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DATE:
TO:
FROM:
STAFF REPORT
CITY COUNCIL
CITY CLERK
File #420-20
May 15, 2012
Honorable Mayor and City Councilmembers
~~
Joni Pattillo, City Manager ° ~'
SUBJECT: Consideration of Eliminating the Development Agreement Requirement from the
Eastern Dublin Specific Plan
Prepared by Jeri Ram, Community Development Director and John Bakker, City
Attorney
EXECUTIVE SUMMARY:
The Eastern Dublin Specific Plan requires that applicants for development in Eastern Dublin
enter into a mutually acceptable development agreement with the City. The City's original
purpose for this requirement was to ensure the adequate provision of infrastructure and
payment of impact fees. There are now other implementation measures in place to insure the
provision of infrastructure and payment of fees that make this requirement, from the Staff's
perspective, no longer necessary.
Under California law, a developer is not protected if development regulations change. Thus, a
local agency can change the regulations that apply to an approved project in a way that
prevents the developer from completing the project. State law also provides that developers
may obtain the vested right to proceed with a project by entering into a development agreement
with the local agency approving the project.
Local agencies have no obligation to enter into development agreements, and therefore they
can negotiate for consideration in exchange for granting them. In order to comply with the
development agreement requirement, the City has offered developers a standard development
agreement that vests the developer's right to proceed with its project for afive-year period. In
practice, since the Eastern Dublin Specific Plan requires the agreement, the City has not been
able to ask for community benefits in exchange for the vested rights. City Staff is
recommending that the development-agreement requirement be eliminated because it will give
the City the opportunity to negotiate for community benefits when developers desire the
certainty provided by a development agreement.
FINANCIAL IMPACT:
Preparation of the Amendment will be done by Staff with review by the City Attorney. Future
Development Agreements will continue to be paid for by the requesting Developer and will
generally include a community benefit component.
Page 1 of 4 ITEM NO. 8.1
RECOMMENDATION:
Staff recommends that the City Council direct Staff to prepare and present, to the Planning
Commission and City Council, an amendment to the Eastern Dublin Specific Plan that
eliminates the requirement that applicants for development enter into a mutually acceptable
development agreement with the City.
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Submitted By
City Attorney
~~
~...~..:
Subrr~itted By
Community Development
Director
Reviewed y
Assistant City Manager
DESCRIPTION:
Authority for Development Agreements
Under the common law of California, the approval of a development project does not give the
developer a right to proceed to complete the project. Rather, the local agency can change the
rules and regulations at any point up until the developer has been issued a building permit and
incurred substantial liabilities in good faith reliance on the permit. Even then, the vested right
only gives the developer the right to complete the development described in the building permit.
At least tacitly recognizing the harshness of this rule, the Legislature has developed two means
by which a developer may protect a project from subsequent changes in law. First, a developer
may file for a vesting tentative map, the approval of which gives the developer the right to
proceed with development in substantial compliance with the rules and regulations in effect at
the time the map application was deemed complete. (See Gov. Code, § 66498.1(b).) Second,
a developer may request that the local agency enter into a development agreement. A
development agreement vests the developer's right to proceed with the approved project and,
unless otherwise specified in the agreement, locks in the rules and regulations applicable to the
property. The local agency has no obligation to enter into a development agreement, and
therefore it can negotiate for consideration (community benefits) in exchange for giving the
developer vested rights.
Requirement of Eastern Dublin Specific Plan for Development Agreements
Chapter 11 of the Eastern Dublin Specific Plan (Specific Plan) includes provisions relating to
implementation of the Specific Plan. Section 11.3.1 re uires all applicants for development in
the Specific Plan area to enter into a mutually acceptable development agreement with the City
(Attachment 1).
Pursuant to Section 11.3.1, the City Council adopted a standard master development
agreement on October 10, 1994 and amended it on November 28, 1995 (Attachment 2). Over
the years, the City Council has unofficially established five years as the time for what Staff has
referred to as "specific plan required development agreements." Because the Specific Plan
requires a development agreement, the City cannot bargain for consideration from the
developer in exchange for the development agreement. For this reason, the standard Specific
Plan development agreements have not been used by the City to exact benefits the City cannot
otherwise obtain.
Page 2 of 4
Use of Eastern Dublin Development Agreements
The Specific Plan indicates that the purpose of the development agreement requirement is to:
(1) augment the City's standard development regulations for specific projects; (2) spell out the
precise financial responsibilities of the developer; (3) ensure the timely provision of adequate
public facilities; (4) streamline the development approval process by coordinating various
discretionary approvals; (5) provide the terms for reimbursement when a developer advances
funding for specific facilities which have community wide area benefits; and (6) provide for
mutuality to the City and the developer regarding entitlements to the developer in return for
commitments for public improvements. (Section 11.3.1. of the Specific Plan)
At the time the Specific Plan was approved, these purposes made sense as the implementation
mechanisms such as impact fees were not yet in place; however, at this point in the
development of Eastern Dublin, none of these purposes offers a particularly compelling rationale
to maintain the requirement. Therefore, the Development Agreement temporarily filled a need
and is no longer necessary.
Pros and Cons of the Development Agreement Requirement
The Specific Plan development agreement requirement has advantages and disadvantages.
The advantages of the specific plan development agreement requirement are: (1) the
agreements satisfy the Specific Plan requirement for "financing plans" and "infrastructure
sequencing programs"; (2) the agreements secure project conditions that cannot be satisfied at
final map; and (3) the agreements can clarify conditions of approval. The disadvantages of the
Specific Plan development agreement requirement are: (1) the City, since it effectively gives
away five years of vested rights, cannot bargain for community benefits in exchange for
providing vested rights; and (2) the requirement, by adding another required city approval,
increases the developers' costs to process their projects.
Staff believes that the advantages are not particularly significant. If the City Council did amend
the Specific Plan to delete the requirement for a development agreement, it could also delete
the requirement for a "financing plan" and an "infrastructure sequencing program."
Development agreements would not be needed to clarify conditions of approval if they are
clearly written. In addition, those project conditions that cannot be satisfied at final map can be
secured by a separate agreement prior to final map approval.
On the other hand, Staff believes that the disadvantages are significant. First, many developers
apply for vesting tentative maps and are thereby able to obtain vested rights without a
development agreement. These rights may be adequate for many developers. Other
developers do not have vesting maps or prefer a development agreement because of the
certainty it provides to it and its financing partners. In such cases, eliminating the requirement
will give the City the ability to bargain for consideration in exchange for providing vested rights to
the developer. Any future development agreements for properties in Eastern Dublin would then
be freely negotiated. Second, many developers, particularly those that are ready to immediately
proceed with development, have expressed concern both about the costs and time associated
with drafting, negotiating, and processing the development agreement. Thus, eliminating the
requirement will have an economic development benefit in that it will reduce the expense of and
expedite the processing of development in the Eastern Dublin Specific Plan area.
Page 3 of 4
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
No notification is required to direct Staff to prepare and process an amendment to the Eastern
Dublin Specific Plan. Should the City Council direct Staff to move forward with this Amendment,
Staff will contact the development community for comments prior to setting the item for public
hearing. In addition, when the amendment is presented to the Planning Commission and City
Council, the public and property owners will be notified in accordance with the requirements of
the Planning and Zoning Law.
ATTACHMENTS: 1. Section 11.3.1 of the Eastern Dublin Specific Plan
2. Standard Master Development Agreement
Page 4 of 4
IMPLEMENTATION
11.3 OTHER IMPLEMENTING ACTIONS
In addition to the foregoing key actions, the following actions will assist in Specific Plan preparation.
11.3.1 DEVELOPMENT AGREEMENTS
The City shall require all applicants for development in eastern Dublin to enter into a
mutually acceptable development agreement with the City for their respective area.
Agreements should only be arranged where the developer is prepared to proceed promptly
in accordance with a specific time schedule for seeking the required approvals and
commencing construction. Typically, the agreements would be entered into after the EIR is
certified and before tentative subdivision maps are approved.
Such development agreements will set forth the roles that will govern the developments as
they proceed through the approval process. Both the City and the project sponsors
(developers) would commit themselves to proceed in accordance with the terms of the
agreements. The City may agree to process further applications in accordance with its plans
and laws in existence at the time of the agreements. In effect, the City promises not to
change its planning or zoning laws applicable to these developments for a specified period
of time. Thus, future land use decisions are not made according to the City's laws and
policies in effect at that time, but are made according to the laws in effect when the
agreements were entered into. In return, the developers may agree to construct specific
improvements, provide public facilities and services, develop according to a specified time
schedule or make other commitments which the City might otherwise have no authority to
compel the developers to perform.
The Specific Plan and its EIR places substantial requirements on the development of the
properties within the eastern Dublin planning area. These requirements include financing,
construction and maintenance of public facilities, design standards, and mitigation of
environmental impacts. For this Specific Plan, a development agreement is the
recommended legal document to:
Augment the City's standard development regulations in response to the
particular characteristics of each individual project;
Spell out the precise financial responsibilities of the developer;
Ensure timely provision of adequate public facilities for each project;
Streamline the development approval process by coordinating various
discretionary approvals;
~ Provide the terms for reimbursement when a developer advances funding for
specific facilities which have community-wide or area benefit;
224
IMPLEMENTATION
~ Provide mutually to both the City and the developer regarding entitlements to the
developer in return for commitments for public improvements.
The City should first develop a Master Development Agreement to serve as the format for
all development agreements within the eastern Dublin planning area. The conditions
included in this Master Development Agreement would then be tailored to the special
condition for each major project area and the development projects within it.
11.3.2 AREA OF BENEFIT ORDINANCE
The City shall adopt an Area of Benefit Ordinance and form an Area of Benefit for those
properties benefiting from construction of public improvements described in the Specific
Plan. Area of Benefit fees maybe enacted by the City of Dublin through adoption of an
ordinance, without voter approval. The fee must be directly related to the benefit received.
It does not create a lien against property, but must be paid in full as a condition of approval.
Benefiting properties maybe given the option to finance the fees by entering into an
assessment district (1913 - 1911 Act) or Mello-Roos CFD.
11.3.3 ANALYSIS OF FINANCING TECHNIQUES
Further analysis of various public financing techniques is required to identify and develop
the most flexible and lowest cost financing program for necessary public infrastructure and
facilities in the project area. Each technique or combination of techniques should be
evaluated for its suitability of funding public infrastructure and facilities costs and its
capacity to insure both adequate and timely provision of infrastructure and facilities, and
lowest possible burden to new residents. In addition, the financing program developed
should be consistent with financing policies set out in the Specific Plan. Public financing
mechanisms that the City should consider as part of this analysis may include:
~ Special Assessment District 9 Mello-Roos CFD. The City shall analyze the use of a
Mello-Roos CFD, Special Assessment District, or a combination of these and other
financing mechanisms to finance construction of the required public improvements
(outlined in Tables 10-1 and 10-4 in Chapter 10) to serve the Area of Benefit. Some of
the special taxes or special assessments maybe due upon application for building
permits, and the remainder maybe financed with the appropriate bond mechanisms.
Landscapin and Lighting District. The City shall analyze the use of a district to
fund certain ongoing costs such as maintenance of streetlights and landscaping.
Geologic Hazards Abatement District (GHAD). The City shall analyze use of a
GHAD to periodically inspect and maintain unstable slopes in the eastern Dublin
area. A GHAD would provide for the assessment of a special fee on property owners
in the area to pay for inspections and maintenance as well as create a reserve fund
from which to make any necessary repairs. Water quality basins and other geologic
and hydrologic hazards and facilities may also be maintained by a GHAD.
225
Recording Requested by:
city of Dublin
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 945 68
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
FOR THE [ ]PROJECT
Appxoved by City Counsel
November 28, 1995
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this _ day of , 19_, by and between the CITY OF DUBLIN, a
Municipal Corporation (hereafter "City"), and , a [e.g. California
corporation, California general partnership, California limited partnership] (hereafter
"Developer"), pursuant to the authority of §§ 65864 et seq. of the California
Government Code and Dublin Municipal Code, Chapter 8.12.
RECITALS
A. California Government Code §§ 65864 et seq. and Chapter 8.12 of
the Dublin Municipal Code (hereafter "Chapter 8.12") 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. The Eastern Dublin Specific Plan requires DEVELOPER to enter
into a development agreement; and
D. DEVELOPER desires to develop and holds legal interest in certain
real property consisting of approximately acres of land, located in the City of
Dublin [omit if property is in unincorporated area], County of Alameda, State of
California, which is more particularly described in Exhibit A attached hereto and
incorporated herein by this reference, and which real property is hereafter called the
"Property"; and [Note: Alameda County Surplus Property Authority may also be
party to Development Agreement if property is part of the "Santa Rita"
property. ]
E. DEVELOPER proposes the development of the Property with
_ [e.g., single-family/mufti-family homes; a_ acre commercial development; a
mixed use development] (the "Project"); and
F. DEVELOPER has applied for, and CITY has approved, various land
use approvals in connection with the development of the Project, including a [e.g. PD
District prezoning and Land Use and Development Plan (Res. No. ), tentative
map (Res. No. ), site development review, conditional use permit (Planning
Commission Resolution No. )] (collectively, together with any approvals or
2 November 28, 1995
permits now or hereafter issued with respect to the Project, the "Project Approvals");
and
G. Development of the Property by DEVELOPER is subject to certain
future discretionary approvals including, but not limited to, [e.g., tentative map, site
development review], which, if granted, shall automatically become part of the
Project Approvals as each such approval becomes effective; and
H. CITY desires the timely, efficient, orderly and proper development
of said Project; and
I. 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 8.12;
and
J. 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
IC Pursuant to the California Environmental Quality Act (CEQA) the City
[e.g., prepared a Supplement to or Subsequent Environmental Impact Report, an .
Addendum, a Negative Declaration, a Mitigated Negative Declaration for the Project]
or [e.g., has found, pursuant to CEQA Guidelines section 15168, that the 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 Council by
Resolution No. 51-93] and found that the [e.g., EIR, ND] was adequate for this
Agreement; and
L. On [date], the City Council of the City of Dublin adopted
Ordinance No. approving this Development Agreement. The ordinance took
effect on [date].
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained,
CITY and DEVELOPER agree as follows:
3 November 28, 1995
AGREEMENT
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
2. Interest of Developer.
The DEVELOPER has a legal or equitable interest in the Property in
that it [e.g., owns, has an option on] the Property in fee simple.
3. RelationshiR 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 malting 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 recorded in the Office of the Alameda
County Recorder.
4.2 Term. The term of this Development Agreement shall
commence on the effective date and extend (_) years thereafter, unless said
term is otherwise terminated or modified by circumstances set forth in this
Agreement. "
5. Use of the Property.
5.1 Right to Develop. Developer shall have the vested right to
develop the Project on the Property in accordance with the terms and conditions of
this Agreement, the Project Approvals (as and when issued), and any amendments to
any of them as shall, from time to time, be approved pursuant to .this Agreement.
4 November 28, 1995
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 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 Discretionar~pprovals.
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.) (See Exhibit B) or (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) or (Not
Applicable)
5.3.3 Phasing, Timing. Provisions that the Project be
constructed in specified phases, that construction shall commence
within a specified time, and that the Project or any phase thereof be
completed within a specified time. (See Exhibit B) or (Not
Applicable)
5.3.4 Financing Plan. Financial plans which identify
necessary capital improvements such as streets and utilities and
sources of funding. (See Exhibit B) or (Not Applicable)
5.3.5 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
(See Exhibit B) or (Not Applicable)
5 November 28, 1995
5..3.6 Fees. Dedications. Terms relating to payment of
fees or dedication of property. (See Exhibit B) or (Not
Applicable)
5.3.7. Miscellaneous. Miscellaneous terms.
(See Exhibit B) or (Not Applicable)
6. Applicable Rules. Reg_ixlations and Official Policies.
6. I 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, bulls 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, and Electrical Codes
and Title 24 of the California Code of Regulations, relating to Building Standards, ia1
effect at the time of approval of the appropriate building, grading, or other
construction permits for the Project.
7. Subsecluent~ly Enacted Rules and Regulations.
7. I 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 the application of
such new or modified ordinances, resolutions, rules, regulations or official policies
6 ~ November 28, 1995
would not prevent or materially delay development of the Property as contemplated
by this Agreement and the Project Approvals,.
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 ne`v 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] ix1 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 ixt [insert PD Ordinance Number]
and in this Agreement. [The CITY shall not impose or require payment of any other
fees, dedications of land, or construction of any public improvements or facilities, in
connection with any subsequent discretionary approval for the Property, except as set
forth in and this Agreement.]
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
7 November 28, 1995
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.
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 8.12.
9.2 Amendment b~ 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 Dublin Ordinance No. 8-91.
9.3 Insubstantial Amendments. Notwithstanding the
provisions of the preceding paragraph 9.2, any amendments to this Agreement which
do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the
permitted uses of the Property as provided in paragraph 5.2; (c) provisions for
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.
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
8 November 28, 1995
shall require an amendment of this Agreement. Any other amendment of the Project
Approvals, or any of them, shall not require amendment of this Agreement unless the
amendment of the Project Approval(s) relates specifically to some provision of this
Agreement.
9.5 Cancellation by Mutual Consent. Except as otherwise
permitted herein, this Agreement may be canceled in whole or in part only by the
mutual consent of the parties or their successors in interest, in accordance with the
provisions of Chapter 8.12. Any fees paid pursuant to Paragraph 5.3 and Exhibit B
of this Agreement prior to the date of cancellation shall be retained by CITY.
10. Term of Project Approvals.
Pursuant to California Government Code Section 66452.6(a), the
term of the tentative map described in Recital F 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 and each thereafter.
11.2 Initiation of Review. The CITY's Planning Director shall
initiate the annual review, as required under Section 8.12.140 of Chapter 8.12, by
giving to DEVELOPER thirty (30) days' written notice that the CITY intends to
undertake such review. DEVELOPER shall provide evidence to the Planning Director
prior to the hearing on the annual review, as and when reasonably determined
necessary by the Planning 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 three (3) days prior to any annual review.
11.4 Costs. Costs reasonably incurred by C1TY 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.
9 Novembex 28, 1995
12. Default.
12.1 Other Remedies Available. Upon the occurrence of an
event of default, the parties may pursue all other remedies at law or in equity which
are not otherwise provided for in this Agreement or in City's regulations governing
development agreements, expressly including the remedy of specific performance of
this Agreement.
12.2 Notice and Cure. Upon the occurrence of an event of
default by either party, the nondefaulting party shall serve written notice of such
default upon the defaulting party. If the default is not cured by the defaulting party
within thirty (30) days after service of such notice of default, the nondefaulting party
may then commence any legal or equitable action to enforce its rights under this
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, to
the lcno`vledge of the certifying party, (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) 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 Failure to execute
an estoppel certificate shall not be deemed a default.
10 November 28, 1995
14. Mortgagee Protection: Certain Rights 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, or any portion thereof,
by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise.
I4.2 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 14.1 above, no Mortgagee shall have any obligation or duty under this
Agreement to construct or complete the construction of improvements, or to
guarantee such construction of improvements, or to guarantee such construction or
completion; provided, however, that a Mortgagee shall not be entitled to devote the
Property to any uses or to construct any improvements thereon other than those uses
or improvements provided for or authorized by the Project Approvals or by this
Agreement.
14.3 Notice of Default to Mortgagee and Extension of Right to
Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of
default given DEVELOPER hereunder and specifying the address for service thereof,
then CITY shall deliver to such Mortgagee, concurrently with service thereon to
DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY
that DEVELOPER has committed an event of default. Each Mortgagee shall have
the right during the same period available to DEVELOPER to cure or remedy, or to
commence to cure or remedy, the event of default claimed set forth in the CITY's
notice. CITY, through its City Manager, may extend the thirty-day cure period
provided in paragraph I2.2 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.
l 1 November 28, 1995
16. Attorneys' Fees and Costs.
If CITY or DEVELOPER initiates any action at law or in equity to
enforce or interpret the terms and conditions of this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees and costs in addition to any
other relief to which it may otherwise be entitled. If any person or entity not a party
to this Agreement initiates an action at law or in equity to challenge the validity of
any provision of this Agreement or the Project Approvals, the parties shall cooperate
in defending such action. DEVELOPER shall bear its own costs of defense as a real
party in interest in any such action, and shall reimburse CITY for all reasonable court
costs and attorneys' fees expended by CITY in defense of any such action or other
proceeding.
17. Transfers and Assignments.
17. I Right to Assign. DEVELOPER'S rights hereunder maybe
transferred, sold or assigned in conjunction with the transfer, sale, or assignment of all
or a portion of the Property subject hereto at any time during the term of this
Agreement, provided that no transfer, sale or assignment of DEVELOPERSs rights
hereunder shall occur without the prior written notice to CITY and approval by the
City Council, which approval shall not be unreasonably withheld or delayed. The
City Council shall consider the matter within 30 days after DEVELOPER's notice.
17.2 Release Upon Transfer. Upon the transfer, sale, or
assignment of DEVELOPER's rights and interests hereunder pursuant to the
preceding subparagraph of this Agreement, DEVELOPER shall be released from the
obligations under this Agreement, with respect to the Property transferred, sold, or
assigned, arising subsequent to the date of City Council approval of such transfer,
sale, or assignment; provided, however, that if any transferee, purchaser, or assignee
approved by the City Council expressly assumes the obligations of DEVELOPER
under this Agreement, DEVELOPER shall be released with respect to all such
assumed obligations. In any event, the transferee, purchaser, or assignee shall be
subject to all the provisions hereof and shall provide all necessary documents,
certifications and, other necessary information prior to City Council approval.
17.3 Termination of Agreement Upon Sale of Individual Lots to
Public. Notwithstanding any provisions of this Agreement to the contrary, the
burdens of this Agreement shall terminate as to any lot which has been finally
subdivided and individually (and not in "bulk") leased (for a period of longer than one
year) or sold to the purchaser or user thereof and thereupon and without the
12 November 28, 1995
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. [Omit for commercial/industrial projects.]
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 ixt
bankruptcy.
20. Indemnification.
DEVELOPER agrees to indemnify, defend and hold harmless CITY,
and its elected and appointed councils, boards, commissions, officers, agents,
employees, and representatives from any and all claims, costs (including legal fees and
costs) and liability for any personal injury or property damage which may arise
directly or indirectly as a result of any actions or inactions by the DEVELOPER, or
any actions or inactions of DEVELOPER'S contractors, subcontractors, agents, or
employees in connection with the construction, improvement, operation, or
maintenance of the Project.
13 Novennber 28, 1995
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 aper-occurrence combined single limit
of not less than one million dollars ($1,000,000) and a deductible of not more than
thousand dollars ($ )per claim. The policy so maintained by
DEVELOPER shall name the CITY as an additional insured and shall include either a
severability of interest clause or cross-liability endorsement.
21.2 Workers Compensation Insurance. During the term of this
Agreement DEVELOPER shall maintain Worker's Compensation insurance for all
persons employed by DEVELOPER for work at the Project site. DEVELOPER shall
require each contractor and subcontractor similarly to provide Worker's
Compensation insurance for its respective employees. DEVELOPER agrees to
indemnify the City for any damage resulting from DEVELOPER's failure to maintain
any such insurance.
21.3 Evidence of Insurance.Prior to City Council approval of
this Agreement, DEVELOPER shall furnish CITY satisfactory evidence of the
insurance required in Sections 21.1 and21.2 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 and each contractor and subcontractor 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 [and that DSRSD does not presently
have adequate water and sewer capacity to issue such permits]. (Delete if not
applicable. )
23. Notices.
All notices required or provided for under this Agreement shall be in
writing and delivered in person or sent by certified mail, postage prepaid.Notices
required to be given to CITY shall be addressed as follows:
14 Novembex 28, 1995
City Manager
City of Dublin
P.O. Box 2340
Dublin, CA94568
Notices required to be given to DEVELOPER shall be addressed as follows:
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.
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 duplicate originals,
each of which is deemed to be an original.
27. Recordation. CITY shall record a copy of this Agreement within ten
days following execution by all parties.
l 5 Novembex 28, 1995
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
DEVELOPER:
By: Date:
Name:
Its:
APPROVED AS TO FORM:
City Attorney
Date:
(NOTARIZATION ATTACHED)
16 November 28, 1995
--~
EXHIBIT A
Description of the Property
[INSERT LEGAL DESCRIPTION]
November 28, 1995
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant
to Paragraph 5.3 above.
1. Subparagraph 5.3.1:Subsecluent Discretionary
A~provals.[PROVISIONS TO BE TAILORED. TO EACH PROJECT.]
2. Subparagraph 5.3.2:Mitigation Conditions.[PROVISIONS
TO BE TAILORED TO EACH PROJECT. ]
3. Subparagraph 5.3.3:Phasing, Timing.[PROVISIONS TO BE
TAILORED TO EACH PROJECT. ]
4. Subparagraph 5.3.4:Financing_Plan.[PROVISIONS TO BE
TAILORED TO EACH PROJECT. ]
5. Subparagraph 5.3.5:Reimbursement.[PROVISIONS TO BE
TAILORED TO EACH PROJECT.]
6. Subparagraph 5.3.6:Fees, Dedications.[PROVISIONS TO
BE TAILORED TO EACH PROJECT. ]
DEVELOPER agrees to pay the following fees to CITY:
a.Traffic Impact Fees pursuant to Dublin Resolution No. 1-95 [or current
resolution number, if amended] in the amount of $ ;
b.Freeway Interchange Fee pursuant to Dublin Resolution No. in the
amount of $ ;
c.Public Facilities Fees pursuant to Dublin Resolution No. in the
amount of $ ;
d.Noise Mitigation Fee pursuant to Dublin Resolution No. in the
amount of $ ;
November 28, 1995
e.Eastern Dublin Specific Plan Preparation Fee pursuant to Dublin
Resolution No. in the amount of $ ;
f.Ea.stern Dublin Specific Plan Implementation Fee pursuant to Dublin
Resolution No. in the amount of $ ;and
g.insert other applicable fees
DEVELOPER acknowledges that payment of school impact fees, fire capital impact
fees, and sewer and water connection fees must be made to other public entities.
DEVELOPER agrees to make the following dedications to CITY: insert property
description and purpose of dedication
7. Subpaxagraph 5.3.7:Miscellaneous. [PROVISIONS TO BE
TAILORED TO EACH PROJECT.]
2 November 28, 1995
State of California )
ss.
County of ,Alameda )
On
personally appeared
before me, a Notary Public,
personally lrnown to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
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.
WITNESS my hand and official seal.
NOTARY PUBLIC
November 28, 1995