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HomeMy WebLinkAbout6.1 DubRanG Toll DASUBJECT: CITY CLERK File #600-60 AGENDA STATEMENT CITY COUNCIL MEETING DATE: April 16, 2002 PUBLIC HEARING PA 01-009 Toll Brothers - Ordinance approving Development Agreements for Dublin Ranch Area G (Neighborhoods H-l, H-2, MH-1 and MH-2 - 2na Reading (Report Prepared by: Michael Porto, Planning Consultant) ~' ATTACHMENTS: 1. Ordinance Approving Development Agreements between the City of Dublin and Toll CA II, L.P (Toll Brothers) with the Development Agreements attached as: Exhibit A-1 - Neighborhood Hi Exhibit A-2 -'Neighborhood H2 Exhibit A-3 - Neighborhood MH1 Exhibit A-4 - Neighborhood MH2 RECOMMENDATION: 1. 2. 3. o Open public hearing and hear staff presentation Receive staff presentation and take public testimony. Question staff, applicant, and the public. Close public hearing and deliberate. Waive Reading and adopt an Ordinance (Attachment 1) approving four (4) Development Agreements (Exhibits A-1, A- 2, A-3 and A-4.) FINANCIAL STATEMENT: None PROJECT DESCRIPTION: An Ordinance approving four (4) Development Agreements between the City of Dublin and Toll Brothers is required by the Eastern Dublin Specific Plan. Items in the Development Agreements include, but are not limited to, the financing and timing of infrastructure; payment of traffic, noise and public facilities impact fees; oversizing of roads and general provisions. BACKGROUND: This project is part of Dublin Ranch Area G comprised of 86.4acres of medium high and high density residential, village center mixed uses, a neighborhood park and neighborhood square. The Planning Commission, on January 8, 2002 and January 22, 2002 approved the Site Development Review for Area G neighborhoods H-l, H-2, MH-1 and MH-2. The Tentative Maps (Tracts 7324, 7325, 7326 & 7327) setting the lot pattern for these subdivisions were also approved by the Planning Commission on January 8, 2002 for Neighborhoods MH-1, MH-2 and H-1 (Resolutions 02-03, 02-04, 02-05) and on January 22, 2002 for Neighborhood H-2 (Resolutions 02-6). At its meeting of March 26, 2002, the Planning G:\pa\01-009\ccsrda2 COPIES TO: Applicant In House Distribution Commission considered a staff report, reviewed the four development agreements and unanimously approved Resolution 02-16 recommending that the City Council adopt the attached Ordinance approving these Development Agreements. Dublin Ranch Areas G is located east of Tassajara Road and north of 1-580. The project area is entirely vacant with no structures. Grading has occurred to create the proposed lots and streets and some street pavement has been installed. Upon comPletion of the Development Agreement process by the City Council, building permits can be issued. ANALYSIS: One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into Development Agreements with developers in the plan area. The Development Agreements provide security to the developer that the City will not change its zoning and other laws applicable to the project for a specified period of time. Additionally, it is a mechanism for the City to obtain commitments from the developer that the City might not otherwise be able to obtain. The Development Agreements are one means the City has to assure that the Specific Plan goal, that new development funds, the costs of infrastructure and service, is met. The proposed Development Agreements between the City of Dublin and Toll Brothers are Exhibits A-I, A-2, A-3 & A-4 of Attachment 1 to this staff report. The Development Agreements are based on the standard Development Agreement developed by the City Attorney and adopted by the City Council for Eastern Dublin Projects, with the exception of the term of each Development Agreement. The applicant requested the ability to extend the Development Agreements on an annual basis up to five additional In order to secure the extensions, these Development Agreements will provide a yearly contribution to the City in the amount of $100,000 for each year the Developer exercises the option to extend the' term of the Development Agreements. The Development Agreements can only be extended for a maximum of five years beyond the five years provided in the City's standard Development Agreement for a maximum total term of 10 years. Planning Commission Action: On March 26, 2002, the Planning Commission adopted a Resolution recommending that the City Council adopt an Ordinance approving Development Agreements with Toll CA II L.P. and the City of Dublin for Toll Brothers Dublin Ranch Neighborhoods H-l, H-2, MH-1 and MH-2 project. City Council Action: At the Public Hearing of April 2, 2002, the City Council heard a presentation from Staff, took public testimony and waived the reading and introduced an Ordinance approving Development Agreements with Toll CA II L.P. and the City of Dublin for Toll Brothers Dublin Ranch Neighborhoods H-l, H-2, MH-1 and MH-2 project. ENVIRONMENTAL REVIEW: This project is within the scope of the Eastern Dublin Specific Plan and General Plan Amendment, for which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration was prepared for the entire project. The project will not have environmental effects, which were not examined in the Program EIR. No new effects will occur and therefore no revisions to the Program EIR are required. That Mitigated Negative Declaration, together with the Program EIR, adequately describes the total project for the purposes of CEQA. CONCLUSIONS: Approval of these Development Agreements will implement provisions of the Eastern Dublin Specific Plan. The proposal is consistent with both the General Plan and the Specific Plan. RECOMMENDATION: Staff recommends that the City Council open the public hearing, deliberate and: 1. Waive the reading and adopt an OrdinanCe (Attachment 1) approving the Development Agreements (Exhibits Al, A2, A3, & A4) between the City of Dublin and Toll CA II L.P. ORDINANCE NO. - 02 AN ORDINANCE OF THE CITY OF DUBLIN APPROVING FOUR DEVELOPMENT AGREEMENTS FOR PA 01-009 TOLL BROTHERS (TOLL CA H, L.P.) FOR NEIGHBORHOODS HI, H2, MH1 & MH2 OF DUBLIN RANCH AREA G THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The proposed Neighborhoods H1, H2, MH1 & MH2 of Dublin Ranch Area G is located within the boundaries of the Eastern Dublin Specific Plan ("Specific Plan") in an area, which is designated on the General Plan Land Use Element Map, and Eastern Dublin Specific Plan Land Use Map as Single Family land uses. B. Pursuant to the California Environmental Quality Act (CEQA), CEQA Guidelines Section 15182, the proposed Project is within the scope of the Final Environmental ImPact Report for the 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 (the "EIR") (SCH 911O3064). C. Four Development Agreements between the City of Dublin and Toll CA II, L.P. have been presented to the City Council, copies of which are attached to the Staff Report as Exhibits A-l, A-2, A-3 and A-4 of Attachment 1. D. A public hearing on the proposed Development Agreements was held before the Planning Commission on March 26, 2002, 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 Agreements. F. A public hearing on the proposed Development Agreements was held before the City Council On April 2, 2002 and April 16, 2002, 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 March 26, 2002 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 EIK (f) the individual Mitigated Negative Declarations (g) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The Development Agreements are 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 Single Family Density Residential Land Uses and the proposed project is a project consistent with that land use, (b) the project is consistent with the fiscal policies of the General ATTACHMENT 1 Plan and Specific Plan With respect to provision of infrastruCtUre and public services, and (c) the Development Agreements include provisions relating to vesting of development rights, and similar provisions set forth in the Specific Plan. 2. The Development Agreements are 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 PD District Overlay Zone for Dublin Ranch Area G, and vesting tentative tract map 7141 and 7142. 3. The Development Agreements are in conformity with public convenience, general welfare and good land use policies in that Neighborhoods H1, H2, MH1 & MH2 of Dublin Ranch Area G will implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for residential, commercial, parks, schools, public and semi-public, open space and campus office uses at this location. 4. The Development Agreements will not be detrimental to the health, safety and general welfare in that the 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 Agreements (Exhibit A-l, A-2, A-3 and A-4 of Attachment 1 to the Staff'Report) and authorizes the Mayor to sign each agreement. Section 4. RECORDATION Within ten (10) days after the Development Agreements are executed by the Mayor, the City Clerk shall submit the Agreements 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 ofDublin 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 16th day of April 2002, by the following votes: AYES: NOES: ABSENT: ABSTAIN: MAYOR ATTEST: CITY CLERK K2/G/4-16-02/ord-da-areaG.doc (Item 6.1) G:01-009 Ordinance da 2 City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND TOLL-DUBLIN, EEC, FOR NEIGHBORHOOD H-1 OF AREA G OF DUBLIN RANCH THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this ~ day of ,2002, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and Toll-Dublin, LLC, a California limited liability company (hereafter collectively "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal. Code (hereafter "Chapter 8.56") authorize the CITY to enter into an Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and C. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 8.7 acres of land, located in the City of Dublin, County of Alameda, State of California, which is designated as Parcel 5 on the Master Subdivision Map for Tract 7148 and 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 D. DEVELOPER acquired its interest in the Property from DR Acquisitions I, LLC, which acquired its interest in the Property from Chang Su-O- Lin, Hong Lien Lin and Hong Yao Lin (the "Lins"); and E. The Lins and CITY are parties to a "Master Development Agreement Between the City of Dublin and The Lin Family for the Dublin Ranch Project (Areas A, B, C, D, E, F, G and H)" as amended by the Supplemental Development Agreement Between the City of Dublin and The Lin Family for Dublin Ranch Areas F, G & H (collectively, .the "Supplemental DA"), section 7 of which requires DEVELOPER to enter into this development agreement; and F. The Eastern Dublin Specific Plan also reqUires DEVELOPER to enter into this development agreement; and G. DEVELOPER proposes the development of the Property with 289 dwelling units (the "Project"); and H. DEVELOPER (or its predecessor in interest) has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the ProjeCt, including an amendment to the General Plan and Eastern Dublin Specific Plan (City Council Resolution No. 53-93), Planned Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 2 of 17__-1-7-- March 20, 2002 Development District Rezone/Development Plan Stage I and Stage 2 (Ord. No. 16-99), Master Vesting Tentative Map for Tract 7148 (Planning Commission Resolution No. 00-14), Vesting Tentative Map and site development review for Neighborhood H-1 (Planning Commission Resolution 02-03) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, 'the "Project Approvals"); and I. Development of the Property by DEVELOPER may be subject to certain future discretionary approvals, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective; and J. CITY desires the timely, efficient, orderly and proper development of said Project; and K. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and L. CITY and DEVELOPER have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein; and M. Pursuant to the California Environmental Quality Act (CEQA) the Planning Commission adopted Resolution No. 02-03 finding that the Project is within the scope of the Final Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was certified bythe Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR"); and N. On adopted Ordinance No. ordinance took effect on 2002, the City Council of the City of Dublin approving this Development Agreement. The 2002. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein · contained, CITY and DEVELOPER agree as follows: AGREEMENT 1. Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 3 of 1--7-.I...7- March 20, 2002 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property in that it is owns the ProPerty in fee simple. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by CITY and DEVELOPER and that the DEVELOPER is not an agent of CITY. The CITY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY and DEVELOPER joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by City. 4.2 Term. The term of this Development Agreement shall commence on the effective date and extend five years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 4.3 Optional Extension. Prior to the termination of this Development Agreement, as provided in Section 4.2, DEVELOPER may extend the term of the Development Agreement. To do so, DEVELOPER shall give CITY written notice at least 90 days prior to the termination date of the Development Agreement. At the time DEVELOPER provides such notice, DEVELOPER shall make a contribution to CITY in the amount of One Hundred Thousand Dollars ($100,000). Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the DEVELOPER in writing that the term of the Development Agreement has been automatically extended for an additional one-year period, commencing on the date the Development Agreement would otherwise have terminated. The DEVELOPER may exercise its option to extend the Development Agreement no more than five times, for a maximum total term of the Development Agreement of ten years. The total contribution for the maximum extension of five years will be Five Hundred Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this Section, if DEVELOPER provides the notice and contribution to extend one of the other Development Agreements in Area G (Neighborhoods MH-1, MH-2, or H- 2), DEVELOPER shall not be required to provide the $100,000 contribution to extend the term of this Development Agreement. 5. Use of the Property. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 4 of 17__.~. J March 20, 2002 5.1 Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by CITY) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1 Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin other approvals from regulatory agencies.) Not Applicable 5.3.2 Mitigation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmental impacts of the Project or otherwise relating to development of the Project. See Exhibit B 5.3.3 Phasing, Timing. Provisions that the Project be constructed in specified phases, that construction shall commence within a specified time, and that the Project or any phase thereof be completed within a specified time. See Exhibit B 5.3.4 Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5 Fees, Dedications. Terms relating to payment of fees or dedication of property. See Exhibit B · Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-i Page 5 of 17___~ March 20, 2002 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, Regulations and Official Policies. 6.1 Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Property, governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the effective date of the Supplemental DA. 6.2 Rules re Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary Project Approval. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public, improvements to be constructed by Developer shall be those in force and effect at the time of the applicable permit approval for the public improvement. 6.3 Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code Of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Regulations. 7.1 New Rules and Regulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (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 Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 6 of 1_Z7~7 March 20, 2002 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 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/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 7 of 1_ZT.l-,:~ March 20, 2002 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1 Fees, Exactions, Dedications CITY and DEVELOPER agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement (including Exhibit B). The CITY shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of sUch fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. 8.4 Assessments. Nothing herein shall be construed to relieve the Property from assessments levied against it by City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5 Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's ballot as affirmatively voting in favor of such assessment, fee or charge. 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Lawn. 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. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 8 of 17__~-7.- March 20, 2002 Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56. 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "significant" reservation or dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings; or (g) monetary contributions by DEVELOPER as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. CITY's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4 Amendment of 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 by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. 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/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 9 of March 20, 2002 10. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the vesting.tentative map described in Recital H above shall automatically be extended for the term of this Agreement and any extensions thereto pursuant to Section 4.3 of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be August 15, 2003 and each August 15 thereafter. 11.2 Initiation of Review. The CITY's Community Development. Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER thirty (30) days' written notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CITY in connection with the annual review shall be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this 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 Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 10 of 17-1-;~ March 20, 2002 equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give nOtice shall not constitute a waiver of any default. 12.3 No Damages Against CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall be authorized to execute any certificate requested by DEVELOPER. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mortgagee Protection; Certain Rights of Cure. 14.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, o~ any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or'after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 11 of 17__:~1.,7- March 20, 2002 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 Mort_aa.qee and Extension of Right to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereunder and specifying the address for service thereof, then CITY shall deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that DEVELOPER has committed an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee. 15. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. DEVELOPER shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse CITY for all reasonable court costs and attorneys' fees expended by CITY in defense of any such action or other proceeding. 17. Transfers and Assignments. '17.1 Right to Assign.. 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 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 Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 12 of 17_~.lT- March 20, 2002 occur without prior written notice to CITY and apProval by the City Manager, which approval shall not be unreasonably withheld or delayed. 17.2 Approval and Notice of Sale, Transfer or Assignment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) days after DEVELOPER's notice, provided all necessary documents, certifications and other information are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform the DEVELOPER's obligations hereunder. Notice of any such approved sale, transfer or assignment (which includes a description of all rights, interests and obligations that have been transferred and those which have been retained by DEVELOPER) shall be recorded in the official records of Alameda COunty, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. 17.3 Effect of Sale, Transfer or Assignment. 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 Assignment. The sale or other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to the exercise of any right or remedy under a deed of trust encumbering DEVELOPER'S interest in the Property shall not require City Manager approval pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 17.1. 17.5 Termination of Agreement Upon Sale of Individual Lots to Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the purchaser or user thereof and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 13 of 17-t~¥ March 20, 2002 18. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions .by the DEVELOPER, or any actions or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation with respect to negligence or wrongful conduct of CITY, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). 21. Insurance. 21.1 Public Liability and Property Damage Insurance. During the term of this Agreement, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) with a Twenty Five Thousand Dollar Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 14 of 1 March 20, 2002 ($25,000) self insurance retention per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2 Workers Compensation Insurance. During the term of this Agreement DEVELOPER shall maintain Worker's Compensation insurance for all .persons employed by DEVELOPER for work at the Project site. DEVELOPER shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to City Council approval of this Agreement, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the CITY at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of CITY. 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin 100 .Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to DEVELOPER shall be addressed as follows: Toll - Dublin, LLC Attn: Jon Paynter 100 Park Place, Suite 140 San Ramon, CA 94583 FAX No. (925) 855-9927 Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 15 of 17__~7- March 20, 2002 A party may change address by giving nOtice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 25. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. 27. Recordation.. CITY shall record a copy of this Agreement within ten days following execution by all parties. 28. Corporate Authority. If either party is a corporation, each individual signing this Agreement on behalf of that corporation represents and warrants that each of them is duly authorized to execute and deliver this Agreement on behalf of the corporation and that the Agreement is binding on the corporation in accordance with its terms. 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: Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 16 of 17_._~7- March 20, 2002 By: Mayor Date: ATTEST: By: City Clerk Date: APPROVED AS TO FORM: City Attorney TOLL CA II, LP a California limited liability company By: Jon Paynter Assistant Vice President Date: (NOTARIZATION ATTACHED) G:\pa\01-009\das\dah-13_20 Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 Page 17 of t7¥7 J March 20, 2002 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subpara_qraph 5.3.'1 -- Subsequent Discretionary Approval~ None. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Sequencin.q Pro~ram 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 Nos. 00-14, and 02-03 of the City of Dublin Planning Commission approving the Tentative Maps for the Master Parcel (Tract 7148) and Neighborhood H-1 (Tract 7326) respectively (hereafter collectively "TM Resolutions"), and those described below shall be completed by DEVELOPER to the satisfaction of the Public Works Director at the times and in the manner specified in the TM Resolutions unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public Works Director. --Condition 64 [(Offsite) Traffic Signals] Condition 64 states that the timing of installation of the improvements it requires, if nOt otherwise constructed by another developer, shall be as specified in this development agreement or when deemed necessary by the Director of Public Works. Pursuant to Condition 64, and notwithstanding anything to the contrary in Condition 64, unless otherwise constructed by another developer, Developer shall install the traffic signals required by condition 64 prior to the issuance of the first Certificate of OcCupancy in Neighborhood H-I. --Conditions 67 and 68 [Tassajara Road, Additional Northbound Lane; and Intersection Improvements of Dublin Boulevard and Tassajarra Road] Conditions 67 and 68 state that the timing of the completion of improvements required by Conditions 67 and 68 shall be as determined by the Director of Public Works or as specified in the development agreement. Pursuant to Conditions 67 and 68, and notwithstanding' Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 m Exhibit B Page 1 of 6 March 20, 2002 anything to the contrary in Conditions 67 and 68, the improvements required by Conditions 67 and 68 shall be completed as required by the triggering traffic study or updated traffic study required by Conditions 67 and 68 ("the Triggering Traffic Study"), but in no case later than the timing of completion of improvements as specified in the Tract Developer Agreement for Neighborhood H-l, if the improvements required by Conditions 67 and 68 are required by the Triggering Traffic Study. Notwithstanding the foregoing, the Director of Public Works may extend the obligation to construct the improvements required by condition 67 until such time as the property to the west (owned by the Dublin Land Company) develops. --Condition 72 [Intersection of Dougherty Road & Dublin Blvd.1 Condition 72 of Tract Map 7326 is hereby superseded by Condition 110 in the TM Resolution for tract 7148, which reads as follows: Intersection of Doughtery Road & Dublin Blvd. The City shall determine the Applicant/Developer's fair share contribution to the above-referenced intersection with each SUbsequent entitlement application, in the event that the City does not have sufficient Category 2 TIF funds, Applicant/Developer shall advance their fairshare Section 2 TIF fees for future widening, signal modification and improvement to the intersection of Doughtery Road and Dublin Blvd., at the time of the first building permit. These funds will be based on the percent of trip contribution to the intersection defined and approved by the Director of Public Works. This intersection improvement is a TIF improvement. Therefore costs spent may be credited against payment of traffic impact fees in accordance with City TIF Guidelines. 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 in the amount of the Project's fair share of the deficiency, if any, between funds available to CITY for CIP Project #9689 [Dougherty Road/Dublin Blvd. Intersection] and the cost of such project, such payment to be made within 30 days of written notice from the Public Works Director to be given following bid opening. Notwithstanding the provisions of Section 4 of this Agreement, Condition 72 and this paragraph shall survive termination of this Agreement. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 -- Exhibit B Page 2 of 6 March 20, 2002 (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 An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative map to the satisfaction and requirements of the CITY's fire department. All potable water system components to serve the project site 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 Drainage The storm drainage systems off site, as well as on site drainage systems to 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 and Zone 7's (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. The site shall also be protected from storm flow from off site and shall have erosion control measures in place to protect downstream facilities and properties from erosion and unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan referenced in Condition 40 of Planning Commission Resolution 00-36. If determined to be necessary by CITY, 'DEVELOPER agrees to participate in a drainage benefit district or such other mechanism as may be established by CITY in the future to reimburse developers for oversizing drainage facilities that benefit the Property. (v) Other Utilities (e._cl. _clas, electricity, cable televisions, telephone) Construction shall be complete by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous (i) Completion May be Deferred. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 -- Exhibit B Page 3 of 6 March 20, 2002 Notwithstanding the foregoing, CITY's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow DEVELOPER to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subparagraph 5.3.3 -- Phasing, Timinq 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 -- Financinq 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. 225-99, including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. DEVELOPER further agrees that it will pay three percent (3%) of the "Section l/Category 1" portion of the TIF in cash. DEVELOPER also agrees that it will pay 12.4% 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 12.4% 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. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 -- Exhibit B Page 4 of 6 March 20, 2002 Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchanges. DEVELOPER shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11-96 as amended by Resolution No, 155- 98 and by any subsequent resolution which revises such Fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the 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. 60-99, including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of iSsuance of building permits and in the amount of the fee in effect at time of building permit issuance. DEVELOPER may use the credits for payment of the Community Park Land portion of the Public Facilities Fee granted to the Lin Family by the Master Development Agreement in accordance with City's Public Facilities Fee Guidelines (Resolution 195-99). 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. Subsection f. Fire Impact Fees. DEVELOPER shall pay a fire facilities fee' established by City of Dublin Resolution No. 208-00 including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in amount of the fee in effect at time of building permit issuance. Subsection ~. Tri-Valley Transportation Development Impact Fee. DEVELOPER shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee, DEVELOPER will pay such fees no later Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 -- Exhibit B Page 5 of 6 March 20, 2002 than the time of issuance of building permits and in the amount of the impact 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-Way Dedications -- Credit CITY shall provide a credit to DEVELOPER for any TIF area right-of-way to be dedicated by DEVELOPER to CITY which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. Subparagraph 5.3.6 -- Miscellaneou~ None. J:\wpd\Mnrsw\114\187~Agree\da_ex b_H1_032002.doc Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-1 -- Exhibit B Page 6 of 6 March 20, 2002 City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND TOLL-DUBLIN, EL.C, FOR NEIGHBORHOOD H-2 OF AREA G OF DUBLIN RANCH THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this day of ,2002, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and Toll-Dublin, LLC, a California limited liability company (hereafter collectively "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and C. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 10.2 acres of land, located in the City of Dublin, County of Alameda, State of California, which is designated as Parcel 6 on the Master Subdivision Map for Tract 7148 and 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 D. DEVELOPER acquired its interest in the Property from DR Acquisitions I, LLC, which acquired its interest in the Property from Chang Su-O- Lin, Hong Lien Lin and Hong Yao Lin (the "Lins"); and E. The Lins and CITY are parties to a "Master Development Agreement Between the City of Dublin and The Lin Family for the Dublin Ranch Project (Areas A, B, C, D, E, F, G and H)" as amended by the Supplemental Development Agreement Between the City of Dublin and The Lin Family for Dublin Ranch Areas F, G & H (collectively, the "Supplemental DA"), section 7 of which requires DEVELOPER to enter into this development agreement; and F. The Eastern Dublin Specific Plan also requires DEVELOPER to enter into this development agreement; and G. DEVELOPER proposes the development of the Property with 626 dwelling units (the "Project"); and H. DEVELOPER (or its predecessor in interest) has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the Project, including an amendment to the General Plan and Eastern Dublin Specific Plan (City Council Resolution No. 53-93), Planned Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 2 of 16 March 20, 2002 Development District Rezone/Development Plan Stage 1 and Stage 2 (Ord. No.16-99), Master Vesting Tentative Map for Tract 7148 (Planning Commission Resolution No. 00-14), Vesting Tentative Map and site development review for Neighborhood H-2 (Planning Commission Resolution 02-06) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and I. Development of the Property by DEVELOPER may be subject to certain future discretionary approvals, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective; and J. CITY desires the timely, efficient, orderly and proper development of said Project; and K. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and L. CITY and DEVELOPER have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein; and M. Pursuant to the California Environmental Quality Act (CEQA) the Planning Commission adopted Resolution No. 02-06 finding that the Project is within the scope of the Final Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was certified by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR"); and N, On adopted Ordinance No.~ ordinance took effect on 2002, the City Council of the City of Dublin approving this Development Agreement. The 2002. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPER agree as follows: AGREEMENT 1. Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 3 of 16 March 20, 2002 Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property in that it. is owns the Property in fee simple. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by CITY and DEVELOPER and that the DEVELOPER is not an agent of CITY. The CITY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY and DEVELOPER joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by City. 4.2 ..Term. The term of this Development Agreement shall commence on the effective date and extend five years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 4.3 Optional Extension. Prior to the termination of this Development Agreement, as provided in Section 4.2, DEVELOPER may extend the term of the Development Agreement. To do so, DEVELOPER shall give CITY written notice at least 90 days prior to the termination date of the Development Agreement. At the time DEVELOPER provides such notice, DEVELOPER shall make a contribution to CITY in the amount of'One Hundred Thousand Dollars ($100,000). Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the DEVELOPER in writing that the term of the Development Agreement has been automatically extended for an additional one-year period, commencing on the date the Development Agreement would otherwise have terminated. The DEVELOPER may exercise its option to extend the Development Agreement no more than five times, for a maximum total term of the Development Agreement of ten years. The total contribution for the maximum extension of five years will be Five Hundred Thousand Dollars ($500,000). Notwithstanding'anything to the contrary in this Section, if DEVELOPER provides the notice and contribution to extend one of the other Development Agreements in Area G (Neighborhoods MH-1, MH-2, or H- 1), DEVELOPER shall not be required to provide the $100,000 contribution to extend the term of this Development Agreement. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 4 of 16 March 20, 2002 5. Use of the Property. 5.1 .Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms .and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by CITY) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1 Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin other approvals from regulatory agencies.) Not Applicable 5.3.2 Mitigation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmental impacts of the Project or otherwise relating to development of the Project. See Exhibit B 5.3.3 Phasing, Timing. Provisions that the Project be constructed in specified phases, that construction Shall commence within a specified time, and that the Project or any phase thereof be completed within a specified time. See Exhibit B 5,3.4 Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 5 of 16 March 20, 2002 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, RegUlations and Official Policies. 6.1 Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Property, governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the effective date of the Supplemental DA. 6.2 Rules re Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary Project Approval. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public, improvements to be constructed by Developer shall be those in force and effect at the time of the applicable permit approval for the public improvement. 6.3 · Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Regulations. 7.1 New Rules and Regulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and.effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 6 of 16 March 20, 2002 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 which affects the Project on all or any part of the Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1 Fees, Exactions, Dedications CITY and DEVELOPER agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement (including Exhibit B). The CITY shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 page 7 of 16 March 20, 2002 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 XlIID 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. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56. 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "significant" reservation or dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings; or (g) monetary contributions by DEVELOPER as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. CITY's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4 Amendment of 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) Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 8 of 16 March 20, 2002 monetary contributions by the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by CITY. 10. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described in Recital H above shall automatically be extended for the term of this Agreement and any extensions thereto pursuant to Section 4.3 of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be August 15, 2003 and each August 15 thereafter. 11.2 Initiation of Review. The CITY's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER thirty (30) days' written notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CITY in connection with the annual review shall be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 9 of 16 March 20, 2002 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 NotiCe and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damages A_~ainst 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. Mortgagee Protection; Certain Rights of Cure. 14.1 Mort.qaqee Protection, This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 10 of 16 March 20, 2002 of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, .by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such 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 Mortqagee and Extension of Right to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereunder and specifying the address for service thereof, then CITY shall deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that DEVELOPER has committed an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon .request of DEVELOPER or a Mortgagee. 15. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 11 of 16 March 20, 2002 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 Right to Assign. 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 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 Assignment. 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 Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 12 of 16 March 20, 2002 assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 17.1. 17.5 Termination of Agreement Upon Sale of Individual Lots to Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the purchaser or user thereof and thereupon and without the . execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or Until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 18. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the. benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 13 of 16 March 20, 2002 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 t© 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). 21. Insurance. 21.1 Public Liability and Property Damage Insurance. During the term of this Agreement, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) with a Twenty Five Thousand Dollar ($25,000) self insurance retention per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2 Workers Compensation Insurance. During the term of this Agreement DEVELOPER shall maintain Worker's Compensation insurance for all persons employed by DEVELOPER for work at the Project site. DEVELOPER shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 Evidence of InsuranCe. Prior to City Council approval of this Agreement, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the CITY at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of CITY. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 14 of 16 March 20, 2002 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to DEVELOPER shall be addressed as follows: Toll - Dublin, LLC Attn: Jon Paynter 100 Park Place, Suite 140 San Ramon, CA 94583 FAX No. (925) 855-9927 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 25. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions 26. Counterparts. This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 Page 15 of 16 March 20, 2002 27. Recordation. CITY shall record a copy of this Agreement within ten days following execution by all parties. 28. Corporate Authority. If either party is a corporation, each individual signing this Agreement on behalf of that corporation represents and warrants that each of them is duly authorized to execute and deliver this Agreement on behalf of the corporation and that the Agreement is binding on the corporation in accordance with its terms. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN: By: Date: Mayor ATTEST: By: Date: City Clerk APPROVED AS TO FORM: City Attorney TOLL CA II, LP a California limited liability company By: Date: Jon Paynter Assistant Vice President (NOTARIZATION ATTACHED) Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 g:\pa\Ol-OO9\dah-2 3-20 Page 16 of 16 March 20, 2002 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparagraph 5.3.1 -- Subsequent Discretionary Approvals None. Subpara~ra~)h 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Sequencin.q 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 Nos. 00-14, and 02-06 of the City of Dublin Planning Commission approving the Tentative Maps for' the Master Parcel (Tract 7148) and Neighborhood H-2 (Tract 7327) respectively (hereafter-collectively "TM Resolutions"), and those described below shall be completed by DEVELOPER to the satisfaction of the Public Works Director at the times and in the manner specified in the TM Resolutions unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public Works Director. --Condition 66 [(Offsite) Traffic Signals] Condition 66 states that the timing of installation of the improvements it requires, if not otherwise constructed by another developer, shall be as specified in this development agreement or when deemed necessary by the Director of Public Works. Pursuant to Condition 66, and notwithstanding anything to the contrary in Condition 66, unless otherwise constructed by another developer, Developer shall install the traffic signals required by condition 66 prior to the issuance of the first Certificate of Occupancy in Neighborhood H-2. --Conditions 70 and 71 [Tassajara Road, Additional Northbound Lane; and Intersection Improvements of Dublin Boulevard and Tassajarra Road] Conditions 70 and 71 state that the timing of the completion of improvements required by Conditions 70 and 71 shall be as determined by the Director of Public Works or as specified in the development agreement. Pursuant to Conditions 70 and 71, and notwithstanding Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 -- Exhibit B Page 1 of 6 March 20, 2002 anything to the contrary in Conditions 70 and 71, the improvements required by Conditions 70 and 71 shall be completed as required by the triggering traffic study or updated traffic study required by Conditions 70 and 71 ("the Triggering Traffic Study"), but in no case later than the timing of completion of improvements as specified in the Tract Developer Agreement for Neighborhood H-2, if the improvements required by Conditions 70 and 71 are required by the Triggering Traffic Study. Notwithstanding the foregoing, the Director of Public Works may extend the obligation to construct the improvements required by condition 70 until such time as the property to the west (owned by the Dublin Land Company) develops. --New Condition 73A [Intersection of Dougherty Road & Dublin Blvd.] Condition 73A of Tract Map 7327 is hereby added, to read as follows: Intersection of Doughtery Road & Dublin Blvd. The City shall determine the Applicant/Developer's fair share contribution to the above-referenced intersection with each subsequent entitlement application. In the event that the City does not have sufficient Category 2 TIF funds, Applicant/Developer shall advance their fairshare Section 2 TIF fees for future widening, signal modification and improvement to the intersection of Doughtery Road and Dub/in Blvd., at the time of the first building permit. These funds will be based on the percent of trip contribution to the intersection defined and approved by the Director of Public Works. This intersection improvement is a TIF improvement. Therefore costs spent may be credited against payment of traffic impact fees in accordance with City TIF Guidelines. 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 in the amount of the Project's fair share of the deficiency, if any, between funds available to CITY for CIP Project #9689 [Dougherty Road/Dublin Blvd. Intersection] and the cost of such project, such payment to be made within 30 days of written notice from the Public Works Director to be given following bid opening. Notwithstanding the provisions of Section 4 of this Agreement, Condition 73A and this paragraph shall survive termination of this Agreement. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 -- Exhibit B Page 2 of 6 March 20, 2002 (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. An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative map to the satisfaction and requirements of the CITY's fire department. All potable water system components to serve the project site 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_cle The storm drainage systems off site, as well as on site drainage systems to 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 and Zone 7's (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. The site shall also be protected from storm flow from off site and shall have erosion control measures in place to protect downstream facilities and properties from erosion and unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan referenced in Condition 40 of Planning Commission Resolution 00-36. If determined to be necessary by CITY, DEVELOPER agrees to participate in a drainage benefit district or such other mechanism as may be established by CITY in the future to reimburse developers for oversizing drainage facilities that benefit the Property. (v) Other Utilities (e._~. _clas, electricity, cable televisions~ telephone) Construction shall be complete by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 -- Exhibit B Page 3 of 6 March 20, 2002 (i) Completion May be Deferred. Notwithstanding the foregoing, CITY's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow DEVELOPER to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subparaqraph 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.. Subr)ara_(]ra~)h 5.3.4 -- Financinq 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. 225-99, including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. DEVELOPER further agrees that it will pay three percent (3%) of the "Section 1/Category 1' portion of the TIF in cash. DEVELOPER also agrees that it will pay 12.4% of the "Section 2/Cate.gory 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 12.4% 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. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 w Exhibit B Page 4 of 6 March 20, 2002 Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchanges. DEVELOPER shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155- 98 and by any subsequent resolution which revises such Fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the 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. 60-99, including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. DEVELOPER may use the credits for payment of the Community Park Land portion of the Public Facilities Fee granted to the Lin Family by the Master Development Agreement in accordance with City's Public Facilities Fee Guidelines (Resolution 195-99). 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. Subsection f. Fire Impact Fees. DEVELOPER shall pay a fire facilities fee established by City of Dublin Resolution No. 208-00 including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in amount of the fee in effect at time of building permit issuance. Subsection ~. Tri-Valley Transportation Development Impact Fee. DEVELOPER shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 -- Exhibit B Page 5 of 6 March 20, 2002 subsequent resolution which revises such fee. DEVELOPER will pay 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. Subparaqraph 5.3.6 -- Credit Subsection a. Traffic Impact Fee Improvements -- Credit CITY shall provide a credit to DEVELOPER for those improvements described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such improvements are constructed by the DEVELOPER in their ultimate location. All aspects of the credit shall be covered by CITY's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No, 23-99 ("TIF Guidelines"). Subsection b. Traffic Impact Fee Right-of-WaY Dedications -- Credit CITY shall provide a credit to DEVELOPER for any TIF area right-of-way to be dedicated by DEVELOPER to CITY which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. Subpara_clrar)h 5.3.6 -- Miscellaneous None. G:\pa\01-009\daexbh2 3-20 Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood H-2 -- Exhibit B Page 6 of 6 March 20, 2002 City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND TOLL-DUBLIN, L.L.C. FOR NEIGHBORHOOD MH-1 OF AREA G OF DUBLIN RANCH THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this __. day of ,2002, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and Toll-Dublin, LLC, a California limited liability company (hereafter collectively "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and C. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 8.98 acres of land, located in the City of Dublin, County of Alameda, State of California, which is designated as Parcel 2 on the Master Subdivision Map for Tract 7148 and 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 D. DEVELOPER acquired its interest in the Property from DR Acquisitions I, LLC, which acquired its interest in the Property from Chang Su-O- Lin, Hong Lien Lin and Hong Yao Lin (the "Lins"); and E. The Lins and CITY are parties to a "Master Development Agreement Between the City of Dublin and The Lin Family for the Dublin Ranch Project (Areas A, B, C, D, E, F, G and H)" as amended by the Supplemental Development Agreement Between the City of Dublin and The Lin Family for Dublin Ranch Areas F, G & H (collectively, the "Supplemental DA"), section 7 of which requires DEVELOPER to enter into this development agreement; and F. The Eastern Dublin Specific Plan also requires DEVELOPER to enter into this development agreement; and G. DEVELOPER proposes the development of the Property with 200 dwelling units (the "Project"); and H. DEVELOPER (or its predecessor in interest) has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the Project, including an amendment to the General Plan and Eastern Dublin Specific Plan (City Council Resolution No. 53-93), Planned Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 2 of 16__~6 March 20, 2002 Development District Rezone/Development Plan Stage 1 and Stage 2 (Ord. No.16-99), Master Vesting Tentative Map for Tract 7148 (Planning Commission Resolution No. 00-14), Vesting Tentative Map and site development review for Neighborhood MH-1 (Planning Commission Resolution 02-05) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and I. Development of the Property by DEVELOPER may be subject to certain future discretionary approvals, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective; and J. CITY desires the timely, efficient, Orderly and proper development of said Project; and K. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and L. CITY and DEVELOPER have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein; and M. Pursuant to the California Environmental Quality Act (CEQA) the Planning Commission adopted Resolution No. 02-05 finding that the Project is within the scope of the Final Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was certified by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR"); and N. On 2002, the City Council of the City of Dublin adopted Ordinance No. ~ approving this Development Agreement. The ordinance tOok effect on 2002. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPER agree as follows: AGREEMENT 1. Description of Property,. The Property which is the sUbject of this Development Agreement is described in .Exhibit A attached hereto ("Property"). Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 3 of 16__-~.6 March 20, 2002 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property in that it is owns the Property in fee simple. 3. Relationship of City and Developer. It is Understood that this Agreement is a contract that has been negotiated and .voluntarily entered into by CITY and DEVELOPER and that the DEVELOPER is not an agent of CITY. The CITY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY and DEVELOPER joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by City. 4.2 Term. The term of this Development Agreement shall commence on the effective date and extend five years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 4.3 Optional Extension. Prior to the termination of this Development Agreement, as provided in Section 4.2, DEVELOPER may extend the term of the Development Agreement. To do so, DEVELOPER shall give CITY written notice at least 90 days prior to the termination date of the Development Agreement. At the time DEVELOPER provides such notice, DEVELOPER shall make a contribution to CITY in the amount of One Hundred Thousand Dollars ($100,000). Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the DEVELOPER in writing that the term of the Development Agreement has been automatically extended for an additional one-year period, commencing on the date the Development Agreement would otherwise have terminated. The DEVELOPER may exercise its option to extend the Development Agreement no more than five times, for a maximum total term of the Development Agreement of ten years. The total contribution for the maximum extension of five years will be Five Hundred Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this Section, if DEVELOPER provides the notice and contribution to extend one of the other Development Agreements in Area G (Neighborhoods MH-2, H-l, or H-2), DEVELOPER shall not be required to provide the $100,000 contribution to extend the term of this Development Agreement. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 4 of March 20, 2002 5. Use of the Property. 5.1 Right to Develop. DeVeloper shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by CITY) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1 Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin other approvals from regulatory agencies.) Not Applicable 5.3.2 Mitigation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmental impacts of the Project or otherwise relating to development of the Project. See Exhibit B 5.3.3 Phasing, Timing. Provisions that the Project be constructed in specified phases, that construction shall commence within a specified time, and that the Project or any phase thereof be completed within a specified time. See Exhibit B 5.3.4 Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 5 of 16__:t..6 March 20, 2002 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, Regulations and Official Policies. 6.1 Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Property, governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the effective date of the Supplemental DA. 6.2 Rules re Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary Project Approval. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and Specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable permit approval for the public improvement. 6.3 Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in .accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Requlations. 7.1 New Rules and Regulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 6 of 1_~6-18 March 20, 2002 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 which affects the Project on all or any part of the Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1 .Fees, Exactions, Dedications CITY and DEVELOPER agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement (including Exhibit B). The CITY shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement, 8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 7 of 1__~-l.6 March 20, 2002 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. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56. 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "significant" reservation or dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings; or (g) monetary contributions by DEVELOPER as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. CITY's Public Works Director shall determine whether a reservation Or dedication is "significant". 9.4 Amendment of 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) Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 8 of 16__-18 March 20, 2002 monetary contributions by the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by CITY. 10. Term of Proiect Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described in Recital H above shall'automatically be extended for the term of this Agreement and any extensions thereto pursuant to Section 4.3 of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be August 15, 2003 and each August 15 thereafter. 11.2 Initiation of Review. The CITY's Community Development. Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER thirty (30) days' written notice that the cITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CITY in connection with the annual re.vie~ be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 9 of 1_~6-~ March 20, 2002 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damages Against CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (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. Mortgagee Protection; Certain Riqhts of Cure. 14.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 10 of 16~ March 20, 2002 of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise.. 14.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to Mortgagee and Extension of Right to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereunder and specifying the address for service thereof, then CITY shall deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that DEVELOPER has committed an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon. request of DEVELOPER or a Mortgagee. 15. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 11 of 1~6-1.6 March 20, 2002 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 Assiqnment,~. 17.1 Right to Assign. 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 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 Dubli,n/Tol Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 1'2 of 16__-~ March 20, 2002 assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 17.1. 17.5 Termination of Agreement Upon Sale of Individual Lots to Public:. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the purchaser or user thereof and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 18. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury Or property damage which. may arise directly or indirectly as a result of any actions or inactions by the Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 13 of 16-l.6 March 20, 2002 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). 21. Insurance. 21.1 Public Liability and Property Damage Insuranco. During the term of this Agreement, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) with a Twenty Five Thousand Dollar ($25,000) self insurance retention per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2 Workers Compensation Insurance. During the term of this Agreement DEVELOPER shall maintain Worker's Compensation insurance for all persons employed by DEVELOPER for work at the Project site. DEVELOPER shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to City Council approval of this Agreement, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the CITY at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the CITY, its elective and appointive boards, cOmmissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency' not within the control of CITY. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 14 of I~6-~8 March 20, 2002 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to DEVELOPER shall be addressed as follows: Toll - Dublin, LLC Attn: Jon Paynter 100 Park Place, Suite 140 San Ramon, CA 94583 FAX No. (925) 855-9927 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Agreement is Entire Understandinp. This Agreement constitutes the entire understanding and agreement of the parties. 25. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions 26. Counterparts. This Agreement is executed in two (2) duplicate Originals, each of which is deemed to be an original. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 Page 15 of 1_~8--18 March 20, 2002 27. Recordation. CITY shall record a copy of this Agreement within ten days following execution by all parties. 28. Corporate Authority. If either party is a corporation, each individual signing this Agreement on behalf of that corporation represents and warrants that each of them is duly authorized to execute and deliver this Agreement on behalf of the corporation and that the Agreement is binding on the corporation in accordance with its terms. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN: By: Date: Mayor ATTEST: By: Date: City Clerk APPROVED AS TO FORM: City Attorney TOLL CA II, LP a California limited liability company By: Date: Jon Paynter Assistant Vice President (NOTARIZATION ATTACHED) Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 g:\pa\01-00g\damhl 3-20 Page 16 of 16___~ March 20, 2002 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subpara_(ira~)h 5.3.1 -- Subsequent Discretionary Approvals None. Subparagraph 5.3.2 -- Mitiqation Conditions Subsection a. Infrastructure Sequencing Program The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) identified in Resolution Nos. 00-14, and 02-05 of the City of Dublin Planning Commission approving the Tentative Maps for the Master Parcel (Tract 7148) and Neighborhood MH-1 (Tract 7324) respectively (hereafter collectively "TM Resolutions"), and those described below shall be completed by DEVELOPER to the satisfaction of the Public Works Director at the times and in the manner specified in the TM Resolutions unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public Works Director. --Condition 62 [(Offsite) Traffic Signals] Condition 62 states that the timing of installation of the improvements it requires, if not otherwise constructed by another developer, shall be as specified in this development agreement or when deemed necessary by the Director of Public Works. Pursuant to Condition 62, and notwithstanding anything to the contrary in Condition 62, unless otherwise constructed by another developer, Developer shall install the traffic signals required by condition 62 prior to the issuance of the first Certificate of Occupancy in Neighborhood MH-1. --Conditions 63 and 64 [Tassajara Road, Additional Northbound Lane; and Intersection Improvements of Dublin Boulevard and Tassajarra Road] Conditions 63 and 84 state that the timing of the completion of improvements required by Conditions 63 and 84 shall be as determined by the Director of Public Works or as specified in the development agreement. Pursuant to Conditions 63 and 64, and notwithstanding Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 -- Exhibit B Page 1 of 6 March 20, 2002 anything to the contrary in Conditions 63 and 64, the improvements required by Conditions 63 and 64 shall be completed as required by the triggering traffic study or updated traffic study required by Conditions 63 and 64 ("the Triggering Traffic Study"), but in no case later than the timing of completion of improvements as specified in the Tract Developer Agreement for Neighborhood MH-1, if the improvements required by Conditions 63 and 64 are required by the Triggering Traffic Study. Notwithstanding the foregoing, the Director of Public Works may extend the obligation to construct the improvements required by condition 63 until such time as the property to the west (owned by the Dublin Land Company) develops. --Condition 70 [Intersection of Dou,qherty Road & Dublin Blvd.] Condition 70 of Tract Map 7324 is hereby superseded by Condition 1.10 in the TM Resolution for tract 7148, which reads as follows: Intersection of Doughtery ROad & Dublin Blvd. The City shaft determine the Applicant/Developer's fair share contribution to the above-referenced intersection with each subsequent entitlement application. In the event that the City does not have sufficient Category 2 TIF funds, Applicant/Developer shaft advance their fairshare Section 2 TIF fees for future widening, signal modification and improvement to the intersection of Doughtery Road and Dublin Blvd., at the time of the first building permit. These funds will be based on the percent of trip contribution to the intersection defined and approved by the Director of Pubftc Works. This intersection improvement is a TIF improvement. Therefore costs spent may be credited against payment of traffic impact fees in accordance with City TIF Guide/ines. 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 in the amount of the Project's fair share of the deficiency, if any, between funds available to CITY for CIP Project #9689 [Dougherty Road/Dublin Blvd. Intersection] and the cost of such project, such payment to be made within 30 days of written notice from the Public Works Director to be given following bid opening. Notwithstanding the provisions of Section 4 of this Agreement, Condition 70 and this paragraph shall survive termination of this Agreement. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 -- Exhibit B Page 2 of 6 March 20, 2002 (ii) Sewe,r. 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 An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative map to the satisfaction and requirements of the CITY's fire department. All potable water system components to serve the project site 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_qe The storm drainage systems off site, as well as on site drainage systems to 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 and Zone 7's (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. The site shall also be protected from storm flow from off site and shall have erosion control measures in place to protect downstream facilities and properties from erosion and unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan referenced in Condition 40 of Planning Commission Resolution 00-36. If determined to be necessary by CITY, DEVELOPER agrees to participate in a drainage benefit district or such other mechanism as may be established by CITY in the future to reimburse developers for oversizing drainage facilities that benefit the Property. (v) Other Utilities e.. as electrici cable televisions telephone), ConstruCtion shall be complete by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous, (i) Completion May be Deferred. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 -- Exhibit B Page 3 of 6 March 20, 2002 'Notwithstanding the foregoing, CITY's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow DEVELOPER to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subparagraph 5.3,3 -- Phasing, Timing This Agreement contains no requirements that DEVELOPER must initiate or complete development of the Project within any period of time set by CITY. It is the intention of this provision that DEVELOPER be able to develop the Property in accordance with its own time schedules and the Project Approvals. Subparagraph 5.3.4 -- Financing Plan DEVELOPER will install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in Subparagraph 5.3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project will be made available by the Dublin San Ramon Services District. DEVELOPER will enter into an "Area Wide Facilities Agreement" with the Dublin San Ram°n Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Subparagraph 5.3.5 -- Fees~ Dedications. Subsection a. Traffic Impact Fees.. DEVELOPER shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 225-99, inCluding any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. DEVELOPER further agrees that it will pay three percent (3%) of the "Section l/Category 1"' portion of the TIF in cash. DEVELOPER also agrees that it will pay 12.4% 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 12.4% 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. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 -- Exhibit B Page 4 of 6 March 20, 2002 Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchanqes. DEVELOPER shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155- 98 and by any subsequent resolution which revises such Fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the 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. 60-99, including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. DEVELOPER may use the credits for payment of the Community Park Land portion of the Public Facilities Fee granted to the Lin Family by the Master Development Agreement in accordance with City's Public Facilities Fee Guidelines (Resolution 195-99). 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 Iml~act 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. 208-00 including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and-in amount of the fee in effect at time of building permit issuance. Subsection _q? Tri-Valley Transportation Development Impact Fee. DEVELOPER shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. DEVELOPER will pay such fees no later Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 -- Exhibit B Page 5 of 6 March 20, 2002 than the time of issuance of building permits and in the amount of the impact 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-Way Dedications -- Credit CITY shall provide a credit to DEVELOPER for any TIF area right-of-way to be dedicated by DEVELOPER to CITY which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF GUidelines. Subparagraph 5.3.6 -- Miscellaneous None. G:\pa\01-009\da exbmh-1 Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-1 -- Exhibit B Page 6 of 6 March 20, 2002 City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space above tills line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND TOLL-DUBLIN, L.L.C. FOR NEIGHBORHOOD MH-2 OF AREA G OF DUBLIN RANCH r:XH,BiT - THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this ~ day of ,2002, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and Toll-Dublin, LLC, a California limited liability company (hereafter collectively "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. The City Council adopted the EaStern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and C. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 11.6 acres of land, located in the City of Dublin, County of Alameda, State of California, which is designated as Parcel 4 on the Master Subdivision Map for Tract 7148 and 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 D. DEVELOPER acquired its interest in the Property from DR Acquisitions I, LLC, which acquired its interest in the Property from Chang Su-O- Lin, Hong Lien Lin and Hong Yao Lin (the "Lins"); and E. The Lins and CITY are parties to a "Master Development Agreement Between the City of Dublin and The Lin Family for the Dublin Ranch Project (Areas A, B, C, D, E, F, G and H)" as amended by the Supplemental Development Agreement Between the City of Dublin and The Lin Family for Dublin Ranch Areas F, G & H (collectively, the "Supplemental DA"), section 7 of which requires DEVELOPER to enter into this development agreement; and F. The Eastern Dublin Specific Plan also requires DEVELOPER to enter into this development agreement; and G. DEVELOPER proposes the development of the Property with 281 dwelling units (the "Project"); and H. DEVELOPER (or its predecessor in interest) has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the Project, including an amendment to the General Plan and Eastern Dublin Specific Plan (City Council Resolution No. 53-93), Planned Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 2 of 1~6.~ March 20, 2002 Development District Rezone/Development Plan Stage 1 and Stage 2 (Ord. No,16-99), Master Vesting Tentative Map for Tract 7148 (Planning Commission Resolution No. 00-14), Vesting Tentative Map and site development review for Neighborhood MH-2 (Planning Commission Resolution 02-04) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and I. Development of the Property by DEVELOPER may be subject to certain future discretionary approvals, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective; and J. CITY desires the timely, efficient, orderly and proper development of said Project; and K. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and L. CITY and DEVELOPER have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein; and M. Pursuant to the California Environmental Quality Act (CEQA) the Planning Commission adopted Resolution No. 02-04 finding that the Project is within the scope of the Final Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was certified by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR"); and N. On adopted Ordinance No.__ ordinance took effect on 2002, the City Council of the City of Dublin approving this Development Agreement. The 2002. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPER agree as follows: AGREEMENT 1. Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 3 of March 20, 2002 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property in that it is owns the Property in fee simple. 3. Relationship of City and Developer. It is Understood that this Agreement is a contract that has been negotiated and voluntarily entered into by CITY and DEVELOPER and that the DEVELOPER is not an agent of CITY. The CITY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY and DEVELOPER joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by City. 4.2 Term. The term of this Development Agreement shall commence on the effective date and extend five years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 4.3 Optional Extension. Prior to the termination of this Development Agreement, as provided in Section 4.2, DEVELOPER may extend the term of the Development Agreement. To do so, DEVELOPER shall give CITY written notice at least 90 days prior to the termination date of the Development Agreement. At the time DEVELOPER provides such notice, DEVELOPER shall make a contribution to CITY in the amount of One Hundred Thousand Dollars ($100,000). Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the DEVELOPER in writing that the term of the Development Agreement has been automatically extended for an additional one-year period, commencing on the date the Development Agreement would otherwise have terminated. The DEVELOPER may exercise its option to extend the Development Agreement no more than five times, for a maximum total term of the Development Agreement of ten years. The total contribution for the maximum extension of five years will be Five Hundred Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this Section, if DEVELOPER provides the notice and contribution to extend one of the other Development Agreements in Area G (Neighborhoods MH-1, MH-2, or H- 2), DEVELOPER shall not be required to provide the $100,000 contribution to extend the term of this Development Agreement. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 4 of I6-1~ March 20, 2002 5. Use of the Property. 5.1 Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by CITY) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the following ("Additional COnditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1 Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin other approvals from regulatory agencies.) Not Applicable 5.3.2 Mitigation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmental impacts of the Project or otherwise relating to development of the Project. See Exhibit B 5.3:3 Phasing, Timing. Provisions that the Project be constructed in specified phases, that construction shall commence within a specified time, and that the Project or any phase thereof be completed within a specified time. See Exhibit B 5.3.4 Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 5 of 16~.'~ March 20, 2002 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, Regulations and Official Policies. 6.1 Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Property, governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the effective date of the Supplemental DA. 6.2 Rules re Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary Project Approval. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable permit approval for the public improvement. 6.3 Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Regulations. 7.1 New Rules and Regulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 6 of 16-1~6 March 20, 2002 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 which affects the Project on all or any part of the Property, CITY agreesthat such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project ApprOvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1 Fees, Exactions, Dedications CITY and DEVELOPER agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement (including .Exhibit B). The CITY shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 7 of 16__~ March 20, 2002 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. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56. 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "significant" reservation or dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings; or (g) monetary contributions by DEVELOPER as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties ~may execute an amendment hereto. CITY's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4 Amendment of 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) Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 8 of 16__~-1..6 March 20, 2002 monetary contributions by the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted. herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by CITY. 10. Term of Project Approvals. Pursuant to California Government code Section 66452.6(a), the term of the vesting tentative map described in Recital H above shall automatically be extended for the term of this Agreement and any extensions thereto pursuant to Section 4.3 of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be August 15, 2003 and each August 15 thereafter. 11.2 Initiation of Review. The CITY's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER thirty (30) days' written notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CITY in connection with the annual review shall be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 9 of 16.__~ March 20, 2002 12. Default. 12.1 Other Remedies Available, Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Dama_~es Against CITY. In no event shall damages be aWarded against CITY upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting, party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall be authorized to execute any certificate requested by DEVELOPER. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mortgagee Protection; Certain Rights of Cure. 14.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 10 of 16~4.6 March 20, 2002 of reco[ding 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 Mort_qa.qee Not Obligated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such 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 Mort_~a.qee and Extension of Right to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereunder and specifying the address for service thereof, then CITY shall deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that DEVELOPER has committed an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee. 15. Severability.. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 11 of 1_~6.'.I-$ March 20, 2002 shall cooperate in defending such action. DEVELOPER shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse CITY for all reasonable court costs and attorneys' fees expended by CITY in defense of any such action or other proCeeding. 17. Transfers and Assignments. 17.1 Right to 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 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 Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 12 of March 20, 2002 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 A reement U on Sa. le of Individual.____.Lots to .Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the purchaser or user thereof and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 18. Agreement Runs with the Land.. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such propertieS. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood. MH-2 Page 13 of 16~_~1,~ March 20, 2002 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). 21. Insurance. 21.1 Public Liability and Property Damage Insurance. During the term of this Agreement, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) with a Twenty Five Thousand Dollar ($25,000) self insurance retention per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2 Workers Compensation Insurance. During the term of this Agreement DEVELOPER shall maintain Worker's Compensation insurance for all persons employed by DEVELOPER for work at the Project site. DEVELOPER .shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to City CounCil approval of this Agreement, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the CITY at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the cITy, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of CITY. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 14 of 16__~,6 March 20, 2002 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin P.O. Box 2340 Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to DEVELOPER shall be addressed as follows: Toll - Dublin,' LLC Attn: Jon Paynter 100 Park Place, Suite 140 San Ramon, CA 94583 FAX No. (925) 855-9927 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 25. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions 26. Counterparts.. This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 15 of 1_~6~t.~ March 20, 2002 27. Recordation. CITY shall record a copy of this Agreement within ten days following execution by all parties. 28. Corporate Authority. If either party is a corporation, each individual signing this Agreement on behalf of that corporation represents and warrants that each of them is duly authorized to execute and deliver this Agreement on behalf of the corporation and that the Agreement is binding on the corporation in accordance with its terms. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN: By: Date: Mayor ATTEST: By: Date: City Clerk APPROVED AS TO FORM: City Attorney TOLL CA II, LP a California limited liability company By: Date: Jon Paynter Assistant Vice President g:\pa\Ol-OO9\damh2 3-20 (NOTARIZATION ATTACHED) Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 Page 16 of 16-1.8 March 20, 2002 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. SUb~)ara.qraph 5.3.1 -- Subsequent Discretionary Approvals None. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Sequencing Pro~ram 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 Nos. 00-14, and 02-04 of the City of Dublin Planning Commission approving the Tentative Maps for the Master Parcel (Tract 7148) and Neighborhood MH-2 (Tract 7325) respectively (hereafter collectively "TM Resolutions"), and those described below shall be completed by DEVELOPER to the satisfaction of the Public Works Director at the times and in the manner Specified in the TM Resolutions unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public Works Director. --Condition 63 [(Offsite) Traffic Signals] Condition 63 states that the timing of installation of the improvements it requires, if not otherwise constructed by another developer, shall be as specified in this development agreement or when deemed necessary by the Director of Public Works. Pursuant to Condition 63, and notwithstanding anything to the contrary in Condition 63, unless otherwise constructed by another developer, Developer shall install the traffic signals reqUired by condition 63 prior to the issuance of the first Certificate of OccuPancy in Neighborhood MH-2. --Conditions 66 and 67 [Tassajara Road, Additional Northbound Lane; and Intersection Improvements of Dublin Boulevard and Tassaiarra Road] Conditions 66 and 67 state that the timing of the completion of improvements required by Conditions 66 and 67 shall be as determined by the Director of Public Works or as specified in the development agreement. Pursuant to Conditions 66 and 67, and notwithstanding Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 -- Exhibit B Page 1 of 6 March 20, 2002 anything to the contrary in Conditions 66 and 67, the improvements required by Conditions 66 and 67 shall be completed as required by the triggering traffic study or updated traffic study required by Conditions 66 and 67 ("the Triggering Traffic Study"), but in no case later than the timing of completion of improvements as specified in the Tract Developer Agreement for Neighborhood MH-2, if the improvements required by Conditions 66 and 67 are required by the Triggering Traffic Study. Notwithstanding the foregoing, the Director of Public Works may extend the obligation to construct the improvements required by condition 66 until such time as the property to the west (owned by the DUblin Land Company) develops. --Condition 70 [Intersection of Dougherty Road & Dublin Blvd.] Condition 70 of Tract Map 7325 is hereby superseded by Condition 110 in the TM Resolution for tract 7148, which reads as follows: Intersection of Doughtery Road & Dublin Blvd. The City shall determine the Applicant/Developer's fair share contribution to the above-referenced intersection with each subsequent entitlement application, in the event that the City does not have sufficient Category 2 TIF funds, Applicant/Developer shall advance their fairshare Section 2 TIF fees for future widening, signal modification and improvement to the intersection of Doughtery Road and Dublin Blvd., at the time of the first building permit: These funds will be based on the percent of tdp contribution to the intersection defined and approved by the Director of Public Works. This intersection improvement is a TIF improvement. Therefore costs spent may be credited against payment of traffic impact fees in accordance with City TIF Guidelines. 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 in the amount of the Project's fair share of the deficiency, if any, between funds available to CITY for CIP Project #9689 [Dougherty Road/Dublin Blvd. Intersection] and the cost of such project, such payment to be made within 30 days of written notice from the Public Works Director to be given following bid opening. Notwithstanding the provisions of Section 4 of this Agreement, Condition 70 and this paragraph shall survive termination of this Agreement. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 -- Exhibit B Page 2 of 6 March 20, 2002 (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 An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative map to the satisfaction and requirements of the CITY's fire department. All potable water system components to serve the project site 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 Drainage The storm drainage systems off site, as well as on site drainage systems to 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 and Zone 7's (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. The site shall also be protected from storm flow from off site and shall have erosion control measures in place to protect downstream facilities and properties from erosion and unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan referenced in Condition 40 of Planning Commission Resolution 00-36. If determined to be necessary by CITY, DEVELOPER agrees to participate in a drainage benefit district or such other mechanism as may be established by CITY in the future to reimburse developers for oversizing drainage facilities that benefit the Property. (v) Other Utilities (e.g. gas, electricity, cable televisions, telephone) Construction shall be complete by phase prior to iSsuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous (i) Completion May be Deferred. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 -- Exhibit B Page 3 of 6 March 20, 2002 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. Subparaqraph 5.3.3 -- Phasing, TiminR 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 -- Financinq 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. 225-99, including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. DEVELOPER further agrees that it will pay three percent (3%) of the "Section 1/Category 1" portion of the TIF in cash. DEVELOPER also agrees that it will pay 12.4% 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 12.4% 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. Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 -- Exhibit B Page 4 of 6 March 20, 2002 Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway/ interchanqes. DEVELOPER shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155- 98 and by any subsequent resolution which revises such Fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the 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. 60-99, including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. DEVELOPER may use the credits for payment of the Community Park Land portion of the Public Facilities Fee granted to the Lin Family by the Master Development Agreement in accordance with City's Public Facilities Fee Guidelines (Resolution 195-99). Subsection d. Noise Mitiqation 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. 208-00 including any future amendments to such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in amount of the fee in effect at time of building permit issuance. Subsection _cl. Tri-Valley Transportation Development Impact Fee,. DEVELOPER shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subSequent resolution which revises such fee. DEVELOPER will pay such fees no later Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 -- Exhibit B Page 5 of 6 March 20, 2002 than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subparaqraph 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 CTIF Guidelines"). Subsection b. Traffic Impact Fee Ri_~ht-of-Way Dedications -- Credil CITY shall provide a credit to DEVELOPER for any TIF area right-of-way to be dedicated by DEVELOPER to CITY which is required for improvements which are described in-the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the 'TIF Guidelines. Subparagraph 5.3.6 -- Miscellaneou~ None. G:\pa\01-009\daexb mb2 3-20 Dublin/Toll Development Agreement For Dublin Ranch Area G / Neighborhood MH-2 -- Exhibit B Page 6 of 6 March 20, 2002