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4.4 - 2271 Boulevard DA 2nd Reading
Page 1 of 3 STAFF REPORT CITY COUNCIL DATE: November 20, 2018 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Amended and Restated Development Agreement Between Dublin Crossing LLC and the City of Dublin (PLPA-2018-00027) Prepared by: Amy Million, Principal Planner EXECUTIVE SUMMARY: The City Council will consider adoption of the amended and restated Development Agreement between Dublin Crossing LLC and the City of Dublin. The purpose of this amended and restated agreement is to address and update the actual number of units to be constructed and subject to the City’s Inclusionary Zoning Program, increase the Community Benefit Payment, and other minor revisions relating to the funding for park maintenance. STAFF RECOMMENDATION: Waive the second reading and adopt an Ordinance Amended and Restated Development Agreement between the City of Dublin and Dublin Crossing, LLC Related to the Dublin Crossing Project PLPA-2018-00027 (Historical APNs 986-0001-001-15 (Partial), 986-0034-002-00, and 986-0034-006-00). DESCRIPTION On November 19, 2013, the City entered into a Development Agreement with Dublin Crossing Venture LLC for the development of the Camp Parks property. The agreement was later assigned to Dublin Crossing LLC. That project is now referred to as the Boulevard project and is under construction. Over the course of the past five years, the City and Dublin Crossing LLC have amended the Agreement three times to address several items. Most notably, th e amendments updated the land uses and related approvals to obtain the school site for the City free of charge and to direct the Developer to construct of the park improvements for Don Biddle Community Park. Staff and the developer have identified additio nal changes to the agreement that are necessary. Rather than amend the agreement a fourth time, Staff and the developer determined that all the changes to the agreement should be incorporated into an amended and restated agreement. The amended and restat ed agreement will avoid the need to refer to five separate documents when determining Page 2 of 3 compliance with the Development Agreement. The original Agreement and the previous amendments to the Agreement are being provided as attachments (Attachments 1 -4). In this amended and restated Agreement, the Developer and the City are making minor revisions to certain sections. The changes include the way in which park maintenance funds - a total of $2.5 million - can be used. Under the original provisions, the $2.5 million contribution was treated as an endowment; under the proposed changes, the contribution would remain the same, but the City would not be required to maintain the funds in an endowment and could expend the funds on park maintenance. Additionally, the Developer and the City have agreed to update Section 11 of the Agreement detailing the number of units expected to be constructed with respect to the Developer’s compliance with the Inclusionary Zoning Ordinance. In addition, the Developer would increase its Community Benefit Payment in Fiscal Years 2018-2019 and 2019-2020 from $2 million to $4.5 million, an increase of $2.5 million. The Developer agrees that any units over 1770 units will be subject to the City’s Inclusionary Zoning Program. The existing Development Agreement allows the project to construct up to 1995 units. Because the revisions are considered a substantive change to the Agreement, public hearings must be held, including a hearing where the Planning Commission makes a recommendation to City Council. On November 8, 2018, the City Council waived the first reading and introduced the Ordinance. The City Council November 8, 2018 staff report without attachments is included as Attachment 1. The Ordinance with the amended and restated Agreement are attached as Attachments 2 and 3. ENVIRONMENTAL REVIEW: On November 5, 2013, the City Council adopted Resolution No. 186 -13 certifying an Environmental Impact Report (EIR) for the Dublin Crossing Specific Plan. The Dublin Crossing Specific Plan EIR (SCH# 2012062009) was prepared in accordance with the California Environmental Quality Act (CEQA). Approval of the Development Agreement was an action covered by the EIR. Pursuant to the California Environmental Quality Act (CEQA) Guidelines section 15168(c)(2), the proposed project, which consists of an amendment to the existing Development Agreement, was examined to determine if another environmental document should be prepared. There is no substantial evidence in the record that any new effects would occur, that any new mitigation measures would be required, or that any of the conditions triggering supplemental environmental review under CEQA Guidelines section 15162 exists. STRATEGIC PLAN INITIATIVE: None. PUBLIC NOTICING: A notice of this public hearing was mailed to all property owners and occupants within 300-feet of the proposed project. The Public Notice was also published in the East Bay Times and posted at several locations throughout the City. A copy of this Staff Report was provided to the Applicant. The Staff Report for this public hearing was also available on the City’s website. Page 3 of 3 ATTACHMENTS: 1. City Council November 8, 2018 Staff Report without Attachments 2. Amended and Restated Development Agreement between the City of Dublin and Dublin Crossing, LLC related to the Dublin Crossing Project 3. Exhibit A to Attachment 2 Amended and Restated Development Agreement Page 1 of 3 STAFF REPORT CITY COUNCIL DATE: November 8, 2018 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Amended and Restated Development Agreement Between Dublin Crossing LLC and the City of Dublin (PLPA-2018-00027) Prepared by: Amy Million, Principal Planner EXECUTIVE SUMMARY: The City Council will consider the amended and restated Development Agreement between Dublin Crossing LLC and the City of Dublin. The purpose of this amended and restated agreement is to address and update the actual number of units to be constructed and subject to the City’s Inclusionary Zoning Program, increase the Community Benefit Payment, and other minor revisions relating to the funding for park maintenance. STAFF RECOMMENDATION: Waive the first reading and INTRODUCE an Ordinance approving an amended and restated Development Agreement between the City of Dublin and Dublin Crossing LLC relating to the Dublin Crossing Project. DESCRIPTION: On November 19, 2013, the City entered into a Development Agreement with Dublin Crossing Venture LLC for the development of the Camp Parks property. The agreement was later assigned to Dublin Crossing LLC. That project is now referred to as the Boulevard project and is under construction. Over the course of the past five years, the City and Dublin Crossing LLC have amended the Agreement three times to address several items. Most notably, the amendments updated the land uses and related approvals to obtain the school site for the City free of charge and to direct the Developer to construct of the park improvements for Don Biddle Community Park. Staff and the developer have identified additional changes to the agreement that are necessary. Rather than amend the agreement a fourth time, Staff and the developer determined that all the changes to the agreement should be incorporated into an amended and restated agreement. The amended and restated agreement will avoid the need to refer to five separate documents when determining Page 2 of 3 compliance with the Development Agreement. The original Agreement and the previous amendments to the Agreement are being provided as attachments (Attachments 1 -4). In this amended and restated Agreement, the Developer and the City are making minor revisions to certain sections. The changes include the way in which park maintenance funds - a total of $2.5 million - can be used. Under the original provisions, the $2.5 million contribution was treated as an endowment; under the proposed changes, the contribution would remain the same, but the City would not be required to maintain the funds in an endowment and could expend the funds on park maintenance. Additionally, the Developer and the City have agreed to update Section 11 of the Agreement detailing the number of units expected to be constructed with respect to the Developer’s compliance with the Inclusionary Zoning Ordinance. In addition, the Developer would increase its Community Benefit Payment in Fiscal Years 2018-2019 and 2019-2020 from $2 million to $4.5 million, an increase of $2.5 million. The Developer agrees that any units over 1,770 units will be subject to the City’s Inclusionary Zoning Program. The existing Development Agreement allows the project to construct up to 1 ,995 units. Because the revisions are considered a substantive change to the Agreement, public hearings must be held, including a hearing where the Planning Commission makes a recommendation to City Council. On October 30, 2018, the Planning Commission considered the amendment at a special meeting and ultimately could not make a recommendation. The Commission made two separate motions, both which resulted in a 2 -2 vote. The first motion was for a recommendation of approval as presented. The second motion was for a recommendation of approval with a modification to strike the proposed changes to the park maintenance funds and retain the existing park endowment as provided in the existing Development Agreement. The proposed Development Agreement is therefore presented to the City Council without a recommendation from Planning Commission. The Ordinance with the amended and restated Agreement are attached as Attachments 5 and 6. ENVIRONMENTAL REVIEW: On November 5, 2013, the City Council adopted Resolution No. 186 -13 certifying an Environmental Impact Report (EIR) for the Dublin Crossing Specific Plan. The Dublin Crossing Specific Plan EIR (SCH# 2012062009) was prepared in accordance with the California Environmental Quality Act (CEQA). Approval of the Development Agreement was an action covered by the EIR. Pursuant to the California Environmental Quality Act CEQA) Guidelines section 15168(c)(2), the proposed project, which consists of an amendment to the existing Development Agreement, was examined to determine if another environmental document should be prepared. There is no substantial evidence in the record that any new effects would occur, that any new mitigation measures would be required, or that any of the conditions triggering supplemental environmental review under CEQA Guidelines section 15162 exists. STRATEGIC INITIATIVE: None. Page 3 of 3 PUBLIC NOTICING: A notice of this public hearing was mailed to all property owners and occupants within 300-feet of the proposed project. The Public Notice was also published in the East Bay Times and posted at several locations throughout the City. A copy of this Staff Report was provided to the Applicant. The Staff Report for this public hearing was also available on the City’s website. ATTACHMENTS: 1. Dublin Crossing Development Agreement - Original 2. Amendment No 1 to Development Agreement 3. Amendment No 2 to Development Agreement 4. Amendment No 3 to Development Agreement 5. Development Agreement Ordinance 6. Amended and Restated Development Agreement ORDINANCE NO. xx - 18 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * * * * * * * * * * * * * * * * * * * AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN CROSSING, LLC RELATED TO THE DUBLIN CROSSING PROJECT PLPA-2018-00027 (HISTORICAL APNs 986-0001-001-15 (PARTIAL), 986-0034-002-00, AND 986-0034-006-00) THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. On November 5, 2013, the City Council approved Resolutions 186-13 (EIR certification) and 187-13 (Specific Plan approval and General Plan amendments) as well as Ordinances 07-13 (Zoning Ordinance and Zoning Map changes) and 08-13 (Development Agreement approval) that approved the Dublin Crossi ng project (now referred to as “Boulevard”) on properties historically identified by Assessor Parcel Numbers 986 -0001-001-15 (partial), 986- 0034-002-00, and 986-0034-006-00 (an approximately 189 acre site); and B. The project is located within the proposed Dublin Crossing Specific Plan area, which is the subject of an Environmental Impact Report (EIR), State Clearinghouse number 2012062009. Resolution 186-13 certified the Dublin Crossing Specific Plan Final EIR and adopting CEQA findings, a Statement of Overriding Considerations, and Mitigation Monitoring and Reporting Program for the Project. The original Development Agreement was part of the Project analyzed in the EIR and the impacts of the activities under the Development Agreement were analyzed in the EIR; and C. The Dublin Crossing project includes the demolition of the existing buildings and other improvements on the site and construction of a residential mixed - use project with up to 1,995 single- and multi- family residential units; up to 200,000 square feet of retail, office and/or commercial uses; a 30 acre Community Park; and a 12 acre joint use park/school site to serve approximately 900 students; and D. Subsequent to the approval of the original Development Agreement, three (3) amendments to the document have been reviewed and approved by the City Council that addressed updates to the land uses and related approvals to obtain the school site for the City free of charge and to direct the Developer to construct of the park improvements for Don Biddle Community Park; and E. Subsequent environmental review was completed prior to approval of amendments to the Development Agreement that included land use changes; and F. It has been determined that additional changes to the Agreement are necessary, but rather than amend the agreement a fourth time, Staff and Dublin Crossing, LLC agreed that all the changes to the agreement (approved to date and proposed) should be incorporated into 2 an amended and restated Agreement. This will avoid the need to refer to five separate documents when determining compliance with the Development Agreement; and G. Dublin Crossing, LLC has applied for an amended and restated Development Agreement which will vest the Project Approvals on the Dublin Crossing Project site as outlined in the amended and restated Development Agreement; and H. The Planning Commission held a public hearing on the proposed amended and restated Development Agreement on October 23, 2018, for which public notice was given by law; and I. The Planning Commission made its recommendation to the City Council for approval of the amended and restated Development Agreement by Resolution. J. A public hearing on the proposed amended and restated Development Agreement was held before the City Council on November 8, 2018 for which public notice was given as provided by law. K. The City Council has considered the recommendation of the Planning Commission, including the Planning Commission’s reasons for its recommendation, the Agenda Statement, all comments received in writing, and all testimony received at the public hearing. Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of: (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin General Plan; (c) the Dublin Crossing Specific Plan, (d) the Dublin Crossing Specific Plan EIR; (e) the Staff Report; (f) information in the entire record of proceeding for the Project, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The amended and restated Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City’s General Plan, and in the Dublin Crossing Specific Plan in that: (a) the amended and restated Development Agreement incorporates the objectives policies, general land uses and programs in the General Plan and Specific Plan and does not amend or modify them; and (b) the project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to the provision of infrastructure and public services. 2. The amended and restated Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located because the amended and restated Development Agreement does not amend the uses or regulations in the applicable land use district. 3. The amended and restated Development Agreement is in conformity with public convenience, general welfare, and good land use policies in that the Developer’s project will implement land use guidelines set forth in the Dublin Crossing Specific Plan and the General Plan as articulated in Resolution No. 187-13, amending the General Plan and adopting the Dublin Crossing Specific Plan, adopted by the City Council on November 5, 2013, and as subsequently amended. 4. The amended and restated Development Agreement will not be detrimental to the health, safety, and general welfare in that the Developer’s proposed project will proceed in 3 accordance with all the programs and policies of the General Plan, Dublin Crossing Specific Plan, and future Project Approvals and any Conditions of Approval. 5. The amended and restated Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan, the Dublin Crossing Specific Plan, and future Project Approvals. 6. The amended and restated Development Agreement specifies the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The amended and restated Development Agreement contains an indemnity and insurance clause requiring the developer to indemnify and hold the City harmless against claims arising out of the development process, including all legal fees and costs. Section 3. APPROVAL The City Council hereby approves the amended and restated Development Agreement (Exhibit A to the Ordinance) and authorizes the City Manager to execute it. Section 4. RECORDATION Within ten (10) days after the amended and restated Development Agreement is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after t he date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 20th day of November, 2018 by the following votes: AYES: NOES: ABSENT: ABSTAIN: _____________________________________ Mayor ATTEST: ________________________________ City Clerk RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder’s use AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN CROSSING, LLC RELATING TO THE DUBLIN CROSSING PROJECT THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (“Agreement”) is made and entered in the City of Dublin on this __ day of _______, 2018, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter “City”), DUBLIN CROSSING, LLC, a Delaware limited liability company (hereafter “Developer”), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. City and Developer are from time-to-time individually referred to in this Agreement as a “Party” and are collectively referred to as “Parties”. RECITALS A. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter “Development Agreement Statutes”) 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 is party to a certain agreement dated March 4, 2011 with the United States of Army Corps of Engineers (the “Army”) that gives Developer the equitable right to acquire 172 acres of real property located in the City of Dublin, County of Alameda, state of California (the “Army Property”) as is more particularly described in Exhibit A attached hereto and incorporated herein by this reference. Developer has purchased portions of the Army Property pursuant to that agreement and intends to purchase the remainder. C. Developer is also a party to a certain agreement with National Aeronautics and Space Administration (“NASA”) dated January 11, 2013 (the “NASA Agreement”) that gave Developer a right to purchase 8.5 acres of real property located adjacent to the Army Property in the City of Dublin, County of Alameda, State of California (the “”NASA Property”) as is more particularly described in Exhibit B attached hereto and incorporated by this reference. Developer did purchase the NASA Property pursuant to the NASA Agreement. D. Pursuant to the predecessor to this Agreement, Developer had the right to, and did, acquire from the City an 8.7-acre parcel of real property owned by the Alameda County Surplus Property Authority (“ACSPA”) located in the City of Dublin, County of Alameda, state of California (the “ACSPA Property”) as is more particularly described in Exhibit C attached hereto and incorporated by this reference. E. Pursuant to its authority under the Development Agreement Statutes, City and Developer’s predecessor in interest entered into that certain “Development Agreement Between the City of Dublin and Dublin Crossing Venture LLC,” dated November 19, 2013 and recorded in the Official Records of Alameda County ("Official Records") on June 4, 2014 as document number 2014134795 (the “Original Agreement”). Subsequently, the parties to the Original Agreement entered into that certain “Amendment No. 1 to Development Agreement Between the City of Dublin and Dublin Crossing Venture LLC Relating to the Dublin Crossing Project,” dated June 16, 2015 and recorded in the Official Records on July 22, 2015 as document number 2015202606 (the “First Amendment”), the Parties entered into that certain “Amendment No. 2 to Development Agreement Between the City of Dublin and Dublin Crossing LLC Relating to the Dublin Crossing Project,” Dated February 14, 2016 and recorded in the Official Records on March 8, 2016 as document number 2016056821 (the “Second Amendment”), and the Parties entered into that certain “Amendment No. 3 to Development Agreement Between the City of Dublin and Dublin Crossing LLC Relating to the Dublin Crossing Project,” Dated May 16, 2017 and recorded in the Official Records on June 26, 2017 as document number 2017138465 (the “Third Amendment”). F. This Amended and Restated Agreement, which incorporates the Original Agreement, as amended by the First Amendment, Second Amendment, Third Amendment, and certain other amendments, is referred to as the “Agreement.” G. Pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq., hereinafter “CEQA”), City undertook the required analysis of the environmental effects that would be caused by the Existing Project Approvals and determined those feasible mitigation measures which will eliminate, or reduce to an acceptable level, the adverse environmental impacts of the Existing Project Approvals. The environmental effects of the proposed development of the Property were analyzed by the Final Environmental Impact Report (the “FEIR”) certified by City on November 5, 2013. In conjunction therewith, City also adopted a mitigation monitoring and reporting program (the “MMRP”) to ensure that those mitigation measures incorporated as part of, or imposed on, the Project are enforced and completed. Those mitigation measures for which Developer is responsible are incorporated into, and required by, the Project Approvals. H. In conjunction with its review of the Subsequent Project Approvals, the City prepared an addendum to the FEIR that concluded that none of the conditions described in CEQA Guidelines section 15162 calling for the preparation of a subsequent EIR have occurred. I. This Amended and Restated Agreement intends to consolidate the changes made in Amendments 1 through 3, amend the Project unit count with respect to the City’s Inclusionary Zoning Regulations in Section 11, and update the Community Benefit Payment. J. On _____________, 2018, the City Council of the City of Dublin adopted Ordinance No. ____ approving this Amended and Restated Agreement the (“DA Amendment Approving Ordinance”). The ordinance took effect on ___________, 2018 (the “Amendment Approval Date”). NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, City and Developer agree as follows: TERMS AND CONDITIONS 1. Description of Property. The Property which is the subject of this Development Agreement is described in the Recitals. 2. Interest of Developer; Effectiveness of Agreement Prior to Developer’s Acquisition of Title to Property. 2.1 The Developer has an equitable interest in the Property in that it is (a) party to an exchange agreement with the Army that obligates the Army to transfer specified portions of the Property to Developer upon Developer’s construction of certain improvements benefiting the Army, (b) party to the NASA Agreement that gave the Developer a right to purchase the NASA Property, and (c) pursuant to this Agreement had a right to acquire the ACSPA Property from ACSPA or the City. Dublin Municipal Code section 8.56.040 specifies that, unless the property owner is party to development agreements, development agreements are “conditional upon the close of escrow vesting fee title to the property in the Developer.” Accordingly, although this Agreement, once executed, shall become effective and shall be fully binding and enforceable by the Parties as of the Approval Date, the rights and obligations under this Agreement shall become applicable as to each portion of the Property only upon the Developer’s acquiring fee title to the specific portion of the Property (as to each such Portion, the “Acquisition Date”). Notwithstanding anything to the contrary in the foregoing, Developer shall be obligated to make the contribution for the Iron Horse Trail Grade Separated Crossing Design described in Section 10.6,1 and the Community Benefit Payment described in Section 7.1 at the times specified even if Developer has not yet acquired title to all of the Property specified for a particular phase by the dates specified in Section 9.1. 3. Relationship of City and Developer. This Agreement has been negotiated and voluntarily entered into by City and Developer. The Developer is not an agent of City. The City is not the agent of the Developer. 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 Term. The effective date of this Agreement (“Effective Date”) shall be the Approval Date of the Approving Ordinance as defined in Recital J. 4.2 Term of Agreement. 4.2.1 The “Term” of this Development Agreement shall commence on the Effective Date and shall continue for fifteen (15) years from the Effective Date, unless otherwise extended or terminated as provided in this Agreement. 4.2.2 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 Two Hundred Thousand Dollars ($200,000) (adjusted for inflation from the Effective Date using the CPI-U, San Francisco-Oakland-San Jose Area) for each year of extension requested under this provision. 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 time period equal to the time period requested by Developer under this provision, commencing on the date the Development Agreement would otherwise have terminated; provided 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 twenty (20) years. Provided there is an extension period remaining, Developer may request the extension for multiple years and provide the payment due for each year’s extension. 4.3 Term of Project Approvals. Pursuant to the Subdivision Map Act (Government Code § 66410 et seq.), and in particular, Government Code Section 66452.6(a), the term of any tentative or vesting tentative map, parcel map or vesting parcel map for the Property or any Portion thereof, shall be extended automatically for the Term of this Agreement, such that such tentative or vesting tentative maps or parcel maps remain in effect for no less than the Term, and shall also be extended by any other extension(s) granted under the Subdivision Map Act and/or City ordinance consistent with the Subdivision Map Act. 5. Vested Rights/Use of the Property/Applicable Law/Processing. 5.1 Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with, and subject only to, the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement, and the City’s ordinances, codes, resolutions, rules, regulations and official policies governing the development, construction, subdivision, occupancy and use of the Project and the Property including, without limitation, the General Plan, the Dublin Municipal Code, and the Specific Plan, the permitted uses of the Property, density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings, and the provisions for reservation or dedication of land for public purposes that are in force and effect on the Effective Date of this Agreement (collectively, “Applicable Law”). In exercising its discretion when acting upon Subsequent Project Approvals, City shall apply the Applicable Law as the controlling body of law (within which Applicable Law such discretion shall be exercised). Notwithstanding anything to the contrary contained herein, this Agreement shall not supersede any rights Developer may obtain pursuant to City's approval of any vesting tentative tract map or vesting tentative parcel map for the Project. 5.2 Fees, Exactions, Dedications. Except as otherwise set forth in this Agreement, City and Developer agree that this Agreement does not limit the City’s discretion to impose or require payment of any fees in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, dedication of any land, or construction of any public improvement or facilities, except that the City may not apply to the Project any development impact fee that it first enacted after the Effective Date. 5.3 Construction Codes. Notwithstanding the provisions of Section 5.1 above, to the extent Applicable Law includes requirements under the state or locally adopted building, plumbing, mechanical, electrical and fire codes (collectively the “Codes”), the Codes included shall be those in force and effect at the time the Developer submits its application for the relevant building, grading, or other construction permits to City. In the event of a conflict between such Codes and the Project Approvals, the Project Approvals shall, to the maximum extent allowed by law, prevail. For construction of public infrastructure, the Codes applicable to such construction shall be those in force and effect at the time of execution of an improvement agreement between City and Developer pursuant to Chapter 9.16 of the Dublin Municipal Code. 5.4 New Rules and Regulations. 5.4.1 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 Approval Dat e and which are not in conflict with the vested rights granted by this Agreement, the Applicable Law, the Project Approvals or this Agreement. In addition to any other conflicts that may occur, each of the following new or modified ordinances, resolutions, rules, regulations or official policies shall be considered a per se conflict with the Applicable Law: (a) Any application or requirement of such new or modified ordinances, resolutions, rules, regulations or official policies that would (i) cause or impose a substantial financial burden on, or materially delay development of the Property as otherwise contemplated by this Agreement or the Existing Project Approvals, (ii) frustrate in a more than insignificant way the intent or purpose of the Existing Project Approvals or preclude compliance therewith including, without limitation, by preventing or imposing limits or controls in the rate, timing, phasing or sequencing of development of the Project; (iii) prevent or limit the processing or procuring of Subsequent Project Approvals; or (iv) reduce the density or intensity of use of the Property as a whole, or otherwise requiring any reduction in the square footage of, or total number of, proposed homes and other improvements, in a manner that is inconsistent with or more restrictive than the limitations included in this Agreement and Specific Plan; and/or (b) If any of such ordinances, resolutions, rules, regulations or official policies do not have general (City-wide) applicability. Developer specifically acknowledges that it will be subject to new or modified ordinances, resolutions, rules, regulations or official policies that implement the Municipal Regional Stormwater NPDES Permit issued by the Regional Water Quality Control Board for the San Francisco Bay Region from time to time (the “MRP”) to the extent that the permit does not include exemptions that apply to the Project. 5.5 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, if an ordinance, resolution, policy, directive or other measure is enacted or becomes effective, whether by action of City, by initiative, referendum, or otherwise, and if it imposes a building moratorium which affects all or any part of the Project, City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code Section 8558, provided that to the extent a moratorium applies to all or any part of the Project then the Term shall automatically be extended for a period of time equal to the period of the moratorium. 5.6 Revised Application Fees. Notwithstanding Section 5.2 above, 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, impose a substantial financial burden on, or materially delay development of the Project in accordance with this Agreement. By so agreeing, Developer does not waive its rights to challenge the legality of any such application, processing and/or inspection fees. 5.7 New Taxes. This Agreement shall not prohibit the application of any subsequently enacted city-wide taxes 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. By so agreeing, Developer does not waive its rights to challenge the legality of any such taxes. 5.8 Development of the Project; Phasing, Timing. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the Parties’ intent to cure that deficiency by acknowledging and providing that, except as specified in Section 6 with respect to payment of fees, this Agreement contains no requirements that Developer must initiate or complete any action, including without limitation, development of the Project within any period of time set by City. Nothing in this Agreement is intended to create nor shall it be construed to create any affirmative development obligations to develop the Project at all or in any particular order or manner, or liability in Developer under this Agreement if the development fails to occur. It is the intention of this provision that Developer be able to develop the Property in accordance with its own time schedules and the Project Approvals. 5.9 Processing. 5.9.1 Nothing in this Agreement shall be construed to limit the authority or obligation of City to hold necessary public hearings, nor to limit the discretion of City or any of its officers or officials with regard to those Subsequent Project Approvals that require the exercise of discretion by City, provided that such discretion shall be exercised consistent with the vested rights granted by this Agreement, the Applicable Law and this Agreement. 6. Development Agreement Fee; Advances. 6.1 Development Agreement Fee; Due On a Per-Unit Basis at Final Map. Prior to the City’s approval of each final map creating individual lots for residential units, Developer shall pay the City a development agreement fee (the “Development Agreement Fee”) calculated as follows: the number of residential lots (or condominium parcels) that would be created by the specific final map subject to approval multiplied by $18,656.25. For maps that create condominiums, the tentative and final map shall indicate the maximum number of units permitted by the final map, and the Development Agreement Fee paid shall be based on the maximum number of units permitted by the final map. For maps creating fewer than 40 lots or condominium units, the Development Agreement Fee shall be based on 40 lots or condominium units. In the event that Developer seeks a site development review (“SDR”) approval for residential units for which the per unit fee has not been paid (e.g. apartment projects), Developer shall pay the per-unit fee amount at the time of SDR approval. The per-unit fee amount ($18,656.25 per residential unit) shall not be adjusted for inflation. At such point as Developer has paid Development Agreement Fees or advances equal to $29,850,000 in the aggregate, Developer shall no longer be obligated to pay the Development Agreement Fee required by this subsection. As detailed in Exhibit E, the $18,656.25 per residential unit fee generates $29,850,000 at the point when 1,600 units are mapped in the Project. The Development Agreement Fee was determined based on five separate components described in this Agreement: (a) Community Benefit, § 7; (b) Iron Horse Bridge Design, § 10.6.1; (c) Iron Horse Bridge Construction; § 10.6.2; (d) ACSPA Property Acquisition Contribution, § 9.8; and (e) Park Maintenance Payment, § 9.7. The City is requiring the payment of the Development Agreement Fee as a condition to development of the Property. The Parties agree that the City shall be deemed for all purposes to be requiring the payment of the Development Agreement Fee as a condition to development of the Property and that the Development Agreement Fee should be considered a supplemental fee and, in all aspects of its application and implementation, should not be deemed a waiver or fee reduction of any kind. If at any point the City Council determines that at full buildout, development on the Property will not or is unlikely to produce 1,600 units, the City may withhold further approvals, including final maps, until such time as Developer provides adequate assurances that the City will receive the entire $29,850,000 in Development Fee revenue. ”Revised Fee if City Elects Not to Form Developer-Proposed Community Facilities District. In the event that the City Council elects not to form a community facilities district (“CFD”) proposed by Developer that meets the requirements of Section 8 and applicable law, Section 6.1 shall not apply and Developer shall pay a revised development agreement fee (the “Revised Development Agreement Fee”) in the amount of $2,406.25 per unit. The revised fee reflects the termination and retention of the following components of the Development Agreement Fee: Terminated Retained Community Benefit, § 7 Iron Horse Bridge Design, § 10.3.1 Park Maintenance Payment, § 9.7 Fair share of Iron Horse Bridge Construction, § 10.3.2 ACSPA Property Acquisition Contribution, § 9.8 At such point as Developer has paid the Revised Development Agreement Fees in sufficient amounts for the City to apply $50,000 toward the Iron Horse Trail Grade Separated Crossing Design, $1,000,000 toward Iron Horse Trail Grade Separated Crossing Construction, and $2,800,000 toward ACSPA Property Acquisition Contribution, Developer shall no longer be obligated to pay the Revised Development Agreement Fee required by this subsection. The fee amount ($2,406.25 per residential unit) shall not be adjusted for inflation. Developer shall not be entitled to apply or obtain a refund for Development Agreement Fees or advances paid prior to the City Council election not to form a CFD, except that Developer shall be entitled to apply any such payment against future Development Agreement Fees for the first Community Benefit Payment advance required by Section 7.2 below and any Development Agreement Fees paid prior to that time. The Parties agree that, in the event this section is applied, the City shall be deemed for all purposes to be requiring the payment of the Revised Development Agreement Fee as a condition to development of the Property and that the Revised Development Agreement Fee should be considered a supplemental fee and, in all aspects of its application and implementation, should not be deemed a waiver or fee reduction of any kind. 6.2 Revised Fee if City Elects Not to Form Developer-Proposed Community Facilities District. In the event that the City Council elects not to form a community facilities district (“CFD”) proposed by Developer that meets the requirements of Section 8 and applicable law, Section 6.1 shall not apply and Developer shall pay a revised development agreement fee (the “Revised Development Agreement Fee”) in the amount of $2,406.25 per unit that would be created by the specific final map prior to the City’s approval of such final map and shall be relieved from any further obligations under Section 9.5 with respect to the design, construction or funding for the Community Park. The Revised Development Agreement Fee reflects the termination and retention of the following components of the Development Agreement Fee: Terminated Retained Community Benefit, § 7 Iron Horse Bridge Design, § 10.3.1 Park Maintenance Payment, § 9.7 Fair share of Iron Horse Bridge Construction, § 10.3.2 ACSPA Property Acquisition Contribution, § 9.8 At such point as Developer has paid the Revised Development Agreement Fee in sufficient amounts for the City to apply $50,000 toward the Iron Horse Trail Grade Separated Crossing Design, $1,000,000 toward Iron Horse Trail Grade Separated Crossing Construction, and $2,800,000 toward ACSPA Property Acquisition Contribution, Developer shall be deemed to have fully satisfied its obligation to pay the Revised Development Agreement Fee required by this subsection. The fee amount ($2,406.25 per residential unit) shall not be adjusted for inflation. Developer shall not be entitled to obtain a refund for Development Agreement Fee or advances paid prior to the City Council election not to form a CFD, but Developer shall be entitled to apply any such payment against future Revised Development Agreement Fee. The Parties agree that, in the event this section becomes applicable, the City shall be deemed for all purposes to be requiring the payment of the Revised Development Agreement Fee as a condition to obtaining final maps for individual lots to be developed on the Property and that the Revised Development Agreement Fee shall be considered a supplemental fee and, in all aspects of its application and implementation, should not be deemed a waiver or fee reduction of any kind. 6.3 Accounting; Advances; Allowances. This Agreement specifies that City shall receive and obligates Developer to make certain payments at specified times in the event that Development Agreement Fees have not been collected in sufficient amounts to meet those obligations at the specified times. The City shall account for the Development Agreement Fee revenues in a way that records the application of previously collected Development Agreement Fee revenues toward one of the payment obligations and the Developer’s advance of Development Agreement Fee payments in order to satisfy Developer’s payment obligations. Any such advances will be applied toward future Development Agreement Fees due and shall be “Allowances” hereunder. The Allowances shall be expressed in residential units and be documented contemporaneously with the payments in a manner acceptable to both Parties, and generally consistent with the procedures currently used in the City’s Eastern Dublin Traffic Impact Fee (“EDTIF”) program. Developer and its successors may transfer the Development Agreement Fee Allowances to subsequent owners of all or a portion of the Property. Exhibit F includes the timing and operation of the payment application, advances, and allowances. 7. Community Benefit Payment. 7.1 Developer has agreed, as partial consideration for the City’s entering into this agreement, to contribute to the City over the course of the Project the sum of $26,000,000 as a Community Benefit Payment, in accordance with the schedule and requirements outlined in Section 7.2. 7.2 The Community Benefit Payment is a component of the Development Agreement Fee and will be paid as specified in Section 6.1, except that, if the City has not received the following amount, exclusive of Development Agreement Fee component payments previously applied, by the applicable deadline below, Developer shall, on or before the applicable deadline, make an advance of Development Agreement Fees equal to the difference between the amount of Development Agreement Fees the City had previously received, exclusive of Development Agreement Fee component payments previously applied, and the amount set out below. Payment Amount Deadline First $15,000,000 June 30, 2016 Second $3,000,000 June 30, 2018 Third $2,250,000 June 30, 2019 Fourth $2,250,000 June 30, 2020 Fifth $1,000,000 June 30, 2021 Sixth $2,500,000 At recordation of the last final map in Phase 4 of the Project (see Exhibit D) 8. Community Facilities District Standards. 8.1 Developer intends to propose the formation of a community facilities district or districts by the City pursuant to the Mello Roos Community Facilities District Act of 1982 (Gov. Code §§ 53311–53368.3) (the “Mello-Roos Act”) to finance public facilities. The City agrees that upon Developer’s presentation of a landowner’s petition and Developer’s payment of a fee, as described in subdivision (d) of Government Code section 53318, use its best efforts to commence proceedings to form a CFD to finance certain public facilities so long as Developer’s proposal is consistent with Exhibit G (Community Facilities District Financial Provisions). The City Council is not obligated to approve the CFD, although certain consequences would occur pursuant to Section 6.2 if it does not approve a CFD that meets the requirements of this Section. 8.2 The City’s obligation to consider Developer’s CFD formation proposal is limited to proposals that meet the standards set forth in Exhibit G. 9. Parks. 9.1 Parkland Dedication. Except as specified in Section 9.8, the Project proposed by Developer includes the dedication of 30 net acres of community parkland. Developer shall dedicate the specified parkland with the first final map in the Project phase specified below, or earlier: Project Phase Size of dedication 1st Phase 2 10 net acres of community park land (includes 8.7 acres in exchange for ACSPA Property transfer by City under section 9.8.) 2nd Phase 3 10 net acres of community park land 3rd Phase 5 10 net acres of community park land Net acreage is measured at the property line of the park parcels dedicated by Developer and does not include land area currently owned by the City or land area within adjacent existing or future street right of ways. Other than the creek and the 50-foot buffer boundary from top of bank on either side of the creek, net acreage does not include land that is encumbered by use restrictions, unless the use restrictions are approved by the City. The City acknowledges that the portions of the 30 acres may be subjected to the following reasonable restrictions: active sports fields, certain species of plantings, and the use of motorized vehicles. If resource agencies require use restrictions that are not acceptable to the City in the area beyond the 50-foot buffer boundary from top of bank on either side of the creek, Developer shall identify additional acreage to meet the net 30 acre requirement. This obligation shall be satisfied prior to the issuance of the first building permit in Phase 2, and the City may withhold further building permits outside of Phase 1 until it is satisfied. The Parties agree that, in the event of substantial revisions to the geography of the Project phases (as determined by the City Manager), this Agreement shall be promptly amended to revise Exhibit D and to reflect the impact the revised phases have on provisions of this Agreement that reference the Project phases, which include, but are not limited to, this Section 9.1 and Sections 9.6 and 9.8. The City Manager may approve insubstantial revisions to Exhibit D requested by Developer and if such revisions are so approved the revised Exhibit D shall automatically become annexed to this Agreement and shall replace the prior Exhibit D and the Parties shall be authorized to and shall replace the prior Exhibit D with the new Exhibit D in each copy of the Agreement. 9.2 Public Facilities Fee and Quimby Requirements For Land Dedications. In the aggregate, the dedications required by this Agreement, including the dedication of the school site pursuant to Section 12 on which the City intends to provide for a minimum of 5 acres of joint school/park use, and the Developer’s contribution toward the City’s purchase of the ACSPA Property pursuant to Section 9.8.3, satisfy the community park land component of the City’s Public Facilities Fee and the parkland dedication requirements of Chapter 9.28 of the Dublin Municipal Code for up to 1,995 residential units and for all of the commercial development proposed on the Specific Plan. Except as otherwise specified in this Agreement, development in the Project and on the Property shall be subject to all other components of the Public Facilities Fee. At the time of dedication on the final map, provided that Developer (a) enters into an improvement agreement in conjunction therewith and (b) provides evidence, acceptable to the City Engineer, demonstrating that the land to be conveyed (including any imported fill) meets California Department of Toxic Substances Control standards applicable to residential development or such lesser standard acceptable to the City, the City will promptly upon receipt of such evidence indicate in its records that Developer has made such a dedication, and those records will be used to determine whether the Developer has satisfied its obligations under the community park land component of the City’s Public Facilities Fee and the parkland dedication requirements of Chapter 9.28 of the Dublin Municipal Code. The City’s records of the dedications shall be expressed in acres of community and neighborhood parkland as follows: Dedication Neighborhood Park Community Park 1st 3 acres 7 acres 2nd 2.170 acres 5.063 acres 3rd 3 acres 7 acres When the previous dedications are used to satisfy the obligations as to individual maps and building permits, the unapplied dedications reflected in the City’s records shall be reduced to reflect the equivalent in acreage of the fee component for which previous dedications were used. If Developer does not have sufficient unapplied dedication acreage when it seeks approval for a particular map or building permit, it may, instead of paying the applicable fees in lieu of parkland dedication or the community park land component of the Public Facilities Fee, provide security acceptable to the City that secures payment of such fees. Upon its receipt of parkland dedications to satisfy the obligations so secured, the City will promptly reduce the security in an equivalent amount. 9.2.1 Under the City’s Public Facilities Fee, the community park land component of the public facilities fee for a single family unit is currently equal to $11,863 and for a multi-family unit is currently equal to $7,413. Based on the assumed populations of 3.2 persons per single family unit (defined in the PFF as a dwelling constructed on land designated for 6 or fewer units per acre) and 2.00 persons per multi- family unit (defined in the PFF as a dwelling constructed on land designated for 6.1 or more units per acre) in the PFF, and the parkland standard of 3.5 acres of community parkland per thousand persons and 1.5 acres of neighborhood parkland per thousand persons, a single family unit reduces the unapplied community parkland dedication acreage by 0.0112 acres and the unapplied neighborhood parkland dedication acreage by 0.0048 acres, and a multifamily unit reduces the unapplied community parkland dedication acreage by 0.007 acres and the unapplied neighborhood parkland dedication acreage by 0.003 acres. 9.3 Stormwater Facilities. The City will allow underground stormwater detention facilities within the 30 acre net community park, not to exceed a footprint of 87,120 square feet, and in locations acceptable to the City. The underground stormwater facilities shall include a minimum cover acceptable to the City. 9.4 Acceptance of Parkland. City will accept dedicated parkland, subject to improvement guaranteed by an improvement agreement required by Section 9.5.5, or will accept dedicated parkland upon completion of the improvements required by Section 9.5, and completion of the street frontage improvements as specified in the approved tentative map associated with the dedication and upon receiving evidence, acceptable to the City Engineer, demonstrating that the land to be conveyed (including any imported fill) meets California Department of Toxic Substances Control standards applicable to residential development or such lesser standard acceptable to the City. 9.5 Improvement of Community Park. Notwithstanding anything to the contrary in the conditions of approval for the Project, Developer shall, as specified in this section 9.5, improve the three phases of the Community Park in accordance with City requirements, consistent with the Dublin Crossing Community Park Master Plan adopted by the City Council on November 15, 2016 (the “Dublin Crossing Park Master Plan”). Minor deviations between the Dublin Crossing Park Master Plan and the Construction Documents, as specified in Section 9.5.1, may be approved by the City Engineer. 9.5.1 Construction Documents. Developer shall cause the preparation of construction plans, specifications, and construction cost estimates (“Construction Documents”) for the park improvements that are described in the Dublin Crossing Park Master Plan (the “Park Improvements”). The City shall have a right to approve a list of a minimum of two professional designers that Developer will have the right to retain to prepare the Construction Documents. In addition, the Developer shall provide the City with an opportunity to comment on and shall incorporate the City’s comments into the following: (a) Final Conceptual Plan. (b) 50% construction documents for each phase, if construction is completed in multiple phases. If so directed by the City, Developer shall incorporate a site for other uses (such as Valley Children’s Museum) into the Conceptual Design. The City also reserves the right to direct that certain portions of the site be excluded from the Conceptual Design. The City will provide such direction no later than August 2, 2017. The quality level of the park design shall reflect the quality of the City’s existing community parks. The Final Conceptual Plan(s) shall be subject to Parks and Community Service Commission review and City Council approval. In conjunction with the submittal of the Final Conceptual Plan for review and approval, Developer shall provide construction cost estimate and overall project budget in a form acceptable to the City Engineer. The final Construction Documents for each park phase shall be subject to the City of Dublin standard procedure for subdivision improvement plan review and shall be subject to approval by the City Engineer. 9.5.2 Project Costs. The parties currently estimate that the total project costs (including hard and soft costs) for the improvements to the 30-net-acre Community Park (with the level of improvements described above) to be approximately $21,600,000 (approximately $17,100,000 for construction). The project costs do not and shall not include any costs associated with the Chabot Creek improvements and the Stormwater Improvements identified in Section 9.3, which costs are the Developer’s sole responsibility. Previously, Developer was obligated to contribute $12,857,142 in cash toward park improvements, and the City was obligated to fund all additional costs and improve the park phases within a specified period of time following each phase’s dedication and contribution. The parties now agree that the City shall reimburse Developer for that portion of the total costs of the park improvements (including hard costs and soft costs, including but not limited to architects, engineers, superintendents, utility costs, temporary facilities, that exceed $12,857,142). The City desires to have a measure of control over the amount it is required to reimburse the Developer. In furtherance of this desire, the Developer shall: maintain evidence satisfactory to the City Engineer of the costs it incurs in each phase; provide reasonable estimates of probable cost at each stage in the City’s review of the documents (including line item budgets); and cooperate with the City to modify the improvements in a manner that will reduce the estimates of probable costs if they exceed the City’s expectations of total project costs. Individual line item budget increases shall require City approval unless the individual line item increase is less than 10%. In addition, each improvement agreement shall include a requirement that Developer enter into a fixed price construction contract with the contractor(s) performing such improvements and soft cost allocation that will be used to determine the amount the City will reimburse Developer, and costs incurred by Developer in excess of the agreed-upon fixed price will be the sole responsibility of the Developer, except to the extent that the City subsequently requests that the improvements be modified in a manner that involves change orders approved by the City. City shall review and approve any commercially reasonable change orders submitted by the Developer within 10 business days of receipt. Lack of response within 10 days will be assumed consent to change order and budget adjustment. In the event that unforeseen site conditions impose additional costs on the project, Developer agrees to take commercially reasonable steps to obtain remediation from the United States Army for such costs and contribute any such reimbursements to the City. 9.5.3 Project Management and Implementation. The City Engineer or designee shall: • Attend quarterly budget review meetings • Attend weekly or biweekly progress meetings • Have no authority over Developer’s contractors or subcontractors and their staff other than regular City regulatory and inspection authority. • Respond to Developer Requests for Information within 10 days. • Review and approve or request modifications to change orders. • Complete other tasks identified by the City, and agreed to by the Developer, during review of the Final Conceptual Plan and 50% construction documents. 9.5.4 Public Art. The City intends to place public art in the park at its own expense. Developer agrees to cooperate with the City on the City’s inclusion of public art into the park design during the preparation of the construction documents and on the City’s installation of public art within the park, if such installation occurs concurrently with the construction of the Park Improvements. 9.5.5 Improvement Agreement. Developer shall, prior to City approval of the final map for each phase in which Parkland Dedication is dedicated pursuant to Section 9.1, enter into an otherwise standard park improvement agreement that includes the following terms: (a) Developer will provide security acceptable to the City that secures payment of Developer’s contribution to the applicable phase or phases ($4,185,714 in Phase 1 and $4,285,714 in Phases 2 and 3) and will complete the Construction Documents, in accordance with Section 9.5.1, for the applicable phase or phases within 9 months. Upon completion of the Construction Documents, Developer shall provide substitute security consistent with that required by the City’s standard improvement agreement, at which point the City shall release the previously provided security for the applicable phase or phases. (b) Developer will commence construction within 60 days of completion of the Construction Documents, in accordance with Section 9.5.1, complete the improvements within 13 months of commencement of construction unless the Completion Date is extended by force majeure events, including weather delays as allowed for in the City’s standard specifications. The City Manager can authorize an extension of up to three months. Developer shall maintain the improvements for three months following completion. Developer shall provide a one-year warranty for all improvements. The warranty shall be consistent with the City standard subdivision warranty. (c) Upon posting security for the completion of the improvements specified in each park phase under the terms of the improvement agreement, Developer shall be deemed to have satisfied its obligations to contribute to Community and Neighborhood Park Improvements under the Public Facilities Fee for 665 residential units or the number of units equivalent to the portion of the 30 acres covered by the security. (d) Upon delivery of a notice of completion of all the Park Improvements and delivery of a set of final as-built plans and copies of Construction Documents to City by Developer for a phase of the Community Park, the City shall examine the Park Improvements without delay. If the Park Improvements for that phase are found to be in accordance with said plans and specifications and this Agreement, the City Engineer shall accept the Park Improvements, and, upon such acceptance, shall notify Developer or its designated agents of such acceptance. The City Engineer shall only accept the improvements at 100% completion. Developer will cooperate in the City’s efforts to schedule a “ribbon cutting” event prior to the formal opening of each phase of the Park. (e) The City, within 30 days of receipt of invoice, shall reimburse the Developer for that portion of the project cost, using the hard and soft costs identified as fixed prices in the improvement agreement for that phase, that exceed Developer’s contributions as identified in the Development Agreement. The Developer shall retain and provide to the City upon request the invoices and other documentation that evidences the costs it has incurred on the project. 9.5.6 Public Facilities Fee Payment Security. Developer’s obligation to improve the Community Park as specified above shall be deemed to satisfy its obligation to contribute to Community and Neighborhood Park Improvements under the Public Facilities Fee Program. If, however, at the time Developer seeks to file a final map Developer has not entered into an improvement agreement(s) that creates sufficient credits to satisfy the final map’s Park Construction obligation, Developer shall provide security acceptable to the City that ensures payment of the community park improvements component of Public Facilities Fee for the units and the neighborhood park improvement component of the Public Facilities Fee applicable in Eastern Dublin. For the purposes of this paragraph, Developer shall upon posting security under each improvement agreement for one of the three phases be deemed to have satisfied its obligations for 665 residential units. The credits pursuant to the improvement agreement may be used to reduce previously posted security under this paragraph and to avoid the requirement to post security under this paragraph. 9.5.7 Right to Accelerate. Notwithstanding anything to the contrary in the foregoing, Developer shall have the right to accelerate the design and construction of the park in a manner that results in fewer than three phases of park design and construction. 9.6 The Park Improvements, including Developer’s hard and soft costs, are eligible for reimbursement through the CFD, subject to the requirements of Exhibit G. 9.7 Developer’s Obligation to Provide Maintenance Payment for Each Community Park Phase. At or prior to the City's acceptance of the Park Improvements on each phase of community park construction, pursuant to Subsection 9.5.5(d) above, Developer shall make a contribution to fund the maintenance costs of the community park. The contribution shall be $840,000 for each of the first two phases and $820,000 for the last phase. Upon request of Developer, the City shall apply previously collected Development Agreement Fees revenues, exclusive of Development Agreement Fee component payments previously applied, toward the required contributions. If such application of Development Agreement Fees is insufficient to satisfy the required contribution, Developer may advance the necessary funds under Subsection 6.3. The Developer shall not be required to make the contributions required by this paragraph to the extent that they are due after the contingent event described in 6.2 above occurs. 9.8 ACSPA Parcel Acquisition and Exchange. 9.8.1 Intent. It is the intent of the City and Developer that the City enter into a purchase agreement and acquire the ACSPA Property from ACSPA and, concurrently with such acquisition (and through a common escrow) or promptly thereafter, convey the ACSPA Property to Developer. The City may elect to structure the escrow in a manner that avoids it taking title to the ACSPA Property. In exchange for such conveyance, Developer has agreed to make a contribution of 8.7 acres of community parkland in excess of that which would be required by the City’s parkland dedication requirements. In the event that ACSPA or the City has not conveyed the ACSPA Property to the Developer prior to the recordation of the Phase 2 final map, the obligation of Developer in Section 9.1 to dedicate community park land shall be reduced by a net 8.7 acres (equivalent to the acreage of the ACSPA Parcel). In such event (a) Developer shall not be required to acquire the ACSPA Property pursuant to this Section or make the $2,800,000 contribution toward its acquisition, (b) the 1st community park dedication at the recording of the Phase 2 final map (described in Section 9.1) shall not be required and Developer shall instead make a dedication at the recording of the Phase 3 final map of 11.3 net acres of community parkland and (c) notwithstanding any other provision of this Agreement or the Specific Plan, the Developer shall have no obligation to construct commercial development on the Property. The foregoing shall not affect or reduce the total number of residential units that may be constructed on the remainder of the Property pursuant to the Project Approvals. 9.8.2 Purchase Agreement. As of the Effective Date, the City intends to enter into a purchase agreement with ACSPA (the “Purchase Agreement”) pursuant to which the City has the irrevocable right to purchase the ACSPA Property prior to or concurrently with the Phase 1 dedication of Community Park (in Phase 2 of the Project). The City hereby agrees that it will use commercially reasonable efforts to enter into the Purchase Agreement upon the terms set forth in this Section 9.8 and in that certain letter of intent between ACSPA and the City dated November 7, 2013 (the “LOI”). The City further agrees with respect to the Purchase Agreement that (a) it will take all steps necessary to exercise the Purchase Agreement prior to or concurrently with the dedication of Phase 1 of the Community Park (in Phase 2 of the Project), (b) it will carry out all obligations, if any, under the Purchase Agreement in a timely manner in order to fulfill the intent of the Parties that the ACSPA Property be conveyed to City or Developer in conjunction with the Phase 2 final map, and (c) it will not terminate, amend, modify or allow the lapsing of the Purchase Agreement or the LOI, or assign its rights under the Purchase Agreement to any party other than Developer, without the consent of Developer in its sole discretion. The Purchase Agreement shall provide Developer with the right to notice of any defaults by the City under the Purchase Agreement and the right to cure such defaults. If the Developer exercises its cure rights under the Purchase Agreement, the cost of such cure shall be an offset against the next Community Benefit Payment due under this Agreement. 9.8.3 Funding. City shall be obligated to transfer sufficient funds into escrow to purchase the ACSPA Parcel pursuant to the Purchase Agreement, less Developer’s $2,800,000 contribution toward the acquisition of the ACSPA Parcel. Upon request of Developer, the City shall apply previously collected Development Agreement Fee revenues, exclusive of Development Agreement Fee component payments previously applied, toward the $2,800,000 contribution. Developer’s $2,800,000 contribution may be reimbursed through the CFD. If such application of Development Agreement Fees is insufficient to satisfy the required contribution, Developer may advance the necessary funds under Subsection 6.3. 9.8.4 Optional Loan. If requested by City, Developer shall loan City up to $6,000,000 for the acquisition of the ACSPA Parcel. Developer shall be obligated to make the loan in conjunction with the City’s obligation to contribute funds into escrow for Developer’s acquisition of the ACSPA Property. The loan shall not bear interest. The City shall repay the loan in four equal annual installments on June 30 beginning in 2018 or the anniversary date of the loan if executed later than July 1, 2017. 9.8.5 Fair Market Value Exchange. The Parties agree that the fair market value of the ACSPA Parcel (comprised of 8.7 acres) and of the 8.7 acres that Developer will transfer to the City in exchange for the ASCSPA parcel are equal and that there is no subsidy provided by the City in connection with such exchange. This analysis is made prior to taking into account the $2.8 million contribution by Developer pursuant to Section 9.8.3. 9.9 Cooperation in Potential Expansion of Park Footprint. One of the transportation improvements that Developer is required to complete, the Scarlett Drive extension, requires the acquisition of a portion of a parcel owned by a third party, Scarlett Homes LLC. The remainder, if acquired from Scarlett Homes LLC, could be incorporated into the Dublin Crossing Park, and the Parties desire that that occur if feasible. Developer will use commercially reasonable efforts, as determined by Developer in its sole discretion, to acquire the entire parcel owned by Scarlett Homes LLC, and, if that effort is successful, it will dedicate it to the City for park purposes. City shall accept such dedication upon Developer’s satisfaction of the requirements of Section 9.4. The City shall not be obligated under Section 9.5 to improve the lands dedicated pursuant to this Section, and Developer shall not be entitled to credit under the PFF as a result of the dedication. 10. Transportation Improvements. 10.1 Transportation Fee. Developer and the City acknowledge that there are several transportation improvements necessary for the implementation of the Project and that, except as set forth in Section 10.7, the Property is not in the EDTIF. Construction or financial contributions toward some of the improvements have been identified as mitigation measures in the FEIR, and some improvements are required project commitments for the safe circulation of multimodal traffic. The City has determined that the fair share obligation of Developer toward improvements that are identified in the FEIR will be satisfied by payment of a transportation fee (the “Transportation Fee”) at each building permit and has established the amount due based on the amount such development would be subject to under the EDTIF, if the development were in the EDTIF. The amounts are fixed for the term of the Development Agreement based on the EDTIF rates on the Effective Date, which are set out for reference in Exhibit H. 10.2 Application of Transportation Fees. To the extent the cost of construction for EDTIF projects constructed by Developer exceeds the amount Developer is obligated to pay as its fair share of project expense based on traffic mitigation measures in the FEIR, Developer shall be entitled to apply the amount of any such overage to future Transportation Fees or to satisfy the project’s obligations, if any, to pay the EDTIF pursuant to section 10.7. The amount applicable to such future fees and obligations will be calculated in accordance with the Consolidated Administrative Guidelines (Resolution No. 122-13) for EDTIF improvements, not to exceed the values established in the EDTIF. Developer will not be entitled to apply as overage its contribution of necessary project right of way owned by it, but costs associated with all other right of way acquisitions will be eligible to be so applied. 10.3 Transportation Improvements. Developer agrees to complete the transportation improvements as specified in Exhibit I at the times therein specified. 10.4 School Site Circulation. Access to proposed new school will require detailed review and coordination with the Dublin Unified School District (DUSD) and the City. To meet appropriate access and circulation to and from the school, Developer shall work cooperatively and in good faith with the DUSD and the City. Developer shall ensure that all sidewalks, bike lanes and pathways, and vehicular lanes that provide access and circulation to and from the school are constructed and connected regardless of the timing of the required frontage improvements associated with school parcel and/or any other Project parcels. 10.5 Preservation of Iron Horse Trail. Developer agrees to complete its construction work in a manner that ensures the availability of the Iron Horse Trail. In particular, Developer shall ensure that a suitable detour is available for Iron Horse Trail users during any construction activities that disrupt the trail and shall minimize the time that such detours are in place. Prior to any construction work that impacts Iron Horse Trail access, Developer shall submit a Traffic Control Plan for the City review and approval. Developer shall be responsible for securing any rights-of-way or easements required to construct any necessary detours of the Iron Horse Trail. 10.6 Iron Horse Trail Grade Separated Crossing. Mitigation Measure 3.12-3 in the Project EIR identifies the need for a grade separated crossing at the intersection of Dublin Boulevard and Scarlett Drive to maintain adequate levels of service at that intersection and specifies that the Developer shall contribute the Project’s fair share toward the improvements as specified in this Agreement. The Parties agree that the contributions required by this Section 10.6 satisfy the “fair share monetary contribution” required by Mitigation Measure 3.12-3. 10.6.1 Contribution toward Design. Developer will, concurrently with its execution of this Agreement, contribute $50,000 to the City for the City’s use in designing a grade-separated crossing at the intersection of Dublin Boulevard and Scarlett Drive. The contribution required by this Subsection shall be treated as an advance under Subsection 6.3. 10.6.2 Contributions toward Construction. Developer agrees to contribute, as a component of the Development Agreement Fee, $1,000,000 towards the construction of the proposed grade-separated crossing. If the City later determines that it is not feasible to construct the Iron Horse Trail Grade Separated Crossing, the City may treat the contribution required by this Subsection as an additional portion of the Community Benefit Payment. The Developer shall not be required to make the contributions required by this paragraph to the extent that they are due after the contingent event described in Section 6.2 occurs. If such contingent event does occur, and the contributions required by this paragraph cease, Developer shall, so as to avoid a significant cumulative impact with respect to such crossing, thereafter be required to pay only the fair share of improvements required by Mitigation Measure 3.12-3 (“Fair Share of Iron Horse Bridge Construction”). 10.6.3 Cooperation in Design. Developer agrees to cooperate in good faith with the City on the City’s plan to construct a Class I bicycle/pedestrian grade separated crossing across Dublin Boulevard serving the Iron Horse Trail. The approach will be located at or near the northeast corner of the future Dublin Boulevard/Scarlett Drive intersection. The ultimate location of the approach will be determined by the City Engineer in coordination with the Developer to provide optimum connectivity to the Iron Horse Trail in terms of vertical grade and horizontal alignment. Should the City decide to move forward with the grade separated crossing project, the Developer shall dedicate the necessary right-of-way for the northern approach in addition to public access easements if the limits of the approach are outside the ultimate Dublin Boulevard or Scarlett Drive rights-of-way. 10.7 Eastern Dublin Traffic Impact Fee for ACSPA Property. The ACSPA Property, unlike the remainder of the Property, is within the boundary of and subject to the EDTIF. The City’s present intention is to remove the ACSPA Property from the EDTIF. Nonetheless, if the ACSPA Property remains in the EDTIF boundary, the Developer shall pay the EDTIF as required by the EDTIF for any development on the ACSPA Property. Developer may use overages created under Section 10.2 to satisfy this EDTIF obligation to the extent the EDTIF permits EDTIF fee credits to be used. 11. Compliance with Inclusionary Zoning Ordinance. 11.1 Developer proposes residential development on the Property. Pursuant to the City’s Inclusionary Zoning Regulations (Chapter 8.68 of the Dublin Municipal Code) (the “Regulations”), Developers of more than 20 residential units are required to set aside 12.5% of the units in the project as affordable units as specified. 11.2 Under the Regulations, certain exceptions permit Developers to satisfy the obligation other than through on-site construction. For instance, part of this obligation can be satisfied through the payment of a fee in-lieu of construction of units. In addition, Developers can satisfy their affordable housing obligations by, among other mechanisms, obtaining City Council approval of an alternative method of compliance that the City Council finds meet the purposes of the Regulations. 11.3 Developer shall satisfy its affordable housing obligation, for up to 1,770 residential units, through the following “alternative method of compliance” under section 8.68.040.E of the Regulations: The Project will meet affordability goals by providing a substantial mix of higher density residential units of relatively smaller sizes that will promote the City’s affordability and Housing Element goals. The City has determined that a large proportion of residential unit types that the Project will include are likely to meet the City affordability standard for “moderate income” units. Of the approximately 88.4 acres of residentially designated land in the Project, approximately 46.5 acres are designated for between 14.1 and 25 units per net acres, the density of which is likely to produce smaller units that are likely to meet the affordability standard for moderate-income units. Furthermore, the project also includes mixed use land use categories along Dublin Boulevard that will permit residential development at even higher densities between 20.1 and 60 units per acre. 11.4 Through its approval of this agreement, the City Council hereby finds that the “alternative method of compliance” in this Subsection 11.3 meets the purposes of the Regulations and will promote the City’s affordability and Housing Element goals, and hereby waives all requirements of the Regulations with respect to the first 1,770 units. 11.5 Development above 1,770 units shall be subject to the requirements of the Regulations. 12. School Site. Developer shall dedicate to the City the 12 net acre school site with the first final map in Project Phase 3. The 12 net acre school site is designated Parcel 27 on Vesting Tentative Map 8150 and is bounded by D Street, G Street, F Street, and Central Parkway. The dedication will, upon satisfaction of the criteria in Section 9.2 for such treatment, be noted in the City’s records as a dedication of 3 acres of parkland for the purposes of the Developer’s satisfaction of its obligations under the community park land component of the City’s Public Facilities Fee and the parkland dedication requirements of Chapter 9.28 of the Dublin Municipal Code. Notwithstanding anything to the contrary in this Section and in Section 9, Developer agrees to improve and maintain for a period of 24 months following their completion: (a) curb, gutter, and planter strips surrounding the school site and (b) four acres of hydroseeded turf in a location on the school site to be determined by the City. The improvements shall be completed within 18 months of Developer’s acquisition of the property that contains the school site and shall be maintained during the 24-month period at no cost to the City. The City will accept the school site no later than the conclusion of the 24-month period provided developer has satisfied the requirements set forth in Section 9.4 for acceptance of parkland. 13. Wetlands Mitigation Easement Purchase. As a means of potentially satisfying the Project’s wetlands mitigation obligation, Developer agrees to consider the purchase of rights from the City over the City-owned parcel adjacent to the Iron Horse Trail and south of Dublin Boulevard (Assessor’s Parcel Number 941-0550-023-04) (“the Property”) that would allow the Property or a portion thereof to be preserved under conservation easement held by a third party. Developer shall be responsible for obtaining regulatory approval for the Property’s use as wetlands mitigation for the Project and for the costs of any necessary improvements to the Property. The parties anticipate that the City would be responsible for the costs of any required maintenance and management of the easement area in accordance with the Wetland Mitigation Plan required by the regulatory agencies. Nothing in this paragraph obligates the City to sell the necessary rights to Developer. The parties agree that the City shall be grantee of a conservation easement and a third party conservation easement holder may be required and is subject to regulatory agency approval. 14. Acceleration of Civic Center Component of Public Facilities Fee. Developer shall pay the Civic Center Component of the Public Facilities Fee for 1600 residential units on an accelerated basis at the rate that became effective October 15, 2015 ($892 per dwelling unit). The entire payment ($1,427,200) shall be made on or prior to the later of (a) June 30, 2016 or (b) the date upon which all appeal, legal challenge and rehearing periods relating to the Subsequent Project Approvals shall have expired without legal challenge, or, if any appeal, legal challenge or rehearing request is filed against the City challenging the Subsequent Project Approvals, the date upon which all such challenges are finally dismissed and either (i) all of such Subsequent Project Approvals remain effective or, (ii) have been reaffirmed, if required by the resolution of the challenge(s), whichever is later. As a result of such payment, Developer shall receive a credit against the Civic Center Component of the Public Facilities Fee for the first 1600 units in the Project. The credit created as a result of this Section shall be a credit against the Civic Center Component of the Public Facilities Fee for up to 1,600 units, notwithstanding any future changes in the amount of the fee , shall be applicable only to units within the Project area, and shall in all other respects be subject to the requirements of the City’s “Consolidated Impact Fee Administrative Guidelines” or its successor that is in effect at the time the credits are created. 15. Amendment or Cancellation. 15.1 Modification Because of Conflict with State or Federal Laws. If state or federal laws or regulations enacted after the Effective Date or an action of any state or federal agency prevents or precludes compliance with one or more provisions of this Agreement or the Existing Project Approvals 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 laws or regulations or with the actions of state or federal agencies in a manner that protects, to the greatest extent feasible, the vested rights of Developer under this Agreement. Any such amendment of the Agreement shall be consented to by Developer and considered by the City Council (in accordance with Chapter 8.56). Each Party agrees to extend to the other its prompt and reasonable cooperation in so modifying this Agreement or approved plans. 15.2 Amendment by Mutual Consent. This Agreement may be amended (in whole or part) in writing from time to time by mutual consent of the Parties hereto (or their successors), and in accordance with the procedures of State law and Chapter 8.56. When a Party seeking such an amendment owns or, prior to the Acquisition Date, has an equitable right to only a portion of the whole of the Property (“Portion”), then such Party may only seek amendment of this Agreement as directly relates to the Portion, and the Party owning the other Portion shall not be required or entitled to be a signatory or to consent to an amendment that affects only the other Party’s Portion. If any Portion of the Property is subject to a document which creates an association which oversees common areas and any construction or reconstruction on or of the same, then the association shall be deemed to be the “owner” of that Portion of the Property for the purpose of amending this Agreement. 15.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding Section 12.2, 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 5.1; (c) provisions for “significant” reservation or dedication of land; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings; or (g) monetary contributions by Developer as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the Parties may execute an amendment hereto. City’s Public Works Director shall determine whether a reservation or dedication is “significant”. 15.4 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by an amendment which complies with this Section 15. Any fees paid pursuant to this Agreement prior to the date of cancellation shall be retained by City. 16. Annual Review. 16.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2014 and each July 15 to August 15 thereafter. 16.2 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 at least 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 efforts to comply with the provisions of this Agreement. The burden of proof, by substantial evidence, is upon the Developer. 16.3 Staff Reports. To the extent practical, City shall deposit in the mail and transmit by electronic mail to Developer a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 16.4 Notice of Non-Compliance. If on the basis of the annual review, the City Council finds and determines, on the basis of substantial evidence, that Developer has not complied in good faith with the terms or conditions of this Agreement, or if the City determines that Developer has failed to cure a default in accordance with Section 17.2, the City Council may commence proceedings to enforce, modify or terminate this Agreement. The City shall provide Developer with forty-five (45) days, or such longer period as the City and Developer may agree in writing, to respond in writing to such finding by specifying either how its non-compliance has been cured (or is diligently being cured) or the grounds upon which it believes that it is complying with this Agreement. If the response to the Notice of Non-Compliance has not been received in the offices of the City within the prescribed forty five (45) days, or within such additional period of time as mutually agreed, the Notice of Non-Compliance shall be conclusively presumed to be valid, and the City may commence proceedings on termination or modification of the Agreement. If Developer responds within the time period provided, the Parties agree to meet in good faith at reasonable times and from time to time for a period of at least sixty (60) days to arrive at a mutually acceptable resolution of the matters asserted in the Notice of Non-Compliance and disputed in the response. If after sixty (60) days, or any extension of time as mutually agreed to by the Parties, the Parties have failed to arrive at a mutually acceptable resolution of such matter(s), the City may commence proceedings on termination or modification of this Agreement pursuant to Section 15 of this Agreement. 16.5 Modification or Termination. If the City Council determines to proceed with modification or termination of this Agreement after following the procedure under Section 15 of this Agreement, the City Council shall give notice to Developer or successor in interest thereto of its intention to do so in accordance with the procedures for such notice set forth in Section 8.56.060 and Government Code Section 65858. The City Council may take such action as it deems necessary to protect the interests of the City, including but not limited to, the receipt of additional evidence as to Developer’s compliance with the terms of this Agreement. 16.6 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. 17. Default. 17.1 Other Remedies Available. Upon the occurrence of an event of default, the Parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City’s regulations governing development agreements, expressly including, without limitation, the remedy of specific performance of this Agreement; provided the non-defaulting Party has complied with the provisions of Section 17 hereof. 17.2 Notice and Cure. Upon the occurrence of an event of default by any 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. 17.3 No Damages. In no event shall either Party be liable in damages for any default or upon termination of this Agreement, it being expressly understood and agreed that the sole legal or equitable remedy available to either Party for a breach or violation of this Agreement by the other Party shall be an action in mandamus, specific performance or other injunctive or declaratory relief to enforce the provisions of this Agreement by the other Party, or to terminate this Agreement. This limitation on damages shall not preclude actions by a Party to enforce payments of monies or the performance of obligations requiring an obligation of money from the other Party under the terms of this Agreement including, but not limited to obligations to pay reasonable attorneys’ fees and obligations to advance monies or reimburse monies. 17.4 City Right to Terminate Agreement Upon Certain Uncured Defaults. In the event that Developer fails to make any of the monetary contributions required by this Agreement when due and thereafter fails to cure after being provided notice and an opportunity to cure pursuant to Section 17.2, the City shall have an immediate right, subject to the requirements of Government Code Section 65858, to terminate this Agreement. The City may do so by notifying the Developer, pursuant to Section 27, of its election to do so as of the date specified in the notice of termination. 18. Estoppel Certificate. 18.1 Any Party may, at any time, and from time to time, request written notice from the other Party requesting such Party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the Parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying Party the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. 18.2 A Party receiving a request hereunder shall execute and return such certificate within twenty (20) days following the receipt thereof, or such longer period as may reasonably be agreed to in writing by the Parties. City Manager of City shall be authorized to execute any certificate requested by Developer. The certificate shall be addressed to and may be relied upon by the requesting Party. 19. Mortgagee Protection; Certain Rights of Cure. 19.1 Mortgagee Protection. This Agreement shall not prevent or limit Developer, in any manner, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property (“Mortgage”).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 Mortgage. Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee (“Mortgagee”) who acquires title to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure, or otherwise. 19.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 19.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement or as may be otherwise authorized by the City. 19.3 Notice of Default to Mortgagee and Extension of Right to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the City’s notice. City, through its City Manager, may extend the cure periods provided in Section 17.2 for not more than an additional sixty (60) days upon request of Developer or a Mortgagee. 20. Severability; Conflict. The unenforceability, invalidity or illegality (collectively, “illegality” or “illegal”) of any provisions, covenant, condition or term of this Agreement (collectively, “provision(s)”) shall not render the other provisions of this Agreement illegal, and shall be considered “severed” from this Agreement. In the event of a conflict between this Agreement or any provision hereof and the Project Approvals or any provision thereof, this Development Agreement shall control. 21. Attorneys’ Fees and Costs. 21.1 Prevailing Party. If City or Developer initiates any action at law or in equity to enforce or to 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. 21.2 Third Party Challenge. 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, the Parties shall cooperate in defending such action or proceeding. 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 the City in defense of any such action. 22. Transfers and Assignments. 22.1 Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on all or any part of the Property, (a) is a burden upon such property, (b) is for the benefit of each other portion of the Property, (c) runs with such properties, and (d) is binding upon each Party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each Party and its property hereunder and each other person succeeding to an interest in such properties. The provisions of this Section 22.1 are subject and subordinate to the provisions of Section 15 which permit amendment of this Agreement. 22.2 Developer’s Right to Assign. All of Developer’s rights, interests and obligations hereunder (or any portion of such rights which Developer wishes to transfer) may be transferred, sold or assigned in conjunction with the transfer, sale, or assignment of the Property subject hereto, or any portion thereof, at any time during the term of this Agreement, provided that no transfer, sale or assignment of Developer’s rights, interests and obligations hereunder shall occur without the prior written notice to City and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. The City Manager shall consider and decide the matter within twenty (20) business days after Developer’s notice provided and receipt by City Manager of all necessary documents, certifications and other information required by City Manager to decide the matter. In considering the request, the City Manager shall base the decision upon the proposed assignee’s reputation, experience, financial resources and access to credit and capability to successfully carry out the development of the Property to completion. The City Manager’s approval shall be for the purposes of: a) providing notice to City; b) assuring that all obligations of Developer are allocated as between Developer and the proposed purchaser, transferee or assignee as provided by this Agreement; and c) assuring City that the proposed purchaser, transferee or assignee is financially capable of performing the Developer’s obligations hereunder not withheld by Developer. 22.3 Release Upon Transfer. Upon the transfer, sale, or assignment of Developer’s rights, interests and obligations hereunder pursuant to section 22 of this Agreement, Developer shall be released from the obligations under this Agreement with respect to the Property transferred, sold, or assigned pertaining to the Portion of the Property transferred to such transferee, purchaser or assignee to the extent that such obligations are expressly assumed by the transferee, purchaser, or assignee. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof pertaining to the Portion of the Property transferred to such transferee, purchaser or assignee, and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval if required by the provisions of this Agreement. The allocation of rights and responsibilities between the transferor and transferee shall be set forth in the assignment agreement executed by such parties. 22.4 Developer’s Right to Retain Specified Rights or Obligations. Developer may withhold from a sale, transfer or assignment of this Agreement or any portion of the Property transferred, certain rights, interests and/or obligations which Developer wishes to retain, provided that Developer specifies such rights, interests and/or obligations in a written document to be appended to this Agreement and recorded with the Alameda County Recorder prior to the sale, transfer or assignment of the Property. Developer’s purchaser, transferee or assignee shall then have no interest or obligations for such rights, interests and obligations and this Agreement shall remain applicable to Developer with respect to such retained rights, interests and/or obligations. 22.5 Termination of Agreement Upon Sale of Individual Lots to Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and individually (and not in “bulk”) leased (for a period of longer than one year) or sold to the purchaser or user thereof (including a homeowners’ association or the like) and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 23. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 24. Indemnification. Developer agrees to indemnify, defend and hold harmless City, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the Developer, or any actions or inactions of Developer’s contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that Developer shall have no obligation under this Section 24 with respect to negligence or wrongful conduct of City, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been delivered or dedicated to and accepted by the City or another public entity (except as provided in an improvement agreement or maintenance bond). If City is named as a party to any legal action for which Developer has a duty to defend or indemnify City then City will cooperate with Developer, will appear in such action and will not unreasonably withhold approval of a settlement otherwise acceptable to Developer. Notwithstanding anything to the contrary set forth in this Section 24 or elsewhere in this Agreement, it is understood that each Party or successor or transferee of Developer is providing the indemnities described in this Section 24 as to its respective development on its respective Portion only. 25. Insurance. 25.1 Public Liability and Property Damage Insurance. At all times that Developer is constructing any improvements that will become public improvements, Developer shall maintain in effect a policy of commercial general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) and a deductible of not more than ten thousand dollars ($10,000.00) 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. 25.2 Workers’ Compensation Insurance. At all times that Developer is constructing any improvements that will become public improvements, Developer shall maintain Workers’ Compensation insurance for all persons employed by Developer for work at the Project site. Developer shall require each contractor and subcontractor similarly to provide Workers’ 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. 25.3 Evidence of Insurance. Prior to commencement of construction of any improvements which will become public improvements, Developer shall furnish City satisfactory evidence of the insurance required in Section 25 and evidence that the carrier is required to give the City at least fifteen (15) days prior written notice of the cancellation or reduction in coverage of a policy. 26. Sewer and Water. Developer acknowledges that the Project requires water and sewer permits from the Dublin San Ramon Services District (“DSRSD”) which is another public agency not within the control of City. 27. 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 With copies to: City Attorney Notice required to be given to Developer shall be addressed as follows: Dublin Crossing, LLC c/o BrookCal Dublin LLC 500 La Gonda Way, Suite 100 Danville, California 94526 Attention: Messrs. Josh Roden and Joe Guerra With a copy to: Standard Pacific Corp. 2603 Camino Ramon Suite 525 San Ramon, CA 94583 Attn: Mr. Tom Burrill, Division President A Party may change address by giving notice in writing to the other Party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following business day or by facsimile transmission which shall be deemed given upon verification of receipt. 28. Recitals. The foregoing Recitals are true and correct and are made a part hereof. 29. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties with respect to this Agreement. 30. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description and Plat of Army Property Exhibit B Legal Description and Plat of NASA Property Exhibit C Legal Description and Plat of ACSPA Property Exhibit D Diagram of Project Phases Exhibit E Components of Development Agreement Fee Exhibit F Operation of Development Agreement Fee Advances and Applications Exhibit G Community Facilities District Financial Provisions Exhibit H Current EDTIF Rates Exhibit I Transportation Improvements and Triggers 31. Counterparts. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. [Signature Page Immediately Follows] IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first above written. CITY: CITY OF DUBLIN By: _________________________ Chris Foss, City Manager Attest: ________________________ Caroline Soto, City Clerk Approved as to form ________________________ John Bakker, City Attorney DEVELOPER: DUBLIN CROSSING, LLC, a Delaware limited liability company By: BrookCal Dublin LLC, a Delaware limited liability company Its: Member By: _______________________________ Name: _______________________________ Its: _______________________________ By: _______________________________ Name: ______________________________ Its: _______________________________ By: SPIC Dublin LLC, a Delaware limited liability company Its: Member By: Standard Pacific Investment Corp., a Delaware corporation Its: Member By: ___________________________ Name: _________________________ Its: ___________________________ 3071835.1 Exhibit A Legal Description and Plat of the Army Property 0 Exhibit— "A" United States of America Property Land Description of a parcel of land situate in the City of Dublin, County of Alameda, State of California, and being a portion of the lands described in the Final Judgment on the Declaration of Taking, Amendment to Declaration of Taking, and Second Amendment to Declaration of Taking entitled United States of America v. 3396 acres of land, Alameda and Contra Costa Counties, California, Ada Clement, et al., filed on July 21, 1947 in the District Court of the United States in and for the Northern District of California Southern Division, and recorded in Book 5132, at Page 1 of Official Records of Alameda County, same parcel being a portion of that 180.126 acre Parcel shown on that certain map entitled Record of Survey No. 2031, filed on May 8, 2006 in Book 31 at Page 28 of Maps, Official Records of said County and being more particularly described as follows: Beginning at the northeast corner of Parcel E as shown on Parcel Map 7395 filed on October 31, 2000 in Book 254 of Maps at Page 28, Official Records of said County, said point also being on the easterly line of said 180.126 acre Parcel; Thence along the boundary of the 180.126 acre Parcel and the northerly line of the subdivision shown on said Parcel Map 7395 for the following three (3) courses: (1) South 52° 40' 40" West - 871.43 feet to the beginning of a curve to the right, (2) in a southwesterly direction, 1281.68 feet along the arc of said curve to the right, having a radius of 1905.00 feet, and through a central angle of 38° 32' 55", and (3) North 88° 46' 31" West - 1214.28 feet to the most southwesterly corner of the 180.126 acre Parcel; Thence continuing along the boundary of the 180.126 acre Parcel for the following nine (9) courses: (1) North 46° 28'46" West- 1113.05 feet, (2) North 43° 31' 14" East- 100.00 feet, (3) North 46° 28' G:\job2008\081076\Survey\Documents\Descriptions\DA_USA.docx 46" West - 1123.43 feet to the beginning of a curve to the right, (4) in a northwesterly direction, 308.06 feet along the arc of said curve to the right, having a radius of 11309.19 feet, and through a central angle of 01° 33' 39, (5) North 01° 13' 09" East- 105.60 feet, (6) South 88° 24' 09" East 3107.51 feet, (7) North 38° 42' 03" East-720.96 feet, (8) South 88° 24' 09" East- 1353.13 feet, 9) South 01° 23' 35" West- 1480.06 feet to the Point of Beginning. Excepting therefrom that parcel of land shown as NASA on said Record of Survey No. 2031, more particularly described as follows: Beginning at the northwest corner of that parcel of land shown as NASA; Thence South 88° 26' 23" East- 1245.99 feet; Thence South 01° 35' 20"West - 315.58 feet; Thence South 42° 12' 34" West-47.81 feet; Thence North 88° 24' 15"West- 823.94 feet; Thence North 46° 28' 46"West - 525.48 feet to the Point of Beginning. Containing 171.7 acres of land area, more or less. End of Description G:\job2008\081076\Survey\Documents\Descriptions\DA_USA.docx Line Table Line Bearing Distance L 1 N4678'46"W 1113.05' L2 N43°31'14"E 100.00' L3 N4678'46"W 1123.43' L4 N01%3'09"E 105.60' N — L5 N88` 4'09"W 310751' L6 N38°42'03"E 72096' L7 N88` 4'09"W 1353.13' L8 N01 X3'35"E 1480.06' L9 N52°40'40"E 871.43' L10 N88 046131 1' W 1214.28' L11 N46` 8146"W 525.48' 0 800 1600 L12 N88°26'23"W 1245.99' mi.'s. EN L13 N01°35'20"E 315.58' L14 N42°12'34"E 47.81'IN FEET ) L15 N88°4'15"W 823.94' 1 inch = 800 ft. v.'• Curve Table Curve Radius Delta Length L7 Cl 11309.19' 1°33'39" 308.06' C2 1905.00' 38°32'55" 1281.68' tl L5 f x 3 d, ev.‘ NASA VGI I fWL P 0 B 3 , COUNTY PM 7395 c } z:_.aa C DWW.Mr BO LEVA L10 DUBLIV BO LEVAAD EXHIBIT A i PLAT TO ACCOMPANY LEGAL DESCRIPTION RUGGERI"JENSEN"AZAR FOR ENGINEERS • PLANNERS • SURVEYORS UNITED STATES OF AMERICA PROPERTY 4690 CHABOT( DRIVE, SUITE 200 PLE925) 2N, CA 94588 PHONE: (925) 227-9100 FAX (925) 227-9300 SCALE: DATE: CITY OF DUBLIN, ALAMEDA COUNTY, CALIFORNIA 1"=800'I 10-31-2013 JOB 08107NO6 0 Exhibit—"A" NASA Property Land Description of a parcel of land situate in the City of Dublin, County of Alameda, State of California, and being a portion of the lands described in the Final Judgment on the Declaration of Taking, Amendment to Declaration of Taking, and Second Amendment to Declaration of Taking entitled United States of America v. 3396 acres of land, Alameda and Contra Costa Counties, California, Ada Clement, et al., filed on July 21, 1947 in the District Court of the United States in and for the Northern District of California Southern Division, and recorded in Book 5132, at Page 1 of Official Records of Alameda County, same parcel being all of that parcel of land shown as NASA on that certain map entitled Record of Survey No. 2031, filed on May 8, 2006 in Book 31 at Page 28 of Maps, Official Records of said County and being more particularly described as follows: Beginning at the northwest corner of that parcel of land shown as NASA; Thence along the boundary of said land South 88° 26' 23" East- 1245.99 feet to the northeast corner of said land; Thence South 01° 35' 20"West- 315.58 feet to the more northerly southeast corner of said land; Thence South 42° 12' 34" West - 47.81 feet to the more southerly southeast corner of said land; Thence North 88° 24' 15" West- 823.94 feet to the southwest corner of said land; Thence North 46° 28' 46"West- 525.48 feet to the Point of Beginning. Containing 8.5 acres of land area, more or less. End of Description G:\job2008\081076\Survey\Documents\Descriptions\DA_NAS A.docx 0 0 Exhibit B Legal Description and Plat of the NASA Property 3 LEGEND P.O.B. POINT OF BEGINNING N - I 0 200 400 IN FEET ) 1 inch = 200 ft. UNITED STATES Of AMERICA 5 132 OR 1 P.O.B. 5886'23"E 1245.99' a y OG N43°31'14"E 100.00' S42%2'34"W 4Z81' UNITED STATES Or AMERICA 5132 OR 1 eVECOODUZIONIVAPPACVLOSVMADIC EXHIBIT B i 1 PLAT TO ACCOMPANY LEGAL DESCRIPTION FOR RUGGERI-JENSEN-AZAR ENGINEERS • PLANNERS • SURVEYORS NASA PROPERTY 4690 CHABOT SUITE 200 PLE925) 227-93009 94588 PHONE: (925) 227-9100 FAX: (925) 227-9300 SCALE: I DATE: I JOB NO.: CITY OF DUBLIN, ALAMEDA COUNTY, CALIFORNIA 1"=200'I 10-31-2013 081076 0 Exhibit C Legal Description and Plat of the ACSPA Property Exhibit— "A" Alameda County Property Land Description of a parcel of land situate in the City of Dublin, County of Alameda, State of California, and being all of Parcel"C" and Parcel 3 as shown on Parcel Map 7395 filed on October 31, 2000 in Book 254 of Maps at Page 28, Official Records of said County and being more particularly described as follows: Beginning at the most southwesterly corner of Parcel "C" as shown on the attached plat; Thence along the boundary of said Parcel "C" the following three(3) courses: (1) North 20° 35' 11" West 21.65 feet, to the beginning of a curve to the left, from which point the center bears North 20° 35' 11" West, (2) in a northeasterly direction, 556.44 feet along the arc of said curve to the left, having a radius of 1905.00 feet, and through a central angle of 16° 44' 09", and (3) North 52° 40' 40" East- 848.36 feet to the most northerly corner of Parcel "C"; Thence along the easterly lines of Parcel "C" and Parcel 3 South 01° 23' 35" West- 762.26 feet to the most southeasterly corner of Parcel 3;Thence South 46° 33'45" West-7.28 feet;Thence along the southerly lines of Parcel 3 and Parcel "C"for the following two (2) courses: (1) North 88° 16' 05" West- 590.44 feet to the beginning of a curve to the left, and (2) in a southwesterly direction, 542.42 feet along the arc of said curve to the left, having a radius of 2087.00 feet, and through a central angle of 14° 53' 29" to the Point of Beginning. Containing 8.7 acres of land area, more or less. End of Description G:\job2008\081076\Survey\Documents\Descriptions\DA_County.docx LEGEND P.O.B. POINT OF BEGINNING N = T) TOTAL W 1- L. P1' sNr.-) 0 200 400 Z IN FEET ) Q 7- 1 inch = 200 ft. Q 0° 0 s g 6 N Q 355° 1 V3 d-14"3 29 u x .. --_ R, i9O5. p0 R=2087.00 N88%6'05,'W 590 44' 542.42 DUBLIN BOULEVARD p°35'1f°W(R) P.O.B.S46°33'451W 21.65 N13°09' "W(R) 7.28 R Wilel18‘0111076WIPRINGWAISAAGUIEDA aum°Me EXHIBIT C PLAT TO ACCOMPANY LEGAL DESCRIPTION 1 1 FOR RUGGERI-JENSEN-AZAR ALAMEDA COUNTY ENGINEERS • PLANNERS • SURVEYORS 4690 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94588 SURPLUS AUTHORITY PROPERTY PHONE: (925) 227-9100 FAX: (925) 227-9300 SCALE: I DATE: I JOB NO.: CITY OF DUBLIN, ALAMEDA COUNTY, CALIFORNIA 1"=200'I 10-31-2013 I 081076 III IRO 2a14il i (tCj f ct.4-: aa M l r...) 3 = c f-.-3- N 1 M03I i e, Ifl 5 i et Rx T a 3 y ± §- — ........ x XI) I t 1 a. • 0 73 — 321 L. r::. 11 .1-A w c a N as 1;da 7 0 1— o • n oil 0 0 M 0 ctt•,1 A II I it1 5. r•—: )101 CC m IV C; D C7 --"C n 7-7 C0 71 C I cu n o v o 0 0 8 3 R- 3 a v > 5' o 5o 3 n '0 to c p 0 0 o CCD 0 CD w CDCDrt 7 C5 - — ca =5. CD 0 0 l7 _ - .. _. O a)" C2 M CD CD O 3 CD CD CD ID 3 CD CD CI a n 0 3 0 0 CD a r CCDCD CO CO 0 0 .1 CO 0 a) p J C W GJ 6 O to i..) - O O O 0 0m x 61 fA Eft u 0 E. N N -1 CO 01 O to m o 0 0o 01 o 0o con to 0 0 0 0 0 0 0 0 D 0 00 0 0000000D CD FI rn 3 CD EA NEA -EA 69 m cn m 0 0 0o a, o o UNTO- r tA 4A C) A {A ra a "r1 N Cn CO CI M 00 _00 01 00 0 (0 Er-4a) o 0 o . 00 o a 0 0 0 0 0 0 0 CD C) te e/3 11 fA N 0 N OD CD O 0 O 'p o o o-EA fA EA 4A 0 0 0 0 0 0 O CD 0 Exhibit F Examples of Operation of Development Agreement Fee Advances and Applications j ti4 o CD O O O O kl O a a cm O cis O O O O O O 0 0 n ON' a. 0 A W 0 c U o 0 0o N z G 0 b u Co 00 0 a Cl 0 w1 ut 0"' s i B fi° +I l I i b0 O O kJ O O w• V LO O O O O co 0 O O O m . u O O Q l O 0 0 c) - O v O O w V O O 00 EV O O" O N 6A• I 47,1W a 0o A 00 tip et cd Cned co t) gao U oo„ N p N v 0 0 6.. WO ed f.-1 O N . V O y z v O0 o O aNN 0 p u a 0 . b v a bVu co V V -) N O O O" o MM M C a ob X 1r 0 0 p o- 0 yyN' V Na, r, ct rrrrrr.r 0 oo d- oo 0 0 0 U M .-- t-- d' O 403u d- N V a0 O en w M N V' d- O o74 N -+A 'G 17 as-- i4 - "©- w bD 0W arm y 0 cs U G - -,t-o hwy j iii r T o C , o 0 CC 000e E o 0000 N a Z H as I 0 d• d• co d- 0 0 o t oo o 0 OU i^y O irl tr1 N to O ONNdOOin0A'+ .41 .--, CO V= MCA O' O iG ' ( Lrt dv .- t[r , s a) U it, 4" es1 Q,) C4 dd- O N O N M O r+ d O O y a M 0 0 F 't O EL, O ° ° c S. et w k Q UIZi O N o VM' 0 00 0 M N v.- M - r. Ilioy m 0 o.0 0 0 0 5 o 00 U U N d- ON .N I C V 0 i aJ R w E xU o Ri a W o N M d• .n 0.4 Q Exhibit G COMMUNITY FACILITIES DISTRICT FINANCING PROVISIONS 1.1 Formation of CFDs and Designation of Improvement Areas a) Background. Developer and the United States of America, represented by The Department of the Army (the "Army"), executed the Exchange Agreement, dated March _, 2011 (the "Exchange Agreement") whereby the Army will convey certain property (the "Exchange Property") to Developer following completion of certain improvements by Developer to other property owned by the Army. Under the Exchange Agreement, the Exchange Property is divided into six phases, known as Phases 1A, 1B, 2, 3, 4, and 5. The Army will convey the Exchange Property to Developer in five separate transactions, with the first conveyance consisting of Phase 1A and Phase 1B (herein, the "Initial Phases") and the four additional conveyances consisting of Phase 2, Phase 3, Phase 4, and Phase 5 (each, a "Subsequent Phase"). Both the Initial Phases and each Subsequent Phase will be conveyed only upon the completion of certain improvements by Developer, as detailed in the Exchange Agreement. b) Formation. City shall, if it elects to do so, establish a community facilities district ("CFD") pursuant to the Mello-Roos Community Facilities Act of 1982, as amended (the "CFD Act") in the manner described in this Section 1, consisting initially of the Initial Phases. As each Subsequent Phase is acquired by Developer, it will be annexed into the CFD in the manner described in this Section 1. The Initial Phases and each Subsequent Phase will be designated as its own improvement area of the CFD ("Improvement Area") under the CFD Act. c) Petition. At any time after acquisition of the Initial Phases by Developer, Developer may petition City under the CFD Act to (i) establish the CFD over the Initial Phases, (ii) to designate the Initial Phases as Improvement Area No. 1, iii) identify each Subsequent Phase as property to be annexed into the CFD in the future, and (iv) designate each Subsequent Phase as a separate Improvement Area. In its petition, Developer may include proposed specifications for each Improvement Area of the CFD, including special tax rates, CFD boundaries and any proposed tax zones within the Improvement Areas of the CFD, the total tax burden that will result from the imposition of the special taxes (subject to the 1.75% Limitation (as defined below) for residential units), and other provisions. Developer's proposed specifications will be based on Developer's development plans, market analysis, and required preferences, but in all cases will be subject to this Development Agreement and the CFD Goals (as defined herein). d) Commencement of Formation of CFD. 1 0 i) Within ninety (90) days following City's receipt of a petition and any deposit required by Section 53318 of the CFD Act, the City Council shall adopt a resolution of intention to form the CFD and to designate the Improvement Areas consistent with the petition. The CFD shall be formed initially over the Initial Phases and each Subsequent Phase shall be identified in the proceedings to form the CFD as property for future annexation. The Initial Phases shall be designated as Improvement Area No. 1, and shall have a separate rate and method of apportionment of special tax an "RMA"), authorization to issue one or more series of special tax bonds ("CFD Bonds"), and an appropriations limit. Each Subsequent Phase shall be designated as a separate Improvement Area to be annexed in the future, complete with a separate RMA, authorization to issue CFD Bonds, and appropriations limit. A separate notice of special tax lien required by Section 3114.5 of the California Streets and Highways Code the "Notice of Special Tax Lien") shall be recorded against the Initial Phases and each Subsequent Phase upon completion of formation of the CFD or annexation to the CFD, as applicable. e) Annexation of Subsequent Phases. As each Subsequent Phase is acquired by Developer pursuant to the Exchange Agreement (an "Acquired Phase"), Developer may submit to the City a written consent, unanimous approval, and ballot of all owners of the Acquired Phase (collectively, the "Unanimous Approval") to the annexation of the Acquired Phase to the designated Improvement Area of the CFD. The Unanimous Approval will specifically agree to the special tax rates set forth in the RMA for such Improvement Area, the bond authorization for such Improvement Area, and the appropriations limit for such Improvement Area, and will direct the City to record a Notice of Special Tax Lien against the Acquired Phase. Upon receipt of the Unanimous Approval, the City shall take all steps necessary to record a Notice of Special Tax Lien against the Acquired Phase. Pursuant to Section 53329.6 of the CFD Act, from and after the recordation of the Notice of Special Tax Lien on the Acquired Phase, the Acquired Phase shall be considered annexed to the CFD within its designated Improvement Area without any further action on the part of the City. City and Developer acknowledge that upon recordation of the Notice of Special Tax Lien on the Acquired Phase (A) the newly-created Improvement Area shall be authorized to finance any of the Facilities (as defined herein) and (B) the Acquisition Agreement (as defined herein) shall be applicable to the newly-created Improvement Area such that the Facilities may be financed pursuant to the Acquisition Agreement from any CFD Bonds and Remainder Taxes (as defined herein) of such newly-created Improvement Area. f) Authorized Facilities. The CFD and each Improvement Area shall be authorized to finance all of the Facilities (as defined in Section 1.2), irrespective of the geographic location of the improvements financed. The City has determined that the Facilities benefit the CFD and each Improvement Area as a whole, and therefore any of the Facilities may be financed in any Improvement Area without regard to specific benefit to such Improvement Area. 2 0 0 g) Joint Community Facilities Agreements. Under the CFD Act, City may be required to enter into one or more joint community facilities agreements with other governmental entities that will own or operate any of the Facilities to be financed by the CFD. The City and Developer agree that they will take all steps necessary to procure the authorization and execution of any required joint community facilities agreements with other governmental entities before the issuance of any CFD Bonds that will finance the construction or acquisition of Facilities that will be owned or operated by such other governmental entities. 1.2 Scope of CFD-Financed Costs. The CFD and each Improvement Area shall be authorized to finance all or any portion of the facilities described in Section 53313.5 of the CFD Act and any capital fees, including, but not limited to the Community Benefit Payment (collectively, the "Facilities"). 1.3 Parameters of CFD Formation. a) Cooperation. Developer and City agree to cooperate reasonably in developing each RMA to be used in each Improvement Area of the CFD. Each RMA shall be consistent with this Development Agreement and the Developer's petition. Developer and City will each use good-faith reasonable efforts at all times to furnish timely to the other, or to obtain and then furnish to the other, any information necessary to develop each RMA, such Developer's plans for the types, sizes, numbers, and timing for construction of buildings, within each Improvement Area. Each Improvement Area of the CFD will be subject to its own RMA. b) Assigned Special Tax Rates for Developed Property. Each RMA will specify special tax rates for Developed Property (property for which a building permit has been pulled) within the Improvement Area (each an "Assigned Special Tax Rate"). The Assigned Special Tax Rates for Developed Property may vary based on sizes, densities, types of buildings to be constructed, and other relevant factors. Each RMA will establish Assigned Special Tax Rates assuming that any CFD bonds issued will have a debt service coverage-ratio of one hundred ten percent (110%). c) Total Tax Obligation. The Assigned Special Tax Rates will be set so that the Total Tax Obligation (as defined below) on any residential unit within an Improvement Area will not exceed one and three-fourths percent (1.75%) of the anticipated sales price of that residential unit (the "1.75% Limitation"). The anticipated sales price of a residential unit may be based on reasonable projections of value over time. If an RMA for an Improvement Area is modified to increase the special tax rates through Change Proceedings (as defined herein), the increased Assigned Special Tax Rates will be not exceed amounts that will cause the Total Tax Obligation on any residential unit within such Improvement Area to exceed the 1.75% Limitation when the proposed modification goes into effect. 3 0 i) For purposes of this Section 1.3, the term "Total Tax Obligation" means, with respect to a residential unit at the time of calculation, the sum of: (a) the ad valorem taxes actually levied or projected to be levied if the residential unit were developed at the time of calculation; (b) the Assigned Special Tax Rates levied or projected to be levied if the residential unit were developed at the time of calculation; c) all installments of special assessments if the residential unit were developed at the time of calculation; and (d) all other special taxes (based on assigned special tax rates) or assessments secured by a lien on the residential unit levied or projected to be levied if the residential unit were developed at the time of calculation. d) Escalation of Special Tax Rates. At Developer's request, each RMA will provide for annual increases in the special tax rates in an amount not to exceed two percent (2%) per year. e) Priority for Annual Levy of Special Taxes. Each RMA will provide for the levy of special taxes to fund debt service on CFD Bonds (not including capitalized interest), administrative costs, and Facilities (collectively, the "Special Tax Requirement") according to the priorities set in the Indenture, which shall be as follows: (i) first, special taxes will be levied on each parcel of Developed Property at the applicable Assigned Special Tax Rate, regardless of whether City has issued CFD Bonds or the debt service requirements for any existing CFD Bonds, before applying any capitalized interest; (ii) second, to the extent the funds to be collected under clause (i) will not be sufficient to satisfy the Special Tax Requirement in full after application of any capitalized interest, special taxes will be levied proportionately on each parcel of Undeveloped Property, up to one hundred percent (100%) of the applicable Maximum Special Tax Rate; and (iii) third, to the extent the funds to be collected under clauses (i) and fla will not be sufficient to satisfy the Special Tax Requirement in full after application of any capitalized interest, additional special taxes will be levied proportionately on each parcel of Developed Property, so long as the total levy on Developed Property under clauses (i) and illa does not exceed the applicable Maximum Special Tax Rate. f) Use of Remainder Taxes. i) Developer and City contemplate that, within each Improvement Area of the CFD, Facilities will be paid from Remainder Taxes (as defined below) both before and after the issuance of CFD Bonds for such Improvement Area. Accordingly, each RMA will provide that Remainder Taxes may be used to finance Facilities. For each CFD, annually, on the day following each Principal Payment Date as defined below) for such Improvement Area, all Remainder Taxes for such Improvement Area will be deposited in the applicable Remainder Taxes Project Account as defined below). 1) The term "Remainder Taxes" means, in each year, as of the 4 0 day following the Principal Payment Date for an Improvement Area, all special taxes collected prior to such date in such Improvement Area in excess of the total of: (a) debt service on the outstanding CFD Bonds for the applicable Improvement Area due in the current calendar year, if any; (b) priority and any other reasonable administrative costs for the applicable Improvement Area payable in that fiscal year; and (c) amounts levied to replenish the applicable reserve fund as of the Principal Payment Date, including amounts reserved for reasonable anticipated delinquencies, if any. 2) The term "Principal Payment Date" means, either before or after CFD Bonds are issued, September 1 of each year, regardless of whether principal payments are actually due in any particular year. 3) The term "Remainder Taxes Project Account" means a separate account created by City for the CFD and maintained by City to hold all Remainder Taxes for all of the Improvement Areas of the CFD to be used for financing Facilities. g) No Pledge for Debt Service. Remainder Taxes deposited in the Remainder Taxes Project Accounts will not be deemed or construed to be pledged for payment of debt service on any CFD Bonds, and neither Developer nor any other person will have the right to demand or require that the City or Fiscal Agent, as applicable, use funds in the Remainder Taxes Project Account to pay debt service. h) Prepayment. The RMA will include provisions allowing a property owner within an Improvement Area that is not in default of its obligation to pay special taxes to prepay special taxes in full or in part based on a formula that will require payment of the property owner's anticipated total special tax obligation. Prepaid special taxes will be placed in a segregated account in accordance with the applicable Indenture. The RMA and the Indenture will specify the use of prepaid special taxes. Before CFD Bonds are issued for an Improvement Area, all prepayment amounts other than those required for administrative expenses shall be used to finance Facilities. 1.4 Issuance of CFD Bonds a) Issuance. Subject to the Bond . Issuance Conditions Precedent defined below), City, on behalf of the CFD, intends to issue one or more series of CFD Bonds on behalf of each Improvement Area for purposes of this Development Agreement. Developer may submit written requests that City issue CFD Bonds, specifying requested issuance dates, amounts, and main financing terms. Following Developer's request, Developer and City will meet with City's public financing 5 C consultants to determine reasonable and appropriate issuance dates, amounts, and main financing terms that are consistent with this Development Agreement and the CFD Goals. The CFD Bonds shall be issued pursuant to an indenture, trust agreement, or fiscal agent agreement (however denominated, an "Indenture") between the CFD and a fiscal agent or trustee (however denominated, the "Fiscal Agent"). b) Bond Issuance Conditions Precedent. The Developer and City agree that the following three conditions must be satisfied with respect to the property that is the security for the CFD Bonds before the City will issue a series of CFD Bonds collectively, the "Bond Issuance Conditions Precedent"): i) The Alameda County Assessor's Office confirms that the property upon which special taxes will be levied as security for the series of CFD Bonds is on the secured tax rolls of Alameda County and is subject to ad valorem taxation. The purpose of this condition is to ensure that the property securing the CFD Bonds is no longer owned by the Army or other governmental agency and is subject to tax levy by the County. ii) Compliance with the CFD Goals. iii) With respect to the public improvements required as conditions to development approval for any phase of the development project, and before any CFD bonds are issued upon the security of special taxes to be levied on the property within that phase, Developer shall have provided information to City that describes to the City's reasonable satisfaction how Developer will finance any of those improvements that are not to be acquired with bond proceeds. c) Payment Dates,. So that Remainder Taxes may be calculated on the same date for all Improvement Areas and CFD Bonds, each issue of CFD Bonds shall have interest payment dates of March 1 and September 1, with principal due on September 1. d) Term. CFD Bonds will have a term of not less than thirty (30) years and not more than thirty-five (35) years unless Developer and City agree otherwise. 1.5 CFD Goals a) CFD Goals. Under Section 53312.7 of the CFD Act, prior to formation of the CFD, the City must consider and adopt local goals and policies concerning the CFD (the "CFD Goals"). The City has not yet established the CFD Goals, but will prior to formation of the CFD. The City shall not adopt CFD Goals that are inconsistent with this Development Agreement unless required under the CFD Act or other controlling State or federal law. In particular, the CFD Goals shall include the following provisions, each of which the Developer is relying on: 6 0 i) Value-to-Lien Ratio. The appraised or assessed value-to- lien ratio required for each CFD Bond issue will be three to one (3:1), unless a lesser amount is mutually agreed to by the City and Developer. ii) Coverage Ratio. An issue of CFD Bonds will not have a debt service coverage-ratio of less than one hundred ten percent (110%), unless otherwise agreed to by City. iii) Letter of Credit. So long as the value of the property in the Improvement Area is at least equal to the required value-to-lien ratio, the City shall not require the Developer or any property owner in the Improvement Area provide a letter of credit or other credit enhancement as security for the payment of special taxes in the CFD. 1.6 Miscellaneous CFD Provisions a) Reserve Fund Earnings. The Indenture for each issue of CFD Bonds will provide that earnings on any reserve fund that are not then needed to replenish the reserve fund to the reserve requirement will be transferred to: (i) the project fund for the CFD Bonds for allowed uses until it is closed in accordance with the Indenture; then (ii) the debt service fund held by the Fiscal Agent under the Indenture. b) Authorization of Reimbursements,. City will take all actions necessary to satisfy section 53314.9 of the Government Code or any similar statute subsequently enacted to use CFD Bond proceeds and Remainder Taxes to reimburse Developer for: (i) CFD formation and CFD Bond issuance deposits; and (ii) advance funding of Facilities or costs. c) Acquisition Agreement. Contemporaneously with the formation of the CFD, Developer and City will execute an acquisition and funding agreement (the Acquisition Agreement") that will apply to the acquisition and construction of the Facilities for each and every Improvement Area of the CFD. The Acquisition Agreement shall be structured so that it is automatically applicable to any financing by special taxes levied in, or CFD Bonds issued for, a Subsequent Phase annexed into its respective Improvement Area of the CFD, without requiring any modifications to the Acquisition Agreement or any further approvals by the City. The Acquisition Agreement shall contain an acknowledgment by the City and Developer as to the following: i) Developer may be constructing Facilities before CFD Bond proceeds and Remainder Taxes (herein, "Funding Sources") will be used to acquire them are available; ii) The Department of Public Works will inspect Facilities and process payment requests even if Funding Sources for the amount of pending payment 0 requests are not then sufficient to satisfy them in full; iii) Facilities may be conveyed to and accepted by the City or other governmental entity before the applicable payment requests are paid in full; iv) If the City or other governmental entity accepts Facilities before the applicable payment requests are paid in full, the unpaid balance will be paid when sufficient Funding Sources become available, and the Acquisition Agreement will provide that the applicable payment requests for Facilities accepted by the City or other governmental entity may be paid: (A) in any number of installments as Funding Sources become available; and (B) irrespective of the length of time payment is deferred; and v) Developer's conveyance or dedication of Facilities to the City or other governmental entity before the availability of Funding Sources to acquire the Facilities is not a dedication or gift, or a waiver of Developer's right to payment of Facilities under this Development Agreement or the Acquisition Agreement. d) Initial and Continuing Disclosure. In connection with each issue of CFD Bonds, the Developer shall provide customary disclosure about the Developer and its development and financing plans. In addition, Developer shall comply with all of its obligations under any continuing disclosure agreement it executes in connection with the offering and sale of any CFD Bonds. Developer acknowledges that a condition to the issuance of any CFD Bonds may be Developer's execution of a continuing disclosure agreement. e) No Other Land-Secured Financings. Other than the CFD, City shall not to form any additional land-secured financing district over any portion of the property in the Project without Developer's written consent which may be given in its sole discretion. f) Prevailing Wages. If a CFD is formed, the Developer shall require, and the specifications and bid and contract documents shall require, all contractors engaged to perform work on a public work of improvement to pay prevailing wages and to otherwise comply with applicable provisions of the California Labor Code. 2188364.1 8 1 EASTERN DUBLIN TRAFFIC IMPACT FEE Effective May 17,2010 r Residential(Within Transit Center/ High Density Dwelling(more than 25 units per acre) 3,429/unit Residential(Outside of Transit Center/ Low Density Dwelling(up to 6 units per acre) 8,410/unit Medium Density Dwelling(6.1-14 units per acre)8,410/unit Medium/High Density Dwelling(14.1-25 units per acre) 5,887/unit High Density Dwelling(25.1 or more units per acre) 5,046/unit Second Units per Sec.8.80 of the Municipal Code 5,046/unit Non-Residential Development Other Than Residential 735/trip LAND USE ESTIMATED WEEKDAY VEHICLE Non-Residentlall TRIP•GENERATION RATE* HOTEUMOTEL OR OTHER LODGING: 10/room OFFICE: Standard Commercial Office 20/1,000 sf RECREATION: Recreation Community Center 26/1,000 sf Health Club 40/1,000 sf Bowling Center 33/1,000 sf Golf Course 8/acre Tennis Courts 33/court Theaters: Movie 220/screen Live 0.2Jseat Video Arcade 96/1,000 sf EDUCATION Private Schools 1.5/student Daycare/Pre-school 2.4/student HOSPITAL: General 12/bed Convalescent/Nursing 3/bed Clinic 24/1,000 sf CHURCH: 9/1,000 sf INDUSTRIAL: Industrial(with retail) 16/1,000 sf industrial(without retail)8/1,000 sf Sources of Information for Trip Generation Rates: Institute of Transportation Engineers(ITE) and San Diego Association of Governments(SANDAG). These trip generation rates are based on averages. Most retail uses are given a 35%pass-by reduction. • Land uses that are shaded will always pay at the individual trip rate as these uses tend to generate destination trips. Commercial/retall and certain recreation uses wit pay at the individual trip rate if the site is a stand-alone land use;lithe land use Is part of a larger shopping center,the appropriate shopping center trip rate will apply. Page 1 of 2 216/2010 yXOIIF UPDATEiExhlbR C-Fee Rates 2009 Transit Center Fee Redudron Update DRAFT 2 EASTERN DUBLIN TRAFFIC IMPACT FEE Effective May 17,2010 i. LAND USE ESTIMATED WEEKDAY VEHICLELAND SidentlalZ TRIP GENERATION RATE WITH PASS-BY) RESTAURANT: Located Within a Shopping Center(may be separate legal parcels but with shared parking and Internal vehicle/pedestrian connections to adjacent commercial parcels): Quality(leisure) See appropriate Shopping Center RateSit-down,high turnover(usually chain other than fast food) See appropriate Shopping Center RateBar/Tavem See appropriate Shopping Center RateFastFoodw/o drive throu.h See a••ro•riate Sho..inr. Center Rate t,.!-;! .+..,.1.!,t_lJli.t'111F l:a„r :.u;,',.'rt'•; -k'.'.Fb_.f„ 1r-.,4[...c;^ r••- er.51':':?•'`<`s,. 1f 0 1I1. + r ti1 iii ,07igrl, i tI v I - . n ti r al i`+ Restaurant uses shall be as defined in the Trip Generation Manual,Institute of Transportation Engineers,8th EdFinaldeterminationshallbemadebythePublicWorks'Director. AUTOMOTIVE: L 1:;nF lid • - la r7 t ti 214 i7l , : 1 .cl p ,...I111` t `r z 1,11a1?, VLrE.'. ,' .....-•u:. s:, ,..1 ., i { ti .^i tit 4 +`. J FINANCIAL: Located Within a Shopping Center(may be separate legal parcels but with shared parking and Internal vehicle/pedestrian connections to adjacent commercial parcels): Bank/Savings and Loan See appropriate Shopping Center Rate 2d''a'h'tt,`{-F,a i,7S L rllr L,`'-k i + jT r 9 4-.s-:4”" i 5 7 _,• 1:c,1,..:G',a.. a:iltn.?LL;. ,..a V'z.i?.1,';?'ye.j'?`.y: H'. r•t'n".'''r.:.,z ka''..`i'i a.I{ss:'.,.Q.,si COMMERCIAL/RETAIL: Super Regional Shopping Center 22/1,000 sfMorethan600,000 SF;usually more than 60 acres; with usually 3+major stores) and not biscted by a public arterial street Regional Shopping Center 33/1,000 sf 300,000-600,000 SF;usually.30-60 acres; w/usually 2+major stores)and not bisected by a public arterial street Community or Neighborhood Shopping Center 46/1,000 sf Less than'300,000 sf,less than 30 acres;wl usually 1 major store or grocery store and detached restaurant and detached • restaurant and/or drug store)and not bisected by a public arterial street Commercial Shops: Retail/Strip Commercial(no major store) 26/1,000 sfSupermarketStandAlone98/1,000 sf i.T.'S^%lt[` ,iI--I.h 1.ri4-t"r."T•`' j f?:y7:'3_ ,7f 1',.N$ !f ,. Discount Store 46/1,000 sf Page 2 of 2 2/28/2010 grEDTF UPDATE&Exhrbf C-Fee Rates 2009 Trani Center Fee Reduction Update DRAFT 0 0 1 EASTERN DUBLIN TRAFFIC IMPACT FEE Effective May 17,2010 Residential(Within Transit Center) High Density Dwelling(more than 25 units per acre) 3,429/unit Residential(Outside of Transit Center) Low Density Dwelling(up to 6 units per acre) 8,410/unit Medium Density Dwelling(6.1-14 units per acre)8,410/unit Medium/High Density Dwelling(14.1-25 units per acre) 5,887/unit High Density Dwelling(25.1 or more units per acre) 5,046/unit Second Units per Sec.8.80 of the Municipal Code 5,046/unit Non-Residential Development Other Than Residential 735/trip LAND USE ESTIMATED WEEKDAY VEHICLE Non-Residential). TRIP GENERATION RATE* HOTEL/MOTEL OR OTHER LODGING: 10/room OFFICE: Standard Commercial Office 20/1,000 sf RECREATION: Recreation Community Center 26/1,000 sf Health Club 40/1,000 sf Bowling Center 33/1,000 sf Golf Course 8/acre Tennis Courts 33/court Theaters: Movie 220/screen Live 0.2/seat Video Arcade 96/1,000 sf EDUCATION Private Schools 1.5/student Daycare/Pre-school 2.4/student HOSPITAL: General 12/bed Convalescent/Nursing 3/bed Clinic 24/1,000 sf CHURCH: 9/1,000 sf INDUSTRIAL: Industrial(with retail) 16/1,000 sf Industrial(without retail) 8/1,000 sf Sources of information for Trip Generation Rates: Institute of Transportation Engineers(ITE) and San Diego Association of Governments(SANDAG). These trip generation rates are based on averages. Most retail uses are given a 35%pass-by reduction. Land uses that are shaded will always pay at the individual trip rate as these uses tend to generate destination trips. Commercial/retail and certain recreation uses will pay at the individual trip rate if the site is a stand-alone land use;if the land use is part of a larger shopping center,the appropriate shopping center trip rate will apply. 3t Page 1 of 2 eF 10/17/2013 g:IEDTlF UPDATEIExhibit C-Fee Rates 2009 Transit Center Fee Reduction Update DRAFT 2 EASTERN DUBLIN TRAFFIC IMPACT FEE Effective May 17,2010 ESTIMATED WEEKDAY VEHICLE LAND USE TRIP GENERATION RATE tNon-Residential) WITH PASS-BY1 RESTAURANT: Located Within a Shopping Center(may be separate legal parcels but with shared parking and internal vehicle/ pedestrian connections to adjacent commercial parcels): Quality(leisure) See appropriate Shopping Center Rate Sit-down,high turnover(usually chain other than fast food) See appropriate Shopping Center Rate Bar/Tavern See appropriate Shopping Center Rate Fast Food(w/o drive throe h See a ro riate Sho in Center Rate Restaurant uses shall be as defined in the Trip Generation Manual,Institute of Transportation Engineers,8th Edi Final determination shall be made by the Public Works Director. AUTOMOTIVE: FINANCIAL: Located Within a Shopping Center(may be separate legal parcels but with shared parking and Internal vehicle/ pedestrian connections to adjacent commercial parcels): Bank/Savings and Loan See appropriate Shopping Center Rate COMMERCIAL/RETAIL: Super Regional Shopping Center 22/1,000 sf More than 600,000 SF;usually more than 60 acres; with usually 3+major stores) and not biscted by a public arterial street Regional Shopping Center 33/1,000 sf 300,000-600,000 SF;usually 30-60 acres; w/usually 2+major stores)and not bisected by a public arterial street Community or Neighborhood Shopping Center 46/1,000 sf Less than 300,000 sf;less than 30 acres;w/usually 1 major store or grocery store and detached restaurant and detached restaurant and/or drug store)and not bisected by a public arterial street Commercial Shops: Retail/Strip Commercial(no major store) 26/1,000 sf Su.ermarket Stand Alone 98/1,000 sf Discount Store 46/1,000 sf Page 2 of 2 10/17/2013 g:IEDTIF UPDATEIExhibit C-Fee Rates 2009 Transit Center Fee Reduction Update DRAFT 0 0 Exhibit I Transportation Improvements and Triggers The following additional conditions are hereby imposed pursuant to Paragraph 10.3 of the Agreement. Infrastructure Sequencing Program 1. Internal Subdivision Improvements Right-of-way dedication and construction of public improvements internal to the Project shall be completed in accordance with the Phasing Plan identified in the Dublin Crossings Specific Plan and the requirements of section 10.4 of this Agreement and shall be subject to the review and approval of the City Engineer. The City Engineer shall identify all improvements necessary to serve and access the lots created with each subdivision map. All rights-of-way and improvements, including new traffic signals, identified by the City Engineer for construction within the boundaries of each phase of the development shall be required with the subdivision map for that phase. 2. External Subdivision Improvements Right-of-way dedication and construction of public improvements external to the Project shall be done in accordance with the phases described below and the Dublin Crossings Specific Plan. The following table identifies the external improvements and the phase in which said improvements are to be constructed. More detailed information of each external improvement is provided in the subsections following the table. Improvement Subsection Construction EIR EIR Fair Transportation During Mitigation Share Fee Credit Phase Yes/No) Contribution Eligible Yes/No) Yes/No) Arnold Road a. 3 No No Yes Widening Arnold Road b. 3 No No Yes Central Parkway Signal Modifications Arnold Road c. 4 No No No G Street Signal 1 Dublin Crossing Development Agreement 1 Exhibit I Dougherty d. 1 Yes Yes Yes Road & MM 3.12-1) Amador Valley Boulevard Intersection Dublin e. 3 No No No Boulevard Auxiliary Lane Dublin f. 3 No No Yes Boulevard & Arnold Road Intersection Dublin g. 1 No No No Boulevard & Demarcus Boulevard Intersection Dublin h. 2 Yes Yes Yes Boulevard & MM 3.12-4) Iron Horse Parkway Intersection Dublin i. 5 Yes Yes Yes Boulevard & MM 3.12-5) Hacienda Drive Intersection Dublin j. 5 Yes Yes Yes Boulevard & MM 3.12-6) Tassajara Road Intersection Scarlett Drive k. 2 or Year No No Yes Extension/ 2020, Widening whichever between comes first Dougherty Rd southerly boundary of Phase 2 park parcel Dublin Crossing Development Agreement 2 Exhibit I 0 Scarlett Drive k. 3 No No Yes Extension between southerly boundary of Phase 2 park parcel and Dublin Blvd a.Arnold Road Widening i) Overview - The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 3, to (a) widen Arnold Road to four lanes between Central Parkway and Dublin Boulevard and (b) dedicate land associated with the improvements. Widening includes the realignment of the existing Arnold Road drainage canal north of Central Parkway. ii) Timing - Developer shall complete construction of or shall agree to and provide bonds guaranteeing construction of the Arnold Road Widening in accordance with the approved final design before the first subdivision map is recorded for Phase 3. iii) Transportation Fee Credits — The Developer shall be eligible for Transportation Fee Credits for Arnold Road Widening. b.Arnold Road & Central Parkway Signal Modifications i) Overview - The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 3, to (a) modify the existing signal, construct a northbound left turn lane on Arnold Road, and construct pedestrian, streetscape, and bicycle access improvements at the Arnold Road and Central Parkway intersection and b) dedicate land in conjunction with those improvements. Bicycle and Pedestrian improvements shall include specific improvements to ensure safe and appropriate connection between Class I and Class II bikeways in the vicinity of the intersection. ii) Timing - Developer shall complete construction of or shall agree to and provide bonds guaranteeing construction of the Arnold Road & Central Parkway Signal modifications in accordance with the approved final design before the first subdivision map is recorded for Phase 3. v) Transportation Fee Credits — The Developer shall be eligible for Transportation Fee Credits for the portions of the Arnold Road & Central Parkway Signal modifications that are included in the Eastern Dublin Traffic Impact Fee. c. Arnold Road & G Street Signal Dublin Crossing Development Agreement 3 Exhibit I i) Overview - The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 4, to (a) install a traffic signal, construct a southbound right turn lane on Arnold Road, construct a northbound left turn lane on Arnold Road, and construct pedestrian, streetscape, and bicycle access improvements at the Arnold Road and G Street intersection and (b) dedicate land in conjunction with those improvements. The improvements shall include specific pedestrian and bicycle improvements to ensure safe and appropriate connection between Class I and Class II bikeways in the vicinity of the intersection. ii) Timing - Developer shall complete construction of or shall agree to and provide bonds guaranteeing construction of the Arnold Road & G Street Signal in accordance with the approved final design before the first subdivision map is recorded for Phase 4. iii) Transportation Fee Credits — The Developer shall not be eligible for Transportation Fee Credits for Arnold Road and G Street Traffic Signal. d. Dougherty Road & Amador Valley Boulevard Intersection i) Overview - The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 1, to (a) either (1) install a second north bound left turn lane on Dougherty Road at the Dougherty Road and Amador Valley Boulevard Intersection or (2) pay its fair share thereof. ii) Timing - Developer shall make the fair share contribution to, complete construction of, or shall agree to and provide bonds guaranteeing construction of the required improvements at the Dougherty &Amador Valley Intersection in accordance with the approved final design before the first subdivision map is recorded for Phase 1. iii) Transportation Fee Credits — The Developer shall be eligible for Transportation Fee Credits for land acquisition and construction of the additional northbound left turn lane at the Dougherty Road & Amador Valley Boulevard Intersection in excess of its fair share obligation. e. Dublin Boulevard Auxiliary Lane i) Overview - The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 3, to (a) construct a westbound right turn and auxiliary lane on the Dublin Boulevard frontage of the Project and (b) dedicate land in conjunction with those improvements. ii) Timing - Developer shall complete construction of or shall agree to and provide bonds guaranteeing construction of the Dublin Boulevard Auxiliary Lane in accordance with the approved final design before the first subdivision map is recorded for Phase 3. iii) Transportation Fee Credits — The Developer shall not be eligible for Transportation Fee Credits for the Dublin Boulevard Auxiliary Lane. Dublin Crossing Development Agreement 4 Exhibit I 0 0 f.Dublin Boulevard & Arnold Road Intersection i) Overview - The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 3, to (a) construct intersection improvements at the Dublin Boulevard and Arnold Road intersection and (b) dedicate land in conjunction with those improvements. ii) Timing - Developer shall complete construction of or shall agree to and provide bonds guaranteeing construction of the Dublin Boulevard &Arnold Road Intersection improvements in accordance with the approved final design before the first subdivision map is recorded for Phase 3. iii) Transportation Fee Credits — The Developer shall be eligible for Transportation Fee Credits for the Dublin Boulevard &Arnold Road Intersection improvements. g. Dublin Boulevard & Demarcus Boulevard Intersection i) Overview - The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 1, to (a) to construct pedestrian, and streetscape improvements at the Dublin Boulevard and Demarcus Boulevard intersection and modify signal to accommodate 4th leg (B Street) at this intersection as specified in the Specific Plan and the EIR and (b) dedicate land in conjunction with those improvements. The improvements shall include specific bicycle and pedestrian improvements to ensure safe and appropriate connection between Class I and Class II bikeways in the vicinity of the intersection. ii) Timing - Developer shall complete construction of or shall agree to and provide bonds guaranteeing construction of the Dublin Boulevard & Demarcus Boulevard Intersection improvements in accordance with the approved final design before the first subdivision map is recorded for Phase 1. iii) Transportation Fee Credits — The Developer shall not be eligible for Transportation Fee Credits for Dublin Boulevard & Demarcus Boulevard Intersection improvements. h. Dublin Boulevard & Iron Horse Parkway Intersection i) Overview - The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 2, to mitigate.the impact at the intersection of Iron Horse Parkway and Dublin Boulevard as specified in the EIR. The mitigation would require the removal of parking on the east side of Iron Horse Parkway, traffic signal modifications, and changing the travel lane configuration and alignment to create: one 16-foot wide southbound receiving lane on Iron Horse Parkway; two 10-foot wide northbound left turn lanes on Iron Horse Parkway; and one 14-foot wide northbound shared through-right turn lane. Other improvements include modifying the existing traffic signal to add D Street to the intersection and constructing a westbound right turn Dublin Crossing Development Agreement 5 Exhibit I A lane on Dublin Boulevard at the Dublin Boulevard, Iron Horse Parkway/D Street intersection. ii) Timing - Developer shall complete construction of or shall agree to and provide bonds guaranteeing construction of the Dublin Boulevard & Iron Horse Parkway Intersection improvements in accordance with the approved final design before the first subdivision map is recorded for Phase 2. iii) Transportation Fee Credits — The Developer shall be eligible for Transportation Fee Credits for improvements along the south leg of Iron Horse Parkway as per the EIR mitigation. All other required improvements at the Dublin Boulevard and Iron Horse Parkway/D Street intersection will not be eligible for such credits. i.Dublin Boulevard & Hacienda Drive Intersection Improvements i) Overview - The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 5, to modify and restripe the Dublin Boulevard and Hacienda Drive intersection as specified in the EIR. ii) Timing - Developer shall complete construction of or shall agree to and provide bonds guaranteeing construction of the Dublin Boulevard & Hacienda Drive Intersection improvements in accordance with the approved final design before the first subdivision map is recorded for Phase 5. iii) Transportation Fee Credits — The Developer shall be eligible for Transportation Fee Credits for the Dublin Boulevard & Hacienda Drive Intersection improvements. j.Dublin Boulevard & Tassajara Road Intersection Improvements i) Overview - The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 5, to construct, or pay its fair share of, a new eastbound through and receiving lane on Dublin Boulevard at the Dublin Boulevard and Tassajara Road Intersection. ii) Timing - Developer shall complete construction of or shall agree to and provide bonds guaranteeing construction of the Dublin Boulevard & Tassajara Road Intersection in accordance with the approved final design before the first subdivision map is recorded for Phase 5. iii) Transportation Fee Credits — The Developer shall be eligible for Transportation Fee Credits for the Dublin Boulevard & Tassajara Road Intersection improvements. k. Scarlett Drive Improvements i) Overview — The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 2 or prior to the Year 2020, whichever occurs Dublin Crossing Development Agreement 6 Exhibit I first, to : widen and extend Scarlett Drive and realign the existing Iron Horse Trail between Dougherty Road and-the southerly boundary of the Phase 2 park parcel as shown in Figure 2-4 of the Specific Plan; signalize the G Street and Scarlett Drive intersection and/or the Houston Place and Scarlett Drive intersection as per Section 9.6.; and construct Pedestrian/Streetscape/Bicycle access improvements to Scarlett Drive and G Street intersection and the Scarlett Drive and Houston Place intersection. The Developer further agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 3, to : extend Scarlett Drive and realign the existing Iron Horse Trail between the southerly boundary of the Phase 2 park parcel as shown in Figure 2-4 of the Specific Plan and Dublin Boulevard. ii) Right-of-Way — The Developer agrees not to oppose conditions on tentative maps that require it, in conjunction with Phase 2 or Phase 3 as outlined above in subsection (i), to offer for dedication the right-of-way necessary to construct those portions of the Scarlett Drive Improvements identified above. If any right-of-way, access rights and other consents and approvals from other property owners is necessary to complete and dedicate those portions of the Scarlett Drive Improvements outside of the Project site limits ("Necessary Rights of Way"), the Parties agree to comply with Government Code section 66462.5. The Parties further agree that the agreement contemplated by Government Code section 66462.5 will require Developer to use diligent commercially reasonable efforts to obtain, at its cost, any Necessary Rights of Way and, if those efforts are unsuccessful, require the Developer to pay all of the City's costs of acquiring the Necessary Rights of Way, including, but not limited to, the costs of appraisals and attorneys' fees. iii) Timing - Developer shall complete construction of or shall agree to and provide bonds guaranteeing construction of the Scarlett Drive Improvements in accordance with the approved final design before the first subdivision map is recorded for Phase 2 or Phase 3, as outlined above in subsection (i). iv) Transportation Fee Credits - The Developer shall be eligible for Transportation Fee Credits for the Scarlett Drive Improvements, except for improvements associated with signalization of G Street and Scarlett Drive intersection and/or the Houston Place and Scarlett Drive intersection as per Section 9.6 of this Agreement. 2186843.1 Dublin Crossing Development Agreement 7 Exhibit I