with a report on the progress of all current GPA Studies with the annual General Plan Progress Report in March of each year. 3000 ft N➤➤N © 2017 Google © 2017 Google © 2017 Google Fall o n R dTassajara Rd {SR322853}- 1 - 7931732_2 548.011 / 7951997.1 AGREEMENT BETWEEN DUBLIN UNIFIED SCHOOL DISTRICT AND WILLIAM LYON HOMES, INC. This Agreement (“Agreement”), dated for reference purposes as of ___________, 2019, is entered into by and between Dublin Unified School District, a California school district located in the County of Alameda (“District”), and William Lyon Homes, Inc., a California corporation (“Developer”). District and Developer may hereafter be referred to individually as “Party” or collectively as “Parties.” RECITALS A.Developer is in escrow to purchase a 49.7 acre site located in the City of Dublin, County of Alameda (the “Aggregate Land”), which is more particularly described on Exhibit “A-1” attached hereto and incorporated by this reference. B.Developer is seeking entitlement from the City of Dublin (“City”) for a senior citizen housing development which will be comprised of not less than 57 single family homes (the “Project”) to be located on that portion of the Aggregate Land as generally depicted on Exhibit A-2 (the “Property”). Developer represents that, subject to receipt of the requisite entitlement acceptable to Developer as set forth herein, the Project will be a senior citizen housing as defined in California Civil Code Section 51.3, and “housing for older persons,” as described in the federal Fair Housing Amendments Act of 1988 (Title 42 U.S.C. Section 3601,et seq.), the exemptions under Title 42 U.S.C. Section 3607(b)(2) and Title 24 C.F.R. Sections 100.300 through 100.307, and the Fair Employment and Housing Act (California Government Code Section 12900, et seq.) all as amended, and will otherwise comply with Civil Code section 51.3, subdivision (b)(4) (“Senior Citizen Housing”). Developer further represents that, at the time and in the manner specified in Section 3.2 below and provided that Approval of the Project has occurred (as defined in Section 3.1(a) below), Developer will record a declaration of restrictions against the Property in a form substantially similar to the form attached hereto as Exhibit “D” (the “Restriction”). For purposes of this Agreement, “School-Age Children” is defined as persons who are eligible for enrollment in the District’s grade K-12 educational programs. C.The Project is located within the jurisdictional boundaries of the District. D.As of the Effective Date of the Agreement (as defined in Section 2.1), the District is authorized to impose school impact fees pursuant to Education Code sections 17620,et seq.,and Government Code sections 65995,et seq., at a rate of Eleven Dollars ($11.00) per square foot of residential development (the “Level II Fee”) and Sixty One Cents ($0.61) per square foot of commercial/industrial development (“Statutory Commercial Fee”). Pursuant to Government Code section 65995.1, Senior Citizen Housing is ordinarily charged school impact fees at the Statutory Commercial Fee rate. {SR322853}- 2 - 7931732_2 548.011 / 7951997.1 NOW THEREFORE, in consideration of the promises, covenants and provisions set forth herein, the receipt and adequacy of which the Parties hereby acknowledge, the District and Developer agree as follows: TERMS AND CONDITIONS 1.RECITALS AND EXHIBITS INCORPORATED 1.1. Incorporation of Recitals. The foregoing recitals are true and correct and incorporated into the “Terms and Conditions” of this Agreement as though set forth fully herein. 1.2. Incorporation of Exhibits. Exhibits “A-1,” “A-2,” “B,” “C” and “D” attached to this Agreement are hereby incorporated in this Agreement by reference. 2.EFFECTIVE DATE AND TERMINATION 2.1. Effective Date. The “Effective Date” of this Agreement shall be upon the later of the following dates: (i) the date upon which the governing board of the District approves this Agreement, or (ii) the date upon which this Agreement is executed by Developer. 2.2. Termination. This Agreement shall terminate upon the date when certificates of occupancy have been issued for all of the dwellings constructed upon the Property in connection with the Project and Developer’s payment of the Contribution pursuant to Section 3.1(a) below, or such earlier date mutually agreed upon by District and Developer in writing; provided, however, that the rights and obligations of the Parties pursuant to Sections 3.1(b) and 3.2(a) shall survive the earlier termination of this Agreement. 3.DEVELOPER CONTRIBUTION The purpose of this Agreement is to set forth Developer’s willingness to pay beyond the required Statutory Commercial Fee amount, which is otherwise applicable to Senior Citizen Housing developments, in order to provide additional voluntary funding to District as another method of financing a portion of the cost of school facilities within the District. Developer acknowledges that this Agreement, and each of its terms and conditions hereunder, are fully enforceable as a binding contract on Developer and its successors-in-interest or assignees and Developer will not assert in any manner that District is acting in excess of its powers in entering into this Agreement. 3.1 Contribution. a. Provided that the Project is Approved, Developer acquires the Property and there is no uncured District Event of Default (as defined in Section 4.1 below), Developer agrees to pay to District the Level II Fee (the “Contribution”) for the entire Project. Accordingly, prior to or on the date that Developer applies for a building permit for the Project, Developer agrees to pay District in cash or its equivalent in {SR322853}- 3 - 7931732_2 548.011 / 7951997.1 immediately available funds eleven dollars ($11.00), multiplied by the total square footage of each dwelling unit’s “assessable space,” as such term is defined in Government Code section 65995(b)(1). For purposes of this Agreement, “Approval” shall be defined to mean that all necessary entitlements, permits, certifications, and approvals from the City and any other governmental or quasi-governmental agency with jurisdiction over the Project required for Developer’s intended development of the Project have been obtained in form and substance acceptable to Developer in its sole discretion, and (i) all applicable administrative and judicial appeal, rehearing, and challenge periods and all referendum periods for such approvals, including without limitation, challenges under the California Environmental Quality Act (Pub. Res. Code §§ 21000,et seq.) (“CEQA”), shall have expired without such an appeal, request for rehearing, challenge, or referendum having been filed, or (ii) in the event of a timely filing of such an appeal, request for rehearing, challenge, or referendum, such matters shall have been fully and finally resolved in a manner acceptable to Developer in its sole discretion that allows the Project to proceed without any changes, conditions or other requirements except those approved by Developer in its sole discretion. A Project that has received Approval shall be deemed to have been “Approved.” Developer shall provide the District with immediate written notice upon occurrence of either the Approval or disapproval of the Project. If Developer acquires the Property and proceeds with development of a residential development on the Property that consists solely of Senior Citizen Housing, then “Approval” (including Developer’s acceptance of the form and substance thereof) shall be deemed to have occurred and the “Project” shall mean such residential development as so Approved. If the Developer does not receive Approval for the Project in a form and substance acceptable to Developer in its sole discretion as provided in this Section 3.1(a), then prior to submittal of an application for a general plan amendment, zone change, or other necessary entitlement for an alternative development project (that does not consist solely of Senior Citizen Housing), Developer will meet and confer with the District to discuss the anticipated impacts of Developer’s alternative proposed development project on District facilities, students, and families. b. Developer’s commitment to pay the Contribution shall be in lieu of any and all other fees, assessments, taxes, charges, impositions, dedications, exactions, liens, or payment, of any type, amount, or value whatsoever, established, levied, or imposed at any time by District on Developer or the Project. i. This Agreement shall not prevent the levy and collection of property taxes applicable to the Property, for any reason, including the levy of taxes in connection with the District’s existing or future bonded indebtedness. This Agreement shall further not prevent the District from seeking to gain and/or {SR322853}- 4 - 7931732_2 548.011 / 7951997.1 actually receiving voter approval of any District-wide general obligation bonds, or any other voter approved State authorized financing programs, including but not limited to, parcel taxes, School Facilities Improvement District bonds, applicable property taxes, and any other State authorized financing programs that may then be in effect (collectively the “Financing Measures”). Notwithstanding the foregoing, District shall not seek to gain and/or actually gain voter approval for any Financing Measure that is applicable solely to the Property or to the Property and less than the entirety of the District until and unless such approval is received from the future occupants of the Project, and District shall not seek any such Financing Measure applicable solely to the Property or to the Property and less than the entirety of the District from Developer or the current or future owner(s) of the Property prior to occupancy of the Project. ii. This Agreement shall not prevent the District from charging future owners of the homes within the Project for expansion or replacement of then- existing square footage of the homes pursuant to then-applicable law. iii.Nothing herein shall be construed so as to limit Developer from exercising whatever rights it may otherwise have in connection with protesting or otherwise objecting to the imposition of taxes, bonds, or assessments on the Property. 3.2 Restrictive Residency Covenant. Developer represents and covenants that Developer shall not alter the Senior Citizen Housing residency requirements on the Property as provided in the Restriction so as to allow for the residency of School Age Children (except as provided in the Restriction or pursuant to Section 3.1(a) above). In accordance with this Section 3.2, and except as agreed by District and Developer as contemplated in the last paragraph of Section 3.1(a) above, Developer shall cause the Restriction to be recorded prior to the issuance of any building permits for the Project, and Developer shall not apply for any such building permits absent the recording of said Restriction. If the Restriction is not in the form attached to this Agreement (other than insertion of dates and completion of other similar blanks), then prior to recording the Restriction, Developer shall present the Restriction to the District for the District’s review and approval, which approval shall not be unreasonably withheld. If, upon review of the Restriction, the District reasonably determines that the Restriction to be recorded does not substantially conform to the Restriction presented as Exhibit D hereto, then Developer may not record the Restriction; provided, however, that the District shall be deemed to have approved the Restriction if the District does not deliver written notice to Developer reasonably disapproving the Restriction within fifteen (15) days after District’s receipt of the Restriction. Developer shall not record any Restriction that has not been approved (or deemed approved) by the District. a. If Developer or any subsequent owner of the Property (in each case, the “then- current owner of the Project”) enacts, alters, or eliminates the Senior Citizen Housing residency requirements within any portion of the Property to allow for {SR322853}- 5 - 7931732_2 548.011 / 7951997.1 residency of School-Age Children in any unit or units in the Project other than as permitted in the Restriction (each such unit is a “School-Age Residential Unit”), the then-current owner of the Project (or, in the case of a homeowner vote to revise the Restriction or the CC&R's, the homeowners’ association) shall be obligated to: (a) notify the District in writing of such fact, and (b) within 60 days of the applicable enactment or change of residency requirements, pay the then- applicable school facility impact mitigation fees that the District is permitted to impose on residential construction within the Project for the number of residential units then allowed to house School-Age Children pursuant to Education Code section 17620,et seq., and Government Code section 65995,et seq. In such event, no credit shall be given to the owner of the unit or units in question for the Contribution already paid. 3.3 Certificate of Compliance/Deferral of Payment of Fees. Except as otherwise stated below, prior to the City’s issuance of a building permit (excluding permits for grading or site improvements) for any residential or commercial structure to be constructed in the Project, Developer shall first obtain from the District and District shall provide a Certificate of Compliance evidencing that the Developer has complied with the provisions of this Agreement. District shall not be obligated to provide a Certificate of Compliance in the event that there is an uncured Developer Event of Default (as defined in Section 4.1 below), and such Certificate of Compliance shall not be issued until such Event of Default has been cured in accordance with Section 4.1 below. 3.4 Joint Statement; Non-Opposition. In acknowledgment of Developer’s contributions as set forth in this Agreement, and the effect of those contributions in financing school facilities, District: (a) shall, with Developer, issue the Joint Statement attached hereto as Exhibit C no later than five (5) business days after Developer’s request; (b) shall, within five (5) business days after any Developer request, transmit correspondence substantially conforming to Exhibit C to the City; (c) shall not retract the Joint Statement or issue communications disclaiming or conflicting with the Joint Statement; and (d) shall not oppose Developer’s efforts to obtain Approval of the Project. District’s obligations under this Section 3.4 shall be conditioned on there then being no uncured Developer Event of Default (as defined in Section 4.1 below). District hereby covenants that, except as authorized by this Agreement, it will not under any circumstances or at any time assert or take any of the actions described below against Developer, or any successor-in-interest or assignee: a.Oppose, object, or otherwise impede the processing of applications for any Approvals with respect to the Project, including without limitation site plan amendments, general plan amendments, zoning or rezoning, conditional use permit applications, environmental evaluations, tentative tract map applications, final map processing and approvals, building permits, certificates of occupancy or utility releases for completed structures, annexations, or other local government processing related to the Property. {SR322853}- 6 - 7931732_2 548.011 / 7951997.1 b.Oppose the Project on the basis of compliance with CEQA or any regulations implemented with respect thereto on the basis of inadequate school facilities to serve the Project or otherwise. c.Advise or request any other public or private entity to advise anyone that school facilities are inadequate to serve the students generated by the Project. d.Refuse to issue a Certificate of Compliance when requested by Developer, or other builder or contractor constructing the Project. e.Except as expressly provided in this Agreement, pursue additional funding for school facilities from Developer, including without limitation any fees, assessments, taxes, charges, impositions, dedications, exactions, liens, or payment, of any type, amount, or value whatsoever, and notwithstanding any subsequent change in applicable law to the extent such change may authorize the District to do so. Nothing herein shall prohibit or limit the District from opposing or commenting on project applications for developments other than the Project as described herein. Notwithstanding the foregoing, the requirement of this Section 3.4 shall not apply in the event of an uncured Developer Event of Default (as defined in Section 4.1 below). 4.DEFAULT, REMEDIES, AND TERMINATION 4.1. Events of Default. Subject to any extensions of time by mutual consent of the Parties in writing, any failure by either Party to perform any material term or provision of this Agreement shall constitute an “Event of Default” upon occurrence of the circumstances set forth in subsections 4.1(a) and 4.1(b) below. a.Developer Event of Default. A Developer Event of Default shall occur if Developer does not cure such failure to perform: (i) in the event of Developer’s failure to pay the Contribution or any portion thereof, within thirty (30) days following written notice of default from District; and (ii) in the event of any other default, (A) within sixty (60) days following written notice of default from the District, where such failure is of a nature that can be cured within such sixty (60) day period, or (B) if such failure is not of a nature which can be cured within such sixty (60) day period, Developer does not commence substantial efforts to cure such failure within sixty (60) days, or thereafter does not within a reasonable time prosecute to completion with diligence and continually the curing of such failure. Late payments of the Contribution or any portion thereof beyond such thirty (30) day cure period shall bear a late payment penalty at the Interest Rate, calculated on a monthly basis. The “Interest Rate” shall be the greater of three percent (3%) interest annually or the then current State Allocation Board’s approved construction cost index increase annualized. {SR322853}- 7 - 7931732_2 548.011 / 7951997.1 b.District Event of Default. A District Event of Default shall occur if District does not cure such failure to perform (i) in the event of a default in District’s obligations pursuant to Section 3.4 herein, within five (5) business days following written notice of default from Developer; and (ii) in the event of any other default, (A) within sixty (60) days following written notice of default from the Developer, where such failure is of a nature that can be cured within such sixty (60) day period, or (B) if such failure is not of a nature which can be cured within such sixty (60) day period, District does not commence substantial efforts to cure such failure within sixty (60) days, or thereafter does not within a reasonable time prosecute to completion with diligence and continually the curing of such failure. c.Notice of Default. Any notice of default given hereunder by either Party shall specify in detail the nature of the failures in performance that the noticing Party claims constitutes the Event of Default, sufficient facts constituting substantial evidence of such failure, and the manner in which such failure may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the Party charged therewith shall not be considered to be in default for purposes of (i) termination of this Agreement, (ii) institution of legal proceedings with respect thereto, or (iii) issuance of any approval with respect to the Project. The waiver by either Party of any default under this Agreement shall not operate as a waiver of any subsequent breach of the same or any other provision of this Agreement. 4.2. Meet and Confer. During the time periods specified in Section 4.1 for cure of an alleged Event of Default, the Parties shall meet and confer in a timely and responsive manner, to attempt to resolve any matters prior to litigation or other action being taken, including without limitation any action in law or equity; provided, however, that nothing herein shall be construed to extend the time period for this meet and confer obligation beyond the applicable cure period referred to in Section 4.1 (even if the applicable cure period itself is extended pursuant to Section 4.1) unless the Parties agree otherwise in writing. The Parties may agree in writing to toll any applicable statutes of limitation for such period as may reasonably be necessary to complete the meet and confer process outlined in this section. 4.3. Remedies and Termination. If, after notice and expiration of the cure periods and procedures set forth in Sections 4.1 and 4.2, as applicable, the alleged Event of Default is not cured, the non-defaulting Party, at its option, may institute legal proceedings pursuant to Section 4.4 of this Agreement and/or terminate this Agreement. In the event that this Agreement is terminated and litigation is instituted that results in a final decision that such termination was improper, then this Agreement shall immediately be reinstated as though it had never been terminated. 4.4. Remedies. Either Party may, in addition to any other rights or remedies, institute legal action to cure, correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, enforce by specific performance the obligations and rights of the Parties hereto or to obtain any remedies consistent with the purpose {SR322853}- 8 - 7931732_2 548.011 / 7951997.1 of this Agreement, subject to compliance with Sections 4.1 and 4.2. All remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of these remedies shall not constitute a waiver or election with respect to any other available remedy. 5.MISCELLANEOUS 5.1. Agreement Runs With Land. This Agreement is created for the benefit of District, Developer and the Property. Subject to the limitations set forth herein, the covenants of this Agreement shall run with the land constituting the Property. Developer agrees for the benefit of District that the Property, as described in Exhibit “A” hereto, shall be held, transferred, and encumbered subject to the provisions of this Agreement which are for the use and benefit of the District, the Developer, the Property, and of each and every person who now or in the future owns any portion or portions of the Property. Within thirty (30) days following execution of this Agreement, the Parties shall execute a Memorandum of Agreement in a form substantially conforming to Exhibit “B” hereto. Following notice of Approval as set forth in Section 3.1 hereof, either Party to this Agreement may cause the applicable Memorandum of Agreement to be recorded with the Recorder’s Office of Alameda County. Both Parties shall reasonably cooperate to prepare or provide any further documents and signatures necessary for the recording of the terms of this Agreement. 5.2. Successors and Assignees. All terms and conditions of this Agreement shall be binding upon all successors-in-interest, including without limitation purchasers of all or any part of the Property. Developer shall have the right to assign in whole or in part its rights, duties and obligations under this Agreement in connection with one or more transfers of all or any portion of the Property without the consent of the District. In the event that Developer transfers title to all or a portion of the Property, then such successor or assign shall be required to fulfill Developer’s obligations under this Agreement for that certain portion of the transferred Property. Developer shall be released from the obligations under this Agreement which apply to the transferred portion of the Property. For that portion of the Property that is not transferred, Developer’s obligations under this Agreement shall remain in full force and effect. Prior to any such transfer or assignment, Developer shall also notify the District in writing of the name of the successor or assign and all appropriate contact information for the District’s records. In the event of transfer of any portion of the Property, (a) any Event of Default by any assignee with respect to the transferred Property shall not be considered an Event of Default by Developer or any other assignee with respect to the portion of the Property retained by Developer or such other assignee, and (b) any Event of Default by Developer with respect to the Property retained by Developer shall not be considered an Event of Default by any assignee with respect to the portion of the Property transferred to such assignee. 5.3. Headings. The headings of this Agreement are for convenience purposes only and shall not limit or define the meaning of the provisions of this Agreement. 5.4. Governing Law and Venue. This Agreement shall be construed in accordance with, and governed by, the laws of the State of California applicable to contracts to be performed {SR322853}- 9 - 7931732_2 548.011 / 7951997.1 wholly within this State. Any dispute arising from the terms and conditions of this Agreement shall be heard by a court of competent jurisdiction located within Alameda County. 5.5. Attorneys’ Fees and Costs. In the event of any legal proceeding, including any lawsuit, action, or proceeding in law or equity, arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs arising from the proceeding, including expert witness fees. The prevailing Party on any appeal shall also be entitled to recover its reasonable attorneys’ fees and costs arising out of any such appeal. In addition to the foregoing attorneys’ fees and costs, the prevailing Party shall be entitled to its attorneys’ fees and costs incurred in any post-judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 5.6. Construction. The singular includes the plural, “shall” is mandatory, and “may” is permissive. The Parties acknowledge and agree that each of the Parties and each of the Parties’ attorneys have participated fully in the negotiation and drafting of this Agreement. In cases of uncertainty as to the meaning, intent or interpretation of any provision of this Agreement, the Agreement shall be construed without regard to which of the Parties caused, or may have caused, the uncertainty to exist. No presumption shall arise from the fact that particular provisions were or may have been drafted by a specific Party, and prior versions or drafts of this Agreement may be used to interpret the meaning or intent of this Agreement or any provision thereof. 5.7. Notices. Any notice to be given hereunder to either Party shall be in writing and shall be given either by personal delivery (including express or courier service), by receipt- confirmed facsimile, or by registered or certified mail, with return receipt requested and postage prepaid (excluding electronic messaging) and addressed as follows: 5.7.1. To District: Dublin Unified School District ATTN: SUPERINTENDENT 7471 Larkdale Avenue Dublin, CA 94568 Facsimile: 925-829-6532 With a copy to Legal Counsel: LOZANO SMITH ATTN: Harold M. Freiman, Esq. 2001 North Main Street, Suite 500 Walnut Creek, CA 94596 Facsimile: 925-953-1625 {SR322853}- 10 - 7931732_2 548.011 / 7951997.1 5.7.2. To Developer: William Lyon Homes, Inc. Attn: Scott Roylance 2603 Camino Ramon, Suite 450 San Ramon, CA 94583 Facsimile: (925) 543-5501 and William Lyon Homes, Inc. Attn: Richard Robinson 4695 MacArthur Court, 8th Floor Newport Beach, CA 92660 Facsimile: (949) 476-2178 With a copy to legal counsel: Newmeyer & Dillion LLP Attn: Jane Samson 895 Dove Street, Fifth Floor Newport Beach, CA 92660 Telephone: (949) 854-7000 Facsimile: (949) 854-7099 5.8. No Joint Venture. The relationship of the Parties to this Agreement is determined solely by the provisions of this Agreement. This Agreement does not create and shall not be construed to create any agency, partnership, joint venture, trust or other relationship with duties or incidents different from those of parties to an arm’s-length contract. 5.9. No Further Assurances. Nothing in this Agreement, whether express or implied, is intended to or shall do any of the following: (a) confer any benefits, rights or remedies under or by reason of this Agreement on any persons or entities other than the express Parties to this Agreement; (b) relieve or discharge the obligation or liability of any person not an express party to this Agreement; or (c) give any person not an express party to this Agreement any right of subrogation or action against any Party to this Agreement. 5.10. Time is of the Essence. Time is of the essence in the performance of each Party’s respective obligations under this Agreement. 5.11. Amendments and Waivers. No amendment of, supplement to, or waiver of any obligations under this Agreement shall be enforceable or admissible unless set forth in writing signed by the Party against which enforcement or admission is sought. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted shall apply solely to the specific instance expressly stated in a writing signed by the Parties. {SR322853}- 11 - 7931732_2 548.011 / 7951997.1 5.12. Entire Agreement. This Agreement sets forth the entire understanding of the Parties relating to the transactions it contemplates, and supersedes all prior understandings relating to them, whether written or oral. There are no obligations, commitments, representations, or warranties relating to them except those expressly set forth in this Agreement. 5.13. Severability. If any provision of this Agreement is held invalid, void or unenforceable by a court of competent jurisdiction, but the remainder of the Agreement can be enforced without failure of material consideration to any Party, then this Agreement shall not be affected and it shall remain in full force and effect, unless amended or modified by mutual consent of the Parties; provided, however, that if the invalidity or unenforceability of any provision of this Agreement results in a material failure of consideration, then the Party adversely affected thereby shall have the right in its sole discretion to terminate this Agreement upon providing written notice of such termination to the other Party. 5.14. Execution in Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and counterpart signature pages may be assembled to form a single document which shall be deemed an original document. Consolidated signature pages shall be compiled by District and forwarded to Developer to constitute the Developer’s executed copy of the Agreement. 5.15. Signatures. By signing below, each of the signatories represents and warrants that he or she has been duly authorized to execute this Agreement on behalf of the Party on whose behalf he or she is signing. The Superintendent for the District further represents and warrants, by his/her signature, that this Agreement has been duly ratified and approved by the Board of Trustees of the District. 5.16 Represented by Counsel. Each Party hereto acknowledges that it has been represented by legal counsel, or had the opportunity to obtain legal counsel and consciously chose not to obtain it, in the negotiation, drafting, and execution of this Agreement. {SR322853}- 12 - 7931732_2 548.011 / 7951997.1 IN WITNESS WHEREOF, this Agreement has been entered into by and between the District and Developer as of the last date set forth below. DUBLIN UNIFIED SCHOOL DISTRICT By: _____________________________ Name: ___________________________ Its: Superintendent Date: _______________, 201__ WILLIAM LYON HOMES, INC. a California corporation By: _____________________________ Name: ___________________________ Its: ______________________________ By: _____________________________ Name: ___________________________ Its: ______________________________ Date: _______________, 201__ {SR322853}- 1 - 548.011 / 7951997.1 EXHIBIT A-1 LEGAL DESCRIPTION OF THE AGGREGATE LAND {SR322853}- 1 - 548.011 / 7951997.1 EXHIBIT A-2 GENERAL DEPICTION OF THE PROPERTY 3000 ft N➤➤N © 2017 Google © 2017 Google © 2017 Google Fall o n R dTassajara Rd {SR322853}- 1 - 548.011 / 7951997.1 EXHIBIT B MEMORANDUM OF AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Dublin Unified School District 7471 Larkdale Avenue Dublin, California 94568 Attn: Superintendent SPACE ABOVE THIS LINE FOR RECORDER’S USE MEMORANDUM OF AGREEMENT BETWEEN DUBLIN UNIFIED SCHOOL DISTRICT AND SCS DEVELOPMENT COMPANY, INC. This Memorandum is entered into as of_______________, 20___, by and between DUBLIN UNIFIED SCHOOL DISTRICT, a California public school district (“DISTRICT”), and William Lyon Homes, Inc., a California corporation (DEVELOPER”). The DISTRICT and DEVELOPER are sometimes referred to herein collectively as the “Parties,” or each individually as a “Party.” WHEREAS, Developer is the owner/developer of certain real property located in the City of Dublin, County of Alameda, as more particularly described in Exhibit 1, attached hereto (hereinafter “Property”) on which Developer is seeking or has received entitlements to construct residential units, commercial space, and other public improvements (“Project”). WHEREAS, DISTRICT and DEVELOPER are Parties to that certain Agreement Between Dublin Unified School District dated ________________, 2019 (“Agreement”), by which DEVELOPER has agreed to provide various benefits to DISTRICT to satisfy DEVELOPER’s statutory obligations to pay State mandated fees to DISTRICT as required by Government Code sections 65995,et seq., and Education Code section 17620,et seq., and to provide additional contributions to the DISTRICT. WHEREAS, the Parties intend to bind the successors in interest in the Property, as that Property is more particularly described in Exhibit 1 hereto, to the obligations of DEVELOPER as set forth in the Agreement, and subject to the exceptions therein, until such obligations to DISTRICT are fully satisfied; and WHEREAS, the purpose of this Memorandum is to give notice of the existence of the Agreement, together with this Memorandum, which constitute the agreement between the DISTRICT and DEVELOPER, to each successor in interest to any portion of the Property. {SR322853}- 2 - 548.011 / 7951997.1 NOW, THEREFORE, DISTRICT and DEVELOPER hereby agree that the Agreement creates a covenant running with the land and that either Party may record this Memorandum following notice of Approval (as defined in the Agreement) of the Project. Any interested person may obtain a copy of the Agreement at the Dublin Unified School District office located at 7471 Larkdale Avenue, Dublin, California 94568. The terms and conditions of the Agreement are hereby incorporated by reference with the same force and effect as though set forth herein. In the event of any conflict between the terms of the Agreement and the terms of this Memorandum, the terms of the Agreement shall control. This Memorandum may be executed in counterparts, each of which shall be deemed an original for all purposes and which together shall be considered one document. IN WITNESS WHEREOF, this Memorandum has been executed by the Parties on the date and year first written above. DISTRICT: By: Name: Its: Dated: DEVELOPER: By: Name: Its: By: Name: Its: Dated: {SR322853}- 1 - 548.011 / 7951997.1 Exhibit “1” to Memorandum Property Description/Map {SR322853}- 1 - 548.011 / 7951997.1 NOTARY ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) COUNTY OF _____________) On ____________________, 2019 before me, ______________________, Notary Public, personally appeared ______________________, who 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 acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public {SR322853}- 1 - 548.011 / 7951997.1 EXHIBIT C JOINT STATEMENT # # # {SR322853}- 2 - 548.011 / 7951997.1 LYON HOMES COMMITS TO GENEROUS CONTRIBUTION TODUBLIN UNIFIED SCHOOL DISTRICT Dublin, CA, ________________, 2019 –William Lyon Homes, Inc. has committed to make a very large contribution to Dublin Unified School District to help the School District meet its school facilities needs. In recent years, growth in the Dublin area has put a substantial strain on the School District’s facilities. William Lyon Homes, Inc. is proposing to develop 57 single family homes in a development to be known as Fallon 55+ to be located in the City of Dublin, County of Alameda, State of California. These homes would be subject to a declaration of restrictions that would restrict the Project to senior citizen housing as defined in state and federal law (“Senior Citizen Housing”). Legally, such Senior Citizen Housing pays school impact fees at the commercial rate, which is currently $.61 per square foot of development, rather than the residential rate, which in Dublin Unified School District is currently $11.00 per square foot. While payment of the legally required $.61 per square foot rate would result in a payment to the School District of less than approximately $80,000, William Lyon Homes, Inc., has declared its support for the School District and its programs and facilities, and has offered to do far more. Even though it is anticipated that the development will be Senior Citizen Housing, William Lyon Homes, Inc. has offered to pay the entire school impact fee at the residential rate of $11.00 per square foot, bringing the estimated total payment to Dublin Unified School District to well over $1.4 million. Additionally, to help ensure that there are no impacts on schools from this development in the future, William Lyon Homes, Inc. has agreed to record a declaration of restrictions imposing the Senior Citizen Housing requirement, and has further offered an additional restriction whereby if the homes are ever converted from senior housing in the future, any residential fee that is justified at that time will be paid to the School District for the homes. {SR322853}- 3 - 548.011 / 7951997.1 “William Lyon Homes, Inc. has recognized the value of strong schools, and its very generous contribution to the District demonstrates a true partnership between William Lyon Homes, Inc. and both Dublin Unified School District and the community that the School District serves,” said School Board President Amy Miller. “This development will not directly impact the School District in any way, and in fact is helping us offset the impact of other developments that have taken place in the City,” she added. “At the same time, the development will bring much needed senior housing to Dublin. This is a shining example of a developer who has not only met but well exceeded their obligations to help ensure a bright future for Dublin Unified School District. We could not be more appreciative of William Lyon Homes, Inc.’s contribution.” {SR322853} 548.011 / 7951997.1 EXHIBIT D DECLARATION OF RESTRICTIONS {SR321812}2609-125734\DECL\1429544.4 12/7/18 RECORDING REQUESTED BY: WHEN RECORDED, MAIL TO: Dublin Unified School District ATTN: SUPERINTENDENT 7471 Larkdale Avenue Dublin, California 94568 (Space Above for Recorder's Use) DECLARATION OF RESTRICTIONS **[INSERT PROPERTY IDENTIFIER]** {SR321812}2609-125734\DECL\1429544.4 12/7/ 181 DECLARATION OF RESTRICTIONS **[INSERT PROPERTY IDENTIFIER]** THIS DECLARATION OF RESTRICTIONS (“Declaration”) is made by WILLIAM LYON HOMES, INC., a California corporation (“Declarant”). PREAMBLE: A.Declarant is the owner of certain real property (the “Property”) in the City of Dublin, County of Alameda, State of California, described as follows: **[INSERT LEGAL DESCRIPTION]** B.Declarant has received all necessary approvals and entitlements from the City of Dublin to construct an age-restricted senior housing development project (the “Project”) on the Property in accordance with the Age and Occupancy Restriction Laws, as defined below. C.The Declarant and the Dublin Unified School District (the “District”) have entered into an Agreement (the “Agreement”), binding on Declarant and Declarant’s assignees and successors-in-interest, whereby Declarant and the District have agreed that Declarant will provide the District with funding in excess of that otherwise required by Education Code sections 17620,et seq., and Government Code sections 65995,et seq. D.The Agreement further requires that Declarant impose restrictions on occupancy as well as reporting requirements. THEREFORE, DECLARANT HEREBY DECLARES AS FOLLOWS: 1.Definitions. (a)“Age Restrictions” means, collectively, the provisions of this Section 1 and Section 2 below. (b)“Age and Occupancy Restrictions and Laws” means, collectively, California Civil Code Sections 51.2 to 51.4; the federal Fair Housing Amendments Act of 1988 (Title 42 U.S.C. Section 3601, et seq.); Title 42 U.S.C. Section 3607(b)(2) and Title 24 C.F.R. Sections 100.300 through 100.307; the Fair Employment and Housing Act (California Government Code Section 12900, et seq.); the Planning and Zoning Law at Section 65008(a)(1)(B) of the California Government Code; and all other applicable state and federal regulations governing age-restricted senior housing, all as amended from time to time. (c)“Association” means an “association” as defined in California Civil Code Section 4080 that is established by Declarant for the purpose of managing the Property and enforcing the Age Restrictions. Until the establishment of the Association, the Declarant shall be responsible for enforcing the Age Restrictions. {SR321812}2609-125734\DECL\1429544.4 12/7/ 182 (d)“Permitted Health Care Resident” means either a natural person hired to provide live-in, long-term or terminal or hospice care to a Qualifying Resident for compensation, or a family member of the Qualifying Resident providing that care. The care provided must be substantial in nature and must provide either assistance with necessary daily activities or medical treatment, or both. The provision of lodging and food in exchange for providing such services shall be deemed to be receiving compensation for purposes of compliance with California Civil Code Section 51.3(i). (e)“Qualified Permanent Resident” means a natural person who was residing with the Qualifying Resident prior to the death, hospitalization, or other prolonged absence of, or the dissolution of marriage with, the Qualifying Resident, and meets at least one of the following: (i)was forty-five (45) years of age or older; or (ii) was a spouse or cohabitant of the Qualifying Resident; or (iii) was a person providing primary physical or economic support to the Qualifying Resident; or (iv) a disabled person or person with a disabling illness or injury who is a child or grandchild of the Qualifying Resident or a Qualified Permanent Resident, who needs to live with the Qualifying Resident or Qualified Permanent Resident because of the disabling condition, illness or injury. For purposes of this Section 1(d), “primary physical support” means support services which are substantial in nature (including without limitation daily chores, assistance with hygiene, errands and other tasks which the Qualifying Resident cannot perform on their own). “Primary economic support” is financial support that exceeds the income and other financial support received by the Qualifying Resident. “Cohabitant” means persons who live together as husband and wife, or persons who are domestic partners within the meaning of California Family Code Section 297. “Disabled” means a person who has a disability as defined in California Civil Code Section 54(b), and “disabling injury or illness” means an illness or injury which results in a condition meeting the definition of disability set forth in California Civil Code Section 54(b). (f)“Qualifying Resident” means a natural person who is fifty-five (55) years of age or older. 2.Restrictions. Each occupied residence in the Property shall be occupied subject to the following restrictions, which shall be interpreted in accordance with the Age and Occupancy Restrictions and Laws then in effect: (a)Permitted Residents. Subject to the limited exceptions described in this Section 2 and the Age and Occupancy Restrictions and Laws, each of the occupied residences in the Property shall be permanently occupied by one or more Qualifying Residents. Each other permanent resident in the same residence must be a Qualifying Resident, a Qualified Permanent Resident or a Permitted Healthcare Resident. For purposes of remaining in compliance with {SR321812}2609-125734\DECL\1429544.4 12/7/ 183 state and federal law permitting age-restricted senior housing, “permanent occupancy” shall mean that the Qualifying Resident considers the residence to be his or her primary legal residence and the Qualifying Resident either resides in it continuously or returns to occupy the residence during every calendar year. Furthermore, except as allowed under Section 2(b) below, a Permitted Health Care Resident may occupy a residence only while actually providing live-in, long-term or terminal or hospice care to a Qualifying Resident for compensation. In accordance with Civil Code Section 51.3(i), the phrase “for compensation” shall include provisions of lodging and food in exchange for such care. (b)Death or Prolonged Absence of Qualifying Resident. (i)Continued Occupancy by Qualified Permanent Residents. Notwithstanding Section 2(a) above, upon the death, dissolution of marriage, or upon hospitalization or other prolonged absence of the Qualifying Resident, any Qualified Permanent Resident who is not yet fifty-five (55) years of age, but who was residing with such Qualifying Resident at the time of the death or dissolution, or on the date of commencement of hospitalization or prolonged absence of the Qualifying Resident, shall be entitled to continue to occupy the residence. However, in no event may such Qualified Permanent Resident continue to occupy a residence in the absence of a Qualifying Resident if such occupancy would cause the total number of residences occupied solely by persons under fifty-five (55) years of age to exceed twenty percent (20%) of the total number of occupied residences in the Property, as determined by the board of directors of the Association in accordance with the Age and Occupancy Restrictions and Laws. (ii)Continued Occupancy by Permitted Healthcare Residents. A Permitted Healthcare Resident shall be entitled to continue his or her occupancy as a permitted resident in the absence of the Qualifying Resident only if both of the following are applicable: (1) The Qualifying Resident became absent from the Community due to hospitalization or other necessary medical treatment and expects to return to his or her residence within ninety (90) days from the date the absence began; and (2) The absent Qualifying Resident or an authorized person acting for the Qualifying Resident submits a written request to the board of directors of the Association stating that the Qualifying Resident desires that the Permitted Healthcare Resident be allowed to remain in order to be present when the Qualifying Resident returns to reside in the Property. Upon written request by the Qualifying Resident or an authorized person acting for the Qualifying Resident, the board of directors of the Association shall have the discretion to allow a Permitted Healthcare Resident to remain for a time period longer than ninety (90) days from the {SR321812}2609-125734\DECL\1429544.4 12/7/ 184 date that the Qualifying Resident’s absence began, if it appears that the Qualifying Resident will return within a period of time not to exceed an additional ninety (90) days. (c)Occupancy by Certain Disabled Persons. A person who does not otherwise qualify for permanent residence under this Section 2 may nevertheless permanently occupy the residence if they have a disability that meets the criteria for occupancy as a Qualified Permanent Resident. Such person may remain in the residence unless or until the board of directors of the Association determines that there are special circumstances to disallow such person as a Qualified Permanent Resident. Special circumstances means a condition where such person is or may be harmful to himself or herself or others as determined in Section 2(c)(ii) below. (i)For any disabled person residing as a Qualified Permanent Resident under this Section 2(c) whose disabling condition ends, the board of directors of the Association may require the formerly disabled resident to cease residing in the Property within six months of receipt of written notice from the board of directors of the Association; provided, however, that notwithstanding Section 2(a) above, the board of directors of the Association may allow the person to remain a resident for up to one year after the disabling condition ends. (ii) The board of directors of the Association may take action to prohibit or terminate occupancy by a person who is a Qualified Permanent Resident by virtue of a disability if the board of directors of the Association finds, based on credible and objective evidence, that the person is likely to pose a significant threat to the health or safety of others that cannot be ameliorated by means of a reasonable accommodation; provided, however, that action to prohibit or terminate the occupancy may be taken only after doing both of the following: (1) Providing reasonable notice to and an opportunity to be heard for the disabled person whose occupancy is being challenged, and reasonable notice to the co-resident parent or grandparent of that person. (2) Giving due consideration to the relevant, credible, and objective information provided in hearing. The evidence shall be taken and held in a confidential manner, pursuant to a closed session, by the Board of Directors in order to preserve the privacy of the affected persons. The affected persons shall be entitled to have present at the hearing an attorney or any other person authorized by them to speak on their behalf or to assist them in the matter. (d)Resale or Lease. Each resale or lease of a residence in the Property is subject to the requirement that such residence be occupied after resale or during the term of the lease in accordance with this Section 2. Each lease or rental agreement and each purchase agreement for resale of a residence in the Property shall contain a statement above the signature {SR321812}2609-125734\DECL\1429544.4 12/7/ 185 line for lessee or purchaser (as applicable) asserting that at least one (1) permanent occupant of the residence shall be fifty-five (55) years of age or older and each other permanent occupant shall meet the age and occupancy qualifications of this Declaration and the Age and Occupancy Restrictions and Laws. (e)Permanent Occupancy Definition for Qualified Permanent Residents and Permitted Health Care Residents. Persons less than fifty-five (55) years of age who do not qualify as Qualified Permanent Residents or Permitted Health Care Residents shall not be entitled to occupy, visit or reside in any residence for more than sixty (60) calendar days (whether consecutive or non-consecutive) in any calendar year, pursuant to California Civil Code Section 51.3(d). (f)Compliance with Reporting Requirements. (i)Obligations of Owners. By accepting and recording a deed to a residence in the Property, each owner of such residence covenants and agrees as follows: (1) To fully and truthfully respond to all requests by the Association for age and occupancy information concerning each occupant of the owner’s residence, and to cause all occupants of the owner’s residence to cooperate by providing such information. Owners understand and acknowledge that age and occupancy information shall be requested by the Association as part of its obligation to conduct regular age and occupancy surveys of the Property and that such surveys are required to maintain the Property’s eligibility to continue operating as an age- and occupancy-restricted project under senior housing exemptions available under state and federal law; (2) In the event of the change of occupancy of any residence in the Property by one or more permanent residents, the owner of the residence shall immediately inform the board of directors of the Association in writing and shall provide to the board of directors of the Association the names and ages of all current occupants of the residence, and such other information as the board of directors of the Association reasonably requests to verify the ages and qualifications of all persons occupying the residence as Qualified Permanent Residents or Permitted Health Care Residents; (3) To ensure that all occupants of the owner’s residence comply at all times with all provisions of this Declaration and any rules and regulations of the Association, including restrictions on age and other qualifications of permanent occupants and limiting the duration of visits by temporary occupants or those who do not meet the age and occupancy restrictions of this Declaration or the Age and Occupancy Restrictions and Laws; and {SR321812}2609-125734\DECL\1429544.4 12/7/ 186 (4) To indemnify, defend and hold harmless the Association and Declarant from any and all claims, losses, damages and causes of action which may arise from such owner’s failure to so comply. This obligation also creates in each owner the responsibility to monitor and enforce the actions of their tenants or lessees. (g)Association Monitoring and Enforcement of Compliance with Age and Occupancy Restrictions and Applicable State and Federal Laws and Regulations. The Association has the power and the duty to ensure that the Property complies with the age and occupancy restrictions in this Declaration and the Age and Occupancy Restrictions and Laws. The Association, acting through its board or directors, shall monitor and enforce Property compliance with the age and occupancy restrictions set forth in this Declaration and the Age and Occupancy Restrictions and Laws. The Association shall have at its disposal all legal and equitable enforcement remedies available, including the imposition of penalties for ongoing violations, and the right, following notice and hearing and all procedures required under state law, to cause the removal of residents whose presence causes the Property to fall out of compliance with the Age and Occupancy Restrictions and Laws. The board of directors of the Association shall regularly evaluate the results of its age and occupancy surveys and other compliance monitoring efforts and commence enforcement actions as it deems necessary to ensure ongoing compliance with the age and occupancy restrictions in this Declaration and the Age and Occupancy Restrictions and Laws. (i)Association Obligation to Conduct Age and Occupancy Surveys. In discharging its obligation to monitor and enforce the age and occupancy restrictions set forth in this Declaration and the Age and Occupancy Restrictions and Laws, the board of directors of the Association shall conduct regular, confidential age and occupancy surveys of the occupied residences in the Property in order to determine the numbers and ages of all persons who are then permanently occupying residences in the Property. (ii)Information to be Gathered. The Association’s survey shall be designed with due regard for individual privacy while permitting the Association to make a reasonable determination that all persons permanently occupying residences in the Property comply with the age and occupancy restrictions set forth in this Declaration and the Age and Occupancy Restrictions and Laws. Ages of residents shall be determined to the extent possible from objective documentary sources, such as birth certificates, driver’s licenses, government identification cards, passports, baptismal records, immigration papers, affidavits, prior surveys or other documentary proof of age deemed reliable by the board of directors of the Association, and which in the judgment of the board of directors of the Association, is reasonably necessary to establish a record that the Property complies with Age and Occupancy Restrictions and Laws. If a resident is unable or unwilling to provide such documentary proof of age, then the Association may in its discretion rely on an affidavit from another resident or a family member of the resident. {SR321812}2609-125734\DECL\1429544.4 12/7/ 187 (iii)Frequency of Survey. The Association shall collect age and occupancy information on a particular residence at the time of its initial sale by Declarant and at the time of its re-sale, lease or re-lease by any owner. In addition, the Association shall update all occupancy survey information no less frequently than once every two (2) years; provided that the board of directors of the Association shall have the power and duty to supplement the occupancy survey information in its records to reflect re-sales and changes in tenancy under leases or rental agreements, and it shall update its records on a particular residence any time it reasonably appears to the board of directors of the Association that there has been a change in the number or identity of permanent occupants in the residence. The Association shall have the power to carry out its duties under this Section by any legal means available, as the board of directors of the Association deems appropriate. (iv)Summary of Survey. The Association shall keep in its records a written summary of the latest occupancy survey (stating at least the number of occupied residences and the percentage of occupied residences then in compliance with the age and occupancy restrictions set forth in this Declaration and the Age and Occupancy Restrictions and Laws, but not including any personal information about any resident). The summary shall be made available for inspection upon reasonable notice and request by any person, including members of the public. Individual surveys, supporting documentation, and affidavits shall be kept in a separate file with limited access, and such file is to be created and maintained for the purposes of evidencing compliance with the age and occupancy restrictions set forth in this Declaration and the Age and Occupancy Restrictions and Laws and for use in enforcement proceedings. Such information shall be kept securely segregated from the Association’s general operating records and files whether in physical or electronic format. The segregated documents and electronic files shall be considered confidential but shall be made available for review at the request of governmental agencies, including but not limited to the District, investigating compliance with the Age and Occupancy Restrictions and Laws or by court order. Confidential information gathered in a particular survey or update shall be retained by the Association until the board of directors of the Association is advised by the Association’s independent legal counsel that all applicable statutes of limitation or repose for the filing of a complaint or suit or other legal remedies against the Association under the Age and Occupancy Restrictions and Laws (including tolling periods) with respect to such information have expired. The retained documents and electronic files shall be destroyed in a manner appropriate to preserve their confidentiality. {SR321812}2609-125734\DECL\1429544.4 12/7/ 188 (v)Additional Policies. The Association may develop additional policies and procedures to supplement its regular surveys as reasonably necessary to ensure that its records remain current and ensure compliance with the age and occupancy restrictions in this Declaration and the Age and Occupancy Restrictions and Laws. (vi)Posted Notice of Intent to Operate Age- and Occupancy- Restricted Community. The Association shall maintain in the Property permanent signage with written statements of its age and occupancy policies, including a description of the Property as a residential development for occupancy by persons fifty-five (55) years of age or older and other residents who qualify for permanent occupancy under another occupancy category. The Association shall periodically distribute a written copy of its age and occupancy policies to the owners of residences in the Property and shall make additional copies available to owners and tenants on reasonable request. 3.Restatement of Applicable Law. Section 2 above is intended to be a restatement of the authority that may be granted to the Association under the Age and Occupancy Restrictions and Laws. All amendments, restatements and interpretations of the Age and Occupancy Restrictions and Laws, and any other applicable law or regulation governing “senior citizen housing developments,” and “housing for older persons,” as these terms are defined under state and federal law, are deemed to amend, restate and interpret Section 2. 4.Severability. If any clause, sentence or other portion of this Declaration shall become illegal, null or void for any reason, or shall be held by any court of competent jurisdiction to be so, the remaining portion shall remain full force and effect. 5.Nature and Purpose of Covenants. The covenants and restrictions set forth in this Declaration constitute a general scheme for the development, protection and maintenance of the Property for the benefit of all owners. Said covenants and restrictions are for the benefit of the Property and shall bind all owners thereof. Such covenants and restrictions shall be a burden upon, and a benefit to, not only the Declarant but also its successors and assigns, including the Association. All of such covenants and restrictions are intended to be and are hereby declared to be covenants running with the land or equitable servitudes upon the land, as the case may be. 6.Covenants Running With the Land. Each covenant contained in this Declaration is a covenant running with the land, binding upon and inuring to the benefit of each heir, assignee and successor-in-interest of Declarant as the owner of all or any portion of the Property, and the term “Declarant,” as used herein, shall be deemed to include such heirs, assigns and successors-in-interest. Each deed, lease or conveyance of all or any portion of the Property, or any interest therein, shall expressly reference and be subject to all the provisions of this Declaration. 7.Duration. Termination of this Declaration or amendment of any provision herein shall require the express approval of the District; provided, however, that this Declaration, including each covenant, condition and restriction contained herein, shall automatically terminate {SR321812}2609-125734\DECL\1429544.4 12/7/ 189 with respect to a portion of the Property upon recordation of a separate declaration of covenants, conditions, restrictions and reservation of easements meeting the definition of “declaration” in California Civil Code Sections 4135 and 4250 (“CC&Rs”) against such portion of the Property which incorporates the Age Restrictions set forth herein (in substantially similar form and in accordance with then applicable Age and Occupancy Restrictions and Laws) and provides for the establishment of an Association which assumes responsibility for the Age Restrictions. The CC&Rs shall be reviewed and approved by the District prior to execution and recordation in the official records of the County Recorder of the County of Alameda. As an additional condition for termination of this Declaration with respect to all or any portion of the Property, the CC&Rs shall provide (a) for the District’s right to enforce the Age Restrictions, in substantially similar form as Section 9 below; and (b) provide that termination of the CC&Rs or amendment of any provision which may negate or materially and adversely affect or impact performance of the Age Restrictions shall require the prior written approval of the District as follows: “No later than the date that is sixty (60) calendar days after its receipt of a proposed amendment, the District shall deliver written notice of its approval or disapproval of the proposed amendment to the party who delivered the proposed amendment to the District. If the District fails to deliver such written notice within such 60-calendar day period, the District shall be deemed to have approved the proposed amendment. If the District delivers written notice of disapproval of the proposed amendment within such 60-calendar day period, the proposed amendment shall be deemed null and void and shall have no legal effect on the Property or any residence therein.” 8.Construction. This Declaration shall be construed in accordance with the laws of the State of California. The headings used in this Declaration are for convenience only and are not to be used to interpret the meaning of any of the provisions of this Declaration. If any term, provision or condition contained in this Declaration (or the application of any such term, provision or condition) shall to any extent be invalid or unenforceable, the remainder of this Declaration shall be valid and enforceable to the fullest extent permitted by law. In this Declaration, whenever the context requires, the singular number includes the plural and vice versa, and the masculine and neuter gender shall be mutually inclusive. 9.District's Enforcement Rights. The District is deemed to be an intended beneficiary of this Declaration, and has the right, but not the obligation, to enforce the provisions of this Declaration by any legal or equitable means (including injunctive relief) against such person or persons in actual possession of the Property or any who directly or through any agent violate(s) the terms hereof. In the event any legal action is instituted by the District in connection with this Declaration, the District shall be entitled to reasonable attorneys’ fees and all fees, costs, and expenses incurred on any appeal or in collection or enforcement of any judgment. [Signature on following page] {SR321812}2609-125734\DECL\1429544.4 12/7/ 1810 [Signature Page to Declaration of Restrictions] Declarant has executed this Declaration of Restrictions as of , 201__. WILLIAM LYON HOMES, INC., a California corporation, By: Its: ____________________________________ Name: __________________________________ “Declarant” A notary public or other officer completing this certificate verifies only the identity of the individual who signed thedocumenttowhichthiscertificateisattached,andnotthetruthfulness,accuracy,orvalidityofthatdocument. STATE OF CALIFORNIA COUNTY OF On ,, before me, (here insert name and title of the officer) personally appeared , who 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 acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) RESOLUTION NO. XX – 19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * APPROVING THE INITIATION OF A GENERAL PLAN AMENDMENT STUDY TO EVALUATE CHANGING THE LAND USE DESIGNATION OF APPROXIMATELY 22 ACRES FROM RURAL RESIDENTIAL/AGRICULTURE TO 12 ACRES DESIGNATED SINGLE-FAMILY RESIDENTIAL AND 10 ACRES DESIGNATED OPEN SPACE (APN: 985-0072-005-00) WHEREAS, The City received a letter from William Lyon Homes requesting that the City Council consider initiating a General Plan Amendment Study to change the existing land use designation of 22 acres from Rural Residential/Agriculture to 12 acres designated as Single- Family Residential and 10 acres designated as Open Space; and WHEREAS, the applicant anticipates the future development of up to 57 single-family detached homes as part of an age restricted community for persons 55 years and older; and WHEREAS, the General Plan Amendment Study initiation request has been reviewed in accordance with the provisions of the California Environmental Quality Act (CEQA) and was found to be Categorically Exempt under Section 15306, Class 6 of the State CEQA Guidelines; and WHEREAS, a Staff Report was submitted outlining the issues surrounding the General Plan Amendment Study initiation request; and WHEREAS, the City Council did hear and consider all such reports, recommendations, and testimony hereinabove set forth. NOW, THEREFORE, BE IT RESOLVED that the Dublin City Council does hereby approve the initiation of a General Plan Amendment Study to evaluate changing the land use designation of the study area from 22 acres designated Rural Residential/Agriculture to 12 acres designated as Single-Family Residential and 10 acres designated as Open Space to accommodate the future development of an age restricted community for persons 55 years and older. PASSED, APPROVED AND ADOPTED by the Dublin City Council on this 19th day of February 2019 by the following vote: AYES: NOES: ABSENT: ABSTAIN: ____________________________ Mayor ATTEST: ________________________ City Clerk RESOLUTION NO. XX – 19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * DENYING THE INITIATION OF A GENERAL PLAN AMENDMENT STUDY TO EVALUATE CHANGING THE LAND USE DESIGNATION OF APPROXIMATELY 22 ACRES FROM RURAL RESIDENTIAL/AGRICULTURE TO 12 ACRES DESIGNATED SINGLE-FAMILY RESIDENTIAL AND 10 ACRES DESIGNATED OPEN SPACE (APN: 985-0072-005-00) WHEREAS, The City received a letter from William Lyon Homes requesting that the City Council consider initiating a General Plan Amendment Study to change the existing land use designation of 22 acres from Rural Residential/Agriculture to 12 acres designated as Single- Family Residential and 10 acres designated as Open Space; and WHEREAS, the applicant anticipates the future development of up to 57 single-family detached homes as part of an age restricted community for persons 55 years and older; and WHEREAS, the General Plan Amendment Study initiation request has been reviewed in accordance with the provisions of the California Environmental Quality Act (CEQA) and was found to be Categorically Exempt under Section 15306, Class 6 of the State CEQA Guidelines; and WHEREAS, a Staff Report was submitted outlining the issues surrounding the General Plan Amendment Study initiation request; and WHEREAS, the City Council did hear and consider all such reports, recommendations, and testimony hereinabove set forth. NOW, THEREFORE, BE IT RESOLVED that the Dublin City Council does hereby deny the initiation of a General Plan Amendment Study to evaluate changing the land use designation of the study area from 22 acres designated Rural Residential/Agriculture to 12 acres designated as Single-Family Residential and 10 acres designated as Open Space to accommodate the future development of an age restricted community for persons 55 years and older. PASSED, APPROVED AND ADOPTED by the Dublin City Council on this 19th day of February 2019 by the following vote: AYES: NOES: ABSENT: ABSTAIN: ____________________________ Mayor ATTEST: ________________________ City Clerk Active General Plan Amendment Study - Status ReportUpdated through February 5, 2019Project Name Project Description Status PlnrCouncil Initiation DateInterim Study ItemsEst. Council Hearing Date1 At Dublin GPA, SPA, PD Rezone, Site Development Review, Tentative Map, and EIR to allow up to 450,000 s.f. of commercial development and up to 700 residential units.The Planning Commission considered the item and recommended denail of the project to the City Council on October 30, 2018. The applicant has requested additional time before scheduling the project for consideration by the City Council.AM 10/3/17 n/a TBD2 Kent Property GPA & Rezone to allow retail uses. Waiting for property owner to submit an application to begin work.MK 2/5/19TBD*City initiated amendment.