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HomeMy WebLinkAbout02-022&023 Toll/DubRch 01-14-2003 AGENDA STATEMENT PLANNING COMMISSION MEETING DATE: January 14, 2003 SUBJECT: ATTACHMENTS: PUBLIC HEARING - PA 02-022 and 02-023 Toll Brothers - Dublin Ranch Areas A-4 & A-5 Development Agreements (Report Prepared by: Michael Porto, Planning Consultant) '~- Draft Resolution recommending that the City Council adopt an Ordinance approving two Development Agreements between the City of Dublin and Toll Brothers (Development Agreements attached as Exhibit A and Exhibit B to Attachment I) RECOMMENDATION: 2. 3. 4. 5. 6. Hear Staff Presentation Open Public Hearing Hear Applicant's Presentation Question Staff, Applicant and the Public Close Public Hearing and Deliberate Adopt Resolution (Attachment 1) recommending City Council adopt an Ordinance approving Development Agreements between the City of Dublin and Toll Brothers PROJECT DESCRIPTION: An Ordinance approving 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 A comprised of 369+/- acres of mixed-use development including Single Family Residential, Open Space / Golf Course with appurtenant structures, and a Neighborhood Recreation Facility. The Planning Commission, on December 10, 2002 approved a Site Development Review for Area A-4 and A-5. Dublin Ranch Areas A-4 and A-5 are located east of Tassajara Road adjacent to the future Fallon Road Extension approximately 4,500 feet north ofi-580. 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. These Development Agreements provide COPIES TO: The Applicant The Property Owner PA File ITEM NO. ¢~.'~ 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 Agreement is one means the City has to assure that the Specific Plan goal, that new development fund the costs of infrastructure and service, is met. The proposed Development Agreements between the City of Dublin and Toll Brothers are Exhibit A and Exhibit B 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. City procedure requires that there be three public hearings on Development Agreements. The purpose for the hearing before the Planning Commission is to recommend approval of the Development Agreements to the City Council. The Agreements: The City Attorney drafted the proposed Development Agreements with input from City Staff, Toll Brothers and their attorneys. The Development Agreements set forth the agreements between the parties in relation to many items, including, but not limited to, infrastructure construction and phasing, and the payment of various required impact fees. The Development Agreements become effective for a term of five years from the date they are recorded. The Development Agreements run with the land and the rights thereunder can be assigned. The main points of the Development Agreements can be found in Exhibit A and Exhibit B of Attachment 1 and are highlighted below: Infrastructure Construction and Traffic Impact Fees: The City requires that Developers in Eastern Dublin pay traffic impact fees for certain City wide improvements to the circulation system. Additionally, fees are charged for certain circulation improvements specific to Eastern Dublin. The City determines the direct project impact through a traffic study that has been conducted for the development. Other Fees and Funding Requirements: The Development Agreements also address the payment of the Public Facilities Fee, Noise Mitigation Fee, School Fees, Fire Impact Fees and the Tri-Valley Transportation Development Impact Fee. Other Infrastructure Improvements: The Development Agreements also provide for the construction of certain other improvements to serve the project site such as a fire station, off-site sewer, water, storm drainage and other utility services as required by the tentative parcel map approval. 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 the Planning Commission open the Public Hearing, deliberate and Adopt Resolution (Attachment 1) recommending City Council adopt an Ordinance approving Development Agreements for areas A-4 (Tract 7139) and A-5 (Tract 7140) between the City of Dublin and Toll Brothers. g:planning/pa02-020/pcsr dcv agr A4 - A5 GENERAL INFORMATION APPLICANT: OWNER: LOCATION: ASSESSOR PARCEL: Bill Morrison Toll Brothers 100 Park Place, Suite 140 San Ramon, CA 94587 H. Jon Paynter, Asst. Vice President Toll Brothers CA II, L.P. 100 Park Place, Suite 140 San Ramon, CA 94587 East of Tassajara Road adjacent to the future Fallon Road extension, approximately 4,500 feet north of 1-580 985-0007-002-19, 985-0008-028-2&3 EXISTING ZONING AND LAND USE: Zoning: Single Family Residential Planned Development and Open Space Land Use: Vacant RESOLUTION NO. 03- A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT DEVELOPMENT AGREEMENTS FOR PA 02-022 & 02-023 TOLL BROTHERS - DUBLIN RANCH AREAS A-4 & A-5 DEVELOPMENT AGREEMENT WHEREAS, Jon Paynter on behalf of Toll CA, L.P. has requested approval of two Development Agreements for the proposed Dublin Ranch Areas A-4 and A-5 located east of Tassajara Road adjacent to the future Fallon Road extension approximately 4.500 feet north of 1- 580. WHEREAS, Development Agreements are required as an implementing measure of the Eastern Dublin Specific Plan; and WHEREAS, 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; and WHEREAS, the text of the Draft Development Agreements are attached to this resolution as Exhibit A; and WHEREAS, the Planning Commission did hold a public hearing on said application on January 14, 2003; and WHEREAS, proper notice of said public hearing was given in all respects as required by law; and WHEREAS, the Staff Report was submitted recommending that the Planning Commission recommend that the City Council approve the Development Agreements; and WHEREAS, the Planning Commission did hear and use their independent judgment and considered all said reports, recommendations and testimony hereinabove set forth. NOW THEREFORE BE IT RESOLVED THAT THE Dublin Planning Commission does hereby make the following findings and determinations regarding said proposed Development Agreements: 1. Said Agreements are consistent with the objectives, policies, general land uses and programs specified in the Eastern Dublin Specific Plan/General Plan in that, a) the Eastern ATTACHMENT 1 Dublin Specific Plan/General Plan land use designation for the subject site is proposed to be Planned Development and that the Toll Brothers Dublin Ranch Area A-4 and A-5 are consistent with that designation; b) the projects are consistent with the fiscal policies in relation to provision of infrastructure and public services of the City's Eastern Dublin Specific Plan/General Plan; c) the Agreements set forth the rules the Developer and City will be governed by during the development process which is required by the Eastern Dublin Specific Plan; and the Mitigation Monitoring Program of the Eastern Dublin Specific Plan. 2. Said Agreements are compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located in that the project approvals include a Planned Development Rezone and Site Development Review. 3. Said Agreements are in conformity with public convenience, general welfare and good land use practice in that the Toll Brothers Dublin Ranch Area A-4 and A-5 residential neighborhood project will implement land use guidelines set forth in the Eastern Dublin Specific Plan/General Plan, as proposed. 4. Said Agreements will not be detrimental to the health, safety and general welfare in that the development will proceed in accordance with the Agreements and any Conditions of Approval for the Project; and 5. Said Agreements will not adversely affect the orderly development of the property or the preservation of property values in that the development will be consistent with the City of Dublin Eastern Dublin Specific Plan/General Plan. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning Commission does hereby recommend that the City Council approve the Development Agreements between Toll CA, L.P. and the City of Dublin for PA 02-022 and 02-023 Toll Brothers, Dublin Ranch Area A-4 and A-5. PASSED, APPROVED AND ADOPTED this 14th day of January 2003 AYES: NOES: ABSENT: ABSTAIN: ATTEST: Planning Commission Chairperson Planning Manager G:\paX02-020\pcresoda 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 CA II, L.P. FOR AREA A-4 OF DUBLIN RANCH AREA A THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this __ day of__., 2003, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and Toll CA II, L.P. a California limited partnership (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 14.8 acres of land, located in the City of Dublin, County of Alameda, State of California, which is designated as Parcel A-4 on the Master Tentative Map for Tract 7135 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) ("Master Development Agreement")", section 7 of which requires DEVELOPER to enter into this development agreement; provided however, this Agreement shall not impair any developer's rights under the Master DA; and F. The Eastern Dublin Specific Plan also requires DEVELOPER to enter into this development agreement; provided however, this Agreement shall not impair any developer's rights under the Master DA; and G. DEVELOPER proposes the development of the Property with 54 single family detached homes (the "Project"); and H. DEVELOPER has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the Project, including an amendment to the General Plan and Eastern Dublin Dublin/Toll Development Agreement · For Dublin Ranch Area A / A-4 609157.2 Page 2 of 16 DRAFT: 1/8/03 Specific Plan (City Council Resolution No. 53-98), PD District rezoning (City Council Ordinance No. 23-97), general provisions for the PD District rezoning including the Development Plan (City Council Resolution No. 139-97), Master Vesting Tentative Map for Tract 7135 (Planning Commission Resolution No. 00- 36), Vesting Tentative Map for Tract 7139 (Neighborhood A-4) (Planning Commission Resolution 00-40; Planning Commission Resolution 02-12 [amending conditions of approval of Vesting Tentative Map for Tract 7139]), and site development review (Planning Commission Resolution No. (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 Nos. 00-36 and 00-38 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 Ordinance No. effect on , the City Council of the City of Dublin adopted approving this Development Agreement. The ordinance took 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: Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 609157,2 Page 3 of 16 DRAFT:l/8/03 AGREEMENT 1. Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property in that it 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 (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Property. 5.1 Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 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. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 609157,2 Page 4 of 16 DRAFT: 1/8/03 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 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. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 609157,2 Page 5 of 16 DRAFT: 1/8/03 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 Master Development Agreement. 6.2 Rules re Desiqn and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary Project Approval. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable permit approval. 6.3 Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Requlations. 7.1 New Rules and Requlations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2 Approval of Application. Nothing in this Agreement shall prevent the CITY from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements expressly set forth herein. 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure Dublin/Toll Development Agreement For Dublin Ranch Area A A-4 609157.2 Page 6 of 16 DRAFT: 1/8/03 is enacted, whether by action of CITY, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 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, or impose other exactions in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. 8.4 Assessments. Nothing herein shall be construed to relieve the Property from assessments levied against it by City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5 Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's ballot as affirmatively voting in favor of such assessment, fee or charge. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 609157.2 Page 7 of 16 DRAFT: 1/8/03 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) monetary contributions by the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 609157.2 Page 8 of 16 DRAFT: 1/8/03 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. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2003 and each July 15 to August 15 thereafter. 11.2 Initiation of Review. The CITY's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER thirty (30) days' written notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CITY in connection with the annual review shall be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Dublin/Toll Development Agreement For Dublin Ranch Area A A-4 609157.2 Page 9 of 16 DRAFT: 1/8/03 Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damages Against CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall be authorized to execute any certificate requested by DEVELOPER. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mort.qa_c~ee Protection; Certain Rights of Cure. 14.1 Mort.qa_qee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mort.qa~ee Not Obliqated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such Dublin/Toll Development Agreement For Dublin Ranch Area A A-4 609157.2 Page 10 of 16 D RAFT: 1/8/03 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 Mortqa.qee and Extension of Riqht to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereunder and specifying the address for service thereof, then CITY shall deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that DEVELOPER has committed an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee. 15. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. DEVELOPER shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse CITY for all reasonable court costs and attorneys' fees expended by CITY in defense of any such action or other proceeding. 17. Transfers and Assiqnments. 17.1 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 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 609157.2 Page 11 of 16 DRAFT: 1/8/03 transferred, to such Transferee, provided, however, that: no such transfer, sale or assignment of DEVELOPER's rights, interests and obligations hereunder shall occur without prior written notice to CITY and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. 17.2 Approval and Notice of Sale, Transfer or Assiqnment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) days after DEVELOPER's notice, provided all necessary documents, certifications and other information are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform the DEVELOPER's obligations hereunder. Notice of any such approved sale, transfer or assignment (which includes a description of all rights, interests and obligations that have been transferred and those which have been retained by DEVELOPER) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. 17.3 Effect of Sale, Transfer or Assiqnment. DEVELOPER shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to subparagraph 17.1 of this Agreement, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to subparagraph 17.1 of this Agreement; and b) such obligations are expressly assumed by Transferee and provided that such Transferee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval pursuant to subparagraphs 17.1 and 17.2 of this Agreement. 17.4 Permitted Transfer, Purchase or Assiqnment. The sale or other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to the exercise of any right or remedy under a deed of trust encumbering DEVELOPER'S interest in the Property shall not require City Manager approval pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 17.1. 17.5 Termination of Aqreement Upon Sale of Individual Lots to Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the purchaser or user thereof and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or until the Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 609157.2 Page 12 of 16 DRAFT: 1/8/03 termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 18. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the DEVELOPER, or any actions or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation with respect to negligence or wrongful conduct of CITY, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). Dublin/Toll Development Agreement For Dublin Ranch Area A A-4 609157.2 Page 13 of 16 DRAFT: 1/8/03 21. Insurance. 21.1 Public Liability and Property Damaqe Insurance. During the term of this Agreement, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) with a Twenty Five Thousand Dollar ($25,000) self insurance retention per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2 Workers Compensation Insurance. During the term of this Agreement DEVELOPER shall maintain Worker's Compensation insurance for all persons employed by DEVELOPER for work at the Project site. DEVELOPER shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to City Council approval of this Agreement, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the CITY at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of CITY. 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to OITY shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 609157.2 Page 14 of 16 DRAFT: 1/8/03 Notices required to be given to DEVELOPER shall be addressed as follows: Toll CA II, LP 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. 27. Recordation. CITY shall record a copy of this Agreement within ten days following execution by all parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 609157.2 Page 15 of 16 DRAFT: 1/8/03 CITY OF DUBLIN: By: Mayor ATTEST: Date: By: City Clerk APPROVED AS TO FORM: Date: City Attorney TOLL CA II, LP a California limited partnership By: Print: Its: General Partner Date: (NOTARIZATION ATTACHED) Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 609157.2 Page 16 of 16 DRAFT: 1/8/03 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparagraph 5.3.1 -- Subsequent Discretionary Approvals None. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Sequencing Program The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) identified in Resolution Nos. 00-40 and 02-12 of the City of Dublin Planning Commission approving the Vesting Tentative Map for Neighborhood A-4 (Tract 7139) (hereafter "TM Resolution"), 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 Resolution unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public Works Director. -- Condition 26 roffsite] T.I.F. Improvement of Fallon Road Condition 26 reads as follows: [Offsite] T.I.F. Improvement of Fallon Road. Applicant/Developer shall improve Fallon Road and construct four travel lanes (2 northbound and 2 southbound) median landscaping and landscaping along project frontage from future intersection of Antone Way to the north curb return of Golf Course Maintenance Drive in accordance with the precise plans approved on pages 26, 27 and 28 of the "Supplemental Information" of the SDRNTM book prepared by MacKay and Somps dated December 1999 and revised June 2000 and to the satisfaction of the Director of Public Works. The goal of the overall improvement plan is to construct all TIF improvements needed for capacity and access to Dublin Ranch Area A while maximizing conformance to the ultimate Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 - EXHIBIT B 609155.4 Page 1 of 9 DRAFT: 1/8/03 improvements and minimizing interim, "throw-away" improvements. The Director of Public Works shall review and approve all street geometrics of the interim improvements. Applicant/Developer shall be responsible for constructing and/or funding improvements as allocated under the terms of an agreement among the above parties for improvement of the road. Applicant/Developer shall receive TIF credit for all TIF improvements constructed in the ultimate alignment. Applicant/Developer shall be responsible for the construction of the offsite TIF improvements conditioned under Tract No. 7135. When completed: As specified in Development Agreement or when deemed necessary by the Director of Public Works. The improvements required by Condition 26 shall be completed prior to the issuance of the first certificate of occupancy in Neighborhood A-4. -- Condition 33 Private Recreation Facility Condition 33 is amended to read as follows: Private Recreation Facility. If not previously dedicated and completed with the first building permit of the second subdivision (A-2, A-3, A-4 or A-5) Applicant/Developer shall dedicate to the Community Homeowners Association and complete the Private Recreation Facility within Parcel C-1 of Tract No. 7135 to the satisfaction of the Director of Public Works. When completed: As Specified in the Development Agreement Notwithstanding anything to the contrary in the condition 33, the improvements required by Condition 33 shall be completed and dedicated prior to the issuance of building permits in excess of 27 units in Neighborhood A-4. Applicant/Developer will not be issued building permits in Neighborhood A-4 in excess of 27 units until such time as the improvements required by Condition 33 have been dedicated and completed. -- Condition 58 [Offsite] Traffic Signals: Condition 58 reads as follows: [Offsite]Traffic Signals. If not constructed by previous developer, Applicant/Developer is responsible for the traffic signal design and Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 - EXHIBIT B 609155.4 Page 2 of 9 DRAFT: 1/8/03 installation of conduit for the future signalization at the following intersections to the satisfaction of the Director of Pubfic Works: Kingsmift Terrace and Fafton Road. Antone Way and Faflon Road The signal improvements shaft accommodate conversion to serve an ultimate three and four-legged intersections to the extent possible, minimizing replacement or relocation of improvements. The cost of the conduit shaft be the responsibility of Applicant/Developer, with no TIF credits given for intersections listed above. Applicant/Developer shaft be responsible for constructing and/or funding aft interim improvements as determined by the Director of Public Works. In the event that a improvement agreement for the installation of the ultimate traffic signals fails to be reached, Applicant/Developer shaft be responsible for the installation of the future traffic signals. When Required: As specified in the Development Agreement or when deemed necessary by the Director of Pubfic Works The improvements required by Condition 58 shall be completed prior to the issuance of the first certificate of occupancy in Neighborhood A-4. Notwithstanding the provisions of Section 4 of this Agreement, Condition 58 shall survive termination of this Agreement. -Condition 85 [Dublin Boulevard/Dou.qherty Road Intersection Improvement]: Condition 85 reads as follows: Dublin Boulevard/Dougherty Road Intersection Improvement. The Applicant/Developer shaft be responsible for the project fair share contribution towards the City Capital improvements project for the following improvements to the Dublin Blvd. and Dougherty Road intersection: a. Eastbound Dublin Boulevard, exclusive right- turn lane to Southbound Dougherty Road. b. Northbound Dougherty Road, exclusive right- turn lane to eastbound Dublin Boulevard. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 - EXHIBIT B 609155.4 Page 3 of 9 DRAFT: 1/8/03 c. Westbound Dublin Boulevard restriped to provide an additional left turn lane to southbound Dougherty Road. d. Modifications to the Traffic SignaL This is a category 2 TIF improvement. In the event that the City has a shortfall of category 2 funds available to complete the above list of improvements, the Developer shall contribute the remaining balance of the funds needed to complete the specified improvements to the satisfaction of the Director of Public Works. To the extent practical, the notice shall be timed so that the work shall be completed immediately prior to the point where the Level of Service E occurs. 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 the payment of traffic impact fees in accordance with City TIF Guidelines. When required: When determined by Director of Public Works. 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 85 shall survive termination of this Agreement. --condition 86 [Gleason Drive]: Condition 86 reads as follows: Gleason Drive. Prior to issuance of a certificate of occupancy for the 421st unit in Area A, Developer/Applicant shall construct either 2 lanes of Gleason Drive from Tassajara Road to Fallon Road in accordance with approved precise alignment prepared by MacKay and Somps dated August 1999 or as defined by the Director of Public Works or the extension of Dublin Blvd. from Dublin Ranch Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 - EXHIBIT B 609155.4 Page 4 of 9 DRAFT: 1/8/03 Area G to Fallon Road or as defined by the Director of Public Works. The Developer shall be responsible for the installation of the new traffic signal at the intersection of Fallon road and Gleason Drive. With the extension of Dublin Boulevard to Fallon Road, Developer shall be responsible for the traffic signal required by Condition 99 of Tentative Tract Map 7135. Condition 99 of Tentative Tract Map 7135 states: "Applicant/Developer shall construct Fallon Road Interchange signals at eastbound and westbound off ramps of 1-580 and Fallon Road as approved by Caltrans and the Director of Public Works". If Developer constructs Gleason Drive through to Fallon Road, Developer shall complete Fallon Road in its ultimate state from existing Antone Way to Gleason Road and transition Fallon Road from Gleason Road south to Bent Tree Drive as approved by the Director of Public Works. Developer agrees not to close escrow on and the City will not issue certificates of occupancy for more than 420 units in Area A prior to the completion of the improvements required by Condition 86. Notwithstanding the provisions of Section 4 of this Agreement, the requirements of Condition 86 shall survive termination of this Agreement and shall be deemed satisfied when DEVELOPER enters into an improvement agreement and provides security for improvements that satisfy this condition. (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 conditions of approval to the satisfaction and requirements of the CITY's fire department. All potable water system components to serve the project site shall be completed in accordance with the DSRSD requirements. Recycled water lines shall be installed in accordance with the tentative map conditions of approval. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 - EXHIBIT B 609155.4 Page 5 of 9 DRAFT: 1/8/03 (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's and Zone 7 (Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. 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 the updated master drainage plan for Dublin Ranch 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 other developers for oversizing drainage facilities that benefit the Property. (v) Other Utilities (e.g..qas, electricity, cable televisions, telephone) Construction shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous (i) Completion May Be Deferred. Notwithstanding the foregoing, CITY's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow DEVELOPER to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subparagraph 5.3.3 -- Phasing, Timin.q 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. Subl~araqraph 5.3.4 -- Financinq Plan Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 - EXHIBIT B 609155.4 Page 6 of 9 DRAFT: 1/8/03 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 a minimum of 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. 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 then-current amount of the fee. DEVELOPER may use the credits for payment of the Community Park Land portion of the Public Facilities Fee granted to the Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 - EXHIBIT B 609155.4 Page 7 of 9 DRAFT: 1/8/03 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 the 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 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 Riqht-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 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 - EXHIBIT B 609155.4 Page 8 of 9 DRAFT: 1/8/03 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 Subsection a. Inclusionary Zoning Ordinance The Project shall be subject to the Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68) as in effect on July 25, 2000 (the date of approval of Resolution 00-40). The DEVELOPER shall pay fees in lieu of constructing inclusionary units. The in lieu fees shall be paid at issuance of building permits in accordance with Resolution No. 131-01 of the City Council and the affordable housing agreement to be entered into between DEVELOPER and CITY. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-4 - EXHIBIT B 609155.4 Page 9 of 9 DRAFT: 1/8/03 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 CA II, L.P. FOR AREA A-5 OF DUBLIN RANCH AREA A THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this ~ day of__, 2003, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and Toll CA II, L.P. a California limited partnership (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 14.1 acres of land, located in the City of Dublin, County of Alameda, State of California, which is designated as Parcel A-5 on the Master Tentative Map for Tract 7135 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) ("Master Development Agreement")", section 7 of which requires DEVELOPER to enter into this development agreement; provided however, this Agreement shall not impair any developer's rights under the Master DA; and F. The Eastern Dublin Specific Plan also requires DEVELOPER to enter into this development agreement; provided however, this Agreement shall not impair any developer's rights under the Master DA; and G. DEVELOPER proposes the development of the Property with 62 single family detached homes (the "Project"); and H. DEVELOPER has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the Project, including an amendment to the General Plan and Eastern Dublin Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 2 of 16 DRAFT: 1/8/02 Specific Plan (City Council Resolution No. 53-98), PD District rezoning (City Council Ordinance No. 23-97), general provisions for the PD District rezoning including the Development Plan (City Council Resolution No. 139-97), Master Vesting Tentative Map for Tract 7135 (Planning Commission Resolution No. 00- 36), Vesting Tentative Map for Tract 7140 (Neighborhood A-5) (Planning Commission Resolution 00-41; Planning Commission Resolution 02-13 [amending conditions of approval of Vesting Tentative Map for Tract 7140]), and site development review (Planning Commission Resolution No. (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 Nos. 00-36 and 00-38 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 Ordinance No. effect on , the City Council of the City of Dublin adopted __ approving this Development Agreement. The ordinance took 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: Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170,2 Page 3 of 16 D RAFT: 1/8/02 AGREEMENT 1. Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property in that it 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 ofthis Agreement shall be the date upon which this Agreement is signed by City. 4.2 Term. The term of this Development Agreement shall commence on the effective date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Property. 5.1 Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 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. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 4 of 16 DRAFT: 1/8/02 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 Phasinq, 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 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. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 5 of 16 DRAFT: 1/8/02 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 Master Development Agreement. 6.2 Rules re Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary Project Approval. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable permit approval. 6.3 Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, 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 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 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 6 of 16 DRAFT: 1/8/02 is enacted, whether by action of CITY, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 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, or impose other exactions in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. 8.4 Assessments. Nothing herein shall be construed to relieve the Property from assessments levied against it by City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5 Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's ballot as affirmatively voting in favor of such assessment, fee or charge. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 7 of 16 DRAFT: 1/8/02 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56. 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "significant" reservation or dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings; or (g) monetary contributions by DEVELOPER as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. CITY's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4 Amendment of Proiect Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) monetary contributions by the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 8 of 16 D RAFT: 1/8/02 provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by CITY. 10. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described in Recital H above shall automatically be extended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2003 and each July 15 to August 15 thereafter. 11.2 Initiation of Review. The CITY's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER thirty (30) days' written notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CITY in connection with the annual review shall be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 9 of 16 DRAFT: 1/8/02 Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damaqes 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, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obliqated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 10 of 16 D RAFT: 1/8/02 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 Riqht to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereunder and specifying the address for service thereof, then CITY shall deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that DEVELOPER has committed an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee. 15. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. DEVELOPER shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse CITY for all reasonable court costs and attorneys' fees expended by CITY in defense of any such action or other proceeding. 17. Transfers and Assiqnments. 17.1 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 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 11 of 16 DRAFT: 1/8/02 transferred, to such Transferee, provided, however, that: no such transfer, sale or assignment of DEVELOPER's rights, interests and obligations hereunder shall occur without prior written notice to CITY and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. 17.2 Approval and Notice of Sale, Transfer or Assignment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) days after DEVELOPER's notice, provided all necessary documents, certifications and other information are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform the DEVELOPER's obligations hereunder. Notice of any such approved sale, transfer or assignment (which includes a description of all rights, interests and obligations that have been transferred and those which have been retained by DEVELOPER) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. 17.3 Effect of Sale, Transfer or 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 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 12 of 16 DRAFT: 1/8/02 termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 18. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the DEVELOPER, or any actions or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation with respect to negligence or wrongful conduct of CITY, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170,2 Page 13 of 16 DRAFT: 1/8/02 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. 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 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 14 of 16 DRAFT:l/8/02 Notices required to be given to DEVELOPER shall be addressed as follows: Toll CA II, LP 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. 27. Recordation. CITY shall record a copy of this Agreement within ten days following execution by all parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 15 of 16 D RAFT: 1/8/02 CITY OF DUBLIN: By: Mayor ATTEST: Date: By: City Clerk APPROVED AS TO FORM: Date: City Attorney TOLL CA II, LP a California limited partnership By: Print: Its: General Partner Date: (NOTARIZATION ATTACHED) Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 609170.2 Page 16 of 16 D RAFT: 1 ~8~02 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparagraph 5.3.1 -- Subsequent Discretionary Approvals None. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Sequencin_cl Pro.qram 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. 00-41 and 02-13 of the City of Dublin Planning Commission approving the Vesting Tentative Map for Neighborhood A-5 (Tract 7140) (hereafter "TM Resolution"), 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 Resolution unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public Works Director. -- Condition 26 [Offsite] T.I.F. Improvement of Fallon Road Condition 26 reads as follows: [Offsite] T.I.F. Improvement of Fallon Road. Applicant/Developer shall improve Fallon Road and construct four travel lanes (2 northbound and 2 southbound) median landscaping and landscaping along project frontage from future intersection of Antone Way to the north curb return of Golf Course Maintenance Drive in accordance with the precise plans approved on pages 26, 27 and 28 of the "Supplemental Information" of the SDP,/VTM book prepared by MacKay and Somps dated December 1999 and revised June 2000 and to the satisfaction of the Director of Public Works. The goal of the overall improvement plan is to construct afl TIF improvements needed for capacity and access to Dublin Ranch Area A while maximizing conformance to the ultimate Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 - EXHIBIT B 609169.4 Page 1 of 9 DRAFT: 1/8/03 improvements and minimizing interim, "throw-away" improvements. The Director of Public Works shall review and approve all street geometrics of the interim improvements. Applicant/Developer shall be responsible for constructing and/or funding improvements as allocated under the terms of an agreement among the above parties for improvement of the road. Applicant/Developer shall receive TIF credit for all TIF improvements constructed in the ultimate alignment. Applicant/Developer shall be responsible for the construction of the offsite TIF improvements conditioned under Tract No. 7135. When completed: As specified in Development Agreement or when deemed necessary by the Director of Public Works The improvements required by Condition 26 shall be completed prior to the issuance of the first certificate of occupancy in Neighborhood A-5. -- New Condition 32A Private Recreation Facility Condition 32A is added to read as follows: Private Recreation Facility. If not previously dedicated and completed with the first building permit of the second subdivision (A-2, A-3, A-4 or A-5) Applicant/Developer shall dedicate to the Community Homeowners Association and complete the Private Recreation Facility within Parcel C-1 of Tract No. 7135 to the satisfaction of the Director of Public Works. When completed: As Specified in the Development Agreement Notwithstanding anything to the contrary in the condition 32A, the improvements required by Condition 32A shall be completed and dedicated prior to the issuance of building permits in excess of 27 units in Neighborhood A-4 Applicant/Developer will not be issued building permits in Neighborhood A-5 in excess of 27 units until such time as the improvements required by Condition 32A have been dedicated and completed. -- Condition 54 [Offsite] Traffic Siqnals: Condition 54 reads as follows: [Offsite]Traffic Signals. If not constructed by previous developer, Applicant/Developer is responsible for the traffic signal design and Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 - EXHIBIT B 609169.4 Page 2 of 9 DRAFT: 1/8/03 installation of conduit for the future signalization at the following intersections to the satisfaction of the Director of Pubfic Works: Kingsmill Terrace and Fallon Road. Antone Way and Fallon Road The signal improvements shall accommOdate conversion to serve an ultimate three and four-legged intersections to the extent possible, minimizing replacement or relocation of improvements. The cost of the conduit shall be the responsibility of Applicant/Developer, with no TIF credits given for intersections listed above. Applicant/Developer shall be responsible for constructing and/or funding all interim improvements as determined by the Director of Public Works. In the event that a improvement agreement for the installation of the ultimate traffic signals fails to be reached, Applicant/Developer shall be responsible for the installation of the future traffic signals. When Required: As specified in the Development Agreement or when deemed necessary by the Director of Public Works The improvements required by Condition 54 shall be completed prior to the issuance of the first certificate of occupancy in Neighborhood A-5. Notwithstanding the provisions of Section 4 of this Agreement, Condition 54 shall survive termination of this Agreement. --Condition 82 [Dublin Bou evard/Dou.qherty Road Intersection Improvement]: Condition 82 reads as follows: Dublin Boulevard/Dougherty Road Intersection Improvement. The Applicant/Developer shall be responsible for the project fair share contribution towards the City Capital improvements project for the following improvements to the Dublin Blvd. and Dougherty Road intersection: a. Eastbound Dublin Boulevard, exclusive right- turn lane to Southbound Dougherty Road. b. Northbound Dougherty Road, exclusive right- turn lane to eastbound Dublin Boulevard. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 - EXHIBIT B 609169.4 Page 3 of 9 DRAFT: 1/8/03 c. Westbound Dublin Boulevard restriped to provide an additional left turn lane to southbound Dougherty Road. d. Modifications to the Traffic Signal. This is a category 2 TIF improvement. In the event that the City has a shortfall of category 2 funds available to complete the above list of improvements, the Developer shall contribute the remaining balance of the funds needed to complete the specified improvements to the satisfaction of the Director of Public Works. To the extent practical, the notice shall be timed so that the work shall be completed immediately prior to the point where the Level of Service E occurs. 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 the payment of traffic impact fees in accordance with City TIF Guidelines. When required: When determined by Director of Public Works. 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 82 shall survive termination of this Agreement. --Condition 83 [Gleason Drive]: Condition 83 reads as follows: Gleason Drive. Prior to issuance of a certificate of occupancy for the 421st unit in Area A, Developer/Applicant shall construct either 2 lanes of Gleason Drive from Tassajara Road to Fallon Road in accordance with approved precise alignment prepared by MacKay and Somps dated August 1999 or as defined by the Director of Public Works or the extension of Dublin Blvd. from Dublin Ranch Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 - EXHIBIT B 609169.4 Page 4 of 9 DRAFT: 1/8/03 Area G to Fallon Road or as defined by the Director of Public Works. The Developer shall be responsible for the installation of the new traffic signal at the intersection of Fallon road and Gleason Drive. With the extension of Dublin Boulevard to Fallon Road, Developer shall be responsible for the traffic signal required by Condition 99 of Tentative Tract Map 7135. Condition 99 of Tentative Tract Map 7135 states: "Applicant/Developer shall construct Fallon Road Interchange signals at eastbound and westbound off ramps of 1-580 and Fallon Road as approved by Caltrans and the Director of Public Works". If Developer constructs Gleason Drive through to Fallon Road, Developer shall complete Fallon Road in its ultimate state from existing Antone Way to Gleason Road and transition Fallon Road from Gleason Road south to Bent Tree Drive as approved by the Director of Public Works. Developer agrees not to close escrow on and the City will not issue certificates of occupancy for more than 420 units in Area A prior to the completion of the improvements required by Condition 83. Notwithstanding the provisions of Section 4 of this Agreement, the requirements of Condition 83 shall survive termination of this Agreement and shall be deemed satisfied when DEVELOPER enters into an improvement agreement and provides security for improvements that satisfy this condition. (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 conditions of approval to the satisfaction and requirements of the CITY's fire department. All potable water system components to serve the project site shall be completed in accordance with the DSRSD requirements. Recycled water lines shall be installed in accordance with the tentative map conditions of approval. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 - EXHIBIT B 609169,4 Page 5 of 9 DRAFT: 1/8/03 (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's and Zone 7 (Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. 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 the updated master drainage plan for Dublin Ranch 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 other developers for oversizing drainage facilities that benefit the Property. (v) Other Utilities (e.g. gas, electricity, cable televisions, telephone) Construction shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous (i) Completion May Be Deferred. Notwithstanding the foregoing, CITY's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow DEVELOPER to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subparagraph 5.3.3 -- Phasing, Timing This Agreement contains no requirements that DEVELOPER must initiate or complete development of the Project within any period of time set by CITY. It is the intention of this provision that DEVELOPER be able to develop the Property in accordance with its own time schedules and the Project Approvals. Subparagraph 5.3.4 -- Financing Plan Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 - EXHIBIT B 609169.4 Page 6 of 9 DRAFT: 1/8/03 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. SubparaRraph 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 a minimum of 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. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchan_qes. 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 then-current amount of the fee. DEVELOPER may use the credits for payment of the Community Park Land portion of the Public Facilities Fee granted to the Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 - EXHIBIT B 609169.4 Page 7 of 9 DRAFT: 1/8/03 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 the 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 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 Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 - EXHIBIT B 609169.4 Page 8 of 9 DRAFT: 1/8/03 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 Subsection a. Inclusionary Zoning Ordinance The Project shall be subject to the Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68) as in effect on July 25, 2000 (the date of approval of Resolution 00-41). The DEVELOPER shall pay fees in lieu of constructing inclusionary units. The in lieu fees shall be paid at issuance of building permits in accordance with Resolution No. 131-01 of the City Council and the affordable housing agreement to be entered into between DEVELOPER and CITY. Dublin/Toll Development Agreement For Dublin Ranch Area A / A-5 - EXHIBIT B 609169.4 Page 9 of 9 DRAFT: 1/8/03