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HomeMy WebLinkAbout05-038 DevAgrmt Braddock&Logan SUBJECT: ATTACHMENTS: RECOMMENDATION: PROJECT DESCRIPTION: PUBLIC HEARING: PA 05-038, Development Agreement for Braddock & Logan at Fallon Village - Development Agreement for the northern 488 acres of Fallon Village owned/controlled by Braddock & Logan (aka Dublin RE Investors) Report Prepared by: Jeff Baker, Associate Planner I. 2. Vicinity Map - Braddock & Logan at Fallon Village Resolution recommending the City Council approve a Development Agreement between the City of Dublin and Dublin RE Investors (aka Braddock & Logan) I. 2. Open the public hearing; Receive Staff presentation and take testimony from the Applicant and the Public; Close the Public Hearing and deliberate; and Adopt the Resolution recommending the City Council approve the Development Agreement between the City of Dublin and Dublin RE Investors (Attachment 2). 3. 4. The proposed Fallon Village project, formerly known as the East Dublin Property Owners (or EDPO), is located east of Fallon Road and the Dublin Ranch project, west and southwest of the City Limits boundary with Alameda County and Doolan Canyon, and north of Interstate 580 (1-580). Braddock & Logan owns/controls the northern 488-acres of Fallon Village (Attachment 1) subject to the proposed Development Agreement. One of the implementing actions of the Eastern Dublin Specific Plan (EDSP) is the requirement that all applicants for development in the EDSP area enter into a Development Agreement with the City. The Development Agreement must be approved prior to the issuance of building permits for the development of the property. 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. In accordance with the Eastern Dublin Specific Plan, the current request is for a Development Agreement between the City of Dublin and Dublin RE Investors (aka Braddock & Logan). The properties subject to the proposed Development Agreement include the northern 488-acres of the proposed Fallon Village project as follows: I) 160 acres owned by Braddock & Logan (formerly known as Mandeville), 2) 313 acres owned by Fallon Enterprises (formerly known as Bankhead), and 3) 15 acres resulting from a proposed Lot Line Adjustment with Dublin Ranch. ................................................................. ..........................................mm........................ COPIES TO: Property Owner/Applicant G:\PA#\2005\05-038 B&L Stage 2 Fallon Village\PC\PCSR DA ¡1.22.05.doc ITEMNO.~ BACKGROUND: On November 8, 2005, the Planning Commission held a Public Hearing and reviewed a request for the 1,134-acre Fallon Village project (P A 04-040 and P A 05-038). The proposed project includes a request for four actions: 1) Amendments to the General Plan and Eastern Dublin Specific Plan for Fallon Village; 2) PD - Planned Development Rezone and related Stage 1 Development Plan for the overall Fallon Village Project; 3) PD - Planned Development Rezone and related Stage 2 Development Plan for the Braddock & Logan properties; and 4) Vesting Tentative Tract Map 7586 which would allow 1,043 residential lots, a Neighborhood Park, Neighborhood Square, elementary school, land designated for Semi-Public uses, as well as Rural Residential/Agriculture and Open Space parcels on the 488-acres owned/controlled by Braddock & Logan. The Planning Commission was advised in the staff report that a Development Agreement would be forthcoming for the 488-acre area owned and controlled by Braddock & Logan. The project is comprised of PA 04-040 representing the General Plan and Specific Plan Amendments, and the Stage 1 PD rezoning, referred to here as "the Project". PA 05-038 represents the Stage 2 Planned Development rezoning and Development Plan, and Vesting Tentative Map for the Braddock & Logan property, referred to here as the "Developer's Project". The Project and the Developer's Project are the subject of a Final Supplemental Environmental Impact Report (FSEIR) including recommended mitigation measures. Actions taken at the Planning Commission meeting on November 8, 2005, included adoption of the following resolutions: 1. Resolution recommending City Council Certification of a Supplemental Environmental Impact Report for the Fallon Village Project. 2. Resolution recommending the City Council approve General Plan and Eastern Dublin Specific Plan Amendments for the Fallon Village Project. 3. Resolution recommending the City Council approve a PD - Planned Development Rezone with Stage 1 Development Plan for Fallon Village. 4. Resolution recommending the City Council approve a PD - Planned Development Rezone with Stage 2 Development Plan for the northerly 488 acres of Fallon Village owned/controlled by Braddock & Logan. 5. Resolution approving Vesting Tentative Map 7586. The City Council is tentatively scheduled to hold a Public Hearing to review the Planning Commission recommendations at their meeting of December 6, 2005. ANALYSIS: The proposed Development Agreement (Attachment 2) pertains to development of the northern 488-acre area of Fallon Village owned/controlled by Braddock & Logan (PA 05-038). . The Development Agreement runs with the land and the rights there under can be assigned. The Development Agreement was drafted with input from City Staff, the project Developer, and the City Attorney based on the standard Development Agreement prepared by the City Attorney and adopted by the City Council for projects located within the Eastern Dublin Specific Plan area. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project for a period of five years. The benefit to the City of entering into the Development Agreement with the property owner is that the document is a contract that ensures that the goals of the Eastern Dublin Specific Plan will be met and guarantees the timing for construction of public infrastructure and facilities for the area. Additionally, it ensures that dedications of property and easements are made, project phasing is followed, the appropriate fees are paid for the development, Page 2 of5 and any additional terms of the agreement are met as the development proceeds. It also incorporates, references, reiterates and/or updates certain terms and conditions of a Pre-Annexation Agreement between the City and Braddock & Logan Group II LLP dated April 2, 2002, as they relate to the proposed project, particularly with pre-established contribution percentages for area-wide capital infrastructure projects. In return, the Developer agrees to comply with the conditions of approval and, in some cases, make commitments which the City might otherwise have no authority to compel the Developers to perform. For example, the Developer agrees to pay a Community Benefit Payment of $2,000 for each residential unit in the Developer's Project. Specifically, the Development Agreement augments the City's standard development regulations; spells out the precise financial responsibilities of the developer; ensures timely provision of adequate public facilities for each project; and provides terms for the Developer to advance funds for specific facilities which have community-wide or area benefit or for reimbursement, as appropriate. The City Council can approve a development agreement by adopting an ordinance upon recommendation by the Planning Commission. Attachment 2 is a draft Planning Commission resolution recommending that the City Council approve the proposed Development Agreement. ENVIRONMENTAL REVIEW: The City prepared a Supplemental EIR for the Fallon Village project. This SEIR supplements the 1993 Eastern Dublin EIR and the 2002 East Dublin Property Owners Supplemental EIR. The 1993 EIR analyzed the potential impacts of the Eastern Dublin General Plan Amendment and Specific Plan project, which proposed future urbanization of the Eastern Dublin area. The 1993 EIR was certified by the City Council on May 10, 1993 (SCH # 91103064, Resolution 51-93, incorporated herein by reference). Upon approval of the Eastern Dublin project, the City Council adopted extensive mitigation measures that continue to apply to land use projects in Eastern Dublin including the Fallon Village project. (Resolution 53-93.) Because the 1993 EIR identified impacts that could not be mitigated to less than significant, the City adopted a Statement of Overriding Considerations with its approval of the Eastern Dublin project. When the certified EIR was challenged in a subsequent lawsuit, the court upheld the validity of the EIR, finding it in compliance with CEQA and the CEQA Guidelines. In 2002, a number of owners in Eastern Dublin, including those of the proposed Stage 2 Planned Development site, filed applications for annexation of the to the City and to DSRSD. The 2002 project included a prezoning to PD-Planned Development District and a related Stage 1 Development Plan for an area of approximately 1,120 acres. The project was consistent with the general uses and densities established in the 1993 approvals. The City prepared and certified a Supplemental EIR to analyze new information and changed circumstances since the 1993 EIR. (SCH # 2001052114, Resolution 40-02.) Supplemental mitigation measures were adopted that continue to apply to land use applications in the project area. The 2002 Supplemental EIR identified supplemental unavoidable impacts, so the City adopted a Statement of Overriding Considerations in connection with the project approval. The 2002 Supplemental EIR was also challenged in a lawsuit, and was upheld by the court. The current Fallon Village project, including the land subject to the proposed Development Agreement, proposes additional residential and commercial development beyond the 2002 approvals and adjusts some of the land use designation boundaries throughout the project area. As noted above, project-level applications including a PD-Planned Development rezoning with Stage 2 Development Plan and a Vesting Tentative Tract Map among others, also were submitted, however only for development of the Braddock & Logan properties. Based on the results of an Initial Study, the City prepared a Draft Supplement to the 1993 and 2002 EIRs. (Draft SEIR dated August 2005, SCH # 2005062010). The Draft SEIR analyzed changes to the project and circumstances, and other new information since the Page 3 of5 previous ErRs. The Draft SEIR was circulated for public review from August 23, 2005 through October 6, 2005. The City prepared a Final SEIR dated October 2005 containing written responses to all comments received on the Draft SEIR. The Draft SEIR identified a number of supplemental impacts and related mitigation measures, primarily related to traffic and biology impacts. Significant unavoidable air quality and possibly cultural resources impacts were also identified and would require the City Council to adopt a Statement of Overriding Considerations in connection with any project approval. CONCLUSION: The Development Agreement will implement the provisions of the Planned Development zoning, Stage 2 Development Plan, and conditions of approval of Vesting Tentative Tract Map 7586 previously approved. It also follows through with terms and conditions established in the 2002 Pre-Annexation Agreement with the developer. The Site Development Review for the Braddock & Logan development will be presented to the Planning Commission for review and consideration at a later time. A final Tract Map will be submitted to the City Council after approval of the Development Agreement and satisfaction of the conditions of approval for the Vesting Tentative Map. RECOMMENDATION: Staff recommends that the Planning Commission (1) Open the public hearing; (2) Receive Staff presentation and take testimony from the Applicant and the Public; (3) Close the Public Hearing and deliberate; and (4) Adopt the Resolution recommending the City Council Approve the Development Agreement between the City of Dublin and Dublin RE Investors (Attachment 2). Page 4 of 5 GENERAL INFORMATION: PROPERTY OWNER/APPLICANT: Braddock & Logan Services, Inc. c/o Jeff Lawrence 4155 Blackhawk Plaza Circle, #201 Danville, CA 94506 LOCATION: The project area is located within the City of Dublin and is bordered by Fallon Road and Dublin Ranch to the west, the City's Sphere of Influence/City Limit boundaries to the north and east, and the Jordan and Croak properties to the south. APN 905-0002-003 APN 985-0028-002 EXISTING ZONING: PD-Rural Residential/Agriculture PD-Single Family Residential PD-Elementary School PD-Neighborhood Park PD-Open Space EXISTING GENERAL PLAN DESIGNATION & EASTERN DUBLIN SPECIFIC PLAN: Rural Residential/Agriculture, Low Density Residential, ParksIPublic Recreation, and Public/Semi-Public Facility. Page 5 of 5 .--' --.-- --' .--' .-- -- --' --' .--' --' --' --' ~p---p .--' 1 § '" " " o " ......- ,~"... -...,..--...- ~ ~ DUBLIN ~ ~ ~ ~ Gb&AsoN ~ DJUVB DUBLIN BOULEVARD 1-580 ~~ "0 :s" '" ,. I"'''' @" ,,"" ,.0 ~ q ,. <Ý .$; '" ,-'0 ,/ Braddock & Logan Properties at Fallon Village 5tac¡e 2 Development Plan VICINITY MAP Octol>er 2004 19149-1 OA .-- .-""p-- --.-- --' .--' ~ .-- OJ\j~\ ~ ---- C .-- COS't"'-~'t'i _\~\ll' "'-'-êOú" CO~:.-: ...¡§)P> ___.--- p..\,.J""P .--' CENTRAL PARKWAY 1·580 o h u" oJ PLEASANTON ATTACHMENT 1 SUBJECT SITE "J,o~S C~,-'" ~~ ".. ,.,.-/ ~ ~O OLLlER CA YON v,.O * NORTH _ro~ IIACICAY'''' afI.______...., _....Cot (t2S)·...-oooo RESOLUTION NO. 05 - A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT DEVELOPMENT AGREEMENT FOR THE BRADDOCK & LOGAN PROPERTIES PORTION OF FALLON VILLAGE PA 05-038 WHEREAS, Jeff Lawrence on behalf of Dublin RE Investors, LLC and Braddock & Logan Services, Inc., has requested approval of a Development Agreement for the northern 488-acres of the Fallon Village project owned/controlled by Braddock & Logan (PA 05-038), referred to herein as the "Developer's project". WHEREAS, Development Agreements are required as an implementing measure of the Eastern Dublin Specific Plan; and WHEREAS, the Developer's project is in Eastern Dublin for which the City adopted the 1993 Eastern Dublin General Plan Amendment and Specific Plan to provide a comprehensive planning framework for future development of the area. In connection with this approval, the City certified a program EIR pursuant to CEQA Guidelines section 15168 (SCH No. 91103064, Resolution 51-93, and the Addenda dated May 4, 1993 and August 22, 1994, hereafter "Eastern Dublin EIR" or "program EIR") that is available for review in the City Planning Department and is incorporated herein by reference. The program EIR was integral to the planning process and examined the direct and indirect effects, cumulative impacts, broad policy alternatives, and area wide mitigation measures for developing Eastern Dublin; and WHEREAS, in connection with an annexation and prezoning request for the project area in 2002, the City certified a Supplemental EIR that is available for review in the planning department and is incorporated herein by reference. In connection with the 2002 project approval, the City Council adopted supplemental mitigation measures, mitigation findings, a statement of overriding considerations and a mitigation monitoring program. All adopted supplemental mitigation measures continue to apply to the project area; and WHEREAS, consistent with CEQA and the CEQA Guidelines, the City prepared a 2005 Supplement to the 1993 and 2002 EIRs for the Fallon Village project. The 2005 Supplemental EIR contains Draft and Final Supplemental EIR documents and was presented to the Planning Commission for review prior to its recommendation on the project. The Developer's project is part of the project that was analyzed in the prior EIRs and the 2005 Supplemental EIR; and WHEREAS, the text of the Draft Development Agreement is attached to this resolution along with the draft Ordinance marked as Exhibit A; and WHEREAS, the Planning Commission did hold a public hearing on said application on November 22,2005; and WHEREAS, proper notice of said public hearing was given in all respects as required by law; and WHEREAS, the Staff Report was submitted recommending that the Planning Commission recommend that the City Council approve the Development Agreement; and ATTACHMENT 2 WHEREAS, the Planning Commission did hear and use their independent judgment and considered all said reports, recommendations and testimony hereinabove set forth. NOW, THEREFORE, BE IT RESOLVED THAT THE Dublin Planning Commission does hereby make the following findings and determinations regarding said proposed Development Agreement: 1. Said Agreement is consistent with the objectives, policies, general land uses and programs specified in the Eastern Dublin Specific Plan/General Plan in that: a) the Eastern Dublin Specific Plan/General Plan land use designation for the subject site is proposed to be Planned Development and the Developer's project is consistent with that designation; b) the project is consistent with the fiscal policies in relation to provision of infrastructure and public services of the City's Eastern Dublin Specific Plan/General Plan; c) the Agreement sets forth the rules the Developer and City will be governed by during the development process which is required by the Eastern Dublin Specific Plan and the Mitigation Monitoring Program of the Eastern Dublin Specific Plan. 2. Said Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located in that the project approvals include a Planned Development Rezone and Site Development Review. 3. Said Agreement is in conformity with public convenience, general welfare and good land use practice in that the Developer's project will implement land use guidelines set forth in the Eastern Dublin Specific Plan/General Plan, as proposed. 4. Said Agreement will not be detrimental to the health, safety and general welfare in that the Developer's project will proceed in accordance with the Agreement and any Conditions of Approval for the Project. 5. Said Agreement will not adversely affect the orderly development of the property or the preservation of property values in that the Developer's project will be consistent with the City of Dublin Eastern Dublin Specific Plan/General Plan. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning Commission does hereby recommend that the City Council approve the Development Agreement between Dublin RE Investors, LLC and the City of Dublin for the Developer's project (P A 05-038). PASSED, APPROVED AND ADOPTED this 22nd day of November of 2005 AYES: NOES: ABSENT: ABSTAIN: Planning Commission Chairperson ATTEST: Planning Manager G:\PA#\2005\05-038 B&L Stage 2 Fallon Village\PC\PC Reso DA.doc 2 ORDINANCE NO. xx - 05 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN ***************************** APPROVING THE DEVELOPMENT AGREEMENT FOR PA 05-038 BRADDOCK & LOGAN PORTION OF FALLON VILLAGE DEVELOPMENT THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The proposed Braddock & Logan portion of the Fallon Village Development, referred to herein as the "Developer's project", will be located within the boundaries of the Eastern Dublin Specific Plan, upon approval of the proposed Specific Plan Amendment (P A 04-040), in an area designated on the General Plan Land Use Map and Eastern Dublin Specific Plan Land Use Map as Low Density Residential land uses. B. Pursuant to the California Environmental Quality Act (CEQA), CEQA Guidelines Section 15168, the Developer's project is within the scope of the Pinal Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan, which was certified by the City Council by Resolution No. 51-93, and the Addenda dated May 4, 1993 and August 22, 1994 (hereafter "Eastern Dublin EIR" or "program EIR") (SCH91103064). The program EIR was integral to the City Planning Department and is incorporated herein by reference. The program EIR was integral to the planning process and examined the direct and indirect effects, cumulative impacts, broad policy alternatives, and area wide mitigation measures for developing Eastern Dublin. In connection with an annexation and prezoning request for the project area in 2002, the City certified a Supplemental EIR that is available for review in the planning department and is incorporated herein by reference. In connection with the 2002 project approval, the City Council adopted supplemental mitigation measures, mitigation findings, a statement of overriding considerations and a mitigation monitoring program. All adopted supplemental mitigation measures continue to apply to the project area. Consistent with CEQA and the CEQA Guidelines, the City prepared a 2005 Supplement to the 1993 and 2002 EIRs for the Fallon Village project. The 2005 Supplemental EIR contains Draft and Final Supplemental EIR documents and was presented to the Planning Commission for review prior to its recommendation on the project. The Developer's project is part of the project that was analyzed in the prior EIRs and the 2005 Supplemental EIR; and C. A Development Agreement between the City of Dublin and Dublin RE Investors, L.L.C. for Braddock and Logan has been presented to the City Council, Exhibit A, attached hereto. D. A public hearing on the proposed Development Agreement was held before the Planning Commission on November 22,2005, for which public notice was given as provided by law. E. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreement. F. Council on A public hearing on the proposed Development Agreement was held before the City and ,for which public notice was given as provided by law. Exhibit A G. The City Council has considered the recommendation of the Planning Commission who considered the item at the November 22,2005 meeting, including the Planning Commission's reasons for its recommendation, the Agenda Statement, all comments received in writing and all testimony received at the public hearing. Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin's General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the Specific Plan, (e) the EIRs, (f) the individual Mitigated Negative Declarations (g) the Addendums and (h) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City's General Plan, as amended by the Eastern Dublin General Plan Amendment, and in the Specific Plan in that (a) the General Plan and Specific Plan land use designation for the site is Low Density Residential Land Uses and the Developer's project is consistent with that land use, (b) the Developer's project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to provision of infrastructure and public services, and (c) the Development Agreement includes provisions relating to vesting of development rights, and similar provisions set forth in the Specific Plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located in that the project approvals include a Stage 1 Development Plan Amendment, Stage 2 Development Plan, and Vesting Tentative Map. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies in that the Developer's project will implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for Low Density Residential, Rural Residential/Agriculture, a Neighborhood Park, a Neighborhood Square, an Elementary School, Semi- Public, and open space uses at this location. 4. The Development Agreement will not be detrimental to the health, safety and general welfare in that the Developer's project will proceed in accordance with all the programs and policies of the Eastern Dublin Specific Plan. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan and with the Specific Plan. Section 3. APPROVAL The City Council hereby approves the Development Agreement (Exhibit A) and authorizes the Mayor to execute it. Section 4. RECORDATION Within ten (10) days after the Development Agreement is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) 2 public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this _ day of , by the following votes: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk g:\pa#\2005\05-038 b&l stage 2 fallon village\pclordinance da.doc 3 RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder's use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN RE INVESTORS, L.L.C. FOR THE FALLON VILLAGE PROJECT EXHIBIT A -J0 th.u ORD. THIS DEVELOPMENT AGREEMENT ("Agreemenf') is made and entered in the City of Dublin on this 20th day of December, 2005, by and between the City of Dublin, a Municipal Corporation (hereafter "City"), and Dublin RE Investors, a California 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. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 488.2 acres of land, located in the City of Dublin, 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 C. The City Council adopted the Eastern Dublin Specific Plan ("the Specific Plan") by Resolution No. 53-93, and, on December 6, 2005, the City Council adopted Resolution No. _-_, which extended the territory covered by the Specific Plan to include the entirety of the Property; and D. The Eastern Dublin Specific Plan requires Developer to enter into this development agreement; and E. Developer proposes the development of the Property with 1,043 single-family residential units along with approximately 200 acres of land to be subjected to a conservation easement or similar instrument (the "Projecf'); and F. DEVELOPER has applied for, and CITY has approved various land use approvals in connection with the development of the Project, including the certification of the 2005 Supplemental Environmental Impact Report for the Fallon Village Project (SBN ), an amendment to the General Plan and Eastern Dublin Specific Plan (City Council Resolution No. _-_), PD District rezoning and a Stage 2 Development Plan (City Council Ordinance No. _-_), and a Vesting Tentative Map for Tract 7586 (Planning Commission Resolution No. _-_) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project " 1aS '~f ~ ~".." r~ ~ (i( ; i .~ .:<:"'"~ Page 2 of 16 December 20, 2005 G. 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 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 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 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 K. On , 200_, the City Council of the City of Dublin adopted Ordinance No. _ -_approving this Agreement. The ordinance took effect on , 200_ ("the Approval 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: AGREEMENT 1. Description of Property. The Property that is the subject of this Agreement is described in Exhibit A attached hereto. 2. Interest of Developer. The Developer has a legal or equitable interest in the Property in that it owns or holds a right to purchase the Property. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Developer and that the Developer is not an agent of City. The City and Developer hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 3 of 16 December 20, 2005 4. Effective Date and Term. 4.1. Effective Date. The effective date of this Agreement shall be the Approval Date. 4.2. Term. The term ("Term") of this 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. 4.3. Survival of Certain Provisions Followina Termination of Aareement. The following provisions shall survive the termination of this Agreement: - Subparagraph 5.3.2 (including the provisions set forth in Exhibit B) - Subparagraph 5.3.4 (including the provisions set forth in Exhibit B) - Subparagraph 5.3.5 (including the provisions set forth in Exhibit B) - Subparagraph 5.3.6 (including the provisions set forth in Exhibit B) - Subparagraph 5.3.7 (including the provisions set forth in Exhibit B) 5. Use of the Property. 5.1 . Riaht 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 (such amendments once effective shall become part of the law Developer is vested into without an additional amendment of this Agreement). 5.2. Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by City) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3. Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1. Subseauent Discretionarv 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.) Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 4 of 16 December 20, 2005 See Exhibit B 5.3.2. Mitiaation 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. Phasina, Timina. 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. Financina Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5. Fees, Dedications. Terms relating to 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 6. Applicable Rules, Reaulations 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 the Agreement. 6.2. Rules re Desian 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 Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 5 of 16 December 20, 2005 effect at the time of the applicable discretionary approval, whether the date of that approval is prior to or after the date of this Agreement. 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 discretionary approval, whether date of approval is prior to or after the date of this Agreement. 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. SubseQuentlv 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. 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, a limit on the rate of development or a voter- approval requirement 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. Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 765754.6 Page 6 of 16 December 20, 2005 8. Subsequentlv 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, or impose other exactions 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 only; and (3) the application of such fees would not prevent, impose a substantial financial burden on, or materially delay development in accordance with this Agreement. Other than agreeing that Developer has no vested right against such revised application, processing and inspection fees, Developer does not waive its right to challenge the legality of any such application, processing and/or inspection fees under the controlling law then in place. 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. Other than agreeing that Developer has no vested right against such new taxes, Developer does not waive its right to challenge the legality of any such taxes under the controlling law then in place. 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. 9. Amendment or Cancellation. Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754_6 Page 7 of 16 December 20. 2005 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 bv 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 "significanf' . 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 bv Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by City. Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 8 of 16 December 20, 2005 10. Term of Proiect Approvals. The term of the Vesting Tentative Map described in Recital F shall be extended automatically for the longer of the term of this Agreement or the term otherwise given the Vesting Tentative Map under the controlling law then in place. Notwithstanding the foregoing, the parties agree that the extension of the term of the Vesting Tentative Map, pursuant to this section and any other extensions under the Subdivision Map Act, shall not extend the Vesting Tentative Map more than 10 years from its approval or conditional approval. 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 between July 15 and August 15, 2006 and each July 15 to 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 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 Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 9 of 16 December 20, 2005 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 Damaaes Aaainst 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. Mortaaaee Protection: Certain Riahts of Cure. 14.1. Mortaaaee 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. Mortaaaee Not Obliaated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 1001 16 December 20, 2005 Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3. Notice of Default to Mortqaqee and Extension of Riqht 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. Attornevs' 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 Assionments. 17.1. Riqht to Assiqn. Developer may wish to sell, transfer or assign all or 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 Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 11 of 16 December 20, 2005 assignment to a Transferee, Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer arising hereunder and that pertain to the portion of the Property being sold or transferred, to such Transferee, provided, however, that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur without prior written notice to City and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. 17.2. Approval and Notice of Sale. Transfer or Assionment. 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 Assionment. 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 Assionment. 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 Aoreement 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 Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 12 of 16 December 20, 2005 any such lot until a building is constructed on such lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 18. Aqreement 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. Bankruptcv. 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). If City is named as a party to any legal action, City shall cooperate with Developer, shall appear in such action and shall not unreasonably withhold approval of a settlement otherwise acceptable to Developer. Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 13 of 16 December 20, 2005 21. Insurance. 21.1. Public Liability and Property Damaae 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 One Hundred Thousand Dollar ($100,000) 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. 23.1. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 14 of 16 December 20, 2005 Jeff Lawrence Dublin RE Investors 4155 Blackhawk Plaza Circle, Suite 201 Danville, CA 94506 FAX No. (925) 648-5700 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. Recitals. The foregoing Recitals are true and correct and are made a part hereof. 25. Aqreement is Entire Understandinq. This Agreement constitutes the entire understanding and agreement of the parties. 26. 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 27. Counterparts. This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. 28. Recordation. City shall record a copy of this Agreement within ten days following execution by all parties. Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 15 of 16 December 20, 2005 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: Mayor Date: ATTEST: By: City Clerk Date: APPROVED AS TO FORM: City Attorney DUBLIN RE INVESTORS, LLC By: Braddock and Logan Services, Inc. a ~£::F'b..,z..N' '", corporation ~ l Its~~ L-AN~~- (NOTARIZATION ATTACHED) Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project 785754.6 Page 16 of 16 December 20, 2005 CALIFORNIA ALL·PURPOSE ACKNOWLEDGMENT County of c.. ö ¡J-r~ A <:.o51"""A } ss. State of California on--1JI'Î 105 D.. personally appeared ~f.-f ç... before me, rJ A N~ <;;;:;i 01 Ohce~.9.~ "Jane ~,~ ~b~ ~ LA.....\<Z.G,J c....E: Name(s)of Sigllllr(s) t¡ personally known to me o proved to me on the basis of satisfactory evidence J - - - - =~!.Mîè- -I _@ C<M>..........,#1171OØ. $ NoIaIy ""*' - CaIIaIna ! ConIIa Colla CCUIIy - j - - - ~~:.~~.:~ to be the person \II) whose name!lr) is/are subscribed to the within instrument and acknowledged to me that he/JI."",fU ''-'J executed the same in his/ReFltI,(";1 authorized capacity(isej, and that by hisllte1tttt\!ir signature( !) on the instrument the personlS), or the entity upon behalf of which the person(s) acted, executed the instrument. OPTIONAL Though the information be/ow is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached ~ ~ ~~~I t;40 ð-6 , Title or Type of Document: 'ù. ....~: ~ ~ '¡¡".~_o~·..;..J ~. 'fi-~~... ,~: Ue...¢" Document Date: \ V\2.-{::¡ ) cc::, Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: . Top of Ihumb here o Individual o Corporate Officer - Title(s): o Partner - 0 Limited 0 General o Attorney·in·Fact o Trustee o Guardian or Conservator o Other: Signer Is Representing: © 1999 National Notary Association· 9350 De Solo Ava.. P,O, Box 2402' Cha\swQrth, CA 91313-2402 . www,nationalnotary_OfQ Prod. No. 5907 Reorder: Call ToU-Free 1.-800-876-6827 Exhibit A Legal Description of the Property Order Number: 0129-612260ALA Page Number: 5 LEGAL DESCRIPTION Real property in the City of Dublin, County of Alameda, State of California, desaibed as follows: - The northwest 1/4 of Section 35, Township 2 South, Range 1 East, Mount Diablo Base and Meridian. Excepting therefrom that portion conveyed to the County of Alameda by deed recorded January 2, 1918, Book 2630 of Deeds, Page 80, Alameda County Records. APN: 905-0002-003 Rrst American Title Order Number: 0150-593892a18 Page Number: 5 LEGAL DESCRIPTION Real property in the City of Dublin, County of Alameda, State of California, described as follows: PARCEL ONE: A portion of the south 1/2 of Section 27 and a portion of the north 1/2 of Section 34, Township 2 South, Range 1 East, Mount Diablo Base and Meridian, described as follows: Beginning at the northeriy terminus of the center of Fallon Road in the southem boundary of the Fallon Ranch; thence along the center of an existing roadway; North 18° 40' West, 63.33 feet, North 34° 59' 21" West, 100.06 feet, North 21 ° 15' West, 100.00 feet, North 3° 00' West, 100.00 feet; and North 1° 00' East, 100.00 feet; hence leaving said center of said roadway and running along a tangent 170.00 foot radius curve to the left through a central angle of 40° 20' for an arc distance of 119.67 feet to a point of Reverse Curvature in an existing fence line in the westerly line of the westerly fork in said roadway; thence along said westerly line of aid roadway and said fence line on 500.00 foot radius curve to the rlght, through a central angle of 35' 45' for an arc distance of 311.98 feet to a comer in said fence line; thence leaving said line of said roadway and continuing along said fence line and its westeriy prolongation, North 82° 40' West, 200.00 feet; hence North 15° 51' 43" West, 272.48 feet; thence North 13° 30' East, 453.59 feet; thence East 470.00 feet to the hereinabove said westerly line of said roadway; thence along said line of said roadway on the following courses: North 37° 40' East, 177.15 feet, North 27° 15' Eat, 182.90 feet, North 7° 00' West, 100.00 feet, and North 11° 00' West, 130.00 feet; thence the following courses; from a tangent bearing North 68° 00' West, running along a 160.00 foot radius curve to the right through a central angle of 55° 00' for an arc distance of 153.59 feet to a point of Reverse Curvature; thence along a 100.00 foot radius curve to the left through a central angle of 15° 20' for an arc distance of 26.76 feet to a point of Reverse Curvature; thence along a 400.00 foot radius curve to the right through a central angle of 34° 15' for an arc distance of 239.11 feet to a point of Reverse Curvature; thence along 170.00 foot radius curve to the left through a central angie of 34° 35' for an arc distance of 102.61 feet; thence North 28° 40' West, 200.00 feet; thence along a tenant 165.00 foot radius curve to the right through a central angle of 57° 00' for an arc distance of 164.15 feet; thence North 28° 20' East, 250.00 feet North 20° 30' West, 220.00 feet to the southerly line of an existing roadway; thence from a tangent bearing South 86° 35' West, running along said southerly line of said roadway on a 300.00 foot radius curve to the left through a central angle of 19° 35' for an arc distance of 102.54 feet; thence North 23° 00' West, 208.22 feet; hence East 660.80 feet; thence at right angles, North 1,781.78 feet; hence Nortt> 89° 43' 43" East, 2,258.55 feet; hence South 0° 40' 34" West, 5277.52 feet; thence West 2,640.35 feet to the point of beginning. Excepting therefrom any portion thereof described in the Quitclaim Deed to Chang Su-O Un, et ai, recorded December 27,1991, Series No. 91,344397, Official Records. PARCEL TWO: The land conveyed to Fallon Enterprises, Inc., a California Corporation by Quitclaim Deed recorded December 27,1991, Series No. 91,344396, Official Records. PARCEL THREE: An easement for Ingress and egress, appurtenant to Parcel One above, granted to Fallon Enterprises, Inc., a California corporation, recorded July 21, 1970, Series No. 77340, Reel 2658 First American Tïtie Order Number: 0150a593B92ala Page Number: 6 OR, Image 335, over a portion of the southwestern 1/4 of Section 34, Township 2 South, Range 1 East, Mount Diablo Base and Meridian described as follows: Beginning at the northerly terminus of the center of Fallon Road in the southern boundary of Fallon Ranch; thence West 31.67 feet along an existing fence line; thence leaving said fence line and running North 18° 40' West 63.33 feet; thence parallel with said fence line, East 31.67 feet; thence South 18° 40' East 63.33 feet to the point of beginning. APN: 985-0028-002 First American Titie EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 of this Agreement. Subparaaraph 5.3.1 -- Subseauent Discretionary Approvals Development of the Project will require site development review approval. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Seauencing Program The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) identified in Resolution No. 05-61 of the City of Dublin Planning Commission approving Vesting Tentative Tract Map 7586 (hereafter "VTM Resolution") shall be completed by Developer to the satisfaction of the Public Works Director at the times and in the manner specified in the VTM Resolution unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of City's Public Works Director. (A) Phasino for Completion of Certain Improvements. As set forth and supplemental to the requirements in the VTM Resolution, the following improvements shall be completed prior to the below specified milestones: a. Fallon Road Initial Improvements. Fallon Road shall be improved as described in Condition 48 of the VTM Resolution (subsequent references in this Exhibit B to numbered conditions shall be deemed to refer to the numbered conditions of the VTM Resolution) no later than prior to occupancy of the first unit in the Project. b. Emergency Vehicle Access Route. The Emergency Vehicle Access Route described in Condition 55 shall be completed no later than prior to the issuance of a building permit for the 25th residential unit within the Project. c. Temporary Second Public Street Access. The temporary second public street access described in Condition 56 shall be completed prior to the issuance of a building permit for the 76th residential unit within the Project. DublinlDublin RE Investors Development Agreement for the Fallon Village Project - Exhibit B 785754.6 Page 1 of 10 December 20, 2005 c. Permanent Second Public Street Access. As specified in Conditions 57 and 52, prior to the issuance of building permits for any residential units outside of the area bounded by the Upper Loop Road on the south, Street N on the north, and Street V on the east, Developer shall complete the interim improvements to Croak Road shown on the tentative map (including the bridge connecting the eastern and western portions of the Project and the improvements to the Croak Road/Fallon Road Intersection) or such other second public street access remote from Bent Tree Drive as may be approved by the City. d. Fallon Road Widening. As specified in Condition 49, Fallon Road shall be widened to four lanes to the ultimate grade and alignment from Bent Tree Drive south to 1-580 prior to occupancy of the 719th unit within the Project. The obligations set forth in this subparagraph 5.3.2.a(i)(A) are separate from and in addition to the requirements set forth in the conditions of the VTM Resolution. If the above requirements are not satisfied, Developer agrees that the City may withhold the issuance of building permits and authorizations to occupy structures within the Project area until such time as the requirements are satisfied. (B) Advance of Funds for Fallon Road/I-58D Interchanae: Condition 59 provides as follows: Fallon Road/I-S8D Interchange Improvement Contribution: The developer shall pay a fair share portion of costs' advanced by the Un Family for improvements to the Fallon Road/I-58D Interchange. The payment will be payable at the time of filing each final map, and shall be prorated based on the percentage of total residential units included in each map. The developer's fair share has been determined to be 4.2560% of the total funds advanced by the Un Family. Section 2 EDTIF credits will be provided for this payment. Certain improvements to the 1-58D/Fallon Road & EI Charro Road Interchange ("Interchange Improvements") must be constructed in order to facilitate development of the Project and the development of other properties in Eastern Dublin. City has previously entered into an agreement for funding the construction of the Interchange Improvements with a developer of property within the City. Pursuant to this agreement, the Un Family has agreed to advance monies to the City needed for the Fallon Interchange Improvements, and the Uns have already advanced a portion of those monies. The agreement with the Un Family requires the City to seek reimbursement from non-contributing developers prior to the issuance of building permits to the non-contributing developer. Development of the Project will benefit from construction of the Interchange Improvements. Pursuant to a Preannexation Agreement Between the City of Dublin and Braddock and Logan Group II, L.P., dated April 2, 2002 ("the Preannexation Agreement"), Developer's predecessor in interest agreed not to DublinlDublin RE Investors Development Agreement for the Fallon Village Project - Exhibit B 785754.6 Page 2 of 10 December 20,2005 oppose the imposition of conditions on future land-use approvals that require Developer to advance monies for the construction of the Interchange Improvements. In furtherance of Section II of the Preannexation Agreement and Condition 59, Developer agrees, in satisfaction of its obligations thereunder to advance monies for the Fallon Road Interchange Improvements, to, upon request by the City, advance to the City 4.2560% of the monies advanced by the Un Family pursuant that certain Agreement between the City of Dublin and the Un Family Regarding Funding for Construction of the Fallon Road/I-580 Interchange, dated May 1, 2001 and as subsequently amended ("the 1-580 Construction Agreement"). The City may request payment no earlier than the recordation of a final map and, if the developer elects to record multiple final maps, only in proportion to the number of residential lots created by the proposed final map relative to number of residential lots in the Project in the aggregate. In the event that the Developer files a final map with fewer residential lots than are proposed in the tentative map, then the amount of the payment for that final map and any future final map shall be based upon the reduced number of units. As the advances by the Un Family may be made in one or more increments, the obligations will not be satisfied until such time as the Un Family has satisfied its obligations under the 1-580 Construction Agreement. Thus, notwithstanding anything to the contrary in Condition 59, the City's requests for payments at recordation of final maps under this subsection may be requests to satisfy only a portion of Developer's obligation, and the City may later request that the remainder (or portion of the remainder) of the obligation be satisfied. For example, if the Un Family has contributed $5,000,000 towards the construction of the Fallon Road interchange but they have not discharged their entire obligation under the 1-580 Construction Agreement, Developer, upon filing a final map to create 500 units, will be obligated upon request by (a) to contribute $102,013.42 (4.2560% of $5,000,000 times 500 units divided by the 1043 total units in the project) and (b) upon the later request of the City, to contribute the same proportion of such other amounts as the Uns later contribute pursuant to the 1-580 Construction Agreement. City will provide a credit to Developer in the amount of Developer's payment of monies under this subparagraph, to be used by Developer against payment of the Eastern Dublin Traffic Impact Fee ("TIF"). The use of credits (including limitations on the use of credits) and manner of conversion of the credit to a right of reimbursement will be as set forth in the City's then-current TIF Guidelines, subject to the following provisions: (a) the Developer shall pay an administrative fee of one-half of one percent or $1,000 whichever is greater; (b) the credit shall be granted at the time Developer makes payments of money pursuant to this agreement; and (c) the Interchange Improvements credit may be used only against the Category 2 TIF Fees. DublinlDublin RE Investors Development Agreement for the Fallon Village Project - Exhibit B 785754.6 Page 3 of 10 December 20, 2005 (C) Potential Fallon Road Pedestian Overcrossinq: Condition 51 provides as follows: Pedestrian Overcrossing: The ultimate and interim design of Fallon Road shall accommodate a grade-separated trail crossing of Fallon Road north of Central Parkway, as shown on the Stage 1 Development Plan, Master Landscape and Circulation Plan. In the event that the EDTIF has been updated to include this improvement at time of filing a final map, the developer shall pay a fair share portion of the trail crossing through the EDTIF payment. The City has not yet determined whether the Eastern Dublin transportation network will include a pedestrian overcrossing connecting the area east of Fallon Road with the Dublin Sports Park. Pursuant to Condition 51, Developer hereby agrees to pay the Eastern Dublin Traffic Impact Fee if it is updated prior to the issuance of each building permit to include the costs associated with the potential pedestrian overcrossing. (D) Dublin Boulevard/Douqhertv Road Intersection Contribution: Condition 58 provides as follows: Dublin Boulevardl Dougherty Road Intersection Contribution: The developer shall pay a fair share portion of the funding deficiency between the cost of the Dublin/ Dougherty Intersection Improvements and available funding. The payment shall be due with the filing of the 1st final map. The amount of the deficiency, if any, shall be the amount of the deficiency as determined or estimated by the Director of Public Works at the time the map is filed. The fair share portion has been determined to be 3.0011 %. In the event that the deficit is estimated, the City will refund any excess to the developer when the actual amount of the deficit is known. Section 2 EDTIF credits will be provided for this payment. When required: Prior to first final map. Developer shall provide CITY with Developer's fair share, as determined by CITY on the basis of the Project's trips, for the costs of design and construction of Dublin Boulevard/Dougherty Road Intersection Improvements by a payment to CITY in cash at the filing of the first final map. The amount of the payment shall be based on the amount of the Project's fair share of the deficiency, if any, between funds available to CITY for CIP Project # 96852 [Dougherty Road/Dublin Blvd. Intersection] and the cost of such project. Based on the Project's anticipated trips, the City has determined that the Developer's fair share of the potential deficiency is 3.0011 % of the potential deficiency. If the amount of deficiency is not known at the time of the filing of the map, the Director of Public Works, in his or her sole discretion, shall estimate the amount of such DublinlDublin RE Investors Development Agreement for the Fallon Village Project - Exhibit B 785754_6 Page 4 of 10 December 20, 2005 deficiency. City shall provide a credit to Developer for funds advanced by Developer pursuant to Condition 58. 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"). (E) Santa Rita Road/1580 Interchanqe 5th Eastbound Offramp Lane: Condition 62 provides as follows: Santa Rita Road/l-580 Interchange 5th Eastbound Offramp Lane: The developer shall be responsible for payment of a fair share portion of the costs associated with adding a 5th eastbound offramp lane at the Santa Rita Road/I-580 Interchange, as required in the Fallon Village Traffic Study/ DEIR. The payment will be payable at the time of filing each final map, and shall be prorated based on the percentage of total units included in each map. The fair share has been determined to be 3.0010%. In the event that the EDTIF has been updated to include this improvement at time of filing a final map, the payment will not be required if the developer agrees in writing prior to the filing of the final map to pay the updated EDTIF. When required: Prior to Each Final Map Developer shall provide CITY with Developer's fair share, as determined by CITY on the basis of the Project's trips, for the costs associated with the improvements described in Condition 62 in cash at the filing of each final map. The payment at each final map shall be in proportion to the number of residential lots created by the proposed final map relative to number of residential lots in the Project in the aggregate. In the event that the Developer files a final map with fewer residential lots than are proposed in the tentative map, then the amount of the payment for that final map and any future final map shall be based upon the reduced number of units. In the event that the Eastern Dublin Traffic Impact Fee ("EDTIF") has been updated to include this improvement at time of filing a final map, the Developer may satisfy its obligations under this subsection and Condition 62 by instead paying the updated EDTIF provided that Developer agrees in writing prior to the filing of the final map to pay the updated EDTIF at building permit for each structure constructed within the are covered by the final map. (ii) Sewer. All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with DSRSD requirements. (iii) Water. DublinlDublin RE Investors Development Agreement for the Fallon Village Project - Exhibit B 785754.6 Page 5 of 10 December 20, 2005 An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative map conditions of approval to the satisfaction and requirements of the City's fire department. All potable water system components to serve the project site shall be completed in accordance with the DSRSD requirements. Recycled water lines shall be installed in accordance with the tentative map conditions of approval. (iv) Storm Drainaae. (A) The storm drainage systems off-site, as well as on- site drainage systems for the areas to be occupied, shall be improved consistent with the Drainage Plan and tentative map conditions of approval and to the satisfaction and requirements of the Dublin Public Works Department applying City's and Zone 7 (Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. Pursuant to Alameda County's National Pollution Discharge Elimination Permit (NPDES) No. CAS0029831 with the California Regional Water Quality Control Board, all grading, construction, and development activities within the City of Dublin must comply with the provisions of the Clean Water Act. Proper erosion control measures must be installed at development sites within the City during construction, and all activities shall adhere to Best Management Practices. (v) Other Utilities (e.a. aas. electricity. cable televisions, telephone) Construction shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous (i) Completion Mav 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. DublinlDublin RE Investors Development Agreement for the Fallon Village Project - Exhibit B 785754.6 Page 6 of 10 December 20, 2005 Subparagraph 5.3.3 -- Phasina, Timina 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 -- Financina Plan Developer will install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in Subparagraph 5.3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project will be made available by the Dublin San Ramon Services District. Developer will enter into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Subparaaraph 5.3.5 -- Fees, Dedications Subsection a. Traffic Impact Fees. Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 111-04, including any future amendments to such fee. Developer will pay such fees, in cash or credits, no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Developer further agrees that it will pay eleven percent (11 %) of the "Section 1/Category 1" portion of the TIF in cash. Developer also agrees that it will pay twenty-five percent (25%) of the "Section 2/Category 2" portion of the TIF in cash. If City amends its TIF fee and as a result the City's outstanding balance due on loans is less than 25% of total Section 2/Category 2 improvements, the Developer shall pay such reduced percentage of the "Section 2/Category 2" portion of the TIF in cash. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freewav 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 DublinlDublin RE Investors Development Agreement for the Fallon Village Project - Exhibit B 785754.6 Page 7 of 10 December 20, 2005 such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subsection c. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any future amendments to such fee. 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 d. Noise Mitiaation 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 amount of the fee in effect at time of building permit issuance. Subsection e. School Impact Fees. School impact fees shall be paid by Developer in accordance with Government Code section 53080 and the agreement between Developer's predecessor in interest and the Dublin Unified School District regarding payment of mitigation fees. Subsection f. Fire Impact Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Subparaaraph 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 Riaht-of-Wav 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 DubllnlDublin RE Investors Development Agreement for the Fallon Village Project - Exhibit B 785754.6 Page 8 of 10 December 20, 2005 described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. Subparaaraph 5.3.7 - Miscellaneous Subsection a. Community Benefit Payment Developer as part of its Project has offered to pay to City a community benefit payment of $2,396.93 for each residential unit in the Project. In addition to any other fees and payments due and payable, Developer hereby agrees to make a $2,396.93 community benefit payment prior to issuance of the building permit for each residential unit in the Project. In connection with the Developer's proposal to satisfy its obligations under the City's Inclusionary Zoning Regulations, Developer intends to increase the total community benefit payment by one million dollars ($1,000,000.00). Under Developer's proposal, this payment would be instead of paying the one million dollars as an in-lieu affordable housing fee under the Inclusionary Zoning Regulations. Developer proposes to pay the one million dollar amount on a per residential unit basis prior to issuance of the building permit for each residential unit in the Project. The additional amount per residential unit would be $958.77. The City Council has not approved the Developer's proposal to satisfy its obligations under the City's Inclusionary Zoning Regulations, but, if the proposal is approved in the form proposed by Developer, the total amount of per-unit community benefit payment would be $3,355.70. Subsection b. Advance of Funds for Construction of Fire Station 18. Condition 1 provides as follows: Fire Station 18: The developer shall pay a fair share portion of costs advanced by the Developer of Dublin Ranch Area A for Fire Station 18. The payment will be payable at the time of filing each final map, and shall be prorated based on the percentage of total residential units included in each map. The developer's fair share has been determined to be $805,526.30. Fire Facilities Fee credits will be provided for this payment. When required: Prior to approval of Final Maps. The City required the developer of Dublin Ranch Area A ("Area A Developer") as a condition of approval of that project to construct, at no cost to the City, a fire station ("Fire Station 18") to serve a portion of Eastern Dublin that includes the Property. Area A Developer has now completed Fire Station 18. In conjunction with Area A Developer's construction and outfitting of Fire Station 18, DublinlDublin RE Investors Development Agreement for the Fallon Village Project - Exhibit B 785754.6 Page 9 of 10 December 20, 2005 the City agreed to recover from subsequent applicants for certain land use approvals in Eastern Dublin the subsequent applicant's proportionate share of the Fire Station 18 construction costs and costs of equipment and apparatus to outfit Fire Station 18 advanced by Area A Developer. Pursuant to those provisions, Developer agreed in Section III of the Preannexation Agreement not to oppose a requirement on future development approvals that requires Developer to pay funds, prior to approval of final subdivision maps, in order to allow the City to reimburse the Area A Developer for its advance of costs to construct and equip the Fire Station 18. In furtherance of this provision in the Preannexation Agreement and Condition 1, Developer agrees to advance to the City $805,526.30 prior to the approval of the final map for Tract 7586. If the Developer elects to file multiple final maps, the required payment for each final map shall be $805,526.30 multiplied by that the number of residential lots in the final map filed divided by 1043. For example, if the first final map would create 75 residential lots, the required payment under this provision would be $57,923.75 ($805,526.30 x [75/1043]). In the event that the Developer files a final map with fewer residential lots than are proposed in the tentative map, then the amount of the payment for that final map and any future final map shall be based upon the reduced number of units. City will provide a credit to Developer in the amount of Developer's payment of monies under this subsection, to be used by Developer against payment of Fire Facilities Fee. The amount of the credit, once established, shall not be increased for inflation and shall not accrue interest. The credits may be used by Developer against payment of the Fire Facilities Fee for any project in Dublin or, with written notice to City, may be transferred by Developer to another developer of land in Dublin. If Developer has not been able to use the credits within ten years of the City's acceptance of Fire Station 18 Improvements, the remaining credits will convert to a right of reimbursement and shall terminate after ten years. Any reimbursement shall be from Fire Facilities Fees only, if available. Other aspects of the credit and right of reimbursement shall be consistent with the City's Traffic Impact Fee Guidelines. Dublin/Dublin RE Investors Development Agreement for the Fallon Village Project - Exhibit B 785754.6 Page 10 of 10 December 20, 2005