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HomeMy WebLinkAboutOrd 07-01 DA TassajaraCrPhaseIIORDINANCE NO. 7 - 01 AN ORDINANCE OF THE CITY OF DUBLIN APPROVING A DEVELOPMENT AGREEMENT FOR PA 00-036 TASSAJARA CREEK PHASE II (GREENBRIAR PROPERTY RESIDENTIAL DEVELOPMENT) TRACT 7279 THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS Ao The proposed PA 00-036 Tassajara Creek Phase II (Greenbriar Property Residential Development) is located within the boundaries of the Dublin General Plan in an area which is designated on the General Plan Land Use Element Map as Medium Density Residential and Open Space. B. Pursuant to the California Environmental Quality Act (CEQA), CEQA Guidelines Section 15182, the proposed project is within the scope of the Final Environmental Impact Report for the Eastem Dublin General Plan Amendment and Specific Plan, which was certified by the City Council by Resolution No. 51-93, and the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR") (SCH 91103064). ~ C. A Development Agreement between the City of Dublin and GHC Investments, LLC for the Tassajara Creek Phase II (Greenbriar Property Residential Development) has been presented to the City Council, a copy of which is attached hereto as Exhibit Ao D. A public hearing on the proposed Development Agreement was held before the Planning commission on July 24, 2001, for which public notice was given as provided by law. E. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreement, which recommendation includes the Planning Commission's determinations with respect to the matters set forth in Section 8.56.080 of the Dublin Municipal Code. F. Public hearings on the proposed Development Agreement were held before the City Council on August 21, 2001, and September 4, 2001, for which public notice was given as provided by law. G. The City Council has considered the recommendation of the Planning Commission (Planning Commission Resolution 01-017) including the Planning Commission's reasons for its recommendation, the Agenda Statement, all comments received in writing and all testimony received at the public hearing. H. The Eastern Dublin Specific Plan was adopted in 1994 and has a certified Program EIR (SCH No. 91-103064). This Project is located within the boundaries of the Eastern Dublin Specific Plan area and is considered one in a series of actions covered by the Program EIR. It is within the scope of the Program EIR; the Program EIR & Addendum adequately describe the impacts of the project, and there have been no substantial changes or new information which would necessitate supplementing the Program EIR pursuant to Public Resources Code section 21166 and CEQA guidelines Section 15162. A Mitigated Negative Declaration (SCH No. 99- 102104) was adopted for the initially approved Greenbriar Phase I residential project (PA 98-062) by the City Council on March 7, 2000. Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin's General Plan, (c) Eastern Dublin Specific Plan, (d) the EIR, (e) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City's General Plan and the Eastern Dublin Specific Plan, as amended by the Greenbriar General Plan Amendment and Specific Plan Amendment in that (a) the General Plan and Eastern Dublin Specific Plan land use designations for the site are Medium Density Residential and Open Space and the proposed project is a single family dwelling project consistent with those land use designations and (b) the project is consistent with the fiscal policies of the General Plan with respect to provision of infrastructure and public services. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the zoning districts in which the real property is located in that the project approvals include a Planned Development Rezoning adopted specifically for the Tassajara Creek Phase II (Greenbriar Property Residential Development). 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies in that the Tassajara Creek Phase II (Greenbriar Property Residential Development) will implement land use guidelines set forth in the General Plan and Eastern Dublin Specific Plan, which have planned for residential uses and a small commercial area at this location. 4. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values because the project is consistent with the General Plan and the Eastern Dublin Specific Plan. Section 3. APPROVAL The City Council hereby approves the Development Agreement (Exhibit A) and authorizes the Mayor to sign it. Section 4. RECORDATION Within ten (10) days after the Development Agreement is executed by the Mayor, the City Clerk shall submit the Agreement to the County Recorder for recordation. Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 4th day of September, 2001, by the following votes: AYES: Councilmembers Lockhart, McCormick, Oravetz, Zika and Mayor Houston NOES: None ABSENT: None ABSTAIN: None ATTEST: DEPUTY CITY CLERK K2/G/9-4-01/ord-greenbriar.doc (Item 6.1) G:\PA00-036 DAORD · ~ ~iAYO~R City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETVVEEN THE CITY OF DUBLIN AND GHC INVESTMENTS, LLC. FOR TRACT 7279 TASSAJARA CREEK PROJECT PHASE II EXHIBIT THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this ~ day of ,2001, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and GHC Investments, LLC. a Delaware Limited Liability Company (hereafter "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A.. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and C. DEVELOPER and CITY are parties to a development agreement for Phase I of the Tassajara Creek Project which consists of Lots I to 126, which development agreement is dated November 2, 2000 and was recorded on April 9, 2001 at 2001118832. D. The Eastern Dublin Specific Plan requires DEVELOPER to enter into a development agreement for all phases of the Tassajara Creek Project; and E. DEVELOPER desires to develop and holds legal interest in approximately 52.95 acres of that certain real property consisting of approximately 64.39 acres of land, located in the City of Dublin, County of Alameda, State of California owned by the Marjorie R. Koller 1993 Living Trust and Carolyn A. Adams. Developer has received the following land use approvals: General Plan and Eastern Dublin Specific Plan amendment (Council Resolution No. 32-00) (applicable to all 64.39 acres); PD District Rezone and Stage 1 Development Plan (Council Ordinance No. 7-00) (applicable to all 64.39 acres); PD District Rezone and Stage 2 Development Plan for Phase I (Council Ordinance No. 7-00) (applicable to 52.95 acres); and Vesting Tentative Map for Tract 7075 (Planning Commission Resolution No. 00-10) (applicable to 64.39 acres, creating 131 lots and Parcels A through J); and final map for Tract 7075;' and F. Developer has received more specific approvals for a 8.31 acre portion of the 52.95 acres (which 8.31 acres consist of Parcels 127. 128, B, D' and E as shown on the Vesting Tentative Map for Tract 7075, which are more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property"; and Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 2 of 16 August 21, 2001 G. DEVELOPER proposes the development of the Property with 21 cluster homes and 25 traditional homes for a total of 46 single family homes (the "Project" or "Phase II Project"); and H. DEVELOPER has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the Phase II Project, including PD District rezoning and Stage 2 Development Plan (City Council Ordinance No. 4-01), Vesting Tentative Map for Tract 7279 (Planning Commission Resolution No. 01-04) which further subdivided Lots 127 and 128 into 46 lots, and site development review (Planning Commission Resolution No. 01-04) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and I. Development of the Property by DEVELOPER may be subject to certain future discretionary approvals, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective; and J. CITY desires the timely, efficient, orderly and proper development of said Phase II Project; and K. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and L. CITY and DEVELOPER have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein; and M. CITY and DEVELOPER will enter into a similar development agreement consistent with this agreement for the balance of DEVELOPER's 52.95 acres following approval of a Stage 2 Development Plan for such land and approval of further tentative maps; and N. Pursuant to the California Environmental Quality Act (CEQA) the City Council adopted Resolution No. 31-00 finding that the Project is within the scope of the Final Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was certified by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR") and the Mitigated Negative Declaration for PA 98- 062 Greenbriar Land Company Tassajara Creek Residential Project (SCH 99102104) and adopted a Mitigated Negative Declaration for the Project and filed a Notice of Determination on March 23, 2000; and Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 3 of 16 August 21, 2001 O. On adopted Ordinance No. ordinance took effect on ., the City council of the City of Dublin approving this Development Agreement. The ,2001. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPER agree as follows: AGREEMENT 1. Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property in that it is under contract to purchase the Property in fee simple. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by CITY and DEVELOPER and that the DEVELOPER is not an agent of CITY. The CITY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY and DEVELOPER joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by City. 4.2 Term. The term of this Development Agreement shall commence on the effective date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 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. Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 4 of 16 August 21, 2001 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by CITY) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1 Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin other approvals from regulatory agencies.) Not Applicable 5.3.2 Mitigation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmental impacts of the Project or otherwise relating to development of the Project. See Exhibit B 5.3.3 Phasing, Timing. Provisions that the PrOject be constructed in specified phases, that construction shall commence within a specified time, and that the Project or any phase thereof be completed within a specified time. See Exhibit B 5.3.4 Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5 Fees, Dedicati°ns. Terms relating to payment of fees or dedication of property. See Exhibit B 5.3.6 Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B 5.3.7 Miscellaneous. Miscellaneous terms. See Exhibit B Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 5 of 16 August 21, 2001 6. Applicable Rules, Regulations and .Official Policies. 6.1 Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Property, governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the effective date of this Agreement. 6.2 Rules re Desiqn and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project Shall be those in force and effect at the time of the applicable discretionary Project Approval. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable permit approval. 6.3 Uniform Codes Applicable. Unless expressly provided in. Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Requlations. 7.1 New Rules and Requlations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2 Approval of Application. Nothing in this Agreement shall prevent the CITY from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements expressly set forth herein. Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 6 of 16 August 21, 2001 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of CITY, by initiative, referendum, or otherwise, that imposes a building moratorium which affects the Project on all or any part Of the Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1 Fees, Exactions, Dedications CITY and DEVELOPER agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement (including Exhibit B). The CITY shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. 8.4 Assessments. Nothing herein shall be construed to relieve the Property from assessments levied against it by City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5 Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's ballot as affirmatively voting in favor of such assessment, fee or charge. Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 7 of 16 August 21, 2001 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56, 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "significant" reservation or dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings; or (g) monetary contributions by DEVELOPER as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. CITY's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4 Amendment of Proiect Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) monetary contributions by the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project,Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the Dublin/Greenbriar Development Agreement fOr Greenbriar Phase 2 Page 8 of 16 August 21, 2001 provisions of chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by CITY. 10. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described in Recital H above shall automatically be extended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be August 15, 2002 and each August 15 thereafter. 11.2 Initiation of Review. The CITY's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER thirty (30) days' written notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CITY in connection with the annual review shall be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party, If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable aCtion to enforce its rights under this Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 9 of 16 August 21, 2001 Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damages Against CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall be authorized to execute any certificate requested by DEVELOPER. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that suCh party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mort.qa.qee Protection; Certain Riqhts of Cure. 14.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 10 of 16 August 21, 2001 construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to Mortgagee and Extension of Right to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereunder and specifying the address for service thereof, then CITY shall deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that DEVELOPER has committed an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee. 15. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other Provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. DEVELOPER shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse CITY for all reasonable court costs and attorneys' fees expended by CITY in defense of any such action or other proceeding. 17. Transfers and Assignments. 17.1 Right to Assign. It is anticipated that DEVELOPER may sell, transfer or assign portions of its Property to other developers (each such other developer is referred to as a."Transferee"). In connection with any such sale, transfer or assignment to a Transferee, DEVELOPER may sell, transfer or assign to such Transferee any or all rights, interests and obligations of DEVELOPER arising hereunder and that pertain to the portion of the Property being sold or Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 11 of 16 August 21, 2001 transferred, to such Transferee, provided, however, that: no such transfer, sale or assignment of DEVELOPER's rights, interests and obligations hereunder shall occur without prior written notice to CITY and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. 17.2 Approval and Notice of Sale, .Transfer or Assignment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) days after DEVELOPER's notice, provided all necessary documents, certifications and other information are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform the DEVELOPER's obligations hereunder. Notice of any such approved sale, transfer or assignment (which includes a description of all rights, interests and obligations that have been transferred and those which have been retained by DEVELOPER) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. 17.3 ' Effect of Sale, Transfer or Assiqnment. DEVELOPER shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to subparagraph 17.1 of this Agreement, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to subparagraph 17.1 of this Agreement; and b) such obligations are expressly assumed by Transferee and provided that such Transferee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval pursuant to subparagraphs 17.1 and 17.2 of this Agreement. 17.4 Permitted Transfer, Purchase or Assiqnment. The sale or other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to the exercise of any right or remedy under a deed of trust encumbering DEVELOPER'S interest in the Property shall not require City Manager approval pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 17.1. 17.5 Termination of Agreement Upon Sale of Individual Lots to Public: Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the purchaser or user thereof and thereupon and without the execution or recordation of any further 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 Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 12 of 16 August 2'1, 2001 termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 18. ,Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, rePresentatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the DEVELOPER, or any actiOns or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that DEVELOPER shall have .no indemnification obligation with respect to negligence or wrongful conduct of CITY, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any .improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). Certain of the project conditions, including but not limited to Condition no. 3 of the Planning Commission Resolution 01-04, require DEVELOPER to obtain necessary permits from other agencies prior to project activity specified in the Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 13 of 16 August 21, 2001 condition. Should DEVELOPER fail to obtain all necessary permits, DEVELOPER agrees to' indemnify CITY, as set forth above, even if CITY issued permits for the specified project activity. 21. Insurance. 21.1 Public Liability and Property Damaqe Insurance. During the term of this Agreement, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) with a Twenty Five Thousand Dollar ($25,000) self insurance retention per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2 Workers Compensation InSurance. During the term of this Agreement DEVELOPER shall maintain Worker's Compensation insurance for all persons employed by DEVELOPER for work at the Project site. DEVELOPER shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to City Council approval of this Agreement, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the CITY at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER acknowledges that it must obtain water and sewer Permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of CITY. 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager - City of Dublin P.O. Box 2340 Dublin, CA 94568 FAX No. (925) 833-6651 Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 14 of 16 August 21, 2001 Notices required to be given to DEVELOPER shall be addressed as follows: Patrick Costanzo, Jr. GHC Investments, LLC 4340 Stevens Creek Boulevard, #240 San Jose, CA 95129 FAX No. (408) 556-1859 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 25. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property 26. Exhibit B Counterparts. Additional Conditions This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. 27. Recordation: CITY shall record a copy of this Agreement within ten days following execution by all parties. 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 Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 15 of 16 August 21, 2001 ATTEST: By: Date: City Clerk APPROVED AS TO FORM: City Attorney GHC INVESTMENTS, LLC a Delaware Limited Liability Company By: Greenbriar Homes Communities, Inc. A California Corporation, Its Manager By: Date: Its: (NOTARIZATION ATTACHED) J:\wpd~Vlnrsw\114\133~gree\greenbriar phase 2 da 072601 .doc Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 16 of 16 August 21, 2001 EXHIBIT A Description of Real Property All that certain real property situate in the City of Dublin, County of Alameda, State of California, more particularly described as follows: All of Lots 127, 128, Parcels B, D and E, as shown on the Map of Tract 7075, recorded on April 18, 2001, in Map Book 257, Pages 47 through 61, inclusive, Alameda County Records. Containing 8.31 Acres, more or less. J:\wpd\Mnrsw\114\133~Agree\greenbriar phase 2 da exa 072601.doc Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 EXHIBIT A August 21, 2001 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparagraph 5.3.1 -- Subsequent Discretionary Approvals None. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Sequencing Program The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) described in ResOlution No. 01-04 of the City of Dublin Planning Commission Approving the Vesting Tentative Map and Site Development Review for the Greenbriar Land Company Tassajara Creek Development" (hereafter "TM Resolution") shall be completed by DEVELOPER to the satisfaction of the Public Works Director at the times and in the manner specified in the TM Resolution unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public Works Director. (ii) Sewer All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with the tentative map and DSRSD requirements. (iii) Water An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative map to the satisfaction and requirements of the CITY's fire department. All potable water system components to serve the project site (or any recorded phase of the Project) shall be completed in accordance with the tentative map and DSRSD requirements. tentative map. Recycled water lines shall be installed in accordance with the Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 1 of 6 August 21, 2001 (iv) Storm Drainage Prior to issuance of the first Certificate of Occupancy for any building which is part of the Project, the storm drainage systems off site, as well as on site drainage systems to the areas to be occupied, shall be improved to the satisfaction and requirements of the Dublin Public Works Department applying CITY's and Zone 7 (Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements and shall be consistent with the Drainage Plan. The site shall also be protected from storm flow from off site and shall have erosion control measures in place to protect downstream facilities and properties from erosion and unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan. (v) Other Utilities (e.g. gas, electricitv, cable televisions, telephone) Construction shall be complete by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous (i) Completion May be Deferred. Notwithstanding the foregoing, CITY's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow DEVELOPER to defer completion of discrete portions of any public improvements for the Project if the PubliC Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subparagraph 5.3.3 -- Phasing, Timing This Agreement contains no requirements that DEVELOPER must initiate or complete development of the Project within any period of time set by CITY. It is the intention of this provision that DEVELOPER be able to develop the Property in accordance with its own time schedules and the Project Approvals. Subparagraph 5.3.4 -- Financing Plan DEVELOPER will install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in Subparagraph 5.3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project will be made available by the Dublin San Ramon Services Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 2 of 6 August 21, 2001 District. DEVELOPER has entered into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Subparagraph 5,3.5 -- Fees, Dedications Subsection a. Traffic Impact Fees. DEVELOPER shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 225-99, including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the then-current amount of the impact fee. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchanges. DEVELOPER shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155- 98 and by any subsequent resolution which revises such Fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the then-current amount of the impact fee. Subsection c. Public Facilities Fees. DEVELOPER shall pay a Public Facilities Fee established by City of Dublin Resolution No.60-99, including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the then-current amount of the fee. Payment of such fee shall satisfy TM Resolution Conditions Nos. 36 (for tentative map) and 34 (for SDR). Subsection d. Noise Mitigation Fee. DEVELOPER shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the then-current amount of the fee. Subsection e. School Impact Fees. School impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080. Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 3 of 6 August 21, 2001 Subsection f. Fire Impact Fees. DEVELOPER shall pay a fire facilities fee established by City of Dublin Resolution No. 208-00 including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the then- current amount of the fee. Subsection g. Tri-Valley Transportation Development Impact Fee. DEVELOPER shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent reSolution which revises such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the then-current amount of the impact fee. Subsection h. Reimbursement for Annexation Area Public Service Costs CITY and the Lin Family are parties to an agreement entitled "Annexation Agreement Between City of Dublin and the Lins" (hereafter "Annexation Agreement") dated October 10, 1994 and recorded at #95053080 on March 9, 1995. The Annexation Agreement requires the Lins to pay to the CITY each year a certain amount for the CITY's costs of providing public services to the area annexed by CITY in 1995, pursuant to applications filed by the Lins and Clyde Casterson, the former owner of the Property. The amount to be paid by the Lins to CITY is, generally,,the difference between the cost of providing public services to the area annexed and-the revenues derived from such area. The Property was included in the 1995 annexation to the City which included the Lins' property. The Property represents. 5404% of the property annexed to the CITY in 1995 (8.31acres out of a total of 1,537.6 acres). It is agreed that DEVELOPER has benefited from the annexation of the Property to CITY in 1995. Accordingly, prior to issuance of the first building permit for the Project, DEVELOPER agrees to pay to CITY the amount of $1,959.56 which represents. 5404% of the Annexation Area Public Service Costs paid by the Lins from Fiscal Year 1995-96 to Fiscal Year 98-99 (the date payments ceased under the Annexation Agreement) which totaled $362,578. All monies received by CITY from DEVELOPER pursuant to this subsection shall be remitted by CITY to the Lins pursuant to Section I(F) of the Annexation Agreement. Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 4 of 6 August 21, 2001' Subl~ara_qral~h 5.3.6 -- Credit Subsection a. Traffic Impact Fee Improvements -- Credit CITY shall provide a credit to DEVELOPER for those improvements described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such improvements are constructed by the DEVELOPER in their ultimate location. All aspects of the credit shall be covered by CITY's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 ("TIF Guidelines"). Subsection b. Traffic Impact Fee Right-of-Way Dedications -- Credit CITY shall provide a credit to DEVELOPER for any TIF area right-of-way to be dedicated by DEVELOPER to CITY which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. Subparagraph 5.3.7 -- Miscellaneous Subsection a. Landscaping Maintenance Along Tassajara Road and Somerset Lane Pursuant to Conditions 117(a) of Resolution No.01-04,' the Maintenance Association to be formed by recorded Covenants, Conditions and Restrictions (CC&R's) on all Lots 127-172 ("Maintenance Association") will maintain the landscaping within the public right-of-way along and within Tassajara Road and Somerset Lane and landscaping within the creek setback, and the regional trail (unless the trail is maintained by the East Bay Regional Park District), and the urban/open space interface and common areas. The CC&R's will require the Maintenance Association to obtain an on-going encroachment permit from CITY for such maintenance and to defend and indemnify the CITY against any claims arising out of the maintenance of such landscaping and to name the CITY as an additional insured on the Maintenance Association's policy of liability insurance Subsection b. Landscaping Maintenance Along Streets The Homeowners Association to be formed by recorded CC&R's on Lots 127 to 147 ("Homeowners Association")will maintain all landscaping along private streets as provided in Condition No. 117 of Resolution No. 01-04, and the Maintenance Association will perform all other landscape maintenance required by Condition No.117. Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 5 of 6 August 21, 2001 Subsection c. Tassajara Creek Developer shall reserve parcels D and E as shown on the Tentative Map for Tract 7279, for Zone 7 of the Alameda County Flood Control and Water Conservation District in Final Map for Tract 7279. Developer anticipates that Zone 7 will accept ownership of parcels D and E after the required Tassajara Creek improvements and trail improvements are constructed in each parcel as specified in the conditions of approval for the Tentative Map 7279. The alignment of the trail shall be located reasonably close to the existing creek and be continuous from the northerly property to the southerly property line. PriOr to occupancy of the first building in Tract 7279, the Developer shall obtain a letter from Zone 7 stating that Zone 7 intends to accept the dedication of Parcels D and E upon completion of the required improvements as conditioned with Tentative Map 7279. All creek and trail improvements within. Parcels D and E shall be guaranteed prior to CITY approval of Final Map for Tract 7279 and offered to Zone 7 for acceptance when the tract improvements (e.g. roads) are offered to CITY. All creek and path improvements within Parcels D and E shall be guaranteed prior to CITY approval of Final Map 7279 and shall be constructed within one year thereafter along with subdivision improvements. All landscaping Parcels D and E shall be maintained by the Maintenance Association. In the event that Zone 7 does not accept ownership of parcels D and E and the improvements to such parcels when they are offered, the parcels shall be owned by DEVELOPER or Maintenance Association and maintained by the Maintenance Association until such time that Zone 7 will accept ownership. During its ownership of the above parcels (D and E), the Maintenance Association will be responsible to maintain the creek, regional trail and the parcels to standards established by the City of Dublin. Subsection d. Rec~ional Trail The regional trail along Tassajara Creek, which is referred to in Condition No. 37 of Resolution No. 01'04 shall be constructed by the DEVELOPER no later than the time allowed by the Tract Developer Agreement to be executed prior to approval of Final Map for Tract 7279 and prior to dedication of Parcels D and E to Zone 7. J:\wpd\Mnrsw\114\133~Agree\greenbriar phase 2 da exb 072601 .doc Dublin/Greenbriar Development Agreement for Greenbriar Phase 2 Page 6. of 6 August 21, 2001