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HomeMy WebLinkAboutItem 4.04 Promenade DAG~~~ OF Dp8~2 ~ i9`~;~%2 STAFF REPORT • C I T Y C L E R K ``c~~L~~ ~~ DUBLIN CITY COUNCIL File #^~^0 ~^-~~ DATE: March 1, 2011 TO: Honorable Mayor and City Councilmembers FROM: Joni Pattillo, City Manager ` SUBJECT: CONSENT CALENDAR: PA 08-006 The Promenade Development Agreement between the City of Dublin and James Tong and Mei Fong Tong Report Prepared by Mike Porto, Consulting Planner EXECUTIVE SUMMARY: V The City Council will hofd a second reading , of an Ordinance to adopt a Development Agreement for the 23.46-acre area along both sides of the proposed extension of Grafton Street between Central Parkway and Dublin Boulevard known as the Promenade (Village Center) within Area G of Dublin Ranch. The Development Agreement was prepared in accordance with the requirements of the Eastern Dublin Specific Plan and will also vest the Site Development Review (SDR) and Conditional Use Permit (CUP) approvals for the Club Sport, Mercantile building and garage for the life of the Development Agreement. FINANCIAL IMPACT: There is no financial impact to the City. RECOMMENDATION: Staff recommends that the City Council waive the reading and adopt an Ordinance approving a Development Agreement for Tract 9717 known as The Promenade within Area G of Dublin Ranch between the City of Dublin and James Tong and Mei Fong Tong. ~ S_ bmitted By Review d y Community Development Director Assistant City anager Page 1 of 3 ITEM NO. ~~ ~ ~ DESCRIPTION: ` The Promenade is centrally located along both sides of the proposed extension of Grafton Street (which bisects the area in a north-south direction) between Central Parkway and Dublin Boulevard (please see Vicinity Map below). ~ Vicinity Map On July 14, 2009 the Planning Commission approved a Site Development Review (SDR) and Conditional Use Permit (CUP) application for a 3.72-acre site on the northeast corner of Dublin Boulevard and the proposed Grafton Street extension. The proposed project included a Club Sport, a Mercantile building and a four level parking structure. It also represents Phase I of development for The Promenade. The Applicant currently requests approval of a Development Agreement for The Promenade. The terms in the proposed Development Agreement are standard with most of the specific terms described in Exhibit B of the Development Agreement, however, in this instance, the Site Development Review (SDR) and Conditional Use Permit (CUP) for the ClubSport, Mercantile building and parking garage to be constructed on Parcel 4 of Parcel Map 9717 are also being included with this Development Agreement as vested. Please refer to the City Council Staff Report dated February 15, 2011 (Attachment 1) for a complete description of the proposed Development Agreement. On February 15, 2011 the City Council waived the reading and introduced the Ordinance approving a Development Agreement. The City Council is currently requested to waive the second reading and adopt the Ordinance approving the Development Agreement for The Promenade (Attachment 2 with the Development Agreement attached as Exhibit A to Attachment 2). Page 2 of 3 ATTACHMENTS: 1. February 15, 2011 City Council Staff Report (without attachments). 2. Ordinance approving a Development Agreement for Tract 9717 known as The Promenade within Area G of Dublin Ranch between the City of Dublin and James Tong and Mei Fong Tong, with the Development Agreement attached as Exhibit A. G:IPA#120081PA 08-006 Club Sport PromenadelDevelopment AgreementlCC MTG 2.15.11 DA 1 ST READINGICCSR DA 1st Reading 2.15.11.doc Page 3 of 3 G`~y OF Dpe`fy ~ ~ ~ ~ ' ~~~~;~~~ . STAFF REPORT C i T Y C L E R K `~`~,~ ~~~ DUBLIN CITY COUNCIL File # 0[~^O ~-[(~]~ G/Fp(Z~ DATE: ~ February 15, 2011 TO: Honorable Mayor and City Councilmembers FROM: Joni Pattillo, City Manager . SUBJECT: PUBLIC HEARING: PA 08-006 The Promenade Development Agreement between the City of Dublin and James Tong and Mei Fong Tong ~ Report Prepared by Mike Porto, Consultin Planner EXECUTIVE SUMMARY: ' The City Council will consider a Development Agreement for the 23.46-acre area along both sides . of the proposed extension .of Grafton Street befween Central Parkway and Dublin. : Boulevard known as . the Promenade. (Village' Center) within Area G~ of Dublin Ranch. .:The . - . Development. Agreement was prepared in accordance with th~e _requirements of the Eastern , Dublin Specific Plan and will also vest tlie Site Development Review (SDR) and Conditional Use Permit (CUP) approvals for the Club Sport, Mercantile building and garage for the life of the ~ Development Agreement. ~ ~ , , FINANCIAL IMPACT: There is no financial impact to the City. RECOMMENDATION: Staff recommends that the City Council: 1) Receiye Staff presentation; 2) Open the public hearing; 3) Take testimony from the Appficant and the public; 4) Close the public hearing anci deliberate; and 5) Waive the reading and introduce an Ordinance approving a Development Agreement for Tract 9717 known as The Promenade within Area G of Dublin Ranch between the City of Dublin aricl James Tong and Mei Fong Tong. S bmitted By . Community Development Director I " Review Assistant City Manager ~ Page 1 of ~-/-~ / , ~ `~ ATTACHMENT 1 DESCRIPTION: Background/Previous Approvals a~~3 Area G(PA 98-069) covers approximately 86.9 acres of the Eastern Dublin Specific Plan (EDSP) area and is bounded by Central Parkway on the north, Keegan Street on the east, Dublin Boulevard on the south, and Brannigan Street on the west. Areas G is within the Dublin Ranch Master Plan and is subject to a Stage 1 and. Stage 2 Planned Development Rezone approved on March 21, 2000 by (Ordinance 06-00). Subsequently, Area G was subdivided by Parcel Map 7148 into 8 parcels. This included four Medium-High and High Density Residential projects or neighborhoods (Parcels 2, 4, 5& 6) that anchor the four corners and are situated along the easterly and westerly boundaries. From this initial subdivision, The Promenade (Village Center) or commercial area was envisioned to be centrally located on Parcel 3. Parcel 3 was subsequently re-subdivided by Parcel Map 9717 which created four numbered parcels for future development and two lettereci lots for ~oadway dedications. These sites are centrally located along both sides of the proposed extension of Grafton Street (which bisects the area in a north-south direction) between Central Parkway and Dublin Boulevard (please see Map 1 below). The Stage 2 Development Plan allowed for a total of 230,000 square feet of local- serving commercial uses and public/semi-public uses to be developed within the Promenade. The natural topography for all of the 23+ acre Promenade area gene~ally is flat with a slight ~ sfope (1 % average) from -~the northeast to the southwest. It has~ been rough graded and ~~ cu~rently is vacant; there~are no~signifieant.or~~substantial plant materials on site. TFie.area has ~ been used for the tempo'rary staging and storage of materials and equipment for the many. _ construction projects currently in progress and recently completed in the vicinity. With~ : construction almost completed for ~all of ~ the residential uses planned ~ for Area G, The Promenade is the only portion of Area G that remains unde.veloped. ~~ Page 2 of 5 Map 1: Vicinity Map ~ ~ ~ ~Related Actions . ~ The Planning Commission held a public hearing on July 14, 2009 to consider an application (PA 08-006) regarding a Site Development Review (SDR) and Conditional Use Permit (CUP) application for a 3.72-acre site on the northeast corner of Dublin Boulevard and the proposed Grafton Street extenSion (Parcel 4, see Map 2). The proposed project included a Club Sport, a Mercantile building and a four level parking structure (Attachment 1, Project Plans). li also represents Phase I of development for The P~omenade: At that hearing, the Planning Commission voted to approve the . SDR, CUP, and accompanying Addendum to the Eastern Dublin EIR adopted in 1993 with the Eastern Dublin Specific Plan and the Mitigated Negative Declaration adopted in 2000 during the General Ptan and Specific Plan amendments specific to the planning of Area G (PA 98-069). • Subsequently; a . Development ~' Agreement along.: with~ the Addendum • was considered and recommended for ~ Gity Council approval by the Planning. Commissian on August 11, 2009. Prior to adoption by the City Council; the Applicant requested to revisit the Development Agreement to vest the SDR and CUP approval for the 5 year period of the proposed Development Agreement. For that reason, the Development Agreement was brought back to the Planning Commission for further consideration. ~ The Planning Commission held a Public Hearing on January 24, 2011 and recommended the City Council adopt an Ordinance approving the Development Agreement (Resolution 11-03, Attachment 2). Minutes of that meeting are included as Attachment 3. ANALYSIS: Development Agreement Projects within the Eastern Dublin Specific Plan (EDSP) require a Development Agreement between fhe Developer and the City. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the City to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in order to obtain certain commitments and establish certain development rights for the prvperty. The proposed Development Agreement addresses the entire 23.46-acre Promenade/Village Center area which includes the 4 parcels comprising Vesting Tentative Parcel Map 9717. The development for Parcel 4 approved by the Planning Commission represents one part of the overall Development Plan for The Promenade. Subsequent proposals for development on the remainder of The Promenade remain subject to Page 3 of 5 . Man 2: Proiect Site ~ ~ ~~ the requirement for future Site Development Review (SDR) approvals. In any case, the Development Agreement must be approved prior to the issuance of building permits for any development af the property. Development Agreements are approved by an ordinance of the City Council upon recommendation by the Planning Commission. The proposed Development Agreement (Exhibit A to Attachment 4) was drafted with input fr`om City Staff, the project Applicant, property owner, and the City. Attorney based on the standard Development Agreements prepared by the City Attorney and adopted by the City Council for projects located within the Eastem Dublin Specific Plan area. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project. The Development Agreement becomes effective for a term of five (5) years from the date of approval by the City Council. The City also benefits from entering into the Development Agreement with the property owner in a number of ways. This document is a co.ntract that establishes obligations for meeting the goals of the ~ Eastern Dublin Specific Plan and guarantees timing for construction of public infrastructure and facilities for the project area. Additionally, it ensures that dedications of property and easements are made, _ project phasing is followed, appropriate fees are paid for the 'development, and any additional terms of the~~ agreement~ are carried ~out as development proceeds: The proposed Development•Agreement also would be consistent with the'previous development agreements associated with ~ this ~property"~;and approved for the~ Eastern D.ublin ~. ~ ~ Specific P{an area. ~ , , ~ . ' . ~. ~ In return, the Developer agrees to comply with the Conditions of Approval and, in some cases,, makes commitments for which the City might otherwise have no authority to corripel the Developers to perform. Specifically, the Development Agreement augments the City's standard development regulations; defines the precise financial responsibilities of the developer; ensures timely ~provision of adequate public facilities for each. project; and provides terms for the Developer to advance funds for specific facilities which have community or area-wide benefit or for reimbursement from future development, as appropriate: ~ Since the Development Agreement runs with the land, the rights thereunder can be assigned. Specifically, Paragraph 17 of the Development Agreement would delegate authority to the City Manager for approval of such requests for trar~sfer or assignment. The terms in the proposed Development Agreement are standard with most of the specific terms described in Exhibit B of the Development Agreement, however, in this instance the Site Development Review (SDR) and Conditional Use Permit (CUP) for the ClubSport, Mercantile building and parking garage to be constructed on Parcel 4 of Parcel Map 9717 are also being included with this Development Agreement as vested. ENVIRONMENTAL REVIEW: The City prepared an Initial Study to determine if the Promenade Project, including the Development Agreement, required additional environmental review pursuant to CEQA Guidelines section 15162. Based on the Initial Study, the City prepared an Addendum dated Ju(y 14, 2009 ("Addendum") finding that the impacts of the proposed Project have been adequately addressed in the Eastern Dublin Environmental Impact Report certified by Resolution 51-93 ("Eastern Dublin EIR") and the Mitigated Negative Declaration for the development of Area G adopted by Resolution No. 34-00 on February 15, 2000 ("2000 MND"). Therefore, no further environmental review is required under CEQA. The Planning Commission approved the Addendum and adopted a Statement of Overriding Considerations by Resolution Page 4 of 5 . 5~ ~3. Number 09-28 on July 14, 2009. The Addendum and related Initial Study are available for review in the City Planning Department and are incorporated herein by reference. PUBLIC NOTIFICATION: In accordance with State law, a Public Notice was mailed to all property owners and occupants within 300 feet of the proposed Project as well an expanded- area which includes surrounding developments. A Public Notice was also published in the Valley Times and posted at several locations throughout the City. To date, the City has received no objections from surrounding property .owners regarding the Project. A copy of this Staff Report was also provided to the Applicant. ~ ATTACHMENTS: ~ 1. Project Plans dated July 14, 2009. ~ ~ 2. Planning Commission Resolution. 11-03 recommending the City Council adopt an Ordinance~ approving a Developrnent Agreement . for Tract 9717 known as The Promenade within Area G of Dublin . Ranch between the City of Dublin .and James Tong and Mei Fong , Tong. . . _ ~ ~ 3. ~. Planning Commission ~Draft Meeting Minutes dated January 24, . . 2011. . - . : . ~ , .'.. ~ 4. Ordinance~ appro~iing a~ ~Development Agreement for ,Tract 9717 ~ known as The Promenade with'in Area G of Dublin Ranch befiueen : the City of Dublin and James Tong and Mei Fong Tong, with the . Development Agreement attached as Exhibit A. G:1PA#12008\PA 08-006 Club Sport PromenadelDevelopment Agreement\CC MTG 2.15.71 DA 1ST READINGICCSR DA tst Reading 2.15.17.doc Page 5 of 5 ~ r ~ ~ ~ ORDINANCE NO. XX - 11 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN ***************************** APPROVING A DEVELOPMENT AGREEMENT FOR TRACT 9717 KNOWN AS THE PROMENADE WITHIN AREA G OF DUBLIN RANCH BETWEEN THE CITY OF DUBLIN AND JAMES TONG AND MEI FONG TONG PA 08-006 THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. A request has been made by James Tong and Mei Fong Tong ("Applicant") to enter into a Development Agreement with the City of Dublin for the property known as the Village Center or The Promenade, a 23.46-acre area encompassed by Tract 9717; and B. The project is located within the Eastern Dublin Specific Plan area; and C. Development Agreements are required as an implementing measure of .the Eastern Dublin Specific Plan; and ~~ D. On March 21, 2000, the City Couneil adopted Ordinance 06-00 which included Planned Development zoning and a Stage 1 and Stage 2 Planned Development Plan for Area G of Dublin Ranch (PA 98-069) which zoned the project site as PD Village Center, and PD Public/Semi-Public; and E. A Mitigated Negative Declaration for the development of Area G was adopted by the City Council by Resolution No. 34-00 on February 15, 2000 (SCH # 99112041) (2000 MND"). The 2000 MND related to the program EIR for the Eastern Dublin Specific Plan certified by Resolution 51-93, and Addenda dated May 4, 1993 and August 22, 1994, (hereafter "Eastern Dublin EIR"} (SCH #91-103064). The 2000 MND and Eastern Dublin EIR are available for review in the City Planning Department and are incorporated herein by reference; and F. The City prepared an Initial Study to determine if the Project required additional environmental review pursuant to CEQA Guidelines section 15162. Based on the Initial Study, the City prepared an Addendum dated July 14, 2009 ("Addendum") describing the modifications and development and finding that the impacts of the proposed Project have been adequately addressed in the Eastern Dublin EIR and 2000 MND and no further environmental review is required. The Addendum and related Initial Study are available for review in the Community Development Department and are incorporated herein by reference; and G. On July 14, 2009, the Planning Commission approved PA 08-006 by Resolution 09-29 for Phase I of The Promenade, which includes a Site Development Review ("SDR") and Conditional Use Permit ("CUR") for a private fitness/recreation center and minor amendment to the Stage 2 Development Plan to allow a maximum of 82,864 square feet of commercial.space on Parcel 4(of Vesting Tentative Parcel Map 9717), a site of approximately 3.72 acres, with a ATTACHMENT 2 ~ ~~~. maximum of 230,000 square feet over all of the 23.46-acre Promenade area, The Planning Commission also approved and adopted the Addendum. H. The Applicant has applied for a Development Agreement for The Promenade which will vest the Site Development Review and Conditional Use Permit. I. On August 11, 2009 the Planning Commission held a public hearing and recommended approval to the City Council of the Development Agreement for The Promenade. However, the Applicant requested further revisions prior to consideration by the City Council. J. The Planning Commission held a public hearing on the revised Development Agreement on January 24, 2011 for which public notice was given by law. K. The Planning Commission made its recommendation to the City Council for approva! of the Development Agreement by Resolution. L. A public hearing on the proposed Development Agreement was held before the City Council on February 15, 2011 for which public notice was given as provided by {aw. M. 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 Eastern Dublin General Plan Amendment, (d) the Eastern Dublin Specific Plan, (e) the Eastern Dublin EIR, (f) the 2000 MND, (g) the Agenda Statement, (h) the Addendum and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City's General Plan, as amended by the Eastern Dublin General Plan Amendment, and in the Eastern Dublin Specific Plan in that: (a) the General Plan and Specific Plan land use designation for the site is Neighborhood Commercial and Public/Semi-Public, (b) the proposed project is consistent with the designated land uses, (c) 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, and (d) the Development Agreement includes provisions relating to vesting of development rights, and similar provisions set forth in the Specific Plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located including, Planned Development zoning, Stage 1 and Stage 2 Development Plan, Site Development Review, proposed Vesting Tentative Parcel Map, and Conditional Use Permit (collectively, "Project Approvals"). Section 5 of the Development Agreement states that the right to develop and permitted uses under the Agreement are those set forth in the Project Approvals. 3. The Development Agreement is in conformity with public convenience, general welfare, and good land use policies in that the Developer's project will implement land use guidelines set forth in the Eastern Dublin Specific Plan, the General Plan, and Planned 2 O v~J Development zoning, which have planned for PD Village Center/Neighborhood Comme cial and Public/Semi-Public uses at this location, and the Stage ~ and Stage 2 Development Plan. 4. The Development Agreement will not be detrimental to the health, safety, and general welfare in that the Developer's project will proceed in accordance with all the programs and policies of the General Plan, Eastern Dublin Specific Plan, Project Approvals and any Conditions of Approval for the Project. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan, the Eastern Dublin Specific Plan, and Project Approvals. 6. The City finds that the environmental impacts of the Development Agreement are addressed in the Addendum findings and analysis. The proposed Development Agreement will not result in new or substantially more severe significant impacts than those identified in the Eastern Dublin EIR and 2000 MND. There is no substantial evidence showing new information of substantial importance or substantial changes in circumstances that would result in new or substantially more severe impacts or meet any other standards in Public Resources Code Section 21166 and related CEQA Guidelines Sections 15162 and. 15163. Therefore, no further environmental review is required under CEQA for the Development Agreement. All previously adopted mitigation measures will apply to the proposed Project and . project site under the Development Agreement as appticable:, Section 3. APPROVAL The City Council hereby approves the Development Agreement (Exhibit A to the Ordinance) and authorizes the City Manager to execute it. Section 4. RECORDATION Within~ten (10) days after the Development Agreement is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of . its passage. The City Clerk of the .City_of ,Dublin shall cause,the;Ordinance to be posted in at . least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 15th day of February 2011 by the following votes: AYES: NOES: ABSENT: 3 ABSTAIN: 1 ~~ ~ Mayor ATTEST: City Clerk G: IPA#120081PA 08-006 Club Sport PromenadelDevelopment AgreementlCC MTG 2. /S. / I DA I ST READINGICC DA Ord.DOC , ~,. . ~; . ~ . 4 1~ ~3~.3 ~ ° RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder's use DEVELOPMENT AGREEMENT BETWEEN THE CfTY OF DUBLIN AND JAMES TONG AND MEI FONG TONG FOR THE PROMENADE AT DUBLIN RANCH PROJECT EXHIBIT A TO ATTACHMENT 2 ' ~ ~,~3 THIS DEVELOPMENT AGREEMENT (this "Agreement" or this "Development Agreement") is made and entered in the City of Dublin on this day of , 2011, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "C1TY") and James Tong and Mei Fong Tong (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. ("Development Agreement Statute") and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into a Development Agreement for the development of real property with any person having a iegal or equitabie interest in such property in order to establish certain development rights in such property.. B. DEVELOPER intends to purchase, desires to develop, and holds an equitable interest in certain real property consisting of approximately 23.46 acres of land, located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property." C. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property. The Eastern Dublin Specific Plan requires DEVELOPER to enter into a development agreement as a condition of the development of the Property. D. The Property is within Area G, which is subject to a Master Development Agreement between the City of Dublin and the Lins dated June 29, 1999 and recorded in Official Records Alameda County on July 8, 1999 as Instrument No. 99251790, and a Supplemental Development Agreement between the City of Dublin and the Lins dated April 18, 2000 and recorded in Official Records of Alameda County on November 13, 2000 as tnstrument No.. 200335772. E. DEVELOPER proposes the development of the Property, which property is approximately 23.46 acres, and DEVELOPER proposes to develop an initial phase of the project on approximately 3.72 gross acres, consisting of two commercial structures totaling approximately 82,864 square feet and a four-level parkirig structure ("the lnitial Phase"). At a later date, DEVELOPER will develop the remaining portions of the Property. The Initial Phase and the remaining phase or phases of the development are collectively referred to as "the Project." Dublin/James and Mei Fong Tong Development Agreement Page 2 of 17 for the Promenade at Dublin Ranch Project Lz ~ 3 ~ F. DEVELOPER, or its predecessor in interest, has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the Project, including, without limitation, a Stage 1 and Stage 2 Development Plan for Area G(Ord. No. 06-00); and Site Development Review and a Conditional Use Permit (Planning Commission Resolution No. 09- 29) and a vesting tentative map (Community Development Director Resolution No. 09-10). All such approvals collectively, together with any approvals or permits now or hereafter issued with respect to the Project are referred to as the "Project Approvals." G. Development of the Property by DEVELOPER may be subject to certain future discretionary approvals, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective. It is specifically anticipated that the Project will require additional site development review approvals for the remaining pads in the shopping center. H. CITY desires the timely, efficient, orderly and proper development of the Project. I. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with the Development Agreement Statute and Chapter 8.56. J. CITY and DEVELOPER have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein. K. Pursuant to the California Environmental Quality Act (CEQA) the City Council adopted Resolution No. 157-06 finding that the Project is within the scope of the Final Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was cerkified by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR"). L. Pursuant to CEQA the City Council adopted Resolution No. 34-00 approving a Mitigated Negative Declaration for Area G(SCH #99112041) (the "Mitigated Negative Declaration"). M. Pursuant to CEQA, the City approved an Addendum to the EIR and the Mitigated Negative Declaration, dated July 14, 2009, for the Project, which includes this Development Agreement. N. On , the City Council of the City of Dubfin adopted Dublin/James and Mei Fong Tong Development Agreement Page 3 of 17 for the Promenade at Dublin Ranch Project I~ ~3 ~ Ordinance No. approving this Development Agreement ("the Approving Ordinance"). The Approving Ordinance will take effect on ("the Approval Date"). NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPER agree as follows: AGREEMENT Description of Property. The Property that is the subject of this Agreement is described in Exhibit A attached hereto. 2. Interest of Developer. The Developer has a legal or equitable interest in the Property in that it is the owner of the property. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by the City and Developer and that the Developer is not an agent of the City. The City and Developer hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. 4. Effective Date and Term. 4.1. Effective Date. The effective date of this Agreement shall be the Approval Date. 4.2. Term. The term of this Agreement shall commence on the Effective Date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Property. 5.1. Riqht to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement (such amendments once effective shall become part of the law Developer is vested into without an additional amendment of this Agreement). Dublin/James and Mei Fong Tong Development Agreement Page 4 of 17 for the Promenade at Dublin Ranch Project ~~f 3~ 5.2. Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by the City) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. ,5.3. Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1. Subseauent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin other approvals from regulatory agencies.) Not Applicable 5.3.2. Mitigation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmental impacts of the Project or otherwise relating to development of the Project. See Exhibit B 5.3.3. Phasing, Timinq. Provisions that the Project be constructed in specified phases, that construction shall commence within a specified time, and that the Project or any phase thereof be completed within a specified time. See Exhibit B 5.3.4. Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5. Fees, Dedications. Terms relating to payment of fees or dedication of property. See Exhibit B 5.3.6. Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. Dublin/James and Mei Fong Tong Development Agreement Page 5 of 17 for the Promenade at Dublin Ranch Project 15 ~~3 ~ See Exhibit B 5.3.7. Miscellaneous. Miscellaneous terms. Not applicable. 6. A~plicable Rules, Regulations and Official Policies. 6.1. Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Property, governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the Effective Date of the Agreement. 6.2. Rules re Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary approval, whether the date of that approval is prior to or after the date of this Agreement. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable discretionary approval, whether date of approval is prior to or after the date of this Agreement. 6.3. Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Efectrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of appro~al of the appropriate building, grading, or other construction permits for the.Project. Dublin/James and Mei Fong Tong Development Agreement Page 6 of 17 for the Promenade at Dublin Ranch Project 1~ ~3 ~ 7. Subsequentlv Enacted Rules and Requlations. 7.1. New Rules and Requlations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the Effective Date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2. Approval of Application. Nothing in this Agreement shall prevent the City from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements expressly set forth herein. 7.3. Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, the City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1. Fees, Exactions, Dedications The City and Developer agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement (including Exhibit B). The City shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, or impose other exactions in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). Dublin/James and Mei Fong Tong Development Agreement Page 7 of 17 for the Promenade at Dublin Ranch Project ~ i~ ~~ 8.2. Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1} such fees have general applicability; (2) the application of such fees to the Property is prospective only; and (3) the application of such fees would not prevent, impose a substantial financial burden on, or materially delay development in accordance with this Agreement. 8.3. New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. 8.4. Assessments. Nothing herein shall be construed to relieve the Property from assessments levied against it by the City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5. Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and Developer does not return its ballot, Developer agrees, on behalf of itself and its successors, that the City may count Developer's ballot as affirmatively voting in favor of such assessment, fee or charge. 9. Amendment or Cancellation. 9.1. Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regufations enacted after the Effective Date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation.. Any such amendment or suspension of the Agreement shall be subject to approval by the City Council in accordance with Chapter 8.56. 9.2. Amendment bv Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Chapter 8.56. 9.3. Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "significant" reservation or dedication of land as provided in Exhibit B;,(d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (fl the maximum height or size of proposed Dublin/James and Mei Fong Tong Development Agreement Page 8 of 17 for the Promenade at Dublin Ranch Project I~ ,~33 ~ 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. The City's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4. Amendment of Project Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements.for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (fl monetary contributions by the Developer; or (g) public improvements to be constructed by Developer shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approvaf(s) relates specifically to some provision of this Agreement. 9.5. Cancellation bv Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by the City. 10. Term of Project Approvals. 10.1. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described in Recital F above shall automatically be extended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1. Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2011 and thereafter between each July 15 and August 15 during the Term. 11.2. Initiation of Review. The City's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to Developer thirty (30) days' written notice that the City intends to undertake such review. Developer shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to Dublin/James and Mei Fong Tong Development Agreement Page 9 of 17 for the Promenade at Dublin Ranch Project )~j 33 ~ demonstrate good faith compliance with the provisions of the Agreement. The burden of proof by substantial evidence of compliance is upon the Developer. 11.3. Staff Reports. To the extent practical, the City shall deposit in the mail and fax to Developer a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4. Costs. Costs reasonably incurred by the City in connection with the annual review shall be paid by Developer in accordance with the City's schedule of fees in effect at the time of review. 12. Default. 12.1. Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in the City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2. Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such lega! or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3. No Damaqes Aqainst City. Notwithstanding anything to the contrary contained herein, in no event shall damages be awarded against the City upon an event of default or upon termination of this Agreement. Dublin/James and Mei Fong Tong Development Agreement Page 10 of 17 for the Promenade at Dublin Ranch Project ~ 3 ~3 ~ 13. Estoppel Certificate. 13.1. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shal{ execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of the City shall be authorized to execute any certificate requested by Developer. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mortgaqee Protection; Certain Riqhts of Cure. 14.1. Mortqaqee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement~shall be binding upon and effective against any person or entity, including any deed of ~ trust beneficia .ry or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2. Mortgagee Not Obliqated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. . 14.3. Notice of Default to Mortqaqee and Extension of Riqht to Cure. If the City receives notice from a Mortgagee requesting a copy of any notice of Dublin/James and Mei Fong Tong Development Agreement Page 11 of 17 for the Promenade at Dublin Ranch Project ~~ ~~ 3 default given Developer. hereunder and specifying the address for service thereof, then the City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by the 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. The City, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of Developer or a Mortgagee. 15. Severabi{itv. 15.1. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. 16.1. If the City or Developer initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. Developer shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse the City for all reasonable court costs and attorneys' fees expended by the City in defense of any such action or other proceeding. 17. Transfers and Assignments. 17.1 Riqht to Assiqn. Developer may wish to sell, transfer or assign all or portions of its Property to other developers (each such other developer is referred to as a"Transferee"). In connection with any such sale, transfer or assignment to a Transferee, Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer arising hereunder and that pertain to the portion of the Property being sold or transferred, to such Transferee, provided, however, that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur without prior written notice to City and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. 17.2 A~proval and Notice of Sale, Transfer or Assiqnment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) days after Developer's notice, provided all necessary documents, certifications and other information are provided to the City Manager to enable Dublin/James and Mei Fong Tong Development Agreement Page 12 of 17 for the Promenade at Dublin Ranch Project a~~~~ the City Manager to determine whether the proposed Transferee can perform the Developer's obligations hereunder. Notice of any such approved sale, transfer or assignment (which includes a description of all rights, interests and obligations that have been transferred and those which have been retained by Developer) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. 17.3 Release Upon Transfer. Upon the transfer, sale, or assignment of all of Developer's rights, interests and obligations hereunder pursuant to Paragraph 17.1 of this Agreement, Developer shall be released from the obligations under this Agreement, with respect to the Property transferred, sold, or assigned, arising subsequent to the date of City Manager approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or assignee approved by the City Manager expressly assumes all of the rights,~ interests and obligations of Developer under this Agreement, Developer shall be released with respect to all such rights, interests and assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval. 17.4 Developer's Right to Retain Specified Riqhts or Obliqations. Notwithstanding Paragraphs 17.1 and 17.2 and Paragraph 18, Developer may withhold from a sale, transfer or assignment of this Agreement certain rights, interests and/or obligations which Developer shall 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. 17.5 Termination of Agreement Upon Sale of Individual Lots to Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and individually (and not.in "bulk") leased (for a period of longer than one year) or sold to the purchaser or user thereof and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 18. Agreement Runs with the Land. Dublin/James and Mei Fong Tong Development Agreement Page 13 of 17 for the Promenade at Dublin Ranch Project ~~ ~~ ~ 18.1 All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. 19.1. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. Developer agrees to indemnify, defend and hold harmless the City, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the Developer, or any actions or inactions of Developer's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that Developer shall have no indemnification obligation with respect to negligence or wrongful conduct of the City, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the City or another public entity (except as provided in an improvement agreement or maintenance bond). If City is named as a party to any legal action, City shall cooperate with Developer, shall appear in such action and shall not unreasonably withhold approval of a settlement otherwise acceptable to Developer. 21. Insurance. 21.1. Public Liabilitv and Propertv Damaqe Insurance. During the term of this Agreement, Developer shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) with a One Hundred Thousand Dollar Dublin/James and Mei Fong Tong Development Agreement Page 14 of 17 for the Promenade at Dublin Ranch Project ~~ ~3 ~~ ($100,000) self insurance retention per claim. The policy so maintained by Developer shall name the City as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2. Workers Compensation Insurance. During the term of this Agreement Developer shall maintain Worker's Compensation insurance for all persons employed by Developer for work at the Project site. Developer shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. Developer agrees to indemnify the City for any damage resulting from Developer's failure to maintain any such insurance. 21.3. Evidence of Insurance. Prior to City Council approval of this Agreement, Developer shall furnish the City satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the City at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the City, its elective and appointive boards, commissions, officers, agents, employees and representatives and to Developer performing work on the Project. 22. Sewer and Water. 22.1. Developer acknowledges thaf it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of the City. 23. Notices. 23.1. All notices required or provided for under.this Agreement shall be in writing. Notices required to be given to the City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: James and Mei Fong Tong c/o Charter Properties 4690 Chabot Drive, Suite 100 Pleasanton, CA 94588 Attn: James Tong Fax No. (925) 463-1861 Dublin/James and Mei Fong Tong Development Agreement Page 15 of 17 for the Promenade at Dublin Ranch Project a5 ~3 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 25. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions 26. Counterparts. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. 27. Recordation. The City shall record a copy of this Agreement within ten (10) days following execution by all parties. [Execution Page Follows] Dublin/James and Mei Fong Tong Development Agreement Page 16 of 17 for the Promenade at Dublin Ranch Project ~ ~3 ~ IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN By: Attest: Joni Pattilfo, City Manager Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney 1524251.3 (NOTARIZATION ATTACHED) Dublin/James and Mei Fong Tong Development Agreement Page 17 of 17 for the Promenade at Dublin Ranch Project i" : M i Fong ong ~2`1 -~3 ~ C~-~~~o~~~~ ~~.L.~~,~~~~~,~~~~~~~E~~~~~~ State of California County of ~"~"/n~~~ On~crnuQRu lD 2~alt beforeme, ~Cc~C~ t-~ ~-5~/~OSC~ ate Here Insert Name and Title of the Officer personally appeared ~~~-PS ~d~~/ ancl ~z°i ~/7~ ~v~~ DARA L. ESPINOSA ~ COMM. #1910442 = _ ~ Notary Public • California p ~° Alameda County M Comm. E ires Oct. 25, 2p14 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) iefare subscribed to the within instrument and acknowledged to me that ~/they executed the same in -i~+sf~e~/their authorized capacity(ies), and that by ~er/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. ~ WITNESS y h nd and o ficial seal. Signature: - '~-~ Place Notary Seal and/or Stamp Above ~ ature of Not ry Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: ~~ v~ ~ C?{~ YY~'~~~- ~~( ~Q.Q_,V~'L~I~ ~-- document Date: /~~LU f D ~/l Number of Pages: ~ Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ^ Corporate Officer = Title(s): ^ Individual . ^ Partner - ~ Limited ^ General Top of thumb here ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: ^ Corporate Officer - Title(s): ^ Individual . ^ Partner -^ Limited ^ General Top of thumb here ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: ~2008 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827 ~ ~3 ~ Exhibit A Legal Description of Property Parcel Map 9717, recorded November 6, 2009, in Book 314, at Pages 74 through 77, Alameda County Records. ~ 33 ~ EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparaqraph 5.3.1 - Subsequent Discretionarv Approvals None. Subparaqraph 5.3.2 - Mitiqation Conditions Subsection a. Infrastructure Sequencinq Proqram The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) identified in the City Resolution approving a vesting tentative map (the "VTM Resolution") and the City Resolution approving Site Development Review (the "SDR Resolution") shall be completed by DEVELOPER to the satisfaction and requirements of the Public Works Director at the times and in the manner specified in the VTM Resolution and SDR Resolution unless otherwise provided below. (ii) Sewer. All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with DSRSD requirements. (iii) Water. An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative map conditions of approval to the satisfaction and requirements of the City's fire department. All potable water system components to serve the project site shall be completed in accordance with the DSRSD requirements. Recycled water lines shall be installed in accordance with the tentative map conditions of approval. Dublin/James and Mei Fong Tong Development Agreement Page 1 of 5 For the Promenade at Dublin Ranch Project-EXHIBIT B ~0~p 33 ~) (iv) Storm Drainaqe. (A) General. The storm drainage systems off-site, as well as on-site drainage systems for the areas to be occupied, shall be improved consistent with the tentative map conditions of approval and to the satisfaction and requirements of the Dublin Public Works Department applying the City's and Zone 7(Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. Pursuant to Alameda County's National Pollution Discharge Elimination Permit (NPDES) No. CAS0029831 with the California Regional Water Quality Control Board, or pursuant to subsequent permits adopted by the Board, all grading, construction and development activities within the City of Dublin must comply with the provisions of the Clean Water Act. Proper erosion control measures must be installed at development sites within the City during construction, and all activities shall adhere to Best Management Practices. (v) Other Utilities (e.q. qas, electricitv, cable televisions, ~ telephone). Construction shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy for the Project. Subsection b. Miscellaneous (i) Completion May Be Deferred. Notwithstanding the foregoing, the City's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow Developer to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subqaraqraph 5.3.3 - Phasinq, Timinq This Agreement contains no requirements that Developer must initiate or complete development of the Project within any period of time set by the City. It is the intention of this provision that Developer be able to develop the Property in accordance with its own time schedules and the Project Approvals. Dublin/James and Mei Fong Tong Development Agreement Page 2 of 5 For the Promenade at Dublin Ranch Project-EXHIBIT B ~I ~3 ~ Subparaqraph 5.3.4 - Financinct Plan Developer will install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in Subparagraph 5:3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project will be made available by the Dublin San Ramon Services District. If so required by Dublin San Ramon Services District, Developer will enter into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Subparaqraph 5.3.5 - Fees, Dedications Subsection a. Traffic Impact Fees. Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 40-10, including any amendments to such fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freewav Interchanqes. Developer shall pay the Eastern Dublin I-580 Interchange Fee in the amounts and at the times set forth in Resolution No. 155-98 and by any subsequent resolution which revises such Fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits. Subsection c. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any amendments to such fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits. Dublin/James and Mei Fong Tong Development Agreement Page 3 of 5 For the Promenade at Dublin Ranch Project-EXHIBIT B ~ ~3 Subsection d. Noise Mitiqation Fee. Developer shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any amendments to such fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits. Subsection e. School Impact Fees. School impact fees shall be paid by Developer in accordance with Government Code section 53080 and the agreement between Developer or its predecessor in interest and the Dublin Unified School District regarding payment of school mitigation fees. Subsection f. Fire Facilities Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any amendments to such fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits. Subsection q. Tri-Vallev Transportation Development Fee. Developer shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subparaqraph 5.3.6 - Credit Subsection a. Traffic Impact Fee Improvements - Credit The City shall provide a credit against Eastern Dublin Traffic Impact Fees to Developer for those improvements described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such improvements are constructed by the Developer in their ultimate location. All aspects of the credit shall be governed by the TIF Guidelines. Subsection b. Traffic Impact Fee Riqht-of-Wav Dedications - Credit The City shall provide a credit against Eastern Dublin Traffic Impact Fees to Developer for any TIF area right-of-way to be dedicated by Developer to the Dublin/James and Mei Fong Tong Development Agreement Page 4 of 5 For the Promenade at Dublin Ranch Project-EXHIBIT B ~~ ~ 3 City which is required for improvements which are described~in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. ~ Subparaqraph 5.3.7 - Miscellaneous (i) Term of Site Development Review and Conditional Use Permit Approval. Notwithstanding anything to the contrary in the City's Zoning Ordinance and section 10 of this Agreement, the term of the Site Development Review and Conditional Use Permit approval granted by the City of Dublin Planning Commission Resolution No. 09-29, and any subsequent revision to it, shall automatically be extended for the term of this Agreement. Dublin/James and Mei Fong Tong Development Agreement Page 5 of 5 For the Promenade at Dublin Ranch Project-EXHIBIT B