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HomeMy WebLinkAbout6.1 Fairway Ran Dev Agmts File #600-60 AGENDA STATEMENT CITY COUNCIL MEETING DATE: .July 15, 2003 SUBJECT: PUBLIC HEARING: PA 03-010 Fairway Ranch Affordable Housing Community Four Development Agreements 2nd Reading Report Prepared by: Michael Porto, Planning Consultant and Marnie R. Waffle, Assistant Planner ATTACHMENTS: 1. An Ordinance of the City of Dublin approving Four Development Agreements between the City of Dublin and Chang-Su-O-Lin and Hong Lien Lin (with the Development Agreements attached as Exhibits A, B, C and D) RECOMMENDATION: 1. Open Public Hearing and receive Staff presentation. /,~"'/~ ~/'2~. Take//~/~ ~'~ 3. testimony from the Applicant and the Public. Question Staff, Applicant, and the Public. 4. Close the Public Hearing and deliberate. 5. Waive the 2nd Reading and adopt the Ordinance (Attachment 1, with the Development Agreements attached as Exhibits A, B, C and D) approving Four Development Agreements. FINANCIAL STATEMENT: None PROJECT DESCRIPTION: In 1997, the City Council adopted Resolution 97-141 approving a Planned Development District and Land Use and Development Plan/District Planned Development Plan (LUDP/DPDP) for Dublin Ranch Areas B through E, located within the Eastern Dublin Specific Plan. This approval established the final zoning for Areas B through E and required that a Tentative Map, Site Development Review, and Development Agreement be approved prior to the issuance of building permits for the development of the properties. The Project, referred to as Fairway Ranch, includes a Tentative Tract Map, Site Development Review with a density bonus for affordable housing, and four Development Agreements, for the construction of 930 residential units within a portion of Dublin Ranch Area B. The LUDP/DPDP designated a total of 744 units on this site with a provision that this number could be increased during Site Development Review as long as the total number of units for Areas B through E combined did not exceed 1,875 units. Additional development regulations were adopted as part of the LUDP/DPDP including, a parking requirement of 1.9 spaces per dwelling unit for High Density Residential land uses; a reduction in the parking requirement for assisted care/senior housing; and, setbacks. COPIES TO: Applicant In House Distribution ITEM NO~ ~ Fairway Ranch, as proposed, requires the subdivision of 152 acres of land within the Eastern Dublin Specific Plan, Dublin Ranch Area B, for the creation of Parcels 1, 2, and 3 on which the Project would be constructed, and Parcel 4 (the remaining 127.3 acres) which is not part of this application. Parcels 1, 2, and 3 would comprise 24.78 gross acres of land for the construction of 930 residential units. Land uses surrounding the Project site include, undeveloped land to the east and north designated for Medium- Density Residential, and to the south for Campus Office. To the west of the Project site is Medium-High and High Density Residential housing and a City park all of which is currently under construction as part of the Town Center (Area G) project. The three parcels comprising the Fairway Ranch project are proposed to be developed with the following residential housing types: 1) senior rental .housing (55 years of age and older), 2) multi-family rental housing, and 3) for-sale condominium housing. Of the 930 units, 587 (or 63%) would be affordable to very low-income, low-income, and moderate-income households while 342 (or 37%) would be market- rate. Each of the three housing types would include both affordable and market-rate units. The large portion of affordable units proposed for Fairway Ranch would satisfy the Inclusionary Zoning requirements for this project as well as for an additional 2,655 future residential units within Dublin Ranch. The Applicant also requested a Density Bonus of 186 units, included in the 930 units proposed, for providing units affordable to very-low and low income households. Development Agreements One of the implementing measures of the Eastern Dublin Specific Plan is the requirement that the City enter into a Development Agreement with developers in the Plan area. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project for a specified period of time. The Development Agreement is one means the City has to ensure that the goals of the Eastern Dublin Specific Plan are met. There are four proposed Development Agreements between the City of Dublin and Chang-Su-O-Lin and Hong Lien Lin for the Fairway Ranch project. These Agreements are attached as Exhibits A, B, C, and D of Attachment 1 to this Staff Report. The agreements have been drafted to be with members of the Lin family who have been the record owners of the property. The Development Agreement (the "Fairway Ranch Development Agreement") labeled Exhibit A, is based on the standard Development Agreement developed by the City Attorney and adopted by the City Council for Eastern Dublin Projects. This Development Agreement covers Parcels 1, 2, & 3 of Tentative Tract 7453 for the Fairway Ranch project and includes provisions related to phasing, affordable unit credits, and waiver of the commercial linkage fee. The remaining three Development Agreements labeled Exhibits B, C, and D are specific to the respective phases or "components" of the project: the senior phase, the multi- family phase and the condominium phase. It is anticipated that the three components will be owned by different developers and that these three Development Agreements will be assigned to such developers. Planning Commission Action: The Planning Commission, at its meeting of June 24, 2003, considered the Tentative Tract Map, Site Development Review and Density Bonus, and four Development Agreements for the Fairway Ranch project. The Planning Commission approved the Tentative Tract Map, referred their decision making authority to the City Council, and recommended the City Council approve four Development Agreements. City Council Action: The City Council, at its meeting of July 1, 2003, reviewed the Site Development Review and Density Bonus, and four Development Agreements. After testimony from Staff, the Applicant and the public,.4he City Council adopted a Resolution approving the Site Development Review and Density Bonus. 2~ Additionally, the City Council waived the first reading and introduced an Ordinance approving four Development Agreements. ANALYSIS: As required by the City of Dublin Municipal Code, a second reading of the proposed Ordinance is necessary prior to final adoption of the four Development Agreements which would then become effective 30 days after the second reading. RECOMMENDATION: Based on the City Council action of July 1, 2003, Staff recommends that the City Council: 1) Open the public hearing and hear Staff presentation; 2) Question Staff; 3) Take testimony from the appliqant and the public; 4) Close the public hearing and deliberate; 5) Waive the 2® reading and adopt the Ordinance approving four Development Agreements (Attachment 1, with the development agreements attached as Exhibits A, B, C, and D) between the City of Dublin and Chang-Su-O-Lin and Hong Lien Lin. 3 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING FOUR DEVELOPMENT AGREEMENTS FOR PA 03-010 FAIRWAY RANCH AFFORDABLE HOUSING COMMUNITY THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The proposed Fairway Ranch Affordable Housing Community is located within the boundaries of the Eastern Dublin Specific Plan ("Specific Plan") in an area, which is designated on the General Plan Land Use Element Map, and Eastern Dublin Specific Plan Land Use Map as High Density Residential. B. Pursuant to the California Environmental Quality Act, the City Council finds the iPrqiect exempt from CEQA pursuant to Gove:rnment Code section 65457 for residential prqiects that are consiste:nt with a specific plan. This finding is based on a determination that there are no supplemental impacts that would require preparation of a Supplemental EIR, as further documented in the Initial Study prepared by the City, dated June 2003 and incorporated herein by reference. The Initial Study found that the environmental impacts of the Project were addressed by the Negative Declaration approved by the City Council in Resolution No. 140-97 for the iPlanning Development Rezoning for 453 acres of Dublin Ranch which includes the Property and the Project and by the Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was certified by the Council in Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994. C. The Development Agreements between the City of Dublin and Chang Su-O-Lin and Hong Lien Lin, has been presented to the City Council, Exhibits A~ Bt C~ and D, attached hereto. D. A public hearing on the proposed Development Agreements was held before the Planning Commission on June 24, 2003, for which public notice was given as provided by law. E. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreements. F. A public hearing on the proposed Development Agreements was held before the City Council on July 1, 2003 and July 15, 2003, for which public notice was given as provided by law. G. The City Council has considered the recommendation of the Planning Commission who considered the item at the June 24, 2003 meeting, including the Planning Commission's reasons for its recommendation, the Agenda Statement, all comments received in writing and all testimony received at the public hearing. ATTACHMENT I Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin's General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the Specific Plan, (e) the EIR, (f) the individual Mitigated Negative Declarations (g) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The Development Agreements are consistent with the objectives, policies, general land uses and programs specified and contained in the City's General Plan, as amended by the Eastern Dublin General Plan Amendment, and in the Specific Plan in that (a) the General Plan and Specific Plan land use designation for the site are High Density Residential and the proposed project is a project consistent with that land use, (b) the project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to provision of infrastructure and public services, and (c) the Development Agreements include provisions relating to vesting of development rights, and similar provisions set forth in the Specific Plan. 2. The Development Agreements are compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located in that the project approvals include a Vesting Tentative Map, Site Development Review and Density Bonus. 3. The Development Agreements are in conformity with public convenience, general welfare and good land use policies in that the Fairway Ranch Affordable Housing Community will implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for residential uses at this location. 4. The Development Agreements will not be detrimental to the health, safety and general welfare in that the project will proceed in accordance with all the programs and policies of the Eastern Dublin Specific Plan. 5. The Development Agreements will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan and with the Specific Plan. Section 3. APPROVAL The City Council hereby approves the Development Agreements (Exhibits A, B, C, and D) and authorizes the Mayor to sign. Section 4. RECORDATION Within ten (10) days after the Development Agreements are fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. 2 PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 15th day of July 2003, by the following votes: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk Recording requested by and when recorded, return to: City of Dublin 100 Civic Plaza Dublin, CA 94568 Attn: City Clerk Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND Chang Su-O-Lin and Hong Lien Lin DUBLIN RANCH FAIRWAY RANCH THIS DEVELOPMENT AGREEMENT (this "Agreement"), dated for reference purposes as of July 15, 2003, is entered into by and between the City of Dublin, a Municipal Corporation ("City"), and Chang Su-O-Lin and Hong Lien Lin ( collectively, the "Developer"). City and Developer are hereafter collectively referred to as the "Parties." RECITALS A. California Government Code Section 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. B. Developer holds legal interest in certain real property (the "Property") consisting of approximately 26.3 acres of land, located in the City of Dublin, County of Alameda, which property is designated as Parcels 1, 2 and 3 on Tentative Tract Map No. 7453 and which is more particularly described in Exhibit A attached hereto. C. The Dublin City Council ("City Council") adopted the Eastern Dublin Specific Plan ("Plan") by Resolution No. 53-93 which Plan is applicable to the Property and requires the developer of the Property to enter into a development agreement with City. D. The Developer and City are parties to that certain 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"). The Parties intend to enter into an amendment to the Master Development Agreement to establish Developer's compliance with the Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68) as hereinafter set forth. E. Developer proposes to develop the Property in three phases, consisting of a total of [930] housing units. The phases are collectively hereinafter referred to as the "Project". The "Multifamily Component" of the development shall consist of [304] multi-family rental units, of which [243] units shall be affordable units available at affordable rents to households of very Iow, Iow and moderate-income pursuant to the City's Inclusionary Zoning Ordinance (Chapter 8.68). The "Senior Housing Component" of the development shall consist of [322] multi-family rental units for seniors, of which [292] units shall be affordable units available at affordable rents to senior households of very Iow, Iow, and moderate-income pursuant to the City's Inclusionary Zoning Ordinance (Chapter 8.68). Developer shall retain discretion as to the sequence of construction for the Multifamily Component and the Senior Housing Component. The third phase of the development ("Condominium Component") shall consist Development Agreement Page 1 of 17 Fairway Ranch 628317-14 of [304] condominium units, of which [52] shall be affordable units available at affordable cost to households of moderate-income pursuant to the City's Zoning Ordinance (Chapter 8.68). As more particularly described in the Affordable Housing Regulatory Agreements executed, or to be executed, by and between City and Developer ("Regulatory Agreements") and Conditions, Covenants and Restrictions (or deed restrictions) to be recorded against the Property, the Developer and its successors in interest shall be required to maintain the affordability of the affordable units and the availability of such units to households of the specified income levels for not less than 55 years. F. Developer has applied for, and City has approved or is processing, various land use approvals in connection with the development of the Project, including Vesting Tentative Tract Map for Tract 7453 (Planning Commission Resolution No. 03-31), a density bonus of 186 units and site development review City Council Resolution No. 149-03 (collectively the "Project Approvals"). G. Developer is proposing that the affordable units referred to in Recital E will satisfy the Developer's obligation for compliance with the City's Inclusionary Zoning Regulations (Dublin Municipal Code Chapter 8.68) for the Project and for 2,655 units on the rest of Developer's property through affordable unit credits which can be used on other properties owned by Developer and to otherwise satisfy the requirements of the Inclusionary Zoning Ordinance for this Project. H. Developer anticipates transferring Parcels 1, 2 and 3 of Tract 7453 to different legal entities. Developer and City are entering into separate development agreements for Parcel I (Senior Housing Component), Parcel 2 (Multifamily Component) and Parcel 3 (Condominium Component) which agreements include provisions identical to Sections I to 24 and 26 to 27 of this agreement and Sections 5.3.1, 5.3.2, 5.3.4, 5.3.5 and 5.3.6 of Exhibit B (the "Component Development Agreements"). Developer and City anticipate that Developer may assign its rights and obligations under such separate development agreements to the purchasers or lessees of Parcels 1, 2 and 3. I. The Component Development Agreements are required by the Master Development Agreement, provided such Component Development Agreements do not impair any of developer's rights under the Master Development Agreement. J. The purpose of this Agreement is to provide for certain phasing of the Project; to establish credits for certain of the affordable units which, upon completion of the Project, will allow development of Developer's remaining property without compliance with the Inclusionary Zoning Ordinance in effect now or hereafter; and to establish a waiver of a potential commercial linkage fee for the benefit of property owned by Developer. Development Agreement Page 2 of 17 Fairway Ranch 628317-14 K. City desires the timely, efficient, orderly and proper development of the Project, and City and Developer desire to facilitate development of the Project in accordance with and subject to the terms and conditions set forth herein. L. The City Council has reviewed and evaluated this Agreement in accordance with Chapter 8.56, and has found that this Agreement is consistent with the City's General Plan and the Eastern Dublin Specific Plan. M. Pursuant to the California Environmental Quality Act (CEQA), the City Council adopted Resolution No. 149-03, finding that the Project is exempt from CEQA pursuant to Government Code §65457. In making such determination and determining that there are no supplemental impacts that would require preparation of a Supplemental EIR, the City prepared an Initial Study which found that the environmental impacts of the Project were addressed by the Negative Declaration approved by the City Council by Resolution No. 140-97 for the Planned Development Rezoning for 453 acres of Dublin Ranch which includes the Property and the Project and the 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 (collectively, the "EIR"). N. On July 15, 2003, the City Council adopted Ordinance No.__ approving this Agreement. The ordinance took effect on August 15, 2003. NOW, THEREFORE, with reference to the foregoing recitals and inconsideration of the mutual promises, obligations and covenants herein contained, City and Developer agree as follows. 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 Development Agreement Page 3 of 17 Fairway Ranch 628317-14 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 ("Effective Date") is August 15, 2003, which is the effective date of City Ordinance No. , adopting this Agreement. 4.2 Term. The term of this Agreement shall commence on the Effective Date and shall terminate on the fifth anniversary of such date, unless this Agreement is otherwise terminated or extended pursuant to the terms hereof. Notwithstanding anything to the contrary contained herein or in the Site Development Review approval: (i) the Site Development Review approval shall remain effective for five years following the Effective Date of this Agreement, and (ii) provided that certificates of occupancy have been issued for either the entire Multi-Family Component or the entire Senior Housing Component prior to expiration of the term of this Agreement, the Site Development Review approval (Resolution No.149-03) shall remain effective until the tenth anniversary of the Effective Date. 4.3 Optional Extension. Prior to the termination of this Development Agreement, as provided in Section 4.2, Developer may extend the term of the Development Agreement. To do so, Developer shall give City written notice at least 90 days prior to the termination date of the Development Agreement. At the time Developer provides such notice, Developer shall make a contribution to City in the amount of One Hundred Thousand Dollars ($100,000). Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the Developer in writing that the term of the Development Agreement has been automatically extended for an additional one-year period, commencing on the date the Development Agreement would otherwise have terminated. The Developer may exercise its option to extend the Development Agreement no more than five times, for a maximum total term of the Development Agreement of ten years. The total contribution for the maximum extension of five years will be Five Hundred Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this Section, if Developer has provided the notice and contribution to extend one of the Component Development Agreements, Developer shall not be required to provide the $100,000 contribution to extend the term of this Development Agreement and this Agreement will automatically be extended to be coterminous with such Component Development 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, and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. Development Agreement Page 4 of 17 Fairway Ranch 628317-14 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by City) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto. 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 and any other approvals required by other regulatory agencies.) None 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 Financinq 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 Development Agreement Page 5 of 17 Fairway Ranch 628317-14 5.3.7 Miscellaneous. Miscellaneous terms. See Exhibit B 6. Applicable Rules, Regulations and Official Policies. 6.1 Rules Regarding 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, the 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 hereof. 6.2 Rules Regarding Design and Construction. Unless otherwise expressly provided in Section 5 or Exhibit B attached hereto, the ordinances, resolutions, rules, regulations and officia~ policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect on the Effective Date hereof. 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 the applicable permit approval is granted. 6.3 Uniform Codes Applicable. Unless otherwise expressly provided in Section 5 or Exhibit B attached hereto, 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 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 discretionary land use approval for the Project on the basis of the ordinances, resolutions, rules, regulations and policies in effect at the time of such approval. Development Agreement Page 6 of 17 Fairway Ranch 628317-14 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in California 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, Section 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 California 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 Development Agreement Page 7 of 17 Fairway Ranch 628317-14 charge. 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the Effective Date 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 accordanc~e 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 and in accordance with the procedures of state law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of Section 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in Section 4.2; (b) the permitted uses of the Property as provided in Section 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; (g) monetary contributions by Developer; (h) the affordable housing units to be constructed as part of the Project (including without limitation, the number, location, size, affordability level, or timing of the construction of such units); (i) public improvements to be constructed by Developer; (j) the accrual or use of the Affordable Unit Credits described in Section 5.3.7B of Exhibit.B; or (h) the exemption from Commercial Linkage Fee described in Section 5.37.C of Exhibit B 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; (g) public improvements to be constructed by Developer; (h) the affordable housing units to be constructed as part of the Project (including without limitation, the number, location, size, affordability level, or timing of the construction of such units); (i) the accrual or use of the Affordable Housing Credits described in Section 5.3.7B of Exhibit B; or (j) the exemption from Commercial Linkage Fee described in Section 5.3.7C of Development Agreement Page 8 of 17 Fairway Ranch 628317-14 Exhibit B shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the Parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Section 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 tentative tract map described in Recital F 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 or Section 4.2. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2004 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 this Agreement. The Developer shall have the burden of proving such compliance by substantial evidence. 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 relating to this Agreement 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. Development Agreement Page 9 of 17 Fairway Ranch 628317-14 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default hereunder, the Parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either Party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damaqes Against City. Notwithstanding anything to the contrary contained herein, 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 the other Party to provide a written certification 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 amended, identifying such amendments in the certification, 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 in the certification the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certification within thirty (30) days following the receipt of such request, or such longer period as may reasonably be agreed to by the Parties. City Manager of City shall be authorized to execute any certification requested by Developer. Should the Party receiving the request not execute and return such certification within the applicable period, this shall not be deemed to be a default, provided 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. Any request by Developer for a written certification to a third party shall be accompanied by payment to City of a fee for such certification in an amount established, by the Council from time to time. Development Agreement Page 10 of 17 Fairway Ranch 628317-14 14. Mortgagee Protection; Certain Riqhts of Cure. 14.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date 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, the purchaser at any trustee's sale or foreclosure sale shall not be liable for any violation hereof occurring prior to the acquisition of title by such purchaser, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 14.1, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to 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 Section 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 provision, covenant, condition or term of this Agreement shall not render the other provisions hereof unenforceable, invalid or illegal. Development Agreement Page 11 of 17 Fairway Ranch 628317-14 t3© 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 which arise hereunder and pertain to the portion of the Property being sold or transferred to such Transferee; provided, however that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur by operation of law or otherwise absent prior written notice to City and written approval thereof 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 proposed transfer, sale or assignment of Developer's rights, interests and obligations hereunder within ten business (10) days following receipt of Developer's notice, provided all documents, certifications and other information reasonably requested by City 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 (including 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 this Section 17, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to this Section 17, b) such obligations are expressly assumed by Transferee, and (c) such Transferee shall be subject to all the provisions hereof and shall provide all Development Agreement Page 12 of 17 Fairway Ranch 628317-14 documents, certifications and other information reasonably requested by City prior to City Manager approval pursuant to this Section 17. 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 third-party deed of trust encumbering Developer's interest in the Property shall not require City Manager approval pursuant to this Section 17. However, any subsequent transfer, sale or assignment by such Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of this Section. 18. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement (with the exception of City's obligation to provide financing to Developer pursuant to the Loan 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 constitute covenants running with the land pursuant to applicable laws. Each covenant to do, or refrain from doing, any act on or with respect to the Property pursuant to this Agreement: (a) is for the benefit of or is a burden upon the Property, (b) runs with the land, and (c) is binding upon the Developer and each successive owner during its ownership of the Property or any portion thereof. 19. Bankruptcy. The obligations of Developer under this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification; Prevailing Wages. 20.1 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 Property and the Project, provided that Developer shall have no indemnification obligation with respect to the gross negligence or willful misconduct of City, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any Development Agreement Page '13 of 17 Fairway Ranch 628317-14 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). 20.2 Prevailing Wages. The Parties acknowledge that the Project or phases of it are intended by Developer to be exempt from California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto ("Prevailing Wage Laws") by virtue of Labor Code Section 1720(d). If for any reason, the Prevailing Wage Laws are found to be applicable to the Project, Developer and its contractors shall comply with such laws. Developer shall, and hereby agrees to, unconditionally indemnify, reimburse, defend, protect and hold harmless City and its elective and appointive boards, commissions, officers, agents, attorneys, consultants and employees, and their respective successors and assigns, from and against any and all claims, demands, suits and actions at law or in equity, and losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, and costs and damages of every kind, nature and description (including but not limited to attorneys' fees and court costs, with counsel reasonably acceptable to City), and administrative, enforcement or judicial proceedings, whether known or unknown, and which directly or indirectly, in whole or in part, are caused by, arise from, or relate to, or are alleged to be caused by, arise from, or relate to, the payment or requirement of payment of prevailing wages or the requirement of competitive bidding in the construction of the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of City or Developer related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such claims, demands, suits, actions, losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, costs, damages, or administrative, enforcement or judicial proceedings. It is further agreed that City does not, and shall not, waive any rights against Developer which it may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or the deposit with City by Developer, of any of the insurance policies described in this Agreement. The representations, warranties and covenants contained in this Section shall survive the termination of this Agreement. 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 five million dollars ($5,000,000) with a Twenty Five Thousand Dollar ($25,000) self insurance retention per claim. The policy so maintained by Development Agreement Page 14 of 17 Fairway Ranch 628317-14 l%o Developer shall name the City as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2 Workers Compensation Insurance. During the term of this Agreement Developer shall maintain Worker's Compensation insurance for all persons employed by Developer for work at the Project site. Developer shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. Developer agrees to indemnify the City for any damage resulting from Developer's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to City Council approval of this Agreement, Developer shall furnish City satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the City at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the City, its elective and appointive boards, commissions, officers, agents, employees and representatives and to Developer performing work on the Project. 22. Sewer and Water. Developer acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of City. 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: Martin Inderbitzen 7077 Koll Center Parkway, Suite 120 Pleasanton, CA 94566-3152 FAX No. (925) 485-1065 Development Agreement Page 15 of 17 Fairway Ranch 628317-14 James Tong Charter Properties 6601 Owens Drive #100 Pleasanton, CA 94588 (925) 463-1666 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 delivered by overnight courier in which case they shall be deemed given on the following day or by facsimile transmission in which case they shall be deemed delivered upon verification of receipt. 24. Agreement is Entire Understanding. This Agreement, the loan commitment letters executed by City with an effective date of July 1, 2003 (the "Loan Commitment"), the Component Development Agreements, the Regulatory Agreements, and the Loan Agreements (and related deed(s) of trust and promissory note(s)) constitute the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersede all prior negotiations, understandings or agreements pertaining thereto. 25. Exhibits. The following Exhibits are attached hereto and incorporated herein by this reference: Exhibit A Legal Description of Property Exhibit B Additional Conditions Exhibit C Inclusionary Zoning Regulations; Dublin Municipal Code Chapter 8.68 Exhibit D Affordable Unit Credit Certificate Exhibit E Map of Affordable Unit Credit Property, which property Includes properties owned by Developer subject to the Master Development Agreement," Dublin Ranch West" and "Dublin Ranch North." Exhibit F Map of Property Exempt from Commercial Linkage Fee Development Agreement Page 16 of 17 Fairway Ranch 6283'17-14 26. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, and all of which taken together shall constitute one agreement. 27. Recordation; Further Assurances. City shall record a copy of this Agreement within ten days following execution by all Parties. The Parties agree to execute such additional instruments and to undertake such actions as may be necessary to effectuate the intent of this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first written above. CITY OF DUBLIN By: Janet Lockhart, Mayor ATTEST: By: Kay Keck, City Clerk APPROVED AS TO FORM: Elizabeth H. Silver, City Attorney DEVELOPER Chang Su-O-Lin Hong Lien Lin Development Agreement Page 17 of 17 Fairway Ranch 628317-14 State of California ) ) County of Alameda ) On ,2003, before me, the undersigned, a Notary Public, in and for said State and County, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public CSNTP~L PARKWAY ~PA~~ STING) P~L 1 (RESIDENt) 6.9 AC. ! N7T'30'Y2'W 5.92L... ~mX~-~(~) A=o,y09'22"4¢.26, L=SD.0T ~77'39'32'W 53.18'...  ~ b= 15"04;4~" L=25.32'--'~. FiNNIAN WAY  N33'5~ '52'W ~ PARCEL 2 6.8 AC. + ~ R=200' b=~5°5~'5~ L=5§.6T R=250' ,4=04'14'14" MAGU]RE WAY P~CEL 3 (RESIDE~ - FOR CONDO PURPOSES) 6.4 AC. i ': .: 28,28' A=12"40'50' L=25.02' N39'4¢'05"£ 2&06'~ 21.4t' NS~27'O~W 422,35' mlo Y&somPs DUBLIN . CALIFORNIA DNL [ q5/27/O3 ~ I"=2OO' 15054.11 P:~ 16034-1 ~plonning~Plots,dwg PABCEL 1 ( L) RESIDENTIA ~ z ,~ ~ PARCEL RESULTA~ LOT LINE ADJUSTME~ ~ ~ 2OOO-105747 ~ ~ N45°32'58"E 28.28' ~ ~ II N00°32'58"E 4=13°1 L ~EG~ STREET (E~STING) EXHIBIT A PARCEL 1 TRACT7453 DUBLIN CALIFORNIA Y S0mPs C~L ENGINEE~INO~D P~NN~NG~ND SU~V~NO Piea~on~on~ CA (925) - ~w~ ~ a~ ~ sc~ ~ ~o~o. DNL ~ 05/27/03 ~' 1" = 100' ' N77°30'52"W N78°59'44"W R=t00' &=15°04'46'* L R=200' R= .~aa.09' N90o00'00"W 178.10' .=27o34, FINNLAN WAY L=96.24' o N33°54'52"W 25.28 PARCEL 2 (RESIDENTIAL) 6.8 AC. _+ N07<:,27,05.,~ 74.01' , ,, U=gT.94' R=942' &=05o20 56 &=00o42,45,, L= 13.16, N41°34'01"E ;'02"W 22.42' N90000'00"E 68.62' R=200, &= 15o56'58" L=55.67' R=500' ~'~ R=250, h=04o 14,14" L=t8.49'--~'> L=1319, N90':'00'00" W 275.47' ,, MAGUIRE WAY ~o,., N85°45'46"E 54.26 ?.ARcEL 3 ~ ~ EXHIBIT A PARCEL 2 ~,'"'"~'°~o TRACT 7455 z DUBLIN CALIFORNIA nlA KAY& $oml, s D UBMN BO U~V~D c,v,~ ~.~,~,~.~.o ~.,~.~.~ Pleasonton, CA (925) - 225-0690 (FUTURE) D~WN I DA~ I sc~ I JOB NO. ~ l°S/2V°3 1 r=,oo' I ~o~-~ P:~ ~ 6034-11 ~plonn~ng~Plots.dwg Ng0°00'00"E 68.62' R=200' &=15°56'58'' L=55.67' R=500' R=250' A=04°14'14'' L= L=13 19' Ngo°oo'oo"w 273:~7' ~GUIRE WAY N85~45'46" E % N49~58'54"W 25.51 PA CE 3 (RESIDENTIAL- FOR CONDO PURPOSES) 6,4 AC..~ N44°27'02"W 28128' 104' A=12°40'50'' L=23.02' N39°44'06"E 2~ 21,00' N89°27'02"W 178.18' 106.18' A=05° 10'08" L=2( N89o27,02"W R=2928' R=76' A=t2°40'50'' L=16.82' EXHIBIT A PARCEL 5 TRACT 7455 DUBLIN CALIFORNIA IIIAO Y&SOmP$ jCIVI'L ENG'NEER1NGeLAND PLANNINGeLAND SURVEYING Pleosonton, CA (925) - 225.0690 I DRAWN ' DATE t SCALE IJOB NO' DNL 105/27/05 1"=100' 16054-1t 60.34 = 1 l~plonnlng'~Plot$,dwg Exhibit B ADDITIONAL CONDITIONS This Exhibit B contains Additional Conditions imposed pursuant to Section 5.3 of the Development Agreement ("Agreement"), by and between the City of Dublin, a Municipal Corporation ("City") and Chang Su-O-Lin and Hong Lien Lin (collectively, the "Developer") dated as of August 15, 2003. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement. 5.3.1 Subsequent Discretionary Approvals None. 5.3.2 Mitigation Conditions A. Infrastructure Sequencinq Proqram. The infrastructure sequencing program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) identified in Resolution No. 03-31 of the City of Dublin Planning Commission approving the Vesting Tentative Map for Tract 7453 and the City Council Resolution No. 149-03 approvin9 the Site Development Review (hereafter "TM and SDR Resolutions"), and those described below shall be completed by Developer to the satisfaction of the City Engineer at the times and in the manner specified in the TM and SDR Resolutions unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of City's Engineer. -Condition 24 [Dublin Boulevard/Douqhert¥ Road Intersection Improvementsl: Condition 24 of Planning Commission Resolution No. 03-31 reads as follows: Intersection of Dougherty Road & Dublin Blvd. In the event that the City does not have sufficient Category 2 Eastern Dublin Traffic Impact Fee (TIF) funds available, Developer shall advance the City monies for the costs of design, right-of-way acquisition and construction of the City Capital Improvement Project at the Dublin Boulevard/ Dougherty Road intersection. The amount of money Development Agreement - Exhibit B Page 1 of 12 Fairway Ranch 628317-14 to be advanced will be determined by the City Engineer based on the Project's fair share of the deficiency. Such payment is to be made within 30 days of written notice from the City Engineer. City shaft provide a credit to the Developer for Category 2 TIF for any monies advanced pursuant to this condition. The City's Administration Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99) shall govern all aspects of the credit. 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 the costs of design and construction of Dublin Boulevard/Dougherty Road Intersection Improvements and the cost of such project, as determined by the Public Works Director. 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 24 shall survive termination of this Agreement. (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. Development Agreement- Exhibit B Page 2 of 12 Fairway Ranch 628317-14 (iv) Storm Draina.qe The storm drainage systems off site, as well as on site drainage systems to the areas to be occupied, shall be improved consistent with the Dublin Ranch Master Drainage Plan and the tentative map conditions of approval and to the satisfaction of the City Engineer (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. B. Miscellaneous (i) Completion of Public Improvements May Be Deferred. Notwithstanding the foregoing, City's Engineer may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the City Engineer 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. 5.3.3 Phasinq; Timinq This Agreement does not require the Developer to commence or complete development of the Project within any period of time set by City. Subject to the following requirements, Developer shall be permitted to develop the Property in accordance with its own time schedule, consistent with the Project Approvals. Notwithstanding anything to the contrary contained in this Agreement or in the Project Approvals, it is expressly understood and agreed that: (A) the City shall not issue any building permits for any buildings or structures within the Condominium Component of the Project unless (i) certificates of occupancy have been issued for all units comprising either the Multifamily Component or the Senior Housing Component of the Project and the affordable units to be constructed as part of the Multifamily Component or the Senior Housing Component of the Project have been constructed and made available for occupancy by eligible households at affordable housing cost in accordance with the requirements specified in the Regulatory Agreements or (ii) Developer and City have entered into an enforceable agreement that restricts occupancy of units within the Condominium Component to provide for 19 moderate income units, eight Iow-income units and eleven very-low income units; and (B) if Developer constructs the Multi-Family Component or the Senior Housing Component in phases, each such phase shall include affordable units which are available for Development Agreement- Exhibit B Page 3 of 12 Fairway Ranch 628317-14 occupancy to eligible Iow, very Iow-, and moderate-income households in such numbers as shown on Sheets A-3 to A-6, A-11, A-12, A-14, A-15, A-19 to A-23, and A-24 to A-27 on Exhibit 1 of City Council Resolution No. 149-03 approving Site Development Review. The provisions of this Section 5.3.3 shall survive the expiration of the term of this Agreement. 5.3.4 Financin(~ Plan Developer shall install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in Section 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 has entered into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Sections 5.3.2(A)(ii) and (iii) above. Pursuant to the terms of that certain Loan Commitment letters executed by City with an effective date of July 1,2003 ("Loan Commitment"), and provided that Developer and the borrower under said Loan Commitment have complied with all terms and conditions of the Loan Commitment, City shall provide a loan to Developer to provide partial financing for construction of the Project's affordable units. 5.3.5 Fees, Dedications 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 1/Category 1" portion of the TIF in cash. Developer also agrees that it will pay 12.4% of the "Section 2/Category 2" portion of the TIF in cash. If City amends its TIF fee and as a result the City's outstanding balance due on loans is less than 12.4% of total Section 2/Category 2 improvements, the Developer shall pay such reduced percentage of the "Section 2/Category 2" portion of the TIF in cash. Development Agreement- Exhibit B Page 4 of 12 Fairway Ranch 628317-14 Developer may use any credits it has for payment of the balance of the TIF in accordance with City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 "TIF Guidelines"). 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. C. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the then-current amount of the fee. Developer may use the credits for payment of the Community Park Land portion of the Public Facilities Fee granted to the Lin Family by the Master Development Agreement in accordance with City's Public Facilities Fee Guidelines (Resolution 195-99). D. Noise Mitiqation Fee. Developer shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. E. SchoollmpactFees. School impact fees shall be paid by Developer in accordance with California Government Code Section 53080 and the agreement between Developer and the Dublin Unified School District regarding payment of mitigation fees. F. Fire Impact Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Development Agreement- Exhibit B Page 5 of 12 Fairway Ranch 628317-14 Developer may use any credits it has for payment of the fire facilities fee, provided credits for improvements, land and equipment may only be used to satisfy payment of the same components of the fire facilities fee. G. Tri-Valley Transportation Development Impact Fee. Developer shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. 5.3.6 Credit 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"). 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 described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. 5.3.7 Miscellaneous A. Affordable Units In accordance with the City's Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68 attached as Exhibit C hereto), the City's Density Bonus Ordinance (Dublin Municipal Code Chapter 8.52) and the Regulatory Agreements and Conditions, Covenants and Restrictions (or deed restrictions) to be recorded against the Property, Developer shall ensure that 587 housing units constructed as part of the Project shall be available for a period of not less than 55 years to households of very Iow, Iow- and moderate-income at affordable housing cost, all as more particularly described in Recital E of the Agreement and in the Loan Commitment. Development Agreement- Exhibit B Page 6 of 12 Fairway Ranch 628317-14 Notwithstanding the definitions contained in the Inclusionary Zoning Ordinance, as used in this agreement "low income" means not more than 60% of the median income, adjusted for actual household size B. Credits for Certain Affordable Units (i) Affordable Units Upon Completion. Upon completion of the entire Project in accordance with the SDR and this Agreement, Developer will have provided affordable units, as defined in City's Inclusionary Zoning Regulations, in the following income categories: Multifamily Component --90 moderate income units --90 Iow income units --63 very Iow income units Senior Housing Component --131 moderate income units --97 Iow income units --64 very Iow income units Condominium Component -52 moderate income units Upon completion the entire Project in accordance with the SDR and this Agreement (i) Developer will have satisfied the Inclusionary Zoning Regulations for all three components by providing in the aggregate 46 moderate-income units, 19 Iow-income units and 28 very Iow-income units, for a total of 93 affordable units (hereinafter "Project Affordable Units"); (ii) Developer will receive credit (hereinafter "Affordable Unit Credits") pursuant to Section 8.68.060 of the Inclusionary Zoning Regulations for 332 affordable units; and (iii) Developer will have provided an additional 162 affordable units (hereinafter "Excess Affordable Units") in consideration for which the City has agreed to provide certain incentives and waivers consisting of: (a) a finding that Developer has fully complied with the City's Inclusionary Zoning Regulations for the Project by providing 46 moderate-income units, 19 Iow-income units and 28 very Iow- income units in the sizes shown on Sheets A-3 to A-6, A-11, A-12, A-14, A-15, A-19 to A-23, and A-24 to A-27 on Exhibit 1 of City Council Resolution No. 149- 03 approving Site Development Review, (b) 332 Affordable Unit Credits which can be used to comply with the Inclusionary Zoning Regulations on the Affordable Unit Credit Property as described in Exhibit E as such regulations currently exist or as hereinafter amended for a maximum of 2,655 units, notwithstanding the mix of the affordable units, number of bedrooms or concentrations of such units on such Property, (c) a loan, and (d) a commercial linkage fee waiver (as described in Section 5.3.7.C.) Development Agreement- Exhibit B Page 7 of 12 Fairway Ranch 628317-14 (ii) Phased Construction. City and Developer recognize that it is likely that the three components of the Project will be constructed at different times and that each component includes several buildings for which individual building permits will be issued. In particular, the Multifamily Component consists of five buildings, three of which will be residential; the Senior Housing Component consists of five residential buildings, and the Condominium Component consists of five buildings, three of which are residential. (iii) Required Affordable Units. Upon issuance of certificates of occupancy for each building within the Project, the affordable units provided therein shall be allocated first to satisfy the Developer's obligation to provide 93 Project Affordable Units. In particular, upon issuance of a certificate of occupancy for buildings in the Multi-Family Component, the first 18 moderate-income units, the first nine (9) Iow-income units and the first 15 very Iow-income units will be counted toward the Project Affordable Units. Upon issuance of certificates of occupancy for buildings in the Senior Housing Component, the first 20 moderate-income units, the first ten (10) Iow-income units and the first 14 very Iow-income will be counted as Project Affordable Units. Finally, in the Condominium Component, the first seven (7) moderate-income units will be counted as Required Affordable Units. Developer's obligation to provide moderate-income units may be satisfied by Iow-income or very Iow-income units and the obligation to provide Iow-income units may be satisfied by very Iow-income units, provided such substitutions shall not relieve Developer from its obligation to provide the total required units. (iv) Affordable Unit Credits. Once Certificates of Occupancy have been issued for all of the Project Affordable Units, whether in the Senior Housing Component or the Multi- Family Component, thereafter each additional affordable unit in any building for which a certificate of occupancy is issued shall entitle Developer to an Affordable Unit Credit provided Developer shall be entitled to no more than 332 Affordable Unit Credits. The Affordable Unit Credits shall be evidenced by an "Affordable Unit Credit Certificate" in a form substantially similar to the form attached as Exhibit D, which shall be executed by the City Manager within ten (10) working days of the issuance of the certificate of occupancy, provided that Developer is in compliance with all requirements of this Agreement, the Regulatory Agreements and the Loan Agreement. The purpose of the Affordable Unit Credit Certificate is to allow the City and Developer to monitor the creation of such credits. Development Agreement- Exhibit B Page 8 of 12 Fairway Ranch 628317-14 (v) Use of Affordable Unit Credit Developer may apply the Affordable Unit Credits to satisfy the requirements of the Inclusionary Zoning Regulations as now in effect or as hereafter amended for any residential development consisting of up to a maximum of 2,655 [3,399 - 744 - 2,655 x 12.5% - 331.8] units on the Affordable Unit Credit Property shown on Exhibit E. (vi) Determination of Affordable Unit Obliqation on Affordable Unit Credit Property City shall determine the number of affordable units required for each residential development proposed for development on the Affordable Unit Credit Property at the earliest to occur of the time of tentative map approval, conditional use permit or site development review by reference to the Inclusionary Zoning Regulations attached as Exhibit C to determine the number of affordable units required for each such residential development, and provided Developer has a sufficient number of Affordable Unit Credit Certificates for the number of such required affordable units, City shall not require compliance with the Inclusionary Zoning Regulations for such development. The payment of in- lieu fees will not be allowed for any residential development project on the Property or the Affordable Unit Credit Property. If Developer has not earned Affordable Unit Credit Certificates in sufficient number to provide the required number of affordable units required for such residential development, provided that a building permit has been issued for any building within the Project that will include affordable units that will be counted toward the Affordable Unit Credits, Developer may obtain an Affordable Unit Credit Certificate by providing a bond or letter of credit in the amount of the then-current in-lieu fee established by the Council pursuant to section 8.68.040.A of the Inclusionary Zoning Regulations, which security shall be released by City upon issuance of a certificate of occupancy for the secured affordable unit. If Developer has not earned or obtained Affordable Unit Credit Certificates in sufficient number to provide the required number of affordable units required for a proposed residential development, Developer shall be required to comply with the inclusionary zoning requirements then in effect prior to Site Development Review approval, including the requirement of section 8.68.050.A of the Inclusionary Zoning Regulations for an affordable housing agreement. Alternatively, Developer may withdraw its application for Site Development Review approval until Developer has sufficient Affordable Unit Credit Certificates to provide the required number of affordable units for the residential development project. Development Agreement- Exhibit B Page 9 of 12 Fairway Ranch 628317-14 (vii) Dublin Ranch Area F North Notwithstanding the foregoing, City agrees to determine the number of affordable units required for any residential development project on the property shown on Exhibit E, known as "Area F North," at the time of issuance of the first building permit for any residential building in Area F North. City shall determine whether Developer has provided the Required Affordable Units pursuant to Section 5.3.7.B (iii) above for Area F North at the time of issuance of building permits for Project buildings, rather than Certificate of Occupancy. City shall not issue a building permit for any building in Area F North until Developer has Affordable Unit Credit Certificates equal in number to 12.5% of the number of units proposed in Area F North, as calculated pursuant to the Inclusionary Zoning Regulations. (viii) Limitation Use of Credits Any residential units proposed to be constructed on the Affordable Unit Credit Property in excess of 2,655 units shall be subject to the City's Inclusionary Zoning ordinance in effect at the time of application. Unused Affordable Unit Credits will expire thirty (30) years after the date of execution of the Affordable Unit Credit Certificate creating such credit. In the event the State of California enacts legislation that requires a greater percentage of affordable units on the Affordable Unit Credit Property and City and Developer determine such legislation would be applicable to the Affordable Unit Credit Property, City and Developer will meet in good faith in an effort to carry out this Agreement to the extent possible. (ix) Development on Affordable Unit Credit Property Nothing in this Agreement shall impose a limit on the development of residential units on the Affordable Unit Credit Property, nor shall this Agreement be construed as a guarantee that Developer can develop 2,655 residential units on the Affordable Unit Credit Property. C. Exemption from Commercial Linkaqe Fee Provided that: (a) certificates of occupancy have been issued for all residential units and all affordable units required to be constructed as part of the Project pursuant to the Agreement, and (b) Developer and its successors in interest are in compliance with all requirements of this Agreement, the Regulatory Agreements (and Conditions, Covenants and Restrictions or deed restrictions) and the Loan Agreement, the property described in Exhibit F attached hereto and incorporated herein by reference shall, during the period commencing on the date that all of the foregoing conditions have been met, and Development Agreement- Exhibit B Page 10 of 12 Fairway Ranch 628317-14 continuing until the thirtieth anniversary of the Effective Date of the Agreement, be exempt from any commercial linkage fee or similar fee that the City may adopt which requires payment of a housing fee in connection with the development of such property for commercial use. Upon satisfaction of both of the foregoing conditions, City agrees to record, and Developer consents to recordation of, a document against the property described in Exhibit F acknowledging such property shall be exempt from any such fee until the thirtieth anniversary of the Effective Date. In the event that Developer or Developer's successor in interest seeks approval to develop the property described in Exhibit F .prior to the date upon which both of the foregoing conditions have been met, then Developer shall be obligated to pay such commercial linkage or similar fees to City; however, City shall refund such fees to Developer on the date that the foregoing conditions are met, together with interest on such fees at the rate actually earned by City during the time the fees are held by City, less an administrative charge for processing such refund in an amount equal to one percent of the refund amount. Provided, however, that if a building permit has been issued for any building within the Project that will include affordable units that will be counted as Affordable Unit Credits, in lieu of paying such fees to City, Developer may provide the City with an irrevocable letter of credit with a term of 12 months in the amount of the commercial linkage fee applicable to such development, which the City shall release upon issuance of a Certificate of Occupancy for the secured affordable units if a Certificate of Occupancy is issued within eleven (11) months of the date of the letter of credit. If a Certificate of Occupancy is not issued for such secured affordable units within such time period, City shall draw on the letter of credit; provided however, if Developer or its successors in interest are in compliance with all requirements of this Agreement, the Regulatory Agreements and the Loan Agreement, City shall return such funds to Developer on the date of issuance of such Certificates of Occupancy, less an administrative charge for processing such refund in an amount equal to one percent of the refund amount. D. Shuttle Service. Except as provided below, Developer shall provide a shuttle service for residents of the Project for 10 years from the date of issuance of the first Certificate of Occupancy for the Project. The shuttle service shall be in accordance with the plan for service approved by the City's Community Development Director and shall outline the type and number of shuttles which will provide transportation for the residents of the Project; the shuttle schedule, route, and hours and days of operation; and, other necessary details as determined by the Community Development Department. Developer shall provide a shuttle service for the Senior Housing Component for 30 years from the date of issuance of the first Certificate of Occupancy for the Senior Housing Component. Development Agreement- Exhibit B Page 11 of 12 Fairway Ranch 628317-14 E. Survival. The provisions of this Section 5.3.7 shall survive the expiration of the term of the Agreement. Development Agreement- Exhibit B Page 12 of 12 Fairway Ranch 628317-14 Exhibit C INCLUSIONARY ZONING REGULATIONS; DUBLIN MUNICIPAL CODE CHAPTER 8.68 '~' ' ' 1NCLUSIONARY ZONING REGULATIONS Chapter 8.68 CHAPTER 8.68 I~'CLUSIONAR¥ ZONING REGULATIONS ' ~ 8.68,010. Purpose, The purpose of this chapter is to: A. . enhance the public welfare and assure that further housing development contributes to the attainment of the CitY's housing goals by increasing the production of residential units affordable by households of very-low-; Iow,, and moderate income. B. assure that the limited remaining developable land in the City's planning area is utilized in a manner consistent with the City's housing policies and needs. 8,68,020. Definitions. As used in this chapter, each ofthe'following terms shall be defined as follows: A. "Affordable Unit" means a~ ownership or rentai-housing unit, including senior housing, affordable to households with very-low-, low-, or moderate incomes as defined in this chapter. 1. Rental units are deemed affordable units if the annual rent does not exCeed 3 0% of maximum income level for very-low-, low-, and moderate-inCome households, adjusted for household size and as' defined below. 2. Owner-occupied units are deemed affordable units if the sales price results in.annual housing expenses that do not exceed 35% of maximum income level for very-low-, low-, and moderate-income households, adjusted for household size and as defined below. B. "Applicant" means any person, firm, parmership, association, joint venture, corporation, or any " entity or combination of entities that seeks city real property development permits' or approvals. C. "Dwelling unit" means a dwelting designed and intended for occupancy by one household. D. "Very-low-, low-, and moderate-income levels'; means those income and eligibility levels 'determined periodically by the Califorrfia Department of Housing and Community Development based on Alameda County median income levels adjusted for family size. Such levels shall be calculated on the basis of gross annual household income considering household size and number dependents, income' of ail wage earners, elderly or disabled family members, and ali other sources household.income and Will be recertified as set forth by local standards, and state and federal housing law. 1. "Ve~-t0W income" means 50% or tess of the median income, adjusted for actual household size. 2.' "Low income" means more than 50% to 80% of the median income, adjusted.for actual-' household size. 3. "Moderate income" means more than 80% to 120% of the .median income, adjusted for actua~ household size, E. "Resale controts and/or rent restrictions" means legal restrictions by which the affordable mails shall be restricted to ensure that the unit remains affordable to very-tow:, low-, or moderate-income C~ty of Dub/in Zonin~ Ordinance 68-~ September, Revised=January 2003. -. .... . .................. Cha. Pter 8.68 and're, ay hax{e fewer amenities than the market rate units in ~'Project. All affordable units shall be rea~or~ably dispersed.t~oughout the.project. ,t,68.040. Exceptions to 12,5% Affordability Requirement. Developers of projects subject to 8.68.030.A shall construct 12.5% of the total, number of dwelling units, within the development as affordable unitsi unless subject to an exception set forth in this section. AI.i exceptions require City Council approval, which sMI1 be obtained at or prior to the l~t discretionao~ approval for the project. A. Payment of Fees In-Lieu of Creation of Affordable Units. Upon request of the applicant, the City Council Shall permit the applicant to pay a fee in l'ieu of constructing up to 40 percent of the affordable units that the developer would, otherwise be required to construct pursuant to section 8.68.030.A. The amount of.the fee shall be as set forth in aresolution of. the City Council, which may be amended from time to time to reflect inflation and changed conditions in the City and the region. In-lieu fees shali be paid at and the time and in the amount set forth in the in-lieu fee resolution in effect at the time of issuance of the building permit. B. Off-Site Projects. An applieant may construct the affordable units not physically within the development in lieu of constructing some or ail of the affordable units within the development, with the approval of the City Council, if the City Council' finds: . 1. that..construction of the units off-Site in lieu of constructing units on-site is consistent with the chapter's goal of creating, preserving, maintaining, and protecting housing for very low-, low2 .~ .and moderate-income'households. 2. that the mzits to be const~mcted off site are consistent with section 8.68.0'30.E above 3. that it would be infeasible or impractical to construct affordable units on-site. 4. that conditions of approval for the proj eot require that the off-site affordable units would be governed by the terms of a deed restriction and, if applicable, rental restrictions similar to that used for the on-site affordable units. · 5. that the conditions of approval for the project, or other security such as a cash deposit,.bond; or tetter of credit, are adequate to require the construction of the off-site affordable -units concurrently with the completion of the construction of the residential development or witkin a reasonable period (not to exceed. 5 years). C. Land Dedication. An applicant may dedicate land to the City or City-designated local housing devel¢ifer in lieu of construction of some or ali of the required affordable units, if the council finds that: t. that dedication of land in-lieu of constructing units is consistent with the ~hapter's goal of creating, preserving, maintaining, and protecting housing for ve~-low, iow- and moderate- income households. .2. that the dedicated land is large enough and appropriately zoned to accommodate the number of units that the applicant would otherwise be required to construct by section 8.68,030.A, is useable for ks intended purpose;' is free of toxic substances and contaminated soils, and is City of Dublin Zoning Ordinance 68-3 September, t 997 · Revised=January 2~3 INCLUSlONARY ZONING REGULATIONS .................................... .~L ~'~ ~ ~O Chapter 8,68 the event of the gale of an affordable unit, the City shall t/ave the right to purchase any affordable owner-occupan~ unit at the maximum price that could be charged to an eligible household. · .'D. Selection Criteria. No household shall be permitted to occupy a unit that is required under this chapter to be' affordable unless the City or its designee has approved the household's eligibility, Eligible potential occupants of'affordable units will be qualified on the basis of household income, the median combined household income statistics for Alameda County published periodic'ally by the California.Department of Housing and Community Development, ali sources of hoUsehold income- and assets, the. relationship between household size and the size of available units, and.any furhher criteria required by law, The developer shall use an equitable selection method established in conformance with the terms of this chapter. The SeleCtion criteria may not distinguish between adults and children. Selection of qualified person should be based on priorities established in the City's Affordable Housing Program as noted below: , Employed within the boundaries of the City of Dubtin (3 points, one per household) , Public Service employee working in the City of Dublin (1 additional point) [] Dublin resident (3 points, one per household) · Seniors (1 point, one per household) _ · ..... Pennanently disables (1 point, one per household) To quali~y as "Employed within the boundaries of the City of Dublin," the person shall have been employed with 'the' City of Dublin for at least six months. To qualify as a "Dublin resident," the person shall have been a resident of the City of Dublin for at least a one-year period prior to the eligibility determination. 8.68.060. Affordable Unit Credits. ' A. CreatiOn, Affordable unit credits may be created by the City Council. One affordable unit credit certificate shall be issued for each affordable unit constructed in excess of the number of affordable units ~eqUired to be constructed for the project by Section g.68.030.A. The certificate shall designate a specific income category (i.e., Very-Iow-, low-, or moderate income) and number of bedrooms for which they are issued. B. Ownership and use of credits,. Affordable unit credit certificates are issued to and become the possession of the project owner, who may then use them to satisfy the requirements of this chapter for another project in the City. I£ a project owner proposeS.to sell'credit certificates, the parties, shall £trst obtain the consent of the Community Development Director, who will document the trangfer by certificate nUmber. 8.68.070. Incentives to Encourage On-Site Constrnetion of Affordable Units. The City may, but shali not be required to, offer incentives or financial assistance to encourage the On-site construction affordable units in excess of 12.5% of the total number of units in the project to the extent resources for this purpose are available and approved for such use by the City Council or City Manager. Such incentives may include, but shall not. be limited to, the following: C~ty of Dub/in Zoning Ordinance 68-~ September~ ~ ~97 Re~/sed=JanUary INCLUStONARY ZONING REGULATIONS '8,68.100. Enforcement. . A. General. The' City Manager shall enforce this chapter, and its provisions shall be binding on ali agents, successors, and assigns of an applicant~ The City Manager maY suspend or revoke'any · building permit or approval upon finding a violation of any provision of this ct4apter. No land-use approval, building permit, or certificate of occupancy shall be issued for any residential development unless exempt from Or in compliance with this chapter. The City may institute any appropriate legal.· actions or prOceedings necessary to ensure compliance herewith, including, but not limited to, actions ' to revoke, deny, or suspend any permit or development approval. ]3. EXcessive rents/legal, action; If the City Manager determines that rents in excess of those allowed by operation of this chapter have been charged to a tenant residing in an affordable unit, the .City may take ·appropriate legal, action to recover, and the project owner shall be obligated to pay to the tenant, or to the City in the event the tenant cannot be located, any excess rents cha~ged. 8.68.110. .ApPeals. Decisions of the City Manager Under this Chapfer may be appealed as provided Chapter 8. t 36. City of Dublin Zoning Ordinance 68-7 September, 19S7 Revised=January 20~3 Exhibit D AFFORDABLE UNIT CREDIT CERTIFICATE Credit No. ~ ~ ,;~ 3~, ~ CITY OF DUBLIN AFFORDABLE UNIT CREDIT CERTIFICATE This Certificate is awarded by the City of Dublin ("City") to the Lin Family (Chang Su- O-Lin, Hong Lien Lin and Hong Yao Lin) ("Developer") pursuant to the Fairway Ranch Development Agreement dated between the City and the Developer. By virtue of having constructed affordable housing in the Fairway Ranch Project, Developer is entitled to an affordable unit credit in the amount of units. This certificate is effective as of , the date the certificate of occupancy was issued for (address and building number). The credit certificate will terminate on , which is thirty (30) years after its effective date. Developer may use these credits to satisfy the requirements of the Inclusionary Zoning Regulations for any residential development consisting of up to a maximum of 2,655 units in the Affordable Unit Credit Property (Exhibit E of the Fairway Ranch Development Agreement), provided that Developer is in compliance with all requirements of the Fairway Ranch Development Agreement, the Regulatory Agreements and the Loan Agreement referenced in such development agreement. All other aspects of the credit which are not specified in this Credit Certificate shall be as provided in the Fairway Ranch Development Agreement and Inclusionary Zoning Regulations which are attached to such agreement as Exhibit C. CITY OF DUBLIN Date City Manager Exhibit E AFFORDABLE UNIT CREDIT PROPERTY Exhibit F PROPERTY EXEMPT FROM COMMERCIAL LINKAGE FEE Legend: ~':'" - /  -~ Affected Property Exhibit F: property Exempt Fr6m com'merci~llLinka,qe~ Fee Dublin Ranch ~Yl~ ~"~'~ '~'~"¢~"~¢~ ~'~ '~'~' illuslratJons~DR~ FW. Exh.F.Ccmm Lir~mpt pkFee~ xe- MspI44\C\160;34\photo Recording 'requested by and when recorded, return to: City of Dublin 100 Civic Plaza Dublin, CA 94565 Attn: City Clerk Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETVVEEN THE CITY OF DUBLIN AND Chang Su-O-Lin and Hong Lien Lin DUBLIN RANCH SENIOR HOUSING COMPONENT TH IS DEVELOPMENT AGREEMENT (this "Agreement"), dated for reference purposes as of July 15, 2003, is entered into by and between the City of Dublin, a Municipal Corporation ("City"), and Chang Su-O-Lin and Hong Lien Lin ( collectively, the "Developer"). City and Developer are hereafter collectively referred to as the "Parties." RECITALS A. California Government Code Section 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. B. Developer holds legal interest in certain real property (the "Property") consisting of approximately 6.9 acres of land, located in the City of Dublin, County of Alameda, which property is designated as Parcel 1 on Tentative Tract Map No. 7453 and which is more particularly described in Exhibit A attached hereto. C. The Dublin City Council ("City Council") adopted the Eastern Dublin Specific Plan ("Plan") by Resolution No. 53-93 which Plan is applicable to the Property and requires the developer of the Property to enter into a development agreement with City. D. The Developer and City are parties to that certain 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"), which agreement requires the developer of the Property to enter into this development agreement with City, provided that such development agreement does not impair any developer's rights under the Master Development Agreement. E. Developer proposes to develop the Property for senior housing (the "Senior Housing Component") which shall consist of 322 multi-family rental units, of which 292 units shall be affordable units available at affordable rents to households of very Iow, Iow and moderate-income pursuant to the City's Inclusionary Zoning Ordinance (Chapter 8.68) (the "Project"). As more particularly described in the Affordable Housing Regulatory Agreement executed or to be executed by and between City and Developer ("Regulatory Agreement") and Conditions, Covenants and Restrictions (or deed restrictions) to be recorded against the Property, the Developer and its successors in interest shall be required to maintain the affordability of the affordable units and the availability of such units to households of the specified income levels for not less than 55 years. Development Agreement Page 1 of 17 Fairway Ranch Senior Housing Component 633098-5 F. Developer has applied for, and City has approved or is processing, various land use approvals in connection with the development of the Project. Developer has also applied for, and City has approved or is processing, similar land use approvals in connection with the development of Parcels 2 and 3 of Tract 7453. The land use approvals for the Senior Housing Component include Tentative Tract Map for Tract 7453 (Planning Commission Resolution No. 03-31), and a density bonus of 68 units and site development review (City Council Resolution No. 149-03 (collectively, the "Project Approvals"). G. Developer and City have entered into a development agreement that, among other things, addresses phasing of development for Parcel 1 (Senior Housing Component), Parcel 2 (Multifamily Component) and Parcel 3 (Condominium Component) of Tract 7453 (the "Fairway Ranch Development Agreement"). Developer and City have also entered into development agreements specifically for the Multi-Family Housing Component and the Condominium Component (the "Component Development Agreements"). H. City desires the timely, efficient, orderly and proper development of the Project, and City and Developer desire to facilitate development of the Project in accordance with and subject to the terms and conditions set forth herein. I. The City Council has reviewed and evaluated this Agreement in accordance with Chapter 8.56, and has found that this Agreement is consistent with the City's General Plan and the Eastern Dublin Specific Plan. J. Pursuant to the California Environmental Quality Act (CEQA), the City Council adopted Resolution No. 149-03 finding that the Project is exempt from CEQA pursuant to Government Code §65457. In making such determination and determining that there are no supplemental impacts that would require preparation of a Supplemental EIR, the City prepared an Initial Study which found that the environmental impacts of the Project were addressed by the Negative Declaration approved by the City Council by Resolution No. 140-97 for the Planned Development Rezoning for 453 acres of Dublin Ranch which includes the Property and the Project and the 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 May4, 1993 and August 22, 1994 (collectively, the "EIR"). K. On July 15, 2003, the City Council adopted Ordinance No. approving this Agreement. The ordinance took effect on August 15, 2003. NOW, THEREFORE, with reference to the foregoing recitals and inconsideration of the mutual promises, obligations and covenants herein contained, City and Developer agree as follows. Development Agreement Page 2 of 17 Fairway Ranch Senior Housing Component 633098-5 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 ("Effective Date") is August 15, 2003, which is the effective date of City Ordinance No. ., adopting this Agreement. 4.2 Term. The term of this Agreement shall commence on the Effective Date and shall terminate on the fifth anniversary of such date, unless this Agreement is otherwise terminated or extended pursuant to the terms hereof. Notwithstanding anything to the contrary contained herein or in the Site Development Review approval: (i) the Site Development Review approval shall remain effective for five years following the Effective Date of this Agreement, and (ii) provided that certificates of occupancy have been issued for either the entire Multi-Family Component or the entire Senior Housing Component prior to expiration of the term of this Agreement, the Site Development Review approval (Resolution No. 149-03) shall remain effective until the tenth anniversary of the Effective Date. 4.3 Optional Extension. Prior to the termination of this Development Agreement, as provided in Section 4.2, Developer may extend the term of the Development Agreement. To do so, Developer shall give City written notice at least 90 days prior to the termination date of the Development Agreement. At the time Developer provides such notice, Developer shall make a contribution to City in the amount of One Hundred Thousand Dollars ($100,000). Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the Developer in writing that the term of the Development Agreement has been automatically extended for an additional one-year period, commencing Development Agreement Page 3 of 17 Fairway Ranch Senior Housing Component 633098-5 on the date the Development Agreement would otherwise have terminated. The Developer may exercise its option to extend the Development Agreement no more than five times, for a maximum total term of the Development Agreement of ten years. The total contribution for the maximum extension of five years will be Five Hundred Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this Section, if Developer has provided the notice and contribution to extend one of the Component Development Agreements, Developer shall not be required to provide the $100,000 contribution to extend the term of this Development Agreement and this Agreement will automatically be extended to be coterminous with such Component Development 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, and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by City) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto. 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 and any other approvals required by other regulatory agencies.) None 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 Development Agreement Page 4 of 17 Fairway Ranch Senior Housing Component 633098-5 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. 6.1 Rules Regarding 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, the 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 hereof. 6.2 Rules Regarding Design and Construction. Unless otherwise expressly provided in Section 5 or Exhibit B attached hereto, 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 on the Effective Date hereof. 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 the applicable permit approval is granted. 6.3 Uniform Codes Applicable. Unless otherwise expressly provided in Section 5 or Exhibit B attached hereto, 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. Development Agreement Page 5 of 17 Fairway Ranch Senior Housing Component 633098-5 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 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 discretionary land use approval for the Project on the basis of the ordinances, resolutions, rules, regulations and policies in effect at the time of such approval. 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in California Government Code § 8558. 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1 Fees, Exactionsl 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, Section 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 Development Agreement Page 6 of 17 Fairway Ranch Senior Housing Component 633098-5 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 California Constitution, and Developer does not return its ballot, Developer agrees, on behalf of itself and its successors, that City may count Developer's ballot as affirmatively voting in favor of such assessment, fee or charge. 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the Effective Date 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 and in accordance with the procedures of state law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of Section 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in Section 4.2; (b) the permitted uses of the Property as provided in Section 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; (g) monetary contributions by Developer; (h) the affordable housing units to be constructed as part of the Project (including without limitation, the number, location, size, affordability level, or timing of the construction of such units); (i) public improvements to be constructed by Developer; (j) the accrual or use of Development Agreement Page 7 of 17 Fairway Ranch Senior Housing Component 633098-5 the Affordable Unit Credits described in Section 5.3.7B of Exhibit B; or (h) the exemption from Commercial Linkage Fee described in Section 5.37.C of Exhibit B 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; (g) public improvements to be constructed by Developer; (h) the affordable housing units to be constructed as part of the Project (including without limitation, the number, location, size, affordability level, or timing of the construction of such units); (i) the accrual or use of the Affordable Housing Credits described in Section 5.3.7B of Exhibit B; or (j) the exemption from Commercial Linkage Fee described in Section 5.3.7C of Exhibit B shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the Parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Section 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 tentative tract map described in Recital F 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 or Section 4.2. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2004 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 Development Agreement Page 8 of 17 Fairway Ranch Senior Housing Component 633098-5 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 this Agreement. The Developer shall have the burden of proving such compliance by substantial evidence. 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 relating to this Agreement 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 hereunder, the Parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either Party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damages Against City. Notwithstanding anything to the contrary contained herein, 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 the other Party to provide a written certification 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 amended, identifying such amendments in the certification, and (c) to the knowledge of the certifying Party, the requesting Party is not in default in the performance of its obligations under Development Agreement Page 9 of 17 Fairway Ranch Senior Housing Component 633098-5 this Agreement, or if in default, to describe in the certification the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certification within thirty (30) days following the receipt of such request, or such longer period as may reasonably be agreed to by the Parties. City Manager of City shall be authorized to execute any certification requested by Developer. Should the Party receiving the request not execute and return such certification within the applicable period, this shall not be deemed to be a default, provided 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. Any request by Developer for a written certification to a third party shall be accompanied by payment to City of a fee for such certification in an amount established by the Council from time to time. 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, the purchaser at any trustee's sale or foreclosure sale shall not be liable for any violation hereof occurring prior to the acquisition of title by such purchaser but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 14.1, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to Mortgagee and Extension of Right to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Development Agreement Page 10 of 17 Fairway Ranch Senior Housing Component 633098-5 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 Section 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 provision, covenant, condition or term of this Agreement shall not render the other provisions hereof unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If City or Developer initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the Parties shall cooperate in defending such action. Developer shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse City for all reasonable court costs and attorneys' fees expended by City in defense of any such action or other proceeding. 17. Transfers and Assignments. 17.1 Right to Assign. Developer may wish to sell, transfer or assign all or portions of its Property to other developers (each such other developer is referred to as a "Transferee"). In connection with any such sale, transfer or assignment to a Transferee, Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer which arise hereunder and pertain to the portion of the Property being sold or transferred to such Transferee; provided, however that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur by operation of law or otherwise absent prior written notice to City and written approval thereof 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 proposed transfer, sale or assignment of Developer's rights, interests and obligations hereunder within ten business (10) days following receipt of Developer's notice, provided all documents, certifications and other information reasonably requested by City are provided to the City Manager to enable the City Manager to determine whether the proposed Development Agreement Page 11 of 17 Fairway Ranch Senior Housing Component 633098-5 Transferee can perform the Developer's obligations hereunder. Notice of any such approved sale, transfer or assignment (including 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 this Section 17, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to this Section 17, b) such obligations are expressly assumed by Transferee, and (c) such Transferee shall be subject to all the provisions hereof and shall provide all documents, certifications and other information reasonably requested by City prior to City Manager approval pursuant to this Section 17. 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 third-party deed of trust encumbering Developer's interest in the Property shall not require City Manager approval pursuant to this Section 17. However, any subsequent transfer, sale or assignment by such Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of this Section. 18. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement (with the exception of City's obligation to provide financing to Developer pursuant to the Loan 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 ~aw or in any manner whatsoever. All of the provisions of this Agreement shall constitute covenants running with the land pursuant to applicable laws. Each covenant to do, or refrain from doing, any act on or with respect to the Property pursuant to this Agreement: (a) is for the benefit of or is a burden upon the Property, (b) runs with the land, and (c) is binding upon the Developer and each successive owner during its ownership of the Property or any portion thereof. 19. Bankruptcy. The obligations of Developer under this Agreement shall not be dischargeable in bankruptcy. Development Agreement Page 12 of 17 Fairway Ranch Senior Housing Component 633098-5 20. Indemnification; Prevailing Wages. 20.1 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 Property and the Project, provided that Developer shall have no indemnification obligation with respect to the gross negligence or willful misconduct 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). 20.2 Prevailin_q Wages. The Parties acknowledge that the Project or phases of it are intended by Developer to be exempt from California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto ("Prevailing Wage Laws") by virtue of Labor Code Section 1720(d). If for any reason, the Prevailing Wage Laws are found to be applicable to the Project, Developer and its contractors shall comply with such laws. Developer shall, and hereby agrees to, unconditionally indemnify, reimburse, defend, protect and hold harmless City and its elective and appointive boards, commissions, officers, agents, attorneys, consultants and employees, and their respective successors and assigns, from and against any and all claims, demands, suits and actions at law or in equity, and losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, and costs and damages of every kind, nature and description (including but not limited to attorneys' fees and court costs, with counsel reasonably acceptable to City), and administrative, enforcement or judicial proceedings, whether known or unknown, and which directly or indirectly, in whole or in part, are caused by, arise from, or relate to, or are alleged to be caused by, arise from, or relate to, the payment or requirement of payment of prevailing wages or the requirement of competitive bidding in the construction of the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of City or Developer related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such claims, demands, suits, actions, losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, costs, damages, or administrative, enforcement or judicial proceedings. It is further agreed that City does not, and Development Agreement Page 13 of 17 Fairway Ranch Senior Housing Component 633098-5 shall not, waive any rights against Developer which it may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or the deposit with City by Developer, of any of the insurance policies described in this Agreement. The representations, warranties and covenants contained in this Section shall survive the termination of this Agreement. 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 five million dollars ($5,000,000) 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. Development Agreement Page 14 of 17 Fairway Ranch Senior Housing Component 633098-5 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: Martin Inderbitzen 7077 Koll Center Parkway, Suite 120 Pleasanton, CA 94566-3152 FAX No. (925) 485-1065 James Tong Charter Properties 6601 Owens Drive #100 Pleasanton, CA 94588 (925) 463-1666 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 delivered by overnight courier in which case they shall be deemed given on the following day or by facsimile transmission in which case they shall be deemed delivered upon verification of receipt. 24. Agreement is Entire Understanding. This Agreement, the loan commitment letters executed by City with an effective date of July 1,2003 (the "Loan Commitment"), the Component Development Agreements, the Regulatory Agreements, and the Loan Agreements (and related deed(s) of trust and promissory note(s)) constitute the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersede all prior negotiations, understandings or agreements pertaining thereto. Development Agreement Page 15 of 17 Fairway Ranch Senior Housing Component 633098-5 25. Exhibits. The following Exhibits are attached hereto and incorporated herein by this reference: Exhibit A Legal Description of Property Exhibit B Additional Conditions 26. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, and all of which taken together shall constitute one agreement. 27. Recordation; Further Assurances. City shall record a copy of this Agreement within ten days following execution by all Parties. The Parties agree to execute such additional instruments and to undertake such actions as may be necessary to effectuate the intent of this Agreement. 28. Relationship of Fairway Ranch Development Agreement and Component Development Aqreement. Although this Agreement does not include all of the provisions of the Fairway Ranch Development Agreement, including but not limited to the provisions of the Fairway Ranch Development Agreement related to phasing of development of Parcels 1, 2 and 3 and compliance with City's Inclusionary Zoning Regulations, the provisions of the Fairway Ranch Development Agreement related to phasing and compliance with the City's Inclusionary Zoning Regulations may restrict the timing of development of the Multifamily Component. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first written above. CITY OF DUBLIN By: Janet Lockhart, Mayor ATTEST: By: Kay Keck, City Clerk Development Agreement Page 16 of 17 Fairway Ranch Senior Housing Component 633098-5 APPROVED AS TO FORM: Elizabeth H. Silver, City Attorney DEVELOPER Chang Su-O-Lin Hong Lien Lin Development Agreement Page 17 of 17 Fairway Ranch Senior Housing Component 633098-5 State of California County of Alameda On ,2003, before me, the undersigned, a Notary Public, in and for said State and County, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument acknowledged to me that he/she/they executed the same in his/her/their capacity(les), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public II ~ PM~CEL 1 - ~ (RESIDENTIAL) ~, 6.9 AC. ~ L=~,07' NT~'~ ' ~:. WAY ~.~ PARCEL (RESIDENTIAL) 6.8 AC. 22.42' R=250' /,=04'14'14' NBS"45'4F[ P~CEL 3 (RESI~EN~ - FOg 60NDO PURPOSES) fl.4 lC. 5 2B, BI' ' ~.: 2B, 2B'./'R=ID4' A=12'40'50" L:23,02' N.~B'4,4'O~'E 21.41' ~ 21.~' :,: ,..: ',: ~ ~ (~) 364.35' N~F27'OTW 422,~5' EXH!BIT-:-.X, PAB:OE~LS. t~-3 . . ..  CIVIL ENOINEERING'~ND P~NNING*LAND SU~VEYIN~ TRACT 7453 ~,~o~o~,o,, ~, <~> _ ~_o~o ' :, D~WN DATE ~ SCALE JOB NO. DUBLIN CALIFORNIA ,~ os~27~o3 ~ ~" =2oo' ~ ~o34- ~ ~ P:~ 16034-1 i~plonning~Plots,dwg R 364' . .82 =44 21 3" ~ ~ . PABCEL 1 (RESIDENTIAL) ~ ~[ 6.9 AC. + REMINDER N.. 4 ~ LOT LINE ADJ USTME~ ' L-gg-] 9' SERIES N~, ~000- ] 05747 ' ' ' 7' R= 1046, ~EG~ STREET ~ ......... (E~STING) EXHIBIT A PARCEL 1 TRACT 7453 DUBLIN CALIFORNIA o Y&SOmPS C~L ENGtNEE~IN~D P~NTNG*~ND SU~VE~NO Pleosanton, CA (925) - 225-0690 D~WN I DA~ t SC~ t JOB NO. ~ I°~/27/°$ t r=~oo'I ~o~-~ P;~ ~ ~$~ - 1 lk¢onnlagkPlots.~wg Exhibit B ADDITIONAL CONDITIONS This Exhibit B contains Additional Conditions imposed pursuant to Section 5.3 of the Development Agreement ("Agreement"), by and between the City of Dublin, a Municipal Corporation ("City") and Chang Su-O-Lin and Hong Lien Lin (collectively, the "Developer") dated as of August 15, 2003. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement. 5.3.1 Subsequent Discretionary Approvals None. 5.3.2 Miti.qation Conditions A. Infrastructure Sequencing 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 No. 03-31 of the City of Dublin Planning Commission approving the Vesting Tentative Map for Tract 7453 and the City Council Resolution No. 149-03 approving the Site Development Review (hereafter "TM and SDR Resolutions"), and those described below shall be completed by Developer to the satisfaction of the City Engineer at the times and in the manner specified in the TM and SDR Resolutions unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of City's Engineer. -Condition 24 [Dublin Boulevard/Dougherty Road Intersection Improvements]: Condition 24 of Planning Commission Resolution No. 03-31 reads as follows: ~ntersection of Dougherty Road & Dublin Blvd. In the event that the City does not have sufficient Category 2 Eastern Dublin Traffic Impact Fee (TIF) funds available, Developer shall advance the City monies for the costs of design, right-of-way acquisition and construction of the City Capital Improvement Project at the Dublin Boulevard/ Dougherty Road intersection. The amount of money Development Agreement- Exhibit B Page 1 of 6 Fairway Ranch Senior Housing Component 633098-5 ¢/ to be advanced will be determined by the City Engineer based on the Project's fair share of the deficiency. Such payment is to be made within 30 days of written notice from the City Engineer. City shall provide a credit to the Developer for Category 2 TIF for any monies advanced pursuant to this condition. The City's Administration Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99) shall govern afl aspects of the credit. 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 the costs of design and construction of Dublin Boulevard/Dougherty Road Intersection Improvements and the cost of such project, as determined by the Public Works Director. 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 24 shall survive termination of this Agreement. (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. Development Agreement - Exhibit B Page 2 of 6 Fairway Ranch Senior Housing Component 633098-5 (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 Dublin Ranch Master Drainage Plan and the tentative map conditions of approval and to the satisfaction of the City Engineer (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. B. Miscellaneous (i) Completion of Public Improvements May Be Deferred. Notwithstanding the foregoing, City's Engineer may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the City Engineer 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. 5.3.3 Phasinc~; Timinc~ This Agreement does not require the Developer to commence or complete development of the Project within any period of time set by City. Subject to the provisions of the Fairway Ranch Development Agreement, Developer shall be permitted to develop the Property in accordance with its own time schedule, consistent with the Project Approvals. 5.3.4 Financincl Plan Developer shall install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in Section 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 has entered into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Sections 5.3.2(A)(ii) and (iii) above. Development Agreement - Exhibit B Page 3 of 6 Fairway Ranch Senior Housing Component 633098-5 Pursuant to the terms of that certain Loan Commitment letter executed by City with an effective date of July 1, 2003 ("Loan Commitment"), and provided that Developer and the borrower under said Loan Commitment has complied with all terms and conditions of the Loan Agreement, City shall provide a loan to Developer to provide partial financing for construction of the Project's affordable units. 5.3.5 Fees, Dedications 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. Developer may use any credits it has for payment of the balance of the TIF in accordance with City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 "TIF Guidelines"). 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. C. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building Development Agreement - Exhibit B Page 4 of 6 Fairway Ranch Senior Housing Component 633098-5 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 Lin Family by the Master Development Agreement in accordance with City's Public Facilities Fee Guidelines (Resolution 195-99). D. Noise Mitiqation Fee. Developer shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. E. School Impact Fees. School impact fees shall be paid by Developer in accordance with California Government Code Section 53080 and the agreement between Developer and the Dublin Unified School District regarding payment of mitigation fees. F. Fire Impact Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Developer may use any credits it has for payment of the fire facilities fee, provided credits for improvements, land and equipment may only be used to satisfy payment of the same components of the fire facilities fee. G. Tri-Valley Transportation Development Impact Fee. Developer shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. 5.3.6 Credit 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. Development Agreement- Exhibit B Page 5 of 6 Fairway Ranch Senior Housing Component 633098-5 All aspects of the credit shall be covered by City's Administrative Guidelines for Eastern Dublin lraffic Impact Fees (Resolution No. 23-9@ ("Ill:: Guidelines"). B. Traffic Impact Fee Ri.qht-of-Way Dedications -- Credit City shall provide a credit to Developer for any TIF area right-of- way to be dedicated by Developer to City which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. 5.3.7 Miscellaneous A. Affordable Units In accordance with the City's Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68), the Fairway Ranch Development Agreement and the Regulatory Agreement and Conditions, Covenants and Restrictions (or deed restrictions) to be recorded against the Property, Developer shall ensure that 292 housing units constructed as part of the Project shall be available for a period of not less than 55 years to households of very Iow, Iow- and moderate-income at affordable housing cost as follows: Senior Housing Component --131 moderate income units -99 Iow income units -64 very Iow income units B. Shuttle Service. Developer shall provide a shuttle service for residents of the Project for 30 years from the date of issuance of the first Certificate of Occupancy for the Project. The shuttle service shall be in accordance with the plan for service approved by the City's Community Development Director and shall outline the type and number of shuttles which will provide transportation for the residents of the Project; the shuttle schedule, route, and hours and days of operation; and, other necessary details as determined by the Community Development Department. C. Survival. The provisions of this Section 5.3.7 shall survive the expiration of the term of the Agreement. Development Agreement - Exhibit B Page 6 of 6 Fairway Ranch Senior Housing Component 633098-5 Recording requested by and when recorded, return to: City of Dublin 100 Civic Plaza Dublin, CA 94568 Attn: City Clerk Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND Chang Su-O-Lin and Hong Lien Lin DUBLIN RANCH FAIRWAY RANCH MULTIFAMILY COMPONENT THIS DEVELOPMENT AGREEMENT (this "Agreement"), dated for reference purposes as of July 15, 2003, is entered into by and between the City of Dublin, a Municipal Corporation ("City"), and Chang Su-O-Lin and Hong Lien Lin ( collectively, the "Developer"). City and Developer are hereafter collectively referred to as the "Parties." RECITALS A. California Government Code Section 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. B. Developer holds legal interest in certain real property (the "Property") consisting of approximately 6.8 acres of land, located in the City of Dublin, County of Alameda, which property is designated as Parcel 2 on Tentative Tract Map No. 7453 and which is more particularly described in Exhibit A attached hereto. C. The Dublin City Council ("City Council") adopted the Eastern Dublin Specific Plan ("Plan") by Resolution No. 53-93 which Plan is applicable to the Property and requires the developer of the Property to enter into a development agreement with City. D. The Developer and City are parties to that certain 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"), which agreement requires the developer of the Property to enter into this development agreement with City, provided that such development agreement does not impair any developer's rights under the Master Development Agreement. E. Developer proposes to develop the Property for multi-family housing (the "Multifamily Component") which shall consist of 304 multi-family rental units, of which 243 units shall be affordable units available at affordable rents to households of very Iow, Iow and moderate-income pursuant to the City's Inclusionary Zoning Ordinance (Chapter 8.68) (the "Project"). As more particularly described in the Affordable Housing Regulatory Agreement executed or to be executed by and between City and Developer ("Regulatory Agreement") and Conditions, Covenants and Restrictions (or deed restrictions) to be recorded against the Property, the Developer and its successors in interest shall be required to maintain the affordability of the affordable units and the availability of such units to households of the specified income levels for not less than 55 years. Development Agreement Page 1 of 17 Fairway Ranch Multifamily Component 631035-5 F. Developer has applied for, and City has approved or is processing, various land use approvals in connection with the development of the Project. Developer has also applied for, and City has approved or is processing, similar land use approvals in connection with the development of Parcels 1 and 3 of Tract 7453. The land use approvals for the Multifamily Component include Tentative Tract Map for Tract 7453 (Planning Commission Resolution No. 03-31), and a density bonus of 59 units and site development review (City Council Resolution No. 149-03 (collectively, the "Project Approvals"). G. Developer and City have entered into a development agreement that, among other things, addresses phasing of development for Parcel 1 (Senior Housing Component), Parcel 2 (Multifamily Component) and Parcel 3 (Condominium Component) of Tract 7453 (the "Fairway Ranch Development Agreement"). Developer and City have also entered into development agreements specifically for the Senior Housing Component and the Condominium Component (the "Component Development Agreements"). H. City desires the timely, efficient, orderly and proper development of the Project, and City and Developer desire to facilitate development of the Project in accordance with and subject to the terms and conditions set forth herein. I. The City Council has reviewed and evaluated this Agreement in accordance with Chapter 8.56, and has found that this Agreement is consistent with the City's General Plan and the Eastern Dublin Specific Plan. J. Pursuant to the California Environmental Quality Act (CEQA), the City Council adopted Resolution No. 149-03, finding that the Project is exempt from CEQA pursuant to Government Code §65457. In making such determination and determining that there are no supplemental impacts that would require preparation of a Supplemental EIR, the City prepared an Initial Study which found that the environmental impacts of the Project were addressed by the Negative Declaration approved by the City Council by Resolution No. 140-97 for the Planned Development Rezoning for 453 acres of Dublin Ranch which includes the Property and the Project and the 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 (collectively, the "EIR"). K. On July 15, 2003, the City Council adopted Ordinance No. approving this Agreement. The ordinance took effect on August 15, 2003. NOW, THEREFORE, with reference to the foregoing recitals and inconsideration of the mutual promises, obligations and covenants herein contained, City and Developer agree as follows. Development Agreement Page 2 of 17 Fairway Ranch Multifamily Component 631035-5 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 ("Effective Date") is August 15, 2003, which is the effective date of City Ordinance No. , adopting this Agreement. 4.2 Term. The term of this Agreement shall commence on the Effective Date and shall terminate on the fifth anniversary of such date, unless this Agreement is otherwise terminated or extended pursuant to the terms hereof. Notwithstanding anything to the contrary contained herein or in the Site Development Review approval: (i) the Site Development Review approval shall remain effective for five years following the Effective Date of this Agreement, and (ii) provided that certificates of occupancy have been issued for either the entire Multi-Family Component or the entire Senior Housing Component prior to expiration of the term of this Agreement, the Site Development Review approval (Resolution No. 149-03) shall remain effective until the tenth anniversary of the Effective Date. 4.3 Optional Extension. Prior to the termination of this Development Agreement, as provided in Section 4.2, Developer may extend the term of the Development Agreement. To do so, Developer shall give City written notice at least 90 days prior to the termination date of the Development Agreement. At the time Developer provides such notice, Developer shall make a contribution to City in the amount of One Hundred Thousand Dollars ($100,000). Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the Developer in writing that the term of the Development Agreement has been automatically extended for an additional one-year period, commencing Development Agreement Page 3 of 17 Fairway Ranch Multifamily Component 631035-5 on the date the Development Agreement would otherwise have terminated. The Developer may exercise its option to extend the Development Agreement no more than five times, for a maximum total term of the Development Agreement of ten years. The total contribution for the maximum extension of five years will be Five Hundred Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this Section, if Developer has provided the notice and contribution to extend one of the Component Development Agreements, Developer shall not be required to provide the $100,000 contribution to extend the term of this Development Agreement and this Agreement will automatically be extended to be coterminous with such Component Development 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, and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by City) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto. 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 and any other approvals required by other regulatory agencies.) None 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 Development Agreement Page 4 of 17 Fairway Ranch Multifamily Component 631035-5 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. 6.1 Rules Regarding 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, the 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 hereof. 6.2 Rules Reqarding Design and Construction. Unless otherwise expressly provided in Section 5 or Exhibit B attached hereto, 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 on the Effective Date hereof. 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 the applicable permit approval is granted. 6.3 Uniform Codes Applicable. Unless otherwise expressly provided in Section 5 or Exhibit B attached hereto, 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. Development Agreement Page 5 of 17 Fairway Ranch Multifamily Component 631035-5 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 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 discretionary land use approval for the Project on the basis of the ordinances, resolutions, rules, regulations and policies in effect at the time of such approval. 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in California 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, Section 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 Development Agreement Page 6 of 17 Fairway Ranch Multifamily Component 631035-5 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 California Constitution, and Developer does not return its ballot, Developer agrees, on behalf of itself and its successors, that City may count Developer's ballot as affirmatively voting in favor of such assessment, fee or charge. 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the Effective Date 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 and in accordance with the procedures of state law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of Section 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in Section 4.2.; (b) the permitted uses of the Property as provided in Section 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; (g) monetary contributions by Developer; (h) the affordable housing units to be constructed as part of the Project (including without limitation, the number, location, size, affordability level, or timing of the construction of such units); (i) public improvements to be constructed by Developer; (j) the accrual or use of Development Agreement Page 7 of 17 Fairway Ranch Multifamily Component 631035-5 the Affordable Unit Credits described in Section 5.3.7B of Exhibit B; or (h) the exemption from Commercial Linkage Fee described in Section 5.37.C of Exhibit _B 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; (g) public improvements to be constructed by Developer; (h) the affordable housing units to be constructed as part of the Project (including without limitation, the number, location, size, affordability level, or timing of the construction of such units); (i) the accrual or use of the Affordable Housing Credits described in Section 5.3.7B of Exhibit .B; or (j) the exemption from Commercial Linkage Fee described in Section 5.3.7C of Exhibit B shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the Parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Section 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 tentative tract map described in Recital F 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 or Section 4.2. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2004 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 Development Agreement Page 8 of 17 Fairway Ranch Multifamily Component 631035-5 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 this Agreement. The Developer shall have the burden of proving such compliance by substantial evidence. 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 relating to this Agreement 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 hereunder, the Parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either Party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaultin§ 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. Notwithstanding anything to the contrary contained herein, 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 the other Party to provide a written certification 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 amended, identifying such amendments in the certification, and (c) to the knowledge of the certifying Party, the requesting Party is not in default in the performance of its obligations under Development Agreement Page 9 of 17 Fairway Ranch Multifamily Component 631035-5 this Agreement, or if in default, to describe in the certification the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certification within thirty (30) days following the receipt of such request, or such longer period as may reasonably be agreed to by the Parties. City Manager of City shall be authorized to execute any certification requested by Developer. Should the Party receiving the request not execute and return such certification within the applicable period, this shall not be deemed to be a default, provided 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. Any request by Developer for a written certification to a third party shall be accompanied by payment to City of a fee for such certification in an amount established by the Council from time to time. 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, the purchaser at any trustee's sale or foreclosure sale shall not be liable for any violation hereof occurring prior to the acquisition of title by such purchaser 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, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to Mortgagee and Extension of 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 Development Agreement Page 10 of 17 Fairway Ranch Multifamily Component 631035-5 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 Section 12.2 for not more than an additional sixty (60) days upon request of Developer or a Mortgagee. 15. Severabitity. The unenforceability, invalidity or illegality of any provision, covenant, condition or term of this Agreement shall not render the other provisions hereof 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 Assiqn. Developer may wish to sell, transfer or assign all or portions of its Property to other developers (each such other developer is referred to as a "Transferee"). In connection with any such sale, transfer or assignment to a Transferee, Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer which arise hereunder and pertain to the portion of the Property being sold or transferred to such Transferee; provided, however that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur by operation of law or otherwise absent prior written notice to City and written approval thereof 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 proposed transfer, sale or assignment of Developer's rights, interests and obligations hereunder within ten business (10) days following receipt of Developer's notice, provided all documents, certifications and other information reasonably requested by City are provided to the City Manager to enable the City Manager to determine whether the proposed Development Agreement Page 11 of 17 Fairway Ranch Multifamily Component 631035-5 Transferee can perform the Developer's obligations hereunder. Notice of any such approved sale, transfer or assignment (including 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 Assi.qnment. Developer shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to this Section 17, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to this Section 17, b) such obligations are expressly assumed by Transferee, and (c) such Transferee shall be subject to all the provisions hereof and shall provide all documents, certifications and other information reasonably requested by City prior to City Manager approval pursuant to this Section 17. 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 third-party deed of trust encumbering Developer's interest in the Property shall not require City Manager approval pursuant to this Section 17. However, any subsequent transfer, sale or assignment by such Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of this Section. 18. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement (with the exception of City's obligation to provide financing to Developer pursuant to the Loan 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 constitute covenants running with the land pursuant to applicable laws. Each covenant to do, or refrain from doing, any act on or with respect to the Property pursuant to this Agreement: (a) is for the benefit of or is a burden upon the Property, (b) runs with the land, and (c) is binding upon the Developer and each successive owner during its ownership of the Property or any portion thereof. 19. Bankruptcy. The obligations of Developer under this Agreement shall not be dischargeable in bankruptcy. Development Agreement Page 12 of 17 Fairway Ranch Multifamily Component 631035-5 20. Indemnification; Prevailing Wages. 20.1 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 Property and the Project, provided that Developer shall have no indemnification obligation with respect to the gross negligence or willful misconduct 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). 20.2 Prevailing Wages. The Parties acknowledge that the Project or phases of it are intended by Developer to be exempt from California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto ("Prevailing Wage Laws") by virtue of Labor Code Section 1720(d). If for any reason, the Prevailing Wage Laws are found to be applicable to the Project, Developer and its contractors shall comply with such laws. Developer shall, and hereby agrees to, unconditionally indemnify, reimburse, defend, protect and hold harmless City and its elective and appointive boards, commissions, officers, agents, attorneys, consultants and employees, and their respective successors and assigns, from and against any and all claims, demands, suits and actions at law or in equity, and losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, and costs and damages of every kind, nature and description (including but not limited to attorneys' fees and court costs, with counsel reasonably acceptable to City), and administrative, enforcement or judicial proceedings, whether known or unknown, and which directly or indirectly, in whole or in part, are caused by, arise from, or relate to, or are alleged to be caused by, arise from, or relate to, the payment or requirement of payment of prevailing wages or the requirement of competitive bidding in the construction of the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of City or Developer related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such claims, demands, suits, actions, losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, costs, damages, or administrative, enforcement oriudicial proceedings. It is further agreed that City does not, and Development Agreement Page 13 of 17 Fairway Ranch Multifamily Component 631035-5 shall not, waive any rights against Developer which it may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or the deposit with City by Developer, of any of the insurance policies described in this Agreement. The representations, warranties and covenants contained in this Section shall survive the termination of this Agreement. 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 five million dollars ($5,000,000) 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. Development Agreement Page 14 of 17 Fairway Ranch Multifamily Component 631035-5 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: Martin Inderbitzen 7077 Koll Center Parkway, Suite 120 Pleasanton, CA 94566-3152 FAX No. (925) 485-1065 James Tong Charter Properties 6601 Owens Drive #100 Pleasanton, CA 94588 (925) 463-1666 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 delivered by overnight courier in which case they shall be deemed given on the following day or by facsimile transmission in which case they shall be deemed delivered upon verification of receipt. 24. Agreement is Entire Understandinq. This Agreement, the loan commitment letters executed by City with an effective date of July 1, 2003 (the "Loan Commitment"), the Component Development Agreements, the Regulatory Agreements, and the Loan Agreements (and related deed(s) of trust and promissory note(s)) constitute the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersede all prior negotiations, understandings or agreements pertaining thereto. Development Agreement Page 15 of 17 Fairway Ranch Multifamily Component 631035-5 25. Exhibits. The following Exhibits are attached hereto and incorporated herein by this reference: Exhibit A Legal Description of Property Exhibit B Additional Conditions 26. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, and all of which taken together shall constitute one agreement. 27. Recordation; Further Assurances. City shall record a copy of this Agreement within ten days following execution by all Parties. The Parties agree to execute such additional instruments and to undertake such actions as may be necessary to effectuate the intent of this Agreement. 28. Relationship of Fairway Ranch Development Agreement and Component Development Aqreement. Although this Agreement does not include all of the provisions of the Fairway Ranch Development Agreement, including but not limited to the provisions of the Fairway Ranch Development Agreement related to phasing of development of Parcels 1, 2 and 3 and compliance with City's Inclusionary Zoning Regulations, the provisions of the Fairway Ranch Development Agreement related to phasing and compliance with the City's Inclusionary Zoning Regulations may restrict the timing of development of the Multifamily Component. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first written above. CITY OF DUBLIN By: Janet Lockhart, Mayor ATTEST: By: Kay Keck, City Clerk Development Agreement Page 16 of 17 Fairway Ranch Multifamily Component 631035-5 APPROVED AS TO FORM: Elizabeth H. Silver, City Attorney DEVELOPER By: Chang Su-O-Lin Hong Lien Lin Development Agreement Page 17 of 17 Fairway Ranch Multifamily Component 631035-5 State of California ) ) County of Alameda ) On ,2003, before me, the undersigned, a Notary Public, in and for said State and County, personally appeared ., personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument acknowledged to me that he/she/they executed the same in his/her/their capacity(les), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public PARCEL 2 (RESIDENTIAL) 6.8 AC. i L=t5.16' N¢l'34'Ol'E 22.42' R=250' A=04'l 4'14'  MAGU]IP.E WAY ~ N49"58'34'W 25.5 l'~" PARCEL 3 (RESIDENTIM~ - FOg CONDO PURPOSES.) i: 20,28' L:23,02' N59'44'oGm'E 21.41' ',. ' T"--R=78' 6=12~40'5D' L=IB.B2" NB~ZT'O~W 422.J5' TRACT 7453 CIVIL ENGiNEERING'~ND P~NNING'L~D SURVEYING Pieoso~ton, CA (925) - 225-0890 ::, D~WN DATE ~ SCA~ JOB NO. DUBLIN OALIFORNIA e~k 05ff27ff03 ~ 1"=200, P:~ 16034-1 ~plonnlng~Plots.dwg ?AP,.OEL I N77°30'32"W 33. ~9'44'W 44.26' R=IO0' A=15°04'4¢ L=26.32 R= !88.09' N90°00'00"W t78.10' =27o34,1 FINN~ ~AY L=96.24' N53°54'52"W 25.28 PARCEL 2 (RESIDENTIAL) 6.8 AC. 27'05' W 74.Or' , ,, L=ET.94' ;942' &¢05o20 56 ' II A=00°42'45'' L=13.16' N41°34'Ol"E 74°05'02"W 22.42' Ng0°00'O0"E 68,62' R=200' A=15°56'58'' L=55,67' R=500' R=250' &=04°t4'14'' L=18.49'---.% L=1J: 1o.9, N90°00'00"W 273.47' tvL&GUIRE WAY N85°45'46" E 54.26 ?ARCEL~ 3 EXHIBIT A PARCEL 2 'TRACT 7455 DUBLIN CALIFORNIA mACKAY& $omPs Pleasonton, CA (925) - 225-0690 (FUTURE) DRAWN I ~AT~ I SOA~ t ,~OBNO. Exhibit B ADDITIONAL CONDITIONS This Exhibit B contains Additional Conditions imposed pursuant to Section 5.3 of the Development Agreement ("Agreement"), by and between the City of Dublin, a Municipal Corporation ("City") and Chang Su-O-Lin and Hong Lien Lin (collectively, the "Developer") dated as of August 15, 2003. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement. 5.3.1 Subsequent Discretionary Approvals None. 5.3.2 Mitigation Conditions 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 No. 03-31 of the City of Dublin Planning Commission approving the Vesting Tentative Map for Tract 7453 and the City Council Resolution No. 149-03 approving the Site Development Review (hereafter "TM snd SDR Resolutions"), and those described below shall be completed by Developer to the satisfaction of the City Engineer at the times and in the manner specified in the TM and SDR Resolutions unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of City's Engineer. -Condition 24 [Dublin Boulevard/Dougherty Road Intersection Improvements]: Condition 24 of Planning Commission Resolution No. 03-31 reads as follows: Intersection of Dougherty Road & Dublin Blvd. In the event that the City does not have sufficient Category 2 Eastern Dublin Traffic Impact Fee (TIF) funds available, Developer shall advance the City monies for the costs of design, right-of-way acquisition and construction of the City Capital Improvement Project at the Dublin Boulevard/ Dougherty Road intersection. The amount of money Development Agreement- Exhibit B Page I of 6 Fairway Ranch Multifamily Component 631035-5 to be advanced will be determined by the City Engineer based on the Project's fair share of the deficiency. Such payment is to be made within 30 days of written notice from the City Engineer. City shall provide a credit to the Developer for Category 2 TIF for any monies advanced pursuant to this condition. The City's Administration Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99) shall govern afl aspects of the credit. 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 the costs of design and construction of Dublin Boulevard/Dougherty Road Intersection Improvements and the cost of such project, as determined by the Public Works Director. 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 24 shall survive termination of this Agreement. (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. Development Agreement - Exhibit B Page 2 of 6 Fairway Ranch Multifamily Component 631035-5 (iv) Storm Drainaqe 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 Dublin Ranch Master Drainage Plan and the tentative map conditions of approval and to the satisfaction of the City Engineer (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. B. Miscellaneous (i) Completion of Public Improvements May Be Deferred. Notwithstanding the foregoing, City's Engineer may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the City Engineer 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. 5.3.3 Phasincl; Timinq This Agreement does not require the Developer to commence or complete development of the Project within any period of time set by City. Subject to the provisions of the Fairway Ranch Development Agreement, Developer shall be permitted to develop the Property in accordance with its own time schedule, consistent with the Project Approvals. 5.3.4 Financinq Plan Developer shall install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in Section 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 has entered into an "Area Wide Facilities Agreement". with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Sections 5.3.2(A)(ii) and (iii) above. Development Agreement - Exhibit B Page 3 of 6 Fairway Ranch Multifamily Component 631035-5 Pursuant to the terms of that Loan Commitment letter executed by City with an effective date of July 1, 2003 ("Loan Commitment"), and provided that Developer and the borrower under said Loan Commitment have complied with all terms and conditions of the Loan Agreement, City shall provide a loan to Developer to provide partial financing for construction of the Project's affordable units. 5.3.5 Fees, Dedications 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 1/Category 1" portion of the TIF in cash. Developer also agrees that it will pay 12.4% of the "Section 2/Category 2" portion of the TIF in cash. If City amends its TIF fee and as a result the City's outstanding balance due on loans is less than 12.4% of total Section 2/Category 2 improvements, the Developer shall pay such reduced percentage of the "Section 2/Category 2" portion of the TIF in cash. Developer may use any credits it has for payment of the balance of the TIF in accordance with City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 "TIF Guidelines"). 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. C. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building Development Agreement- Exhibit B Page 4 of 6 Fairway Ranch Multifamily Component 631035-5 permits and in the themcurrent amount of the fee. Developer may use the credits Jar payment oi the Community Parr Land portion of the Public Facilities Fee granted to the Lin Family by the M~ster Development Agreement in accordance ~ith City's Public Facilities Fee Guidelines (Resolulion 195-9@). 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. E. School Impact Fees. School impact fees shall be paid by Developer in accordance with California Government Code Section 53080 and the agreement between Developer and the Dublin Unified School District regarding payment of mitigation fees. F. Fire Impact Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Developer may use any credits it has for payment of the fire facilities fee, provided credits for improvements, land and equipment may only be used to satisfy payment of the same components of the fire facilities fee. G. Tri-Valley Transportation Development Impact Fee. Developer shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. 5.3.6 Credit 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. Development Agreement- Exhibit B Page 5 of 6 Fairway Ranch Multifamily Component 631035-5 All aspects of the credit shall be covered by City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 ("TIF 6uidelines"). 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 described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. 5.3.7 Miscellaneous A. Affordable Units In accordance with the City's Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68), the Fairway Ranch Development Agreement and the Regulatory Agreement and Conditions, Covenants and Restrictions (or deed restrictions) to be recorded against the Property, Developer shall ensure that 243 housing units constructed as part of the Project shall be available for a period of not less than 55 years to households of very Iow, Iow- and moderate-income at affordable housing cost as follows: Multifamily Component --90 moderate income units --90 Iow income units --63 very Iow income units B. Shuttle Service. Developer shall provide a shuttle service for residents of the Project for 10 years from the date of issuance of the first Certificate of Occupancy for the Project. The shuttle service shall be in accordance with the plan for service approved by the City's Community Development Director and shall outline the type and number of shuttles which will provide transportation for the residents of the Project; the shuttle schedule, route, and hours and days of operation; and, other necessary details as determined by the Community Development Department. C. Survival. The provisions of this Section 5.3.7 shall survive the expiration of the term of the Agreement. Development Agreement - Exhibit B Page 6 of 6 Fairway Ranch Multifamily Component 631035-5 Recording requested by and when recorded, return to: City of Dublin 100 Civic Plaza Dublin, CA 94568 Attn: City Clerk Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CiTY OF DUBLIN AND Chang Su-O-Lin and Hong Lien Lin DUBLIN RANCH FAIRWAY RANCH CONDOMINIUM COMPONENT THIS DEVELOPMENT AGREEMENT (this "Agreement"), dated for reference purposes as of July 15, 2003, is entered into by and between the City of Dublin, a Municipal Corporation ("City"), and Chang Su-O-Lin and Hong Lien Lin ( collectively, the "Developer"). City and Developer are hereafter collectively referred to as the "Parties." RECITALS A. California Government Code Section 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. B. Developer holds legal interest in certain real property (the "Property") consisting of approximately 6.4 acres of land, located in the City of Dublin, County of Alameda, which property is designated as Parcel 3 on Tentative Tract Map No. 7453 and which is more particularly described in Exhibit A attached hereto. C. The Dublin City Council ("City Council") adopted the Eastern Dublin Specific Plan ("Plan") by Resolution No. 53-93 which Plan is applicable to the Property and requires the developer of the Property to enter into a development agreement with City. D. The Developer and City are parties to that certain 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"), which agreement requires the developer of the Property to enter into this development agreement with City, provided that such development agreement does not impair any developer's rights under the Master Development Agreement. E. Developer proposes to develop the Property for condominium housing (the "Condominium Component") which shall consist of 304 condominium for sale units, of which 52 units shall be affordable units available at affordable sales prices to households of moderate income pursuant to the City's Inclusionary Zoning Ordinance (Chapter 8.68) (the "Project"). As more particularly described in the Affordable Housing Regulatory Agreement executed or to be executed by and between City and Developer ("Regulatory Agreement") and Conditions, Covenants and Restrictions (or deed restrictions) to be recorded against the Property, the Developer and its successors in interest shall be required to maintain the affordability of the affordable units and the availability of such units to households of the specified income levels for not less than 55 years. Development Agreement Page 1 of 17 Fairway Ranch Condominium Component 633100-5 F. Developer has applied for, and City has approved or is processing, various land use approvals in connection with the development of the Project. Developer has also applied for, and City has approved or is processing, similar land use approvals in connection with the development of Parcels 2 and 3 of Tract 7453. The land use approvals for the Condominium Component include Tentative Tract Map for Tract 7453 (Planning Commission Resolution No. 03-31), and a density bonus of 59 units and site development review (City Council Resolution No. 149-03 (collectively, the "Project Approvals"). G. Developer and City have entered into a development agreement that, among other things, addresses phasing of development for Parcel I (Senior Housing Component), Parcel 2 (Multifamily Component) and Parcel 3 (Condominium Component) of Tract 7453 (the "Fairway Ranch Development Agreement"). Developer and City have also entered into development agreements specifically for the Senior Housing Component and the Multifamily Component (the "Component Development Agreements"). H. City desires the timely, efficient, orderly and proper development of the Project, and City and Developer desire to facilitate development of the Project in accordance with and subject to the terms and conditions set forth herein. I. The City Council has reviewed and evaluated this Agreement in accordance with Chapter 8.56, and has found that this Agreement is consistent with the City's General Plan and the Eastern Dublin Specific Plan. J. Pursuant to the California Environmental Quality Act (CEQA), the City Council adopted Resolution No. 149-03, finding that the Project is exempt from CEQA pursuant to Government Code §65457. In making such determination and determining that there are no supplemental impacts that would require preparation of a Supplemental EIR, the City prepared an Initial Study which found that the environmental impacts of the Project were addressed by the Negative Declaration approved by the City Council by Resolution No. 140-97 for the Planned Development Rezoning for 453 acres of Dublin Ranch which includes the Property and the Project and the 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 (collectively, the "EIR"). K. On July 15, 2003, the City Council adopted Ordinance No.__ approving this Agreement. The ordinance took effect on August 15, 2003. NOW, THEREFORE, with reference to the foregoing recitals and inconsideration of the mutual promises, obligations and covenants herein contained, City and Developer agree as follows. Development Agreement Page 2 of 17 Fairway Ranch Condominium Component 633100-5 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 ("Effective Date") is August 15, 2003, which is the effective date of City Ordinance No. ., adopting this Agreement. 4.2 Term. The term of this Agreement shall commence on the Effective Date and shall terminate on the fifth anniversary of such date, unless this Agreement is otherwise terminated or extended pursuant to the terms hereof. Notwithstanding anything to the contrary contained herein or in the Site Development Review approval: (i) the Site Development Review approval shall remain effective for five years following the Effective Date of this Agreement, and (ii) provided that certificates of occupancy have been issued for either the entire Multi-Family Component or the entire Senior Housing Component prior to expiration of the term of this Agreement, the Site Development Review approval (Resolution No. 149-03) shall remain effective until the tenth anniversary of the Effective Date. 4.3 Optional Extension. Prior to the termination of this Development Agreement, as provided in Section 4.2, Developer may extend the term of the Development Agreement. To do so, Developer shall give City written notice at least 90 days prior to the termination date of the Development Agreement. At the time Developer provides such notice, Developer shall make a contribution to City in the amount of One Hundred Thousand Dollars ($100,000). Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the Developer in writing that the term of the Development Agreement has been automatically extended for an additional one-year period, commencing Development Agreement Page 3 of 17 Fairway Ranch Condominium Component 633100-5 on the date the Development Agreement would otherwise have terminated. The Developer may exercise its option to extend the Development Agreement no more than five times, for a maximum total term of the Development Agreement of ten years. The total contribution for the maximum extension of five years will be Five Hundred Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this Section, if Developer has provided the notice and contribution to extend one of the Component Development Agreements, Developer shall not be required to provide the $100,000 contribution to extend the term of this Development Agreement and this Agreement will automatically be extended to be coterminous with such Component Development 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, and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by City) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto. 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 and any other approvals required by other regulatory agencies.) None 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 Development Agreement Page 4 of 17 Fairway Ranch Condominium Component 633100-5 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. 6.1 Rules Regarding 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, the 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 hereof. 6.2 Rules Regarding Design and Construction. Unless otherwise expressly provided in Section 5 or Exhibit B attached hereto, 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 on the Effective Date hereof. 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 the applicable permit approval is granted. 6.3 Uniform Codes Applicable. Unless otherwise expressly provided in Section 5 or Exhibit B attached hereto, 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. Development Agreement Page 5 of 17 Fairway Ranch Condominium Component 633100~5 7. Subsequently Enacted Rules and Requlations. 7.1 New Rules and Regulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the Effective Date 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 discretionary land use approval for the Project on the basis of the ordinances, resolutions, rules, regulations and policies in effect at the time of such approval. 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in California 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, Section 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 Development Agreement Page 6 of 17 Fairway Ranch Condominium Component 633100-5 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 California Constitution, and Developer does not return its ballot, Developer agrees, on behalf of itself and its successors, that City may count Developer's ballot as affirmatively voting in favor of such assessment, fee or charge. 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the Effective Date 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 and in accordance with the procedures of state law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of Section 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in Section 4.2; (b) the permitted uses of the Property as provided in Section 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; (g) monetary contributions by Developer; (h) the affordable housing units to be constructed as part of the Project (including without limitation, the number, location, size, affordability level, or timing of the construction of such units); (i) public improvements to be constructed by Developer; (j) the accrual or use of Development Agreement Page 7 of 17 Fairway Ranch Condominium Component 633100-5 the Affordable Unit Credits described in Section 5.3.7B of Exhibit.B; or (h) the exemption from Commercial Linkage Fee described in Section 5.37.C of Exhibit B 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; (g) public improvements to be constructed by Developer; (h) the affordable housing units to be constructed as part of the Project (including without limitation, the number, location, size, affordability level, or timing of the construction of such units); (i) the accrual or use of the Affordable Housing Credits described in Section 5.3.7B of Exhibit B; or (j) the exemption from Commercial Linkage Fee described in Section 5.3.7C of Exhibit B shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the Parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Section 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 tentative tract map described in Recital F 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 or Section 4.2. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2004 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 Development Agreement Page 8 of 17 Fairway Ranch Condominium Component 633100-5 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 this Agreement. The Developer shall have the burden of proving such compliance by substantial evidence. 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 relating to this Agreement 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 hereunder, the Parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either Party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Dama.qes Against City. Notwithstanding anything to the contrary contained herein, 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 the other Party to provide a written certification 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 amended, identifying such amendments in the certification, and (c) to the knowledge of the certifying Party, the requesting Party is not in default in the performance of its obligations under Development Agreement Page 9 of 17 Fairway Ranch Condominium Component 633100-5 this Agreement, or if in default, to describe in the certification the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certification within thirty (30) days following the receipt of such request, or such longer period as may reasonably be agreed to by the Parties. City Manager of City shall be authorized to execute any certification requested by Developer. Should the Party receiving the request not execute and return such certification within the applicable period, this shall not be deemed to be a default, provided 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. Any request by Developer for a written certification to a third party shall be accompanied by payment to City of a fee for such certification in an amount established by the Council from time to time. 14. Mortgagee Protection; Certain Ri.cjhts 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, the purchaser at any trustee's sale or foreclosure sale shall not be liable for any violation hereof occurring prior to the acquisition of title by such purchaser 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, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to 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 Development Agreement Page 10 of 17 Fairway Ranch Condominium Component 633100-5 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 Section 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 provision, covenant, condition or term of this Agreement shall not render the other provisions hereof unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If City or Developer initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the Parties shall cooperate in defending such action. Developer shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse City for all reasonable court costs and attorneys' fees expended by City in defense of any such action or other proceeding. 17. Transfers and Assignments. 17.1 Right to Assign. Developer may wish to sell, transfer or assign all or portions of its Property to other developers (each such other developer is referred to as a "Transferee"). In connection with any such sale, transfer or assignment to a Transferee, Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer which arise hereunder and pertain to the portion of the Property being sold or transferred to such Transferee; provided, however that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur by operation of law or otherwise absent prior written notice to City and written approval thereof 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 proposed transfer, sale or assignment of Developer's rights, interests and obligations hereunder within ten business (10) days following receipt of Developer's notice, provided all documents, certifications and other information reasonably requested by City are provided to the City Manager to enable the City Manager to determine whether the proposed Development Agreement Page 11 of 17 Fairway Ranch Condominium Component 633100-5 Transferee can perform the Developer's obligations hereunder. Notice of any such approved sale, transfer or assignment (including 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 this Section 17., provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to this Section 17, b) such obligations are expressly assumed by Transferee, and (c) such Transferee shall be subject to all the provisions hereof and shall provide all documents, certifications and other information reasonably requested by City prior to City Manager approval pursuant to this Section 17. 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 third-party deed of trust encumbering Developer's interest in the Property shall not require City Manager approval pursuant to this Section 17. However, any subsequent transfer, sale or assignment by such Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of this Section. 18. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement (with the exception of City's obligation to provide financing to Developer pursuant to the Loan 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 ~aw or in any manner whatsoever. All of the provisions of this Agreement shall constitute covenants running with the land pursuant to applicable laws. Each covenant to do, or refrain from doing, any act on or with respect to the Property pursuant to this Agreement: (a) is for the benefit of or is a burden upon the Property, (b) runs with the land, and (c) is binding upon the Developer and each successive owner during its ownership of the Property or any portion thereof. 19. Bankruptcy. The obligations of Developer under this Agreement shall not be dischargeable in bankruptcy. Development Agreement Page 12 of 17 Fairway Ranch Condominium Component 633100-5 20. Indemnification; Prevailinq Wages. 20.1 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 Property and the Project, provided that Developer shall have no indemnification obligation with respect to the gross negligence or willful misconduct 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). 20.2 Prevailing Wages. The Parties acknowledge that the Project or phases of it are intended by Developer to be exempt from California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto ("Prevailing Wage Laws") by virtue of Labor Code Section 1720(d). If for any reason, the Prevailing Wage Laws are found to be applicable to the Project, Developer and its contractors shall comply with such laws. Developer shall, and hereby agrees to, unconditionally indemnify, reimburse, defend, protect and hold harmless City and its elective and appointive boards, commissions, officers, agents, attorneys, consultants and employees, and their respective successors and assigns, from and against any and all claims, demands, suits and actions at law or in equity, and losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, and costs and damages of every kind, nature and description (including but not limited to attorneys' fees and court costs, with counsel reasonably acceptable to City), and administrative, enforcement or judicial proceedings, whether known or unknown, and which directly or indirectly, in whole or in part, are caused by, arise from, or relate to, or are alleged to be caused by, arise from, or relate to, the payment or requirement of payment of prevailing wages or the requirement of competitive bidding in the construction of the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of City or Developer related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such claims, demands, suits, actions, losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, costs, damages, or administrative, enforcement or iudicial proceedings. It is further agreed that City does not, and Development Agreement Page 13 of 17 Fairway Ranch Condominium Component 633100-5 shall not, waive any rights against Developer which it may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or the deposit with City by Developer, of any of the insurance policies described in this Agreement. The representations, warranties and covenants contained in this Section shall survive the termination of this Agreement. 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 five million dollars ($5,000,000) 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. Development Agreement Page 14 of 17 Fairway Ranch Condominium Component 633100-5 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: Martin Inderbitzen 7077 Koll Center Parkway, Suite 120 Pleasanton, CA 94566-3152 FAX No. (925) 485-1065 James Tong Charter Properties 6601 Owens Drive #100 Pleasanton, CA 94588 (925) 463-1666 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 delivered by overnight courier in which case they shall be deemed given on the following day or by facsimile transmission in which case they shall be deemed delivered upon verification of receipt. 24. Agreement is Entire Understanding. This Agreement, the loan commitment letters executed by City with an effective date of July 1, 2003 (the "Loan Commitment"), the Component Development Agreements, the Regulatory Agreements, and the Loan Agreements (and related deed(s) of trust and promissory note(s)) constitute the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersede all prior negotiations, understandings or agreements pertaining thereto. Development Agreement Page 15 of 17 Fairway Ranch Condominium Component 633100-5 25. Exhibits. The following Exhibits are attached hereto and incorporated herein by this reference: Exhibit A Legal Description of Property Exhibit B Additional Conditions 26. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, and all of which taken together shall constitute one agreement. 27. Recordation; Further Assurances. City shall record a copy of this Agreement within ten days following execution by all Parties. The Parties agree to execute such additional instruments and to undertake such actions as may be necessary to effectuate the intent of this Agreement. 28. Relationship of Fairway Ranch Development Aqreement and Component Development Agreement. Although this Agreement does not include all of the provisions of the Fairway Ranch Development Agreement, including but not limited to the provisions of the Fairway Ranch Development Agreement related to phasing of development of Parcels 1,2 and 3 and compliance with City's Inclusionary Zoning Regulations, the provisions of the Fairway Ranch Development Agreement related to phasing and compliance with the City's Inclusionary Zoning Regulations may restrict the timing of development of the Multifamily Component. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first written above. CITY OF DUBLIN By: Janet Lockhart, Mayor ATTEST: By: Kay Keck, City Clerk Development Agreement Page 16 of 17 Fairway Ranch Condominium Component 633100-5 APPROVED AS TO FORM: Elizabeth H. Silver, City Attorney DEVELOPER By: Print Name: Chang Su-O-Lin Print Name: Hong Lien Lin Development Agreement Page 17 of 17 Fairway Ranch Condominium Component 633100-5 State of California ) ) County of Alameda ) On ,2003, before me, the undersigned, a Notary Public, in and for said State and County, personally appeared ., personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public L= 13.15' N4734'0 t' [ 25.5Y---~ 22,42' R=2~' 6=04'14'14' ~G~ WAY ~4~'~"w 2~.~Y~ P~CEL S (g~SIDEN~ - FOR CONDO PURPOSES) 6.4 AC. ! 28,6Y , .-NM"2TO2'W 28,28' =1'2'40'5E' L=23.02' N..X~*,,t4'O6"E 28.06'~. 'W :~.."/' , : NST27'02"W 42Z55' mACKAY&$OmPS TRACT' 7453 .~o~o~,o. c^ ~ _ ~_o~,o , .... D~WN t DATE I SCALE JOB NO. DUBLIN CALIFORNIA DNL ~ 05/27/O3 ~ ¢=200' 16034~!.1~ N44°27'O2"W 28128' 104' &=t2°40'50" L=23.02' N39°44'O6"E 2E 12"W 21,00' N89°27'02"W 178.18' 106.18' A=05° 10'08" L=264 NSgO27,O2"W R=2928' R=76' A=t2°40'50'' L=t6.82' DUBLI~ BOUL]~¥ARD (FtYrURE) ~ EXHIBIT A PARCEL ,3 TRACT 7453 DUBLIN CALIFORNIA ..... IIIlOl f& Soml, s ClVI'L ENGINEERiNG'LAND PLANNING'LAND SURVEYIN0 Pteosonton, CA (925) - 225.0690 DRAWN I DATE I SCALE, I JOB NO. : DNL 105/27/05 t 1" = 100' ~ 16034-tt I 11111! Exhibit B ADDITIONAL CONDITIONS This Exhibit B contains Additional Conditions imposed pursuant to Section 5.3 of the Development Agreement ("Agreement"), by and between the City of Dublin, a Municipal Corporation ("City") and Chang Su-O-Lin and Hong Lien Lin (collectively, the "Developer") dated as of August 15, 2003. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement. 5.3.1 Subsequent Discretionary Approvals None. 5.3.2 Mitigation Conditions 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 No. 03-31 of the City of Dublin Planning Commission approving the Vesting Tentative Map for Tract 7453 and the City Council Resolution No. 149-03 approving the Site Development Review (hereafter "TM and SDR Resolutions"), and those described below shall be completed by Developer to the satisfaction of the City Engineer at the times and in the manner specified in the TM and SDR Resolutions unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of City's Engineer. -Condition 24 [Dublin Boulevard/Dougherty Road Intersection Improvements]: Condition 24 of Planning Commission Resolution No. 03-31 reads as follows: Intersection of Dougherty Road & Dublin Blvd. In the event that the City does not have sufficient Category 2 Eastern Dublin Traffic Impact Fee (TIF) funds available, Developer shall advance the City monies for the costs of design, right-of-way acquisition and construction of the City Capital Improvement Project at the Dublin Boulevard/ Dougherty Road intersection. The amount of money Development Agreement- Exhibit B Page 1 of 6 Fairway Ranch Condominium Component 633100-5 ~ i~o to be advanced will be determined by the City Engineer based on the Project's fair share of the deficiency. Such payment is to be made within 30 days of written notice from the City Engineer. City shall provide a credit to the Developer for Category 2 TIF for any monies advanced pursuant to this condition. The City's Administration Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99) shall govern all aspects of the credit. 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 the costs of design and construction of Dublin Boulevard/Dougherty Road Intersection Improvements and the cost of such project, as determined by the Public Works Director. 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 24 shall survive termination of this Agreement. (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. Development Agreement - Exhibit B Page 2 of 6 Fairway Ranch Condominium Component 633100-5 (iv) Storm Drainaqe 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 Dublin Ranch Master Drainage Plan and the tentative map conditions of approval and to the satisfaction of the City Engineer (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. B. Miscellaneous (i) Completion of Public Improvements May Be Deferred. Notwithstanding the foregoing, City's Engineer may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the City Engineer 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. 5.3.3 Phasinq; Timinc~ This Agreement does not require the Developer to commence or complete development of the Project within any period of time set by City. Subject to the provisions of the Fairway Ranch Development Agreement, Developer shall be permitted to develop the Property in accordance with its own time schedule, consistent with the Project Approvals. 5.3.4 Financinq Plan Developer shall install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in Section 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 has entered into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Sections 5.3.2(A)(ii) and (iii) above. Development Agreement- Exhibit B Page 3 of 6 Fairway Ranch Condominium Component 633100-5 5.3.5 Fees, Dedications 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 1/Category 1" portion of the TIF in cash. Developer also agrees that it will pay 12.4% of the "Section 2/Category 2" portion of the TIF in cash. If City amends its TIF fee and as a result the City's outstanding balance due on loans is less than 12.4% of total Section 2/Category 2 improvements, the Developer shall pay such reduced percentage of the "Section 2/Category 2" portion of the TIF in cash. Developer may use any credits it has for payment of the balance of the TIF in accordance with City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 "TIF Guidelines"). 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. C. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the then-current amount of the fee. Developer may use the credits for payment of the Community Park Land portion of the Public Facilities Fee granted to the Lin Family by the Master Development Agreement in accordance with City's Public Facilities Fee Guidelines (Resolution 195-99). Development Agreement - Exhibit B Page 4 of 6 Fairway Ranch Condominium Component 633100-5 D. Noise Mitiqation Fee. Developer shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. E. School Impact Fees. School impact fees shall be paid by Developer in accordance with California Government Code Section 53080 and the agreement between Developer and the Dublin Unified School District regarding payment of mitigation fees. F. Fire Impact Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Developer may use any credits it has for payment of the fire facilities fee, provided credits for improvements, land and equipment may only be used to satisfy payment of the same components of the fire facilities fee. G. Tri-Valley Transportation Development Impact Fee. Developer shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. 5.3.6 Credit 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"). Development Agreement - Exhibit B Page 5 of 6 Fairway Ranch Condominium Component 633100-5 B. Traffic Impact Fee Right-of-Way Dedications -- Credit City shall provide a credit to Developer for any TIF area' right-of- way to be dedicated by Developer to City which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. 5.3.7 Miscellaneous A. Affordable Units In accordance with the City's Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68), the Fairway Ranch Development Agreement and the Regulatory Agreement and Covenants and Restrictions (or deed restrictions) to be recorded against the Property, Developer shall ensure that 52 housing units constructed as part of the Project shall be available for a period of not less than 55 years to households of moderate income at affordable housing cost. B. Shuttle Service. Developer shall provide a shuttle service for residents of the Project for 10 years from the date of issuance of the first Certificate of Occupancy for the Project. The shuttle service shall be in accordance with the plan for service approved by the City's Community Development Director and shall outline the type and number of shuttles which will provide transportation for the residents of the Project; the shuttle schedule, route, and hours and days of operation; and, other necessary details as determined by the Community Development Department. C. Survival. The provisions of this Section 5.3.7 shall survive the expiration of the term of the Agreement. Development Agreement - Exhibit B Page 6 of 6 Fairway Ranch Condominium Component 633100-5