HomeMy WebLinkAboutOrd 34-05 Fallon Village Approving DA
ORDINANCE NO. 34 - 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 (pA 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 Final Environmental Impact Report for the
Eastern Dublin General Plan Amendment and Specific Plan, which was certified by the City Council by
Resolution No. 51-93, and the Addenda dated May 4, 1993 and August 22, 1994 (hereafter "Eastern
Dublin EIR" or "prQgram 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.
Ord # 34-05, Adopted 12/20/05
Page lof3
F. A public hearing on the proposed Development Agreement was held before the City
Council on December 6, 2005, and December 20, 2005, for which public notice was given as provided by
law.
G. The City Council has considered the recommendation of the Planning Commission who
considered the item at the 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, (t) 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.
Ord # 34-05, Adopted 12/20/05
Page 2 of3
Section 4. RECORDATION
Within ten (10) days after the Development Agreement is fully executed by all parties, the City
Clerk shall submit the Agreement to the County Recorder for recordation.
Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of its
passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3)
public places in the City of Dublin in accordance with Section 36933 of the Government Code of the
State of California.
PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 20th day of
December, 2005 by the following votes:
AYES: Council members Hildenbrand, McCormick and Zika, and Mayor Pro Tem Oravetz
NOES: None
ABSENT: Mayor Lockhart
ABSTAIN: None
ATTEST:
~~d^-\\J~ -~
City Clerk
Ord # 34-05, Adopted 12/20/05
Page 3 of3
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
THIS DEVELOPMENT AGREEMENT ("Agreement") 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 99 65864 et seq. of the California Government Code and
Dublin Municipal Code, Chapter 8.56.
RECITALS
A. California Government Code 99 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 Noll..2-ec;, 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 "Project"); 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 ~'!:!pplemental Environmental Impact Report for the
Fallon Village Project (~:uc...o' 2.4lli ), an amendment to the General Plan
and Eastern Dublin Specific Plan (City Council Resolution No.2.~- o~, PD District
rezoning and a Stage 2 Development Plan (City Council Ordinance No.}!.- o~,
and a Vesting Tentative Map for Tract 7586 (Planning Commission Resolution
NO.~-JQL) (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
785754.6
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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.'3't-~ approving this Agreement. The ordinance took effect on
\/t'i , 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.
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for the Fallon Village Project
785754.6
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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 Followinq Termination of Aqreement.
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 ExhibitB)
- 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. Riqht 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. Subsequent Discretionary Approvals. Conditions, terms,
restrictions, and requirements for subsequent discretionary actions.
(These conditions do not affect Developer's responsibility to obtain all
other land use approvals required by the ordinances of the City of Dublin
other approvals from regulatory agencies.)
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for the Fallon Village Project
785754.6
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December 20, 2005
See Exhibit B
5.3.2. Mitiqation 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. Phasino, Timinq. 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. Financino 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. Requlations 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 Desjqn 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
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785754.6
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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 9 8558.
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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
X'IID 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.
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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
"significant".
9.4. Amendment of Project Approvals. Any amendment of Project
Approvals relating to: (a) the permitted use of the Property; (b) provision for
reservation or dedication of land; (c) conditions, terms, restrictions or
requirements for subsequent discretionary actions; (d) the density or intensity of
use of the Project; (e) the maximum height or size of proposed buildings; (f)
monetary contributions by the Developer; or (g) public improvements to be
constructed by Developer shall require an amendment of this Agreement. Such
amendment shall be limited to those provisions of this Agreement which are
implicated by the amendment of the Project Approval. Any other amendment of
the Project Approvals, or any of them, shall not require amendment of this
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.
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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
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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 Damaqes Aqainst City. Inno 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. Mortqaqee Protection: Certain Riqhts of Cure.
14.1. Mortqaqee 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. Mortqaqee Not Obliqated. Notwithstanding the provisions of
Section 14.1 above, no Mortgagee shall have any obligation or duty under this
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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 Mortoaoee and Extension of Rioht to Cure. If
City receives notice from a Mortgagee requesting a copy of any notice of default
given Developer hereunder and specifying the address for service thereof, then
City shall deliver to such Mortgagee, concurrently with service thereon to
Developer, any notice given to Developer with respect to any claim by City that
Developer has committed an event of default. Each Mortgagee shall have the
right during the same period available to Developer to cure or remedy, or to
commence to cure or remedy, the event of default claimed set forth in the City's
notice. City, through its City Manager, may extend the thirty-day cure period
provided in paragraph 12.2 for not more than an additional sixty (60) days upon
request of Developer or a Mortgagee.
15. Severability.
The unenforceability, invalidity or illegality of any provisions, covenant,
condition or term of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
16. Attorneys' Fees and Costs.
If City or Developer initiates any action at law or in equity to enforce or
interpret the terms and conditions of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs in addition to any other
relief to which it may otherwise be entitled. If any person or entity not a party to
this Agreement initiates an action at law or in equity to challenge the validity of
any provision of this Agreement or the Project Approvals, the parties shall
cooperate in defending such action. Developer shall bear its own costs of
defense as a real party in interest in any such action, and shall reimburse City for
all reasonable court costs and attorneys' fees expended by City in defense of any
such action or other proceeding.
17. Transfers and Assiqnments.
17.1. Rioht 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
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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 Assiqnment. The City
Manager shall consider and decide on any transfer, sale or assignment within ten
(10) days after Developer's notice, provided all necessary documents,
certifications and other information are provided to the City Manager to enable
the City Manager to determine whether the proposed Transferee can perform the
Developer's obligations hereunder. Notice of any such approved sale, transfer or
assignment (which includes a description of all rights, interests and obligations
that have been transferred and those which have been retained by Developer)
shall be recorded in the official records of Alameda County, in a form acceptable
to the City Manager, concurrently with such sale, transfer or assignment.
17.3. Effect of Sale, Transfer or Assiqnment. Developer shall be
released from any obligations hereunder sold, transferred or assigned to a
Transferee pursuant to subparagraph 17.1 of this Agreement, provided that: a)
such sale, transfer or assignment has been approved by the City Manager
pursuant to subparagraph 17.1 of this Agreement; and b) such obligations are
expressly assumed by Transferee and provided that such Transferee shall be
subject to all the provisions hereof and shall provide all necessary documents,
certifications and other necessary information prior to City Manager approval
pursuant to subparagraphs 17.1 and 17.2 of this Agreement.
17.4. Permitted Transfer, Purchase or Assiqnment. The sale or other
transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to
the exercise of any right or remedy under a deed of trust encumbering
Developer's interest in the Property shall not require City Manager approval
pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or
assignment by the Purchaser to a subsequent transferee, purchaser, or assignee
shall be subject to the provisions of paragraph 17.1.
17.5. Termination of Aqreement 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. Agreement Runs with the Land.
All of the provisions, rights, terms, covenants, and obligations contained in
this Agreement shall be binding upon the parties and their respective heirs,
successors and assignees, representatives, lessees, and all other persons
acquiring the Property, or any portion thereof, or any interest therein, whether by
operation of law or in any manner whatsoever. All of the provisions of this
Agreement shall be enforceable as equitable servitude and shall constitute
covenants running with the land pursuant to applicable laws, including, but not
limited to, Section 1468 of the Civil Code of the State of California. Each
covenant to do, or refrain from doing, some act on the Property hereunder, or
with respect to any owned property, (a) is for the benefit of such properties and is
a burden upon such properties, (b) runs with such properties, and (c) is binding
upon each party and each successive owner during its ownership of such
properties or any portion thereof, and shall be a benefit to and a burden upon
each party and its property hereunder and each other person succeeding to an
interest in such properties.
19. 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 Damaqe Insurance. During the term of
this Agreement, Developer shall maintain in effect a policy of comprehensive
general liability insurance with a per-occurrence combined single limit of not less
than one million dollars ($1,000,000.00) with a 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
AddWonalCondn~ns
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 1 5 of 1 6
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:
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City Attorney
DUBLIN RE INVESTORS, LLC
By: Braddock and Logan Services, Inc.
a c' PI.-L.~ ,v=. corporation
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Dublin/Dublin RE Investors Development Agreement
for the Fallon Village Project
785754.6
Page 16 of 16
December 20, 2005
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@ 1999 National Notary Association' 9350 De Solo Ave., PO. Box 2402 . Chatsworth, CA 91313-2402' www.nalionalnotary.org
Prod. No. 5907
Reorder: Call ToU-Free 1-80Q-1:l76-6827
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, described 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 Amer/can Title
Order Number: 0150-593892ala
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 northerly terminus of the center of Fallon Road in the southern boundary of the
Fallon Ranch; thence along the center of an existing roadway; North 180 40' West, 63.33 feet,
North 340 59' 21" West, 100.06 feet, North 210 15' West, 100.00 feet, North 30 00' West, 100.00
feet; and North 10 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 400 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 right, through a central angle of 350 45' for an arc
distance of 311.98 feet to a corner in said fence line; thence leaving said line of said roadway
and continuing along said fence line and its westerly prolongation, North 820 40' West, 200.00
feet; hence North 150 51' 43" West, 272.48 feet; thence North 13030' 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 370 40' East, 177.15 feet, North 270 15' Eat,
182.90 feet, North 70 00' West, 100.00 feet, and North 110 DO' West, 130.00 feet; thence the
following courses; from a tangent bearing North 680 00' West, running along a 160.00 foot radius
curve to the right through a central angle of 550 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 150 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 nght through a central angle of 340 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 angle of 34035' for an arc distance of 102.61 feet; thence North 280 4{)' West,
200.00 feet; thence along a tenant 165.00 foot radius curve to the right through a central angle
of 57000' for an arc distance of 164.15 feet; thence North 280 20' East, 250.00 feet North 200
30' West, 220.00 feet to the southerly line of an existing roadway; thence from a tangent bearing
South 860 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 190 35' for an arc distance of 102.54 feet; thence
North 230 00' West, 208.22 feet; hence East 660.80 feet; thence at right angles, North 1,781.78
feet; hence North 890 43' 43" East, 2,258.55 feet; hence South 00 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 Lin, 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 Title
Order Number: 0150-593892ala
Page Number: 6
OR, Image 335, over a portion of the southwestern 1/4 of Section 34, Township 2 South, Range
1 East, MountDiablo Base and Meridian described as follows:
Beginning at the northerly tenninus 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 18040' West 63.33 feet; thence parallel with said fence line, East 31.67 feet;
thence South 180 40' East 63.33 feet to the point of beginning.
APN: 985-0028-002
Rrst American Tit/e
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 of this Agreement.
Subparagraph 5.3.1 - Subsequent Discretionary Approvals
Development of the Project will require site development review approval.
Subparagraph 5.3.2 -- Mitigation Conditions
Subsection a.
Infrastructure Sequencina Proaram
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) Phasinq 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-580 Interchanqe:
Condition 59 provides as follows:
Fallon Road/I-SSO Interchange Improvement Contribution: The
developer shall pay a fair share portion of costs advanced by the Un
Family for improvements to the Fallon Road/ 1-580 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 1-580/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
Dublin/Dublin 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 Overcrossina:
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/Douahertv 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
1 sl 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
Dublin/Dublin 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/l580 Interchanqe 5th Eastbound
Offramp Lane: Condition 62 provides as follows:
Santa Rita Road/I-S80 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/ 1-580 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.
Dublin/Dublin RE Investors Development Agreement
for the Fallon Village Project - Exhibit B
765754.6
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 Draina~e.
(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.~. ~as. 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.
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Subparagraph 5.3.3 -- Phasing, Timing
This Agreement contains no requirements that Developer must initiate or
complete development of the Project within any period of time set by City. It is
the intention of this provision that Developer be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
Subparagraph 5.3.4 -- Financing Plan
Developer will install all improvements necessary for the Project at its own
cost (subject to credits for any improvements which qualify for credits as provided
in Subparagraph 5.3.6 below).
Other infrastructure necessary to provide sewer, potable water, and
recycled water services to the Project will be made available by the Dublin San
Ramon Services 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.
Subparagraph 5.3.5 -- Fees, Dedications
Subsection a.
Traffic Impact Fees.
Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF")
established by Resolution No. 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 Mitigation Fee.
Developer shall pay a Noise Mitigation Fee established by City of Dublin
Resolution No. 33-96, including any future amendments to such fee. Developer
will pay such fees no later than the time of issuance of building permits and in the
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.
Subsectionf.
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.
Subparagraph 5.3.6 -- Credit
Subsection a.
Traffic Impact Fee Improvements -- Credit
City shall provide a credit to Developer for those improvements described
in the resolution establishing the Eastern Dublin Traffic Impact Fee if such
improvements are constructed by the Developer in their ultimate location. All
aspects of the credit shall be covered by City's Administrative Guidelines for
Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 ('TIF Guidelines")).
Subsection b.
Traffic Impact Fee Right-of-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
Dublin/Dublin 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.
Subparagraph 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,
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for the Fallon Village Project - Exhibit B
785754.6
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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 thePreannexation 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.
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for the Fallon Village Project - Exhibit B
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