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HomeMy WebLinkAbout05-023 Amdmt MstrPln DubRnchA-H AGENDA STATEMENT PLANNING COMMISSION MEETING DATE: May 24, 2005 SUBJECT: ATTACHMENTS: RECOMMENDATION: DESCRIPTION: PUBLIC HEARING: P A 05-023 Amendment to Master Development Agreement for Dublin Ranch (Areas A through H) submitted by James Tong on behalf ofthe Lin Family - Chang Su-O (aka Jennifer) Lin, Hong Lien (aka Frederic or Frederich) Lin, and Hong Yao (aka Kevin) Lin ^ I / Report Prepared by: Mike Porto, Consulting Planner \..,~ 1. Resolution recommending that the City Council adopt an Ordinance amending the Master Development Agreement (P A 05-023) for the Dublin Ranch project (Areas A, B, C, D, E, F, G, and H) with the Amendment attached as Exhibit A. 1. 2. 3. 4. 5. 6. Open Public Hearing Receive Staff Presentation Receive Public Testimony Close Public Hearing Deliberate Adopt Resolution (Attachment I) recommending City Council approval of an Amendment to the Master Development Agreement for The Dublin Ranch Project (Areas A, B, C, D, E, F, G and H between the City of Dublin and the Lin Family with the Amendment attached as Exhibit A. Planning for the development of land within the Eastern Dublin Specific Plan Area anticipated phasing from rural to suburban through the review process and execution of development agreements between the City of Dublin and the property owners within the area. The area is characterized by a few large landholdings in the possession of a few owners. Two of the largest are the Alameda County Surplus Property Authority (ACSP A) and the United States government. A third large land holder includes members of the Lin Family whose properties are known as Dublin Ranch. As these owners are not themselves in the development business, the property has been passing to developers for sale with the intention of new residential, commercial or industrial construction in accordance with the Specific Plan. Development Agreements, as allowed by State law, have been established as method of implementing the Eastern Dublin Specific Plan and required for new development within Area. Since 1999, a Master Development Agreement and number of other Development Agreements have been executed for the Dublin Ranch properties. As the property owner, the Lin Family members, in various combinations, have been the "Developer" party to these Development Agreements with the City of Dublin. The Development Agreement establishes the type of development and allows the City to obtain or secure the construction and maintenance of public facilities and amenities in exchange for the vesting of rights to develop the land in accordance with the Specific Plan, the General Plan, and the approved Planned Development zoning, COPIES TO: Applicant Property Owner P A File Project Manager ITEM NO. q .J- along with other terms as agreed upon. While the Development Agreement holds the property owners responsible for compliance with the Development Agreement, it also allows for the assignment or transfer for compliance with the Development Agreement to another party or subsequent land owner with the City's consent. The Development Agreements applicable to this Amendment are: . Master Development Agreement for The Dublin Ranch Project (Areas "A, B, C, D, E, F, G and H") which has an effective date of June 29, 1999 - The "Developer" is identified as: 1) Chang Su-O Lin (aka Jennifer Lin), 2) Hong Lien Lin (aka Frederic or Frederich Lin), and 3) Hong Yao Lin (aka Kevin Lin). The cover page of the 2 Development Agreements shows the party to the Agreement as "The Lin Family." . Dublin Ranch-Fairway Ranch Development Agreement which has an effective date of August 15, 2003 - For this Development Agreement, only two of the Lin Family members were included as parties to the Development Agreement: 1) Chang Su-O Lin (aka Jennifer Lin), and 2) Hong Yao Lin (aka Kevin Lin). This Development Agreement essentially functions as a Master Development Agreement for the 24.78-acre area within Dublin Ranch known as Fairway Ranch. ANALYSIS: The proposed Amendment would apply to the Master Development Agreement for the Dublin Ranch. Amendments to the Development Agreement by mutual consent are addressed in Chapter 8.56 of the City of Dublin Municipal Code, Section 25 of the Master Development Agreement for The Dublin Ranch Project. Fairway Ranch is located within Area B of the greater 1,119-acre Dublin Ranch. The primary purpose of the residential development within Fairway Ranch is to satisfy compliance with the City's lnclusionary Zoning Ordinance (Municipal Code Chapter 8.68) for the 2,655 residential units to be developed under The Dublin Ranch Project Master Development Agreement (Areas A through H). The purpose of the City's lnclusionary Zoning Regulations is to enhance the public welfare and assure that further housing development contributes to the attainment of the City's housing goals by increasing the production of residential units affordable by households of very-low, low, and moderate income as defined by the State. Fairway Ranch is segmented into three development parcels (created by Tract No. 7453), each having a separate corresponding Component Development Agreement applicable to the following residential type: Senior Citizen housing, Multifamily (rental) housing, and Condominium (for-sale) housing Other development areas within Dublin Ranch, but outside of Fairway Ranch, could be allocated or draw credit from the "affordable" housing clustered within this development. The following key points are included in the Amendment: Compliance with and Allocation of Credit for Affordable Housing Units - Of the 930 units to be developed in Fairway Ranch, the Fairway Ranch Development Agreement establishes the required minimum number of 587 units to be developed and maintained as affordable for a period not less than 55 years. It addresses the number of affordable units applicable to the Fairway Ranch project, itself. The amendment will incorporate these provisions of the Fairway Ranch Development Agreement into the Master Development agreement. Commercial Linkage FeeINon-Residential Affordable Housing Fee - The Fairway Ranch Development Agreement provides that the Lins' commercial property will be exempt from the Non- Residential Affordable Housing Fee. The amendment would incorporate that exemption into the Master Development Agreement. 2 Park Land - Section 17 of the Master Development Agreement establishes the requirements for 52 acres of park land dedication and development within Dublin Ranch, including 44.5 acres of Community Park land and 7.5 acres of additional park land. The amendment would provide that once the provisions of Section 17 are satisfied, the parties will execute a document to that effect. The proposed Amendment (Exhibit A) has been prepared by the City Attorney and executed by the Lins. State law requires three public hearings for the approval or amendment of a Development Agreement. The first public hearing is before the Planning Commission for a recommendation to the City Council. Since Development Agreements are adopted by ordinance, approval requires a first and second reading before the City Council and would become effective 30 days thereafter. ENVIRONMENTAL ANALYSIS: Pursuant to the California Environmental Quality Act (CEQA), Staff has prepared an Initial Study and determined that the Amendment is within the scope and determination applicable to the Development Agreements when previously approved and that no additional impacts would result :from its approval. The environmental impacts of the previously approved Development Agreements were addressed by the Final Program EIR for the Eastern Dublin General Plan Amendment and Specific Plan (SCG#91-1 03064), including all Supplements and Addenda. CONCLUSION: Approval of the proposed Amendment to the Development Agreement will implement provisions of the Eastern Dublin Specific Plan and update the requirements for consistency with past and current approvals. The proposed Amendment is consistent with both the General Plan and the Eastern Dublin Specific Plan. RECOMMENDATION: Staff recommends that the Planning Commission open the Public Hearing; receive Staffs presentation; receive Public testimony; close the Public Hearing; deliberate; and, adopt Resolution (Attachment 1) recommending City Council adoption of an Ordinance approving an Amendment to the: 1. Master Development Agreement for The Dublin Ranch Project (Areas A through H) between the City of Dublin and the Lin Family - Chang Su-O (aka Jennifer) Lin, Hong Lien (aka Frederic or Frederick) Lin, and Hong Yao (aka Kevin) Lin. 3 GENERAL INFORMATION APPLICANT: PROPERTY OWNER: LOCATION: ASSESSORS PARCEL NUMBER: EXISTING ZONING: GENERAL PLAN IJlESIGNA TION: SPECIFIC PLAN James Tong on behalf of The Lin Family 7707 Koll Center Parkway, Suite 120 Pleasanton, CA 94566 Chang Su-O (aka Jennifer) Lin, Hong Lien (aka Frederic or Frederick) Lin, and Hong Yao (aka Kevin) Lin 7707 Koll Center Parkway, Suite 120 Pleasanton, CA 94566 Eastern Dublin - northwest portion of City N/A Planned Development Residential, (RA, L, M, MH, H), Commercial/Industrial (GC, NC, CO, GC/CO), Public/Semi-Public/Open Space (CP, NP, NS, PL, ES, JH, OS) Residential, (RA, L, M, MH, H), Commercial/Industrial (GC, NC, CO, GC/CO), Public/Semi-Public/Open Space (CP, NP, NS, PL, ES, JH, OS) 4 RESOLUTION NO. 05 - A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE AMENDING THE MASTER DEVELOPMENT AGREEMENT (P A 05-023) FOR THE DUBLIN RANCH PROJECT (AREAS A, B, C, D, E, F, G AND H WHEREAS, a Master Development Agreement for The Dublin Ranch Project (Areas A, B, C, D, E, F, G and H) was approved by the City Council and signed on June 29, 1999 by Ordinance No. 16-99 and was recorded on July 8, 1999 as instrument No. 99251790 in the Official Records of the Alameda County Clerk-Recorder. Effective date of the Development Agreement is June 29, 1999; and WHEREAS, James Tong on behalf of the Developer has requested an Amendment to the Development Agreement ("Amendment") to update, clarify, and memorialize compliance with certain term and conditions of the Development Agreement. The Developer is identified in the Master Development Agreement as the Lin Family - Chang Su-O (aka Jennifer) Lin, Hong Lien (aka Frederic or Frederich) Lin, and Hong Yao (aka Kevin) Lin.; and WHEREAS, Pursuant to the California Environmental Quality Act, Staff has prepared an Initial Study and determined that the proposed Amendment is within the scope and determination applicable to the Development Agreement when previously approved and that no additional impacts would result from its approval. The environmental impacts of the previously approved Development Agreement were addressed by the Final Program EIR for the Eastern Dublin General Plan Amendment and Specific Plan (SCG#91-103064), including all Supplements and Addenda; and WHEREAS, the text of the proposed Amendment is attached to this resolution as Exhibit A; and WHEREAS, the Planning Commission did hold a public hearing on the proposed Amendment on May 24, 2005; and WHEREAS, proper notice of said public hearing was given in all respects as required by law; and WHEREAS, the Staff Report was submitted recommending that the Planning Commission recommend that the City Council approve the proposed Amendment; and WHEREAS, the Planning Commission did hear and use their independent judgment and considered all said reports, recommendations, and testimony hereinabove set forth. NOW THEREFORE BE IT RESOLVED THAT THE Dublin Planning Commission does hereby make the following findings and determinations regarding said proposed Amendment to the Development Agreement: 1. The proposed Amendment is consistent with the objectives, policies, general land uses, and programs specified in the Eastern Dublin Specific Plan/General Plan in that it: a) is consistent with the Eastern Dublin Specific Plan/General Plan; b) is consistent with the fiscal policies in relation to provision of infrastructure and public services of the City's Eastern Dublin Specific Plan/General Plan; and c) updates the terms and conditions the Developer and City have agreed upon during the development process as required by the Eastern Dublin Specific Plan and the Mitigation Monitoring Program of the Eastern Dublin Specific Plan. ATTACHMENT l 2. The proposed Amendment is compatible with the uses authorized in, and the regulations prescribed for: a) the land use districts in which the project is located, b) the Planned Development zoning approved previously, c) the applicable Site Development Reviews, and d) the existing applicable subdivision maps. 3. The proposed Amendment is in conformity with public convenience, general welfare, and land use planning that will implement the Eastern Dublin Specific Plan/General Plan, as adopted. 4. The proposed Amendment will not be detrimental to the health, safety, and general welfare in that the development will proceed in accordance with the Development Agreement and all Conditions of Approval for the Project. 5. The proposed Amendment will not adversely affect the orderly development of the property or the preservation of property values in that the development will be consistent with the City of Dublin Eastern Dublin Specific Plan/General Plan. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning Commission does hereby recommend that the City Council approve the Amendment to the Development Agreement between the City of Dublin and Developer - the Lin Family, including Chang Su-O (aka Jenifer) Lin, Hong Lien (aka Frederic or Frederich) Lin, and Hong Yao (aka Kevin) Lin. PASSED, APPROVED AND ADOPTED this 24th day of May 2005. AYES: NOES: ABSENT: ABSTAIN: Planning Commission Chairperson ATTEST: Planning Manager 2 City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space above this line for Recorder's Use AMENDMENT TO MASTER DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND THE LlN FAMILY FOR THE DUBLIN RANCH PROJECT (Areas A, B, C, D, E, F, G and H and "Wallis Ranch") EXHIBIT A TABLE OF CONTENTS Section 1................ ...... ............. ....... ...... ...... ...... ...... ...... ...... ...... ....... ....... ...... ....... ....... ....... ...... ...... ...... ........ 3 Section 2. .............................................................................................................................. ........................ 3 Section 3. Recitals... ...... ....... ...... ...... ....... .... ........ ...... ...... ...... ....... ...... ....... ....... ....... ....... ...... ...... ...... ....... 3 Section 4. .............................................................................................................................. ........................ 4 Section 4.1 Effective Date...... ...... ...... ...... ...... ...... ...... ....... ...... ....... ....... ...... .............. ...... ...... ..... ....... 4 Section 4.2 Term. ...... ....... ...... ...... ...... ...... ....... .... ........ ...... ....... ....... ..... ........ ....... ............. ...... ...... ..... 4 Section 5. Exemption from Inclusionary Zoning Regulations for 2,655 Units.......................................... 4 Section 6. Exemption from Commercial Linkage Fee.................................................................·............ 5 Section 7. Park Land... ..... ........ ...... ........... ....... ....... ...... ...... ....... ...... ....... ............. ....... ....... ...... ...... .......... 6 Section 8. Notices. ....... ...... ....... ...... ............ ...... ...... ...... ..... ........ ....... ...... ....... ....... ....... ............. ...... ......... 6 Section 9. Exhibits. ....... ....... ...... ...... ...... ...... ...... ....... ............ ...... ....... ....... ....... ...... ....... ....... ...... ...... ......... 6 Section 10 Counterparts ............ ...... ..... ....... ..... ........ ............ ....... ...... ....... ....... ....... ....... ...... ...... ...... ......... 6 Section 11. Recordation... ....... ...... ...... ...... ...... ...... ...... ...... ....... ..... ........ ....... ....... ....... ...... ..... ........ ........ 6 Section 12. Amendment ........................................................................................................................ 7 Amendment to Master Development Agreement for Dublin Ranch Project Table of Contents April 5, 2005 659198_5 THIS AMENDMENT TO MASTER DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this _ day of _, 2005, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and Chang Su-O-Un (also known as Jennifer Un), Hong Uen Un (also known as Frederic or Frederich Un) and Hong Yao Un (also known as Kevin Un), (hereafter "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. City and Developer are parties to a development agreement entitled "Master Development Agreement Between the City of Dublin and The Un Family for the Dublin Ranch Project (Areas A, B, C, D, E, F, G and H)", which is dated May 18, 1999, and was recorded on July 8, 1999 at 99251790, which agreement was amended by the "Supplemental Development Agreement Between the City of Dublin and The Un Family for the Dublin Ranch Project (Areas F, G and H)", which is dated April 18, 2000 and recorded on November 3, 2000 at 2000335772 (hereafter together referred to as the "Master Development Agreement"); and B. Chang Su-O-Un (also known as Jennifer Un) and Hong Uen Un (also known as Frederic or Frederich Un) and City are parties to a development agreement entitled "Development Agreement Between the City of Dublin and Chang Su-O-Un and Hong Uen Un/Dublin Ranch/Fairway Ranch", dated July 15, 2003 and recorded on December 16, 2003 at 2003728503 of the official records of Alameda County (hereafter the "Fairway Ranch Development Agreement", a copy of which is attached hereto as Exhibit 1); and C. The Master Development Agreement is applicable to the property in the City generally known as Areas A, B, C, D, E, F, G, and H and, Section 20 of such agreement is applicable to, the property known as the "Wallis Property" or "Wallis Ranch." Fairway Ranch Development Agreement is applicable to a portion of the property generally known as Area B; and D. Developer has assigned all of its rights and obligations under the Master Development Agreement for the lands known as Area A and portions of Area G; and E. The parties desire to amend the Master Development Agreement to establish Developer's compliance with the Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68) as set forth in the Fairway Ranch Development Agreement as to the property described in Exhibit E to the Fairway Ranch Development· Agreement, which is described in that agreement, and referred to herein, as the "Affordable Unit Credit Property"; and Amendment to Master Development Agreement for Dublin Ranch Project Page 1 of 7 April 5, 2005 659198 5 F. The parties also desire to allow the Developer to transfer "Affordable Unit Credits" earned under the Fairway Ranch Development Agreement to purchasers of all or portions of the property which is included within the "Affordable Unit Credit Property; and G. The parties further desire to set forth a method of documenting compliance with Section 17 (entitled "Park Land") of the Master Development Agreement; and H. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and I. DEVELOPER desires to develop and holds legal interest in certain real property located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibit 2, which real property is hereafter called the "Un Property". J. DEVELOPER has applied for, and CITY has approved, various land use approvals in connection with the development of the portion of Area B which is subject to the Fairway Ranch Development Agreement, including: 1) for Areas B a General Plan and Specific Plan Amendment (Resolution No. 140-97), a PD District rezoning (Ordinance No. 24-97), general provisions for the PD District rezoning including the Land Use and Development Plan (Resolution No. 141-97), a Vesting Tentative Tract Map for Tract 7453 (Planning Commission Resolution No. 03-31), and a density bonus of 186 units and Site Development Review (City Council Resolution No. 149-03) (collectively the "Fairway Ranch Project Approvals"); and K. The City Council has found that, among other things, this Amendment to Master Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and L. Pursuant to the California Environmental Quality Act (CEQA), the City Council adopted Resolution No. 149-03, finding that the Fairway Ranch Project approvals are exempt from CEQA pursuant to Government Code §65457. In making such determination and determining that there are no supplemental impacts that would require preparation of a Supplemental EIR for the Fairway Ranch Development Agreement or this Agreement which is called for in the Fairway Ranch Development Amendment to Master Development Agreement for Dublin Ranch Project Page 2 of 7 April 5, 2005 659198 5 Agreement, the City prepared an Initial Study which found that the environmental impacts of the Fairway Ranch Project approvals were addressed by the Negative Declaration approved by the City Council by Resolution No. 140-97 for the Planned Development Rezoning for 453 acres of Dublin Ranch which includes the property subject to this amendment and the Fairway Ranch Project and the Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was certified by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994 (collectively, the "EIR"). M. On ,2005, the City Council of the City of Dublin adopted Ordinance No. _ approving this Amendment to the Master Development Agreement (hereafter "Amendment to Master Development Agreement"). The ordinance took effect on _, 2005. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPER agree to amend the Master Development Agreement as follows: AGREEMENT Section 1. Description of Property. The property which is the subject of this Amendment to Master Development Agreement is described in Exhibit 2 (the "Un Property"). The property shown on Exhibit 2 as "Parcel B (former Wallis Property)" is not subject to Sections 6 and 7 of this Amendment to Master Development Agreement and remains subject only to Sections 20 of the Master Development Agreement. Section 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Un Property, in that it owns the Un Property in fee simple. Section 3. Recitals. The foregoing Recitals are true and correct and shall be deemed to be a part of this Amendment to Development Agreement. Amendment to Master Development Agreement for Dublin Ranch Project Page 3 of 7 April 5, 2005 659198_5 Section 4. Effective Date and Term. Section 4.1 Effective Date. The effective date of this Amendment to the Master Development Agreement shall be the effective date of Dublin City Council Ordinance No. Section 4.2 Term. This Amendment to the Master Development Agreement shall terminate as to Section 5 below upon the use or expiration of all "Affordable Unit Credits" issued pursuant to the Fairway Ranch Development Agreement, whichever occurs later, and as to Section 6 below upon the 30th anniversary of the effective date of the Fairway Ranch Development Agreement, as provided in Section 5.3.6(C) of Exhibit B of said agreement. Except as provided in the preceding sentence, this Amendment shall terminate when the Master Development Agreement terminates. Section 5. Exemption from Inclusionarv Zoninq Requlations for 2.655 Units. Upon completion of the entire Fairway Ranch Project in accordance with the Fairway Ranch Development Agreement, DEVELOPER will have provided affordable units, as defined in City's Inclusionary Zoning Regulations (Exhibit C to the Fairway Ranch Development Agreement), in the following income categories: Multifamilv Component --90 moderate income units --90 low income units --63 very low income units Senior Housinq Component --131 moderate income units --97 low income units --64 very low income units Condominium Component --52 moderate income units DEVELOPER will receive 332 "Affordable Unit Credits," as that term is defined in the Fairway Ranch Development Agreement upon completion of the entire Fairway Ranch Project. In accordance with the Fairway Ranch Development Agreement, the 332 Affordable Unit Credits can be used by Developer to comply with the Inclusionary Zoning Regulations on the Affordable Unit Credit Property, as such regulations currently exist or as they may be hereafter amended, for a maximum of 2,655 units, notwithstanding the requirements of the Inclusionary Zoning Regulations as they Amendment to Master Development Agreement for Dublin Ranch Project Page 4 of 7 April 5, 2005 659198_5 currently exist or as they may hereafter be amended as to the mix of the affordable units, number of bedrooms or concentrations of such units on the Affordable Unit Credit Property. The Affordable Unit Credits must be used as provided in the Fairway Ranch Development Agreement. City shall determine the number of affordable units required for each residential development proposed for development on the Affordable Unit Credit Property at the earliest to occur of the time of tentative map approval, conditional use permit or site development review by reference to the Inclusionary Zoning Regulations attached as Exhibit C to the Fairway Ranch Development Agreement to determine the number of affordable units required for each such residential development and, provided Developer has a sufficient number of Affordable Unit Credit Certificates for the number of such required affordable units, City shall not require compliance with the Inclusionary Zoning Regulations for such development. The payment of in-lieu fees will not be allowed for any residential development project on the Affordable Unit Credit Property. If Developer has not earned or obtained Affordable Unit Credit Certificates in sufficient number to provide the required number of affordable units required for a proposed residential development on the Affordable Unit Credit Property, Developer shall be required to comply with the inclusionary zoning requirements then in effect prior to Site Development Review approval, including the requirement of section 8.68.050.A of the Inclusionary Zoning Regulations (Exhibit C to the Fairway Ranch Development Agreement) for an affordable housing agreement. Alternatively, Developer may withdraw its application for Site Development Review approval until Developer has sufficient Affordable Unit Credit Certificates to provide the required number of affordable units for the residential development project. All references in this Section 5 to "Developer" shall include persons or entities to whom Developer has conveyed or conveys any portion of the Affordable Unit Credit Property, it being the intention of the City and Developer that such persons or entities shall be entitled to the benefits and burdens of Sections 5.3.7.B(v) to (ix) of Exhibit B of the Fairway Ranch Development Agreement. Section 6. Exemption from Commercial Linkaqe Fee. The property described in Exhibit F to the Fairway Ranch Development Agreement, shall be exempt from any commercial linkage or similar fee in the manner provided in Section 5.3.7(C) of Exhibit B of the Fairway Ranch Development Agreement. Amendment to Master Development Agreement for Dublin Ranch Project Page 5 of 7 April 5, 2005 659198 5 Section 7. Park Land. Upon satisfaction of the provisions of Section 17 of the "Master Development Agreement Between the City of Dublin and The Un Family for the Dublin Ranch Project (Areas A, B, C, D, E, F, G and H)", City and Developer will jointly execute an agreement or other document indicating that Section 17 has been satisfied. The City Clerk shall maintain the original of such document. Section 8. Notices. Section 38 of the "Master Development Agreement Between the City of Dublin and The Lin Family for the Dublin Ranch Project (Areas A, B, C, D, E, F, G and H)" shall be amended by changing the persons to who notice shall be given to DEVELOPER. Hereafter, all notices required to be given to DEVELOPER shall be addressed as follows: Martin W. Inderbitzen 7077 KolI Center Pkwy, Suite 120 Pleasanton CA 94566 Section 9. Exhibits. The following documents are referred in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit 1 Fairway Ranch Development Agreement Exhibit 2 Legal Description of the Un Property Section 10 Counterparts. This Amendment to the Master Development Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. Section 11. Recordation. CITY shall record a copy of this Amendment to within ten days following execution by all parties. Amendment to Master Development Agreement for Dublin Ranch Project Page 6 of 7 April 5, 2005 659198_5 Section 12. Amendment. Except as set forth herein, the Master Development Agreement shall not be amended. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN: By: Date: Janet Lockhart, Mayor ATTEST: By: Date: Kay Keck, City Clerk Approved as to Form: ~'UvL 7/. ¡;¿ Elizabeth H. Silver, City Attorney DEVELOPER: .~g(~/ ~T!:1 .........:="----, Date: Frederic Un) Date: Amendment to Master , Development Agreement for Dublin Ranch Project Page 7 of 7 April 5, 2005 659198 5 Approved as to Form: ?-/ Marty Inderbitzen Attorney for Un Fami Amendment to Master Development Agreement for Dublin Ranch Project Page 8 of 7 April 5, 2005 659198 5 TAIWAN CITY OF TAIPEI AMERICAN INSTITUE IN TAIWAN, TAIPEI OFFICE ) ¿~yw:f TaicJel } ) SS. American Institute in SS Taiwan. Taipei Office ) On Apri 1 22, 2005 Lin, Hong-lien appeared Lin. Hong-lien Sri R. Kulkarni , before me, SDecial Notary (PL96-S) , personally as attorney-in-fact of Lin Chang, Su-o; and Lin. Hong Yao---- , p€fE9¡::¡ally Y..llown to m@ (or proved to me on the basis of satisfactory evidence) to be the person( s) whose name( s)-iskre subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand an official seal. C'., P Kulkarni ~.:}':~i:"':·i"~ll ;-·f Ot-.El ry (PI.. 96-8) Iiti l y ~-.liJ~_ì;) int ~_:La d Cei ü a 1 i f ied My commission expires:J une 25. 2007 State of California ) ) ss. County of Alameda On before me, a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. NOTARY PUBLIC ,- RECOi1D!~H? xF.QUESTEO BY flRS"!' iiIÆ~íCi\~;l'Iill f)f2Cj ..þ()05cr Recording requested by and when recorded, return to: 2003728503 12/16/2003 11:47 ~M OFFICIAL RECOROS OF ALPM~DA COUN1V PATRIC~ O'CONNELL RECORDING FEE; 142.ØØ City of Dublin 100 Civic Plaza Dublìn, CA 94568 Attn: City Clerk A,.J' ,..:5...... )"ç¡ :..Y-~ IIUIIIIUII~IU .. 'os Spaœ above this IÎne for Recorder's Use RECE~\I~J'~ ,!it ~,~ ) ';,'.I)n:' l~rí""i l"~ (:~ ~ ',. """, J ~I,,~; ~ D 1J ~zN~ I·~ ';"'1~ ~.;: \'" i . DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND Chang Su-O-Lin and Hong Lien Un DUBLIN RANCH FAIRWAY RANCH EXHIBIT "1" r.~' , ~~¡ '" I ,~ ", I.~¡ : ~1 · ¡'. I ,r ~~I J! t~ fI' ,~, :~ . :~r 1,,·,$, , , !,';'j r 'oj ~ f I , ,~, ~\I fi t~ tl~,:: ~ ¡ti· , ¡1~'1' ',I '~: , I,:: : ;'iqi II' , !!'I' dl' 11,':1',': ¡i¡il: ~\ ¡ i ¡ '/,:'¡; .. Ii" ':,;1 :, ~. ' . ! ,~¡ , ,.' ",",['" " , ,; < .ii! Ilk'. I'pi :1;;I¡I':· Ilf"I:", Wi '+~ t¡:¡~ tl::!¡; ~,~h~ !;.;::<; L,[ ~l: ~·II' '~,'.. :,1,' ¡!i '';11' :T,· ii( ':¡i i,i . ,.. ji! ii' I j, THIS DEVELOPMENT AGREEMENT (this "Agreement"), dated for reference purposes as of July 15, 2003, is entered into by and between the City of Dublin, a Municipal Corporation ("City"), and Chang Su-O-Lin and Hong Lien Un ( collectively, the "Developer"). City and Developer are hereafter collectively referred to as the "Parties." RECITALS A. California Government Code Section 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the City to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property. B. Developer holds legal interest in certain real property (the "Property") consisting of approximately 26.3 acres of land, located in the City of Dublin, County of Alameda, which property is designated as Parcels 1, 2 and 3 on Tentative Tract Map No. 7453 and which is more particularly described in Exhibit A attached hereto. Parcels 1, 2 and 3 may be described as Lots 1, 2 and 3, respectively, on Final Map 7453 and references Parcels 1,2 and 3 shall be deemed to refer to Lots 1, 2 and 3, respectively, on the Final Map for Tract 7453. C. The Dublin City Council ("City Council") adopted the Eastern Dublin Specific Plan ("Plan") by Resolution No. 53-93 which Plan is applicable to the Property and requires the developer of the Property to enter into a development agreement with City. D. The Developer and City are parties to that certain Master Development Agreement between the City of Dublin and the Lin Family for the Dublin Ranch Project (Areas A, B, C, D, E, F, G and H) recorded July 8, 1999 in the Alameda County Official Records at 99251790 ("Master Development Agreement"). The Parties intend to enter into an amendment to the Master Development Agreement to establish Developer's compliance with the Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68) as hereinafter set forth. . E. Developer proposes to develop the Property in three phases, consisting of a total of 930 housing units. The phases are collectively hereinafter referred to as the "Project". The "Multifamily Component" of the development shall consist of 304 multi-family rental units, of which 243 units shall be affordable units available at affordable rents to households of very low, low and moderate-income pursuant to the City's Inclusionary Zoning Ordinance (Chapter 8.68). The "Senior Housing Component" of the development shall consist of 322 multi-family rental units for seniors, of which 292 units shall be affordable units available at affordable rents to senior households of very low, low, and moderate-income pursuant to the City's Inclusionary Zoning Ordinance (Chapter 8.68). Developer shall retain discretion as to the sequence of construction for the Multifamily Component and the Senior Housing Component. The third phase of the development ("Condominium Component") shall consist of 304 condominium units, of which 52 shall be affordable units available at affordable Development Agreement Fairway Ranch Page 1 of 17 628317-14 condominium units, of which 52 shall be affordable units available at affordable cost to households of moderate-income pursuant to the City's Zoning Ordinance (Chapter 8.68). As more particularly described in the Affordable Housing Regulatory Agreements executed, or to be executed, by and between City and Developer and recorded concurrently herewith for Lots 1 and 2 ("Regulatory Agreements") and Conditions, Covenants and Restrictions (or deed restrictions) recorded concurrently herewith against the Property, the Developer and its successors in interest shall be required to maintain the affordability of the affordable units and the availability of such units to households of the specified income levels for not less than 55 years. F. Developer has applied for, and City has approved or is processing, various land use approvals in connection with the development of the Project, including Vesting Tentative Tract Map for Tract 7453 (Planning Commission Resolution No. 03-31), a density bonus of 186 units and site development review City Council Resolution No. 149-03 (collectively the "Project Approvals"). G. Developer is proposing that the affordable units referred to in Recital E will satisfy the Developer's obligation for compliance with the City's Inclusionary Zoning Regulations (Dublin Municipal Code Chapter 8.68) for the Project and for 2,655 units on the rest of Developer's property through affordable unit credits which can be used on other properties owned by Developer and to otherwise satisfy the requirements of the Inclusionary Zoning Ordinance for this Project. H. Developer anticipates transferring Parcels 1,2 and 3 of Tract 7453 to different legal entities. Developer and City are entering into separate development agreements to be recorded concurrently herewith for Parcel 1 (Senior Housing Component), Parcel 2 (Multifamily Component) and Parcel 3 (Condominium Component) which agreements include provisions identical to Sections 1 to 24 and 26 to 27 of this agreement and Sections 5.3.1, 5.3.2, 5.3.4, 5.3.5 and 5.3.6 of Exhibit B (the "Component Development Agreements"). Developer and City anticipate that Developer may assign its rights and obligations under such separate development agreements to the purchasers or lessees of Parcels 1, 2 and 3. I. The Component Development Agreements are required by the Master Development Agreement, provided such Component Development Agreements do not impair any of developer's rights under the Master Development Agreement. J. The purpose of this Agreement is to provide for certain phasing of the Project; to establish credits for certain of the affordable units which, upon completion of the Project, will allow development of Developer's remaining property without compliance with the Inclusionary Zoning Ordinance in effect now or hereafter; and to establish a waiver of a potential commercial linkage fee for the benefit of property owned by Developer. Development Agreement Fairway Ranch Page 2 of 17 628317-14 K. City desires the timely, efficient, orderly and proper development of the Project, and City and Developer desire to facilitate development of the Project in accordance with and subject to the terms and conditions set forth herein. l. The City Council has reviewed and evaluated this Agreement in accordance with Chapter 8.56, and has found that this Agreement is consistent with the City's General Plan and the Eastern Dublin Specific Plan. M. Pursuant to the California Environmental Quality Act (CEQA), the City Council adopted Resolution No. 149-03, finding that the Project is exempt from CEQA pursuant to Government Code §65457. In making such determination and determining that there are no supplemental impacts that would require preparation of a Supplemental EIR, the City prepared an Initial Study which found that the environmental impacts of the Project were addressed by the Negative Declaration approved by the City Council by Resolution No. 140-97 for the Planned Development Rezoning for 453 acres of Dublin Ranch which includes the Property and the Project and the Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was certified by the Council by Resolution No. 51-93 and the Addenda dated May 4,1993 and August 22,1994 (collectively, the "EIR"). N. On July 15, 2003, the City Council adopted Ordinance No. 8-03 approving this Agreement. The ordinance took effect on August 15, 2003. NOW, THEREFORE, with reference to the foregoing recitals and inconsideration of the mutual promises, obligations and covenants herein contained, City and Developer agree as follows. 1. Description of Property. The property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). 2. Interest of Developer. The Developer has a legal or equitable interest in the Property in that it owns the Property in fee simple. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Developer and that the Developer is not an agent of City. The City and Developer hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be Development Agreement Fairway Ranch Page 3 of 17 628317-14 construed as making the City and Developer joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement ("Effective Date") is August 15, 2003, which is the effective date of City Ordinance No. 8-03, adopting this Agreement. 4.2 Term. The term of this Agreement shall commence on the Effective Date and shall terminate on the fifth anniversary of such date, unless this Agreement is otherwise terminated or extended pursuant to the terms hereof. Notwithstanding anything to the contrary contained herein or in the Site Development Review approval: (i) the Site Development Review approval shall remain effective for five years following the Effective Date of this Agreement, and (ii) provided that certificates of occupancy have been issued for either the entire Multi-Family Component or the entire Senior Housing Component prior to expiration of the term of this Agreement, the Site Development Review approval (Resolution No.149-03) shall remain effective until the tenth anniversary of the Effective Date. 4.3 Optional Extension. Prior to the termination of this Development Agreement, as provided in Section 4.2, Developer may extend the term of the Development Agreement. To do so, Developer shall give City written notice at least 90 days prior to the termination date of the Development Agreement. At the time Developer provides such notice, Developer shall make a contribution to City in the amount of One Hundred Thousand Dollars ($100,000). Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the Developer in writing that the term of the Development Agreement has been automatically extended for an additional one-year period, commencing on the date the Development Agreement would otherwise have terminated. The Developer may exercise its option to extend the Development Agreement no more than five times, for a maximum total term of the Development Agreement of ten years. The total contribution for the maximum extension of five years will be Five Hundred Thousand Dollars ($500,000). Notwithstanding anything to the contrary in this Section, if Developer has provided the notice and contribution to extend one of the Component Development Agreements, Developer shall not be required to provide the $100,000 contribution to extend the term of this Development Agreement and this Agreement will automatically be extended to be coterminous with such Component Development Agreement. 5. Use of the Property. 5.1 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, and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. Development Agreement Fairway Ranch Page 4 of 17 628317 -14 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by City) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto. 5.3.1 Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin and any other approvals required by other regulatory agencies.) None 5.3.2 Mitiqation Conditions. Additional or modified conditions agreed upon by the Parties in order to eliminate or mitigate adverse environmental impacts of the Project or otherwise relating to development of the Project. See Exhibit B 5.3.3 Phasinq, 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 Financinq Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5 Fees, Dedications. Terms relating to payment of fees or dedication of property. See Exhibit B 5.3.6 Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B Development Agreement Fairway Ranch Page 5 of 17 628317-14 5.3.7 Miscellaneous. Miscellaneous terms. See Exhibit B 6. Applicable Rules. Requlations and Official Policies. 6.1 Rules Reqardinq Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Property, the density and intensity of use of the Property, and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the Effective Date hereof. 6.2 Rules Reqardinq Desiqn and Construction. Unless otherwise expressly provided in Section 5 or Exhibit B attached hereto, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect on the Effective Date hereof. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time the applicable permit approval is granted. 6.3 Uniform Codes Applicable. Unless otherwise expressly provided in Section 5 or Exhibit B attached hereto, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Requlations. 7.1 New Rules and Requlations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the Effective Date and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals, and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2 Approval of Application. Nothing in this Agreement shall prevent the City from denying or conditionally approving any subsequent discretionary land use approval for the Project on the basis of the ordinances, resolutions, rules, regulations and policies in effect at the time of such approval. Development Agreement Fairway Ranch Page 6 of 17 628317-14 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in California Government Code § 8558. 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1 Fees, Exactions. Dedications. City and Developer agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement (including Exhibit B). The City shall not impose or require payment of any other fees, . dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, or impose other exactions in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit 8, Section 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. 8.3 New Taxes. Any subsequently enacted City-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. 8.4 Assessments. Nothing herein shall be construed to relieve the Property from assessments levied against it by City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5 Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the California Constitution, and Developer does not return its ballot, Developer agrees, on behalf of itself and its successors, that City may count Developer's ballot as affirmatively voting in favor of such assessment, fee or Development Agreement Fairway Ranch Page 7 of 17 628317-14 charge. 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the Effective Date prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the Parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56. 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the Parties and in accordance with the procedures of state law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of Section 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in Section 4.2; (b) the permitted uses of the Property as provided in Section 5.2; (c) provisions for "significant" reservation or dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings; (g) monetary contributions by Developer; (h) the affordable housing units to be constructed as part of the Project (including without limitation, the number, location, size, affordability level, or timing of the construction of such units); (i) public improvements to be constructed by Developer; U) the accrual or use of the Affordable Unit Credits described in Section 5.3.7B of Exhibit B; or (h) the exemption from Commercial Linkage Fee described in Section 5.37.C of Exhibit B shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the Parties may execute an amendment hereto. City's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4 Amendment of Project Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) monetary contributions by the Developer; (g) public improvements to be constructed by Developer; (h) the affordable housing units to be constructed as part of the Project (including without limitation, the number, location, size, affordability level, or timing of the construction of such units); (i) the accrual or use of the Affordable Housing Credits described in Section 5.3.7B of Exhibit B; or U) the exemption from Commercial Linkage Fee described in Section 5.3.7C of Development Agreement Fairway Ranch Page 8 of 17 628317-14 Exhibit B shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the Parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Section 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by City. 10. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the tentative tract map described in Recital F above shall automatically be extended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B or Section 4.2. 11. Annual Review. 11 .1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2004 and each July 15 to August 15 thereafter. 11.2 Initiation of Review. The City's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to Developer thirty (30) days' written notice that the City intends to undertake such review. Developer shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of this Agreement. The Developer shall have the burden of proving such compliance by substantial evidence. 11.3 Staff Reports. To the extent practical, City shall deposit in the mail and fax to Developer a copy of all staff reports, and related exhibits relating to this Agreement at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by City in connection with the annual review shall be paid by Developer in accordance with the City's schedule of fees in effect at the time of review. Development Agreement Fairway Ranch Page 9 of 17 628317-14 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default hereunder, the Parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either Party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damaqes Aqainst City. Notwithstanding anything to the contrary contained herein, in no event shall damages be awarded against City upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Either Party may, at any time, and from time to time, request the other Party to provide a written certification that: (a) this Agreement is in full force and effect and a binding obligation of the Parties, (b) this Agreement has not been amended or modified either orally or in writing, or if amended, identifying such amendments in the certification, and (c) to the knowledge of the certifying Party, the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, to describe in the certification the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certification within thirty (30) days following the receipt of such request, or such longer period as may reasonably be agreed to by the Parties. City Manager of City shall be authorized to execute any certification requested by Developer. Should the Party receiving the request not execute and return such certification within the applicable period, this shall not be deemed to be a default, provided such Party shall be deemed to have certified that the statements in clauses (a) ~hrough (c) of this section are true, and any party may rely on such deemed certification. Any request by Developer for a written certification to a third party shall be accompanied by payment to City of a fee for such certification in an amount established by the Council from time to time. Development Agreement Fairway Ranch Page 10 of 17 628317-14 14. MortQaQee 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, the purchaser at any trustee's sale or foreclosure sale shall not be liable for any violation hereof occurring prior to the acquisition of title by such purchaser, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 MortQaQee Not ObliQated. Notwithstanding the provisions of Section 14.1, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to MortqaQee and Extension of RiQht to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the City's notice. City, through its City Manager, may extend the thirty-day cure period provided in Section 12.2 for not more than an additional sixty (60) days upon request of Developer or a Mortgagee. 15. Severability. The unenforceability, invalidity or illegality of any provision, covenant, condition or term of this Agreement shall not render the other provisions hereof unenforceable, invalid or illegal. Development Agreement Fairway Ranch Page 11 of 17 628317-14 16. Attorneys' Fees and Costs. If City or Developer initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the Parties shall cooperate in defending such action. Developer shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse City for all reasonable court costs and attorneys' fees expended by City in defense of any such action or other proceeding. 17. Transfers and Assiqnments. , 17.1 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 which arise hereunder and pertain to the portion of the Property being sold or transferred to such Transferee; provided, however that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur by operation of law or otherwise absent prior written notice to City and written approval thereof by the City Manager, which approval shall not be unreasonably withheld or delayed. 17.2 Approval and Notice of Sale, Transfer or Assiqnment. The City Manager shall consider and decide on any proposed transfer, sale or assignment of Developer's rights, interests and obligations hereunder within ten business (10) days following receipt of Developer's notice, provided all documents, certifications and other information reasonably requested by City are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform the Developer's obligations hereunder. Notice of any such approved sale, transfer or assignment (including a description of all rights, interests and obligations that have been transferred and those which have been retained by Developer) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. 17.3 Effect of Sale. Transfer or Assiqnment. Developer shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to this Section 17, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to this Section 17, b) such obligations are expressly assumed by Transferee, and (c) such Transferee shall be subject to all the provisions hereof and shall provide all Development Agreement Fairway Ranch Page 12 of 17 628317-14 documents, certifications and other information reasonably requested by City prior to City Manager approval pursuant to this Section 17. 17.4 Permitted Transfer, Purchase or Assiqnment. The sale or other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to the exercise of any right or remedy under a third-party deed of trust encumbering Developer's interest in the Property shall not require City Manager approval pursuant to this Section 17. However, any subsequent transfer, sale or assignment by such Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of this Section. 18. Aqreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement (with the exception of City's obligation to provide financing to Developer pursuant to the Loan Agreement) shall be binding upon the Parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall constitute covenants running with the land pursuant to applicable laws. Each covenant to do, or refrain from doing, any act on or with respect to the Property pursuant to this Agreement: (a) is for the benefit of or is a burden upon the Property, (b) runs with the land, and (c) is binding upon the Developer and each successive owner during its ownership of the Property or any portion thereof. 19. Bankruptcy. The obligations of Developer under this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification; Prevailinq Waqes. 20.1 Indemnification. Developer agrees to indemnify, defend and hold harmless City, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the Developer, or any actions or inactions of Developer's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Property and the Project, provided that Developer shall have no indemnification obligation with respect to the gross negligence or willful misconduct of City, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any Development Agreement Fairway Ranch Page 13 of 17 628317-14 improvement after the time it has been dedicated to and accepted by the City or another public entity (except as provided in an improvement agreement or maintenance bond). 20.2 Prevailinq Waqes. The Parties acknowledge that the Project or phases of it are intended by Developer to be exempt from California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto ("Prevailing Wage Laws") by virtue of Labor Code Section 1720(d). If for any reason, the Prevailing Wage Laws are found to be applicable to the Project, Developer and its contractors shall comply with such laws. Developer shall, and hereby agrees to, unconditionally indemnify, reimburse, defend, protect and hold harmless City and its elective and appointive boards, commissions, officers, agents, attorneys, consultants and employees, and their respective successors and assigns, from and against any and all claims, demands, suits and actions at law or in equity, and losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, and costs and damages of every kind, nature and description (including but not limited to attorneys' fees and court costs, with counsel reasonably acceptable to City), and administrative, enforcement or judicial proceedings, whether known or unknown, and which directly or indirectly, in whole or in part, are caused by, arise from, or relate to, or are alleged to be caused by, arise from, or relate to, the payment or requirement of payment of prevailing wages or the requirement of competitive bidding in the construction of the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of City or Developer related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such claims, demands, suits, actions, losses, liabilities, expenses, penalties, fines, orders, judgments, injunctive or other relief, costs, damages, or administrative, enforcement or judicial proceedings. It is further agreed that City does not, and shall not, waive any rights against Developer which it may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or the deposit with City by Developer; of any of the insurance policies described in this Agreement. The representations, warranties and covenants contained in this Section shall survive the termination of this Agreement. 21. Insurance. 21.1 Public Liabilitv and Property Damaqe Insurance. During the term of this Agreement, Developer shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than five million dollars ($5,000,000) with a Twenty Five Thousand Dollar ($25,000) self insurance retention per claim. The policy so maintained by Development Agreement Fairway Ranch Page 14 of 17 628317-14 Developer shall name the City as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2 Workers Compensation Insurance. During the term of this Agreement Developer shall maintain Worker's Compensation insurance for all persons employed by Developer for work at the Project site. Developer shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. Developer agrees to indemnify the City for any damage resulting from Developer's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to City Council approval of this Agreement, Developer shall furnish City satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the City at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the City, its elective and appointive boards, commissions, officers, agents, employees and representatives and to Developer performing work on the Project. 22. Sewer and Water. Developer acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of City. 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: Martin Inderbitzen 7077 KolI Center Parkway, Suite 120 Pleasanton, CA 94566-3152 FAX No. (925) 485-1065 Development Agreement Fairway Ranch Page 15 of 17 628317-14 James Tong Charter Properties 6601 Owens Drive #100 Pleasanton, CA 94588 (925) 463-1666 A Party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be delivered by overnight courier in which case they shall be deemed given on the following day or by facsimile transmission in which case they shall be deemed delivered upon verification of receipt. 24. Aqreement is Entire Understandinq. This Agreement, the loan commitment letters executed by City with an effective date of July 1, 2003 (the "Loan Commitment"), the Component Development Agreements, the Regulatory Agreements, and the Loan Agreements (and related deed(s) of trust and promissory note(s)) constitute the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersede all prior negotiations, understandings or agreements pertaining thereto. 25. Exhibits. The following Exhibits are attached hereto and incorporated herein by this reference: Exhibit A Legal Description of Property Exhibit B Additional Conditions Exhibit C Inclusionary Zoning Regulations; Dublin Municipal Code Chapter 8.68 Exhibit 0 Affordable Unit Credit Certificate Exhibit E Map of Affordable Unit Credit Property, which property Includes properties owned by Developer subject to the Master Development Agreement," Dublin Ranch West" and "Dublin Ranch North." Exhibit F Map of Property Exempt from Commercial Linkage Fee Development Agreement Fairway Ranch Page 16 of 17 628317-14 26. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, and all of which taken together shall constitute one agreement. 27. Recordation; Further Assurances. City shall record a copy of this Agreement within ten days following execution by all Parties. The Parties agree to execute such additional instruments and to undertake such actions as may be necessary to effectuate the intent of this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first written above. CITY OF DUBLIN B í: C y: ( J ATTEST: By: APPROVED AS TO FORM: Ii' ' (-., /J)¿z(~ )j_ ))1 'L Elizabeth H. Silver, City Attorney , DEVELOPER (;¿ ~ -D d~ Ch~U-O-Lin ;;/2 .,,' ~ -,." /:------.:..-:> ,":"¥..,. ./' '" .~- -'- ". ,...- , v./ ~ng Lien Un . --~ Development Agreement Fairway Ranch Page 17 of 17 628317-14 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ff I- 11-11 Ë-f) A } t) II / rJó ,before me, K4'i KE.LK J NoTIf¡¿V PaßL-IG personally ap:::r~d VÃN ET L r5ëi;/;; ¡¿rg 'Jane Doe, Nota~ Public) Name(s) of Slgner(s) } 55 County of On J~----~m~~~9-~ z' Notay Public - earrfomJa ! ~ þJameda Coun1y f - - - -My~~~~~~ ':J personally known to me ø proved to me on the basis of satisfactory evidence to be the person(\) whose name~) is/a~ subscribed to the within instrument and acknowledged to me that 1:;t,e/she/~ executed the same in ~/her/'tR.e.ir authorized capacity"(ts.s), and that by his/herlfhe.ir signatureN on the instrument the personW, or the entity upon behalf of which the person~ acted, executed the instrument. Place Notary Seal Above fficial seal. icL OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent remo¡) and reattachment of this form to another document. Description of Attacheq-po<?yment fLB LI}./ R /t NLH Fit; ~¡j)Æ-Y RII N ('J¡ Title or Type of DocumentJ)E 1/ EI-OP i1 GlJj )fG--R E£ H E/VI Document Date: ~~'::L I.......~ mOJ3 Number of Pages: i:z.IJ Signer(s) Other Than Named Abovef!.f/f>¡/IIt; ~0Æ- o.-L/JJ !/O}./(f- LiEN LIB , ~ Capacity(ies) Claimed by Signer Signer's Name: L-= Individual 'l Corporate Officer - Title(s): Partner - Limited [J General L J Attorney in Fact U Trustee [J Guardian or Conservator II Other: Signer Is Representing: ~/7Y Or j)UßL/N © 1999 National Notary Association· 9350 De Soto Ave., P,O. Box 2402· Chatswor1h, CA 91313-2402· www.nationalnolary.org Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 " State of California ) ) County of Alameda ) On ~. 2 c.¡ ,2003, before me, the undersigned, a Notary Public, , in and for said State and County, personally appeared H () ~ L /"t'() L,'n é Œ~lÂ~ Sv-t) L/n, personally known to me (or proved to me on t e basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. ESS my hand and official seal. OJlJ{i'l L E~·T:'Uj. Comrn:ssion #- i 3¿2}; ~¡-¡ Notary Public - California :;; AJarni~da COI:i1!-ý rly C,o:-"¡)1m. E}~:j:t,?:,:; f....:~(:ì :':,-? ',:~::: . ',l:.:..~ -, \L¡;. , ~ ..ij~< ~.i5 ;,0,: '::;:';.S;;'- ;,'::':'.'- --".o.:_~_;P" "8~·-"~.::,T~~ Exhibit A LEGAL DESCRIPTION OF PROPERTY ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF DUBLIN, COUNTY OF ALAMEDA, STATE OF CALIFORNIA DESCRIBED AS FOLLOWS: LOTS 1, 2, AND 3, AS SAID LOTS ARE SHOWN ON THE MAP OF TRACT 7453, FILED FOR RECORD ON NOVEMBER 24,2003, IN BOOK 273 OF MAPS AT PAGES 52 THROUGH 56, INCLUSIVE, ALAMEDA COUNTY RECORDS. Exhibit B ADDITIONAL CONDITIONS This Exhibit B contains Additional Conditions imposed pursuant to Section 5.3 of the Development Agreement ("Agreement"), by and between the City of Dublin, a Municipal Corporation ("City") and Chang Su-O-Lin and Hong Lien Lin (collectively, the "Developer") dated as of August 15, 2003. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement. 5.3.1 Subseauent Discretionary Approvals None. 5.3.2 Mitigation Conditions A. Infrastructure Seauencing Program. The infrastructure sequencing program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) identified in Resolution No. 03-31 of the City of Dublin Planning Commission approving the Vesting Tentative Map for Tract 7453 and the City Council Resolution No. 149-03 approving the Site Development Review (hereafter "TM and SDR Resolutions"), and those described below shall be completed by Developer to the satisfaction of the City Engineer at the times and in the manner specified in the TM and SDR Resolutions unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of City's Engineer. -Condition 24 Dublin Boulevard/Douç¡hertv Road Intersection Improvements: Condition 24 of Planning Commission Resolution No. 03-31 reads as follows: Intersection of Dougherty Road & Dublin Blvd. In the event that the City does not have sufficient Category 2 Eastern Dublin Traffic Impact Fee (TIF) funds available, Developer shall advance the City monies for the costs of design, right-of-way acquisition and construction of the City Capital Improvement Project at the Dublin Boulevard / Dougherty Road intersection. The amount of money Development Agreement - Exhibit B Fairway Ranch Page 1 of 12 628317-14 to be advanced will be determined by the City Engineer based on the Project's fair share of the deficiency. Such payment is to be made within 30 days of written notice from the City Engineer. City shall provide a credit to the Developer for Category 2 TIF for any monies advanced pursuant to this condition. The City's Administration Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99) shall govern all aspects of the credit. DEVELOPER shall provide CITY with DEVELOPER's fair share, as determined by CITY on the basis of the Project's trips, for the costs of design and construction of Dublin Boulevard/Dougherty Road Intersection Improvements by a payment to CITY in cash in the amount of the Project's fair share of the deficiency, if any, between funds available to CITY for the costs of design and construction of Dublin Boulevard/Dougherty Road Intersection Improvements and the cost of such project, as determined by the Public Works Director. Such payment to be made within 30 days of . written notice from the Public Works Director to be given following bid opening. Notwithstanding the provisions of Section 4 of this Agreement, Condition 24 shall survive termination of this Agreement. (ii) Sewer. All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with DSRSD requirements. (iii) Water. An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative map conditions of approval to the satisfaction and requirements of the City's fire department. All potable water system components to serve the project site shall be completed in accordance with the DSRSD requirements. Recycled water lines shall be installed in accordance with the tentative map conditions of approval. Development Agreement - Exhibit B Fairway Ranch Page 2 of 12 628317-14 (iv) Storm Drainage The storm drainage systems off site, as well as on site drainage systems to the areas to be occupied, shall be improved consistent with the Dublin Ranch Master Drainage Plan and the tentative map conditions of approval and to the satisfaction of the City Engineer (v) Other Utilities (e.g. gas, electricity, cable televisions, telephone) Construction shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. B. Miscellaneous (i) Completion of Public Improvements May Be Deferred. Notwithstanding the foregoing, City's Engineer may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the City Engineer that assures completion, allow Developer to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. 5.3.3 Phasing; Timing This Agreement does not require the Developer to commence or complete development of the Project within any period of time set by City. Subject to the following requirements, Developer shall be permitted to develop the Property in accordance with its own time schedule, consistent with the Project Approvals. Notwithstanding anything to the contrary contained in this Agreement or in the Project Approvals, it is expressly understood and agreed that: (A) the City shall not issue any building permits for any buildings or structures within the Condominium Component of the Project unless (i) certificates of occupancy have been issued for all units comprising either the Multifamily Component or the Senior Housing Component of the Project and the affordable units to be constructed as part of the Multifamily Component or the Senior Housing Component of the Project have been constructed and made available for occupancy by eligible households at affordable housing cost in accordance with the requirements specified in the Regulatory Agreements or (ii) Developer and City have entered into an enforceable agreement that restricts occupancy of units within the Condominium Component to provide for 52 moderate income units; and (B) if Developer constructs the Multi-Family Component or the Senior Housing Component in phases, each such phase shall include affordable units which are available for Development Agreement - Exhibit B Fairway Ranch Page 3 of 12 628317-14 occupancy to eligible low, very low-, and moderate-income households in such numbers as shown on Sheets A-3 to A-6, A-11, A-12, A-14, A-15, A-19 to A-23, and A-24 to A-27 on Exhibit 1 of City Council Resolution No. 149-03 approving Site Development Review. The provisions of this Section 5.3.3 shall survive the expiration of the term of this Agreement. 5.3.4 Financing Plan Developer shall install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in Section 5.3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project will be made available by the Dublin San Ramon Services District. Developer has entered into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Sections 5.3.2(A)(ji) and (iii) above. Pursuant to the terms of that certain Loan Commitment letters executed by City with an effective date of July 1, 2003 ("Loan Commitment"), and provided that Developer and the borrower under said Loan Commitment have complied with all terms and conditions of the Loan Commitment, City shall provide a loan to Developer to provide partial financing for construction of the Project's affordable units. 5.3.5 Fees, Dedications A. Traffic Impact Fees. Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 225-99, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Developer further agrees that it will pay a minimum of three percent (3%) of the "Section 1/Category 1" portion of the TIF in cash. Developer also agrees that it will pay 12.4% of the "Section 2/Category 2" portion of the TIF in cash. If City amends its TIF fee and as a result the City's outstanding balance due on loans is less than 12.4% of total Section 2/Category 2 improvements, the Developer shall pay such reduced percentage of the "Section 2/Category 2" portion of the TIF in cash. Development Agreement - Exhibit B Fairway Ranch Page 4 of 12 628317-14 Developer may use any credits it has for payment of the balance of the TIF in accordance with City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 "TIF Guidelines"). B. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchanges. Developer shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155-98 and by any subsequent resolution which revises such Fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. C. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the then-current amount of the fee. Developer may use the credits for payment of the Community Park Land portion of the Public Facilities Fee granted to the Un Family by the Master Development Agreement in accordance with City's Public Facilities Fee Guidelines (Resolution 195-99). ( D. Noise Mitigation Fee. Developer shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. E. School Impact Fees. School impact fees shall be paid by Developer in accordance with California Government Code Section 53080 and the agreement between Developer and the Dublin Unified School District regarding payment of mitigation fees. F. Fire Impact Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Development Agreement - Exhibit B Fairway Ranch Page 5 of 12 628317-14 Developer may use any credits it has for payment of the fire facilities fee, provided credits for improvements, land and equipment may only be used to satisfy payment of the same components of the fire facilities fee. G. Tri-Valley Transportation Development Impact Fee. Developer shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. 5.3.6 Credit A. Traffic Impact Fee Improvements -- Credit City shall provide a credit to Developer for those improvements described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such improvements are constructed by the Developer in their ultimate location. All aspects of the credit shall be covered by City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 ("TIF Guidelines"). B. Traffic Impact Fee Right-of-Way Dedications -- Credit City shall provide a credit to Developer for any TIF area right-of- way to be dedicated by Developer to City which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. 5.3.7 Miscellaneous A. Affordable Units In accordance with the City's Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68 attached as Exhibit C hereto), the City's Density Bonus Ordinance (Dublin Municipal Code Chapter 8.52) and the Regulatory Agreements and Conditions, Covenants and Restrictions (or deed restrictions) recorded concurrently herewith against the Property, Developer shall ensure that 587 housing units constructed as part of the Project shall be available for a period of not less than 55 years to households of very low, low- and moderate-income at affordable housing cost, all as more particularly described in Recital E of the Agreement and in the Loan Commitment. Development Agreement - Exhibit B Fairway Ranch Page 6 of 12 628317-14 Notwithstanding the definitions contained in the Inclusionary Zoning Ordinance, as used in this agreement "low income" means not more than 60% of the median income, adjusted for actual household size B. Credits for Certain Affordable Units (i) Affordable Units Upon Completion. Upon completion of the entire Project in accordance with the SDR and this Agreement, Developer will have provided affordable units, as defined in City's Inclusionary Zoning Regulations, in the following income categories: Multifamily Component --90 moderate income units --90 low income units --63 very low income units Senior HousinQ Component --131 moderate income units --97 low income units --64 very low income units Condominium Component --52 moderate income units Upon completion the entire Project in accordance with the SDR and this Agreement (i) Developer will have satisfied the Inclusionary Zoning Regulations for all three components by providing in the aggregate 46 moderate-income units, 19 low-income units and 28 very low-income units, for a total of 93 affordable units (hereinafter "Project Affordable Units"); (ii) Developer will receive credit (hereinafter "Affordable Unit Credits") pursuant to Section 8.68.060 of the Inclusionary Zoning Regulations for 332 affordable units; and (iii) Developer will have provided an additional 162 affordable units (hereinafter "Excess Affordable Units") in consideration for which the City has agreed to provide certain incentives and waivers consisting of: (a) a finding that Developer has fully complied with the City's Inclusionary Zoning Regulations for the Project by providing 46 moderate-income units, 19 low-income units and 28 very low- income units in the sizes shown on Sheets A-3 to A-6, A-11, A-12, A-14, A-15, A-19 to A-23, and Ä-24 to Ä-27 on Exhibit 1 of City Council Resolution No. 149- 03 approving Site Development Review, (b) 332 Affordable Unit Credits which can be used to comply with the Inclusionary Zoning Regulations on the Affordable Unit Credit Property as described in Exhibit E as such regulations currently exist or as hereinafter amended for a maximum of 2,655 units, notwithstanding the mix of the affordable units, number of bedrooms or concentrations of such units on such Property, (c) a loan, and (d) a commercial linkage fee waiver (as described in Section 5.3.7.C.) Development Agreement - Exhibit B Fairway Ranch Page 7 of 12 628317-14 (ii) Phased Construction. City and Developer recognize that it is likely that the three components of the Project will be constructed at different times and that each component includes several buildings for which individual building permits will be issued. In particular, the Multifamily Component consists of five buildings, three of which will be residential; the Senior Housing Component consists of five residential buildings, and the Condominium Component consists of five buildings, three of which are residential. (iii) Required Affordable Units. Upon issuance of certificates of occupancy for each building within the Project, the affordable units provided therein shall be allocated first to satisfy the Developer's obligation to provide 93 Project Affordable Units. In particular, upon issuance of a certificate of occupancy for buildings in the Multi-Family Component, the first 18 moderate-income units, the first nine (9) low-income units and the first 15 very low-income units will be counted toward the Project Affordable Units. Upon issuance of certificates of occupancy for buildings in the Senior Housing Component, the first 20 moderate-income units, the first ten (10) low-income units and the first 14 very low-income will be counted as Project Affordable Units. Finally, in the Condominium Component, the first seven (7) moderate-income units will be counted as Required Affordable Units. Developer's obligation to provide moderate-income units may be satisfied by low-income or very low-income units and the obligation to provide low-income units may be satisfied by very low-income units, provided such substitutions shall not relieve Developer from its obligation to provide the total required units. (iv) Affordable Unit Credits. Once Certificates of Occupancy have been issued for all of the Project Affordable Units, whether in the Senior Housing Component or the Multi- Family Component, thereafter each additional affordable unit in any building for which a certificate of occupancy is issued shall entitle Developer to an Affordable Unit Credit provided Developer shall be entitled to no more than 332 Affordable Unit Credits. The Affordable Unit Credits shall be evidenced by an "Affordable Unit Credit Certificate" in a form substantially similar to the form attached as Exhibit D, which shall be executed by the City Manager within ten (10) working days of the issuance of the certificate of occupancy, provided that Developer is in compliance with all requirements of this Agreement, the Regulatory Agreements and the Loan Agreement. The purpose of the Affordable Unit Credit Certificate is to allow the City and Developer to monitor the creation of such credits. Development Agreement - Exhibit B Fairway Ranch Page 8 of 12 628317-14 (v) Use of Affordable Unit Credit Developer may apply the Affordable Unit Credits to satisfy the requirements of the Inclusionary Zoning Regulations as now in effect or as hereafter amended for any residential development consisting of up to a maximum of 2,655 3,399 - 744 = 2,655 x 12.5% = 331.8 units on the Affordable Unit Credit Property shown on Exhibit E. (vi) Determination of Affordable Unit Obliqation on Affordable Unit Credit Property City shall determine the number of affordable units required for each residential development proposed for development on the Affordable Unit Credit Property at the earliest to occur of the time of tentative map approval, conditional use permit or site development review by reference to the Inclusionary Zoning Regulations attached as Exhibit C to determine the number of affordable units required for each such residential development, and provided Developer has a sufficient number of Affordable Unit Credit Certificates for the number of such required affordable units, City shall not require compliance with the Inclusionary Zoning Regulations for such development. The payment of in- lieu fees will not be allowed for any residential development project on the Property or the Affordable Unit Credit Property. If Developer has not earned Affordable Unit Credit Certificates in sufficient number to provide the required number of affordable units required for such residential development, provided that a building permit has been issued for any building within the Project that will include affordable units that will be counted toward the Affordable Unit Credits, Developer may obtain an Affordable Unit Credit Certificate by providing a bond or letter of credit in the amount of the then-current in-lieu fee established by the Council pursuant to section 8.68.040.A of the Inclusionary Zoning Regulations, which security shall be released by City upon issuance of a certificate of occupancy for the secured affordable unit. If Developer has not earned or obtained Affordable Unit Credit Certificates in sufficient number to provide the required number of affordable units required for a proposed residential development, Developer shall be required to comply with the inclusionary zoning requirements then in effect prior to Site Development Review approval, including the requirement of section 8.68.050.A of the Inclusionary Zoning Regulations for an affordable housing agreement. Alternatively, Developer may withdraw its application for Site Development Review approval until Developer has sufficient Affordable Unit Credit Certificates to provide the required number of affordable units for the residential development project. Development Agreement - Exhibit B Fairway Ranch Page 9 of 12 628317-14 (vii) Dublin Ranch Area F North Notwithstanding the foregoing, City agrees to determine the number of affordable units required for any residential development project on the property shown on Exhibit E, known as "Area F North," at the time of issuance of the first building permit for any residential building in Area F North. City shall determine whether Developer has provided the Required Affordable Units pursuant to Section 5.3.7.8 (iii) above for Area F North at the time of issuance of building permits for Project buildings, rather than Certificate of Occupancy. City shall not issue a building permit for any building in Area F North until Developer has Affordable Unit Credit Certificates equal in number to 12.5% of the number of units proposed in Area F North, as calculated pursuant to the Inclusionary Zoning Regulations. (viii) Limitation Use of Credits Any residential units proposed to be constructed on the Affordable Unit Credit Property in excess of 2,655 units shall be subject to the City's Inclusionary Zoning ordinance in effect at the time of application. Unused Affordable Unit Credits will expire thirty (30) years after the date of execution of the Affordable Unit Credit Certificate creating such credit. In the event the State of California enacts legislation that requires a greater percentage of affordable units on the Affordable Unit Credit Property and City and Developer determine such legislation would be applicable to the Affordable Unit Credit Property, City and Developer will meet in good faith in an effort to carry out this Agreement to the extent possible. (ix) Development on Affordable Unit Credit Property Nothing in this Agreement shall impose a limit on the development of residential units on the Affordable Unit Credit Property, nor shall this Agreement be construed as a guarantee that Developer can develop 2,655 residential units on the Affordable Unit Credit Property. C. Exemption from Commercial Unkaae Fee Provided that: (a) certificates of occupancy have been issued for all residential units and all affordable units required to be constructed as part of the Project pursuant to the Agreement, and (b) Developer and its successors in interest are in compliance with all requirements of this Agreement, the Regulatory Agreements (and Conditions, Covenants and Restrictions or deed restrictions) and the Loan Agreement, the property described in Exhibit F attached hereto and incorporated herein by reference shall, during the period commencing on the date that all of the foregoing conditions have been met, and Development Agreement - Exhibit B Fairway Ranch Page 10 of 12 628317-14 continuing until the thirtieth anniversary of the Effective Date of the Agreement, be exempt from any commercial linkage fee or similar fee that the City may adopt which requires payment of a housing fee in connection with the development of such property for commercial use. Upon satisfaction of both of the foregoing conditions, City agrees to record, and Developer consents to recordation of, a document against the property described in Exhibit F acknowledging such property shall be exempt from any such fee until the thirtieth anniversary of the Effective Date. In the event that Developer or Developer's successor in interest seeks approval to develop the property described in Exhibit F prior to the date upon which both of the foregoing conditions have been met, then Developer shall be obligated to pay such commercial linkage or similar fees to City; however, City shall refund such fees to Developer on the date that the foregoing conditions are met, together with interest on such fees at the rate actually earned by City during the time the fees are held by City, less an administrative charge for processing such refund in an amount equal to one percent of the refund amount. Provided, however, that if a building permit has been issued for any building within the Project that will include affordable units that will be counted as Affordable Unit Credits, in lieu of paying such fees to City, Developer may provide the City with an irrevocable letter of credit with a term of 12 months in the amount of the commercial linkage fee applicable to such development, which the City shall release upon issuance of a Certificate of Occupancy for the secured affordable units if a Certificate of Occupancy is issued within eleven (11) months of the date of the letter of credit. If a Certificate of Occupancy is not issued for such secured affordable units within such time period, City shall draw on the letter of credit; provided however, if Developer or its successors in interest are in compliance with all requirements of this Agreement, the Regulatory Agreements and the Loan Agreement, City shall return such funds to Developer on the date of issuance of such Certificates of Occupancy, less an administrative charge for processing such refund in an amount equal to one percent of the refund amount. D. Shuttle Service. Except as provided below, Developer shall provide a shuttle service. for residents of the Project for 10 years from the date of issuance of the first Certificate of Occupancy for the Project. The shuttle service shall be in accordance with the plan for service approved by the City's Community Development Director and shall outline the type and number of shuttles which will provide transportation for the residents of the Project; the shuttle schedule, route, and hours and days of operation; and, other necessary details as determined by the Community Development Department. Developer shall provide a shuttle service for the Senior Housing Component for 30 years from the date of issuance of the first Certificate of Occupancy for the Senior Housing Component. Development Agreement - Exhibit B Fairway Ranch Page 11 of 12 628317-14 E. Survival. The provisions of this Section 5.3.7 shall survive the expiration of the term of the Agreement. Development Agreement - Exhibit B Fairway Ranch Page 12 of 12 62831 7-14 INCLUSIONARY ZONING REGULATIONS Chapter 8.68 CHAPTER 8.68 INCLUSIONARY ZONING REGULATIONS 8.68.010. Purpose. The purpose of this chapter is to: A. enhance the public welfare and assure that further housing development contributes to the attainment of the City's housing goals by increasing the production of residential units affordable by households ofvery-Iow-, low-, and moderate income. B. assure that the limited remaining developable land in the City's planning area is utilized in a manner consistent with the City's housing policies and needs. 8.68.020. Definitions. As used in this chapter, each of the following terms shall be defIned as follows: A. "Affordable Unit" means an ownership or rental-housing unit, including senior housing, affordable to households with very-Iow-, low-, or moderate incomes as defined in this chapter. 1. Rental units are deemed affordable units if the annual rent does not exceed 30% ofmaximUill income level for very-Iow-, low-, and moderate-income households, adjusted for household size and as defined below. 2. Owner-occupied units are deemed affordable units if the sales price results in annual housing expenses that do not exceecI 35% of maximum income level for very-Iow-, low-, and moderate-income households, adjusted for household size and as defmed below. 3. "Applicant" means any person, firm, partnership, association, joint venture, corporation, or any entity or combination of entities that seeks city real property development permits or approvals. C. "Dwelling unit" means a dwelling designed and intended for occupancy by one household. D. "Very-Iow-, low-, and moderate-income levels" means those income and eligibility levels determined periodically by the California Department of Housing and Community Development based on Alameda County median income levels adjusted for family size. Such levels shall be calculated on the basis of gross annual household income considering household size and number of dependents, income of all wage earners, elderly or disabled family members, and all other sources of household income and will be recertifIed as set forth by local standards, and state and federal housing law. 1. "Very-low income" means 50% or less ofthe median income, adjusted for actual household SIze. 2. "Low income" means more than 50% to 80% of the median income, adjusted for actual household size. 3. "Moderate income" means more than 80% to 120% of the median income, adjusted for actual household size. B. "Resale controls and/or rent restrictions" means legal restrictions by which the affordable units shall be restricted to ensure that the unit remains affordable to very-Iow-, low-, or moderate-income ;:;...... ." CIty of Dublin Zoning Ordinance . 68-1 September, 1997 Revised=January 2003 INCLUSIONARY ZONING REGULATIONS Chapter 8.68 . households, as applicable, for a period of not less than 55 years. With respect to rental uruts,sl1ch rent restrictions shall be in the form of a regulatory agreement recorded against the applicable property. With respect to owner-occupied units, such resale controls shall be in the form of resale restrictions, deeds of trust, and/or other similar documents recorded against the applicable property. F. "Residential development" includes, without limitation, detached single-family dwellings, multiple- dwelling structures, groups of dwellings, condominium or townhouse developments, condominium conversions, cooperative developments, mixed use developments that include housing units, and residential land subdivisions intended to be sold to the general public. 8.68.030. General Requirements A. 12.5% Affordability Requirement. All new residential development projects of 20 units or more designed and intended for permanent occupancy shall construct 12.5% of the total number of dwelling units within the development as affordable units, except as otherwise provided by this chapter. The foregoing requirement shall be applied no more than once to an approved development (and generally at the tentative map stage), regardless of the changes in the character or ownership of the development, provided the total number of units does not change. In applying and calculating the affordability requirement, any decimal fraction less than or equal to 0.50 may be disregarded, and any decimal fraction greater than 0.50 shall be construed as one unit. 'R Allocation of Units to Income Levels. Affordable units provided pursuant to this section shall be allocated to households with very-low, low-, and moderate-income levels as follows: Very-low-income households 30% Low-income households 20% Moderate-income households 50% Where the calculation of the allocation results in fewer units that would otherwise be required pursuant to subdivision A above, one additional unit should be allocated to the income level with a decimal fraction closest to 0.50. C. Conditions of Approval: Any tentative map, conditional use permit, or site development review approving residential development projects subject to this chapter shall contain conditions sufficient to ensure compliance with the provisions of this chapter. Such conditions shall detail the number of affordable units required, specify the schedule of construction of affordable units, set forth the applicant's manner of compliance with this chapter, and require the execution of an agreement imposing appropriate resale controls and/or rental restrictions on the affordable units. D. Concurrent Construction. All affordable units in a project or phase of a project shall be constructed concurrently with market-rate units, unless the City Manager determines in VvTiting that extenuating circumstances exist that make concurrent construction infeasible or impractical. E. Design and Distribution of Affordable Units. All affordable units shall reflect the range of numbers of bedrooms provided in the project as a whole and shall not be distinguished by exterior design, construction, or materials. Affordable units may be of smaller size than the units in the project City of DUbÎin Zoning Ordinance 68-2 September, 1997 Revised=January 2003 INCLUSIONARY ZONING REGULATIONS Chapter 8.68 and may have fewer amenities than the market rate units in the project. All affordable units shall be reasonably dispersed throughout the project. 8.68.040. Exceptions to 12.5% Affordability Requirement. Developers of projects subject to 8.68.030.A shall construct 12.5% ofthe total number of dwelling units within the development as affordable units, unless subject to an exception set forth in this section. All exceptions require City Council approval, which shall be obtained at or prior to the läst discretionary approval for the project. A. Payment of Fees In-Lieu of Creation of Mfordable Units. Upon request of the applicant, the City Council shall permit the applicant to pay a fee in lieu of constructing up to 40 percent of the affordable units that the developer would otherwise be required to construct pursuant to section 8.68.030.A. The amount ofthe fee shall be as set forth in a resolution of the City Council, which may be an1ended from time to time to reflect inflation and changed conditions in the City and the region. In-lieu fees shall be paid at and the time and in the amount set forth in the in-lieu fee resolution in effect at the time of issuance of the building permit. B. Off-Site Projects. An applicant may construct the affordable units not physically within the development in lieu of constructing some or all of the affordable units within the development, with the approval of the City Council, if the City Council finds: 1. that construction of the units off-site in lieu of constructing units on-site is consistent with the chapter's goal of creating, preserving, maintaining, and protecting housing for very low-, low- and moderate-income households. 2. that the units to be constructed off site are consistent with section 8.68.030.E above 3. that it would be infeasible or impractical to construct affordable units on-site. 4. that conditions of approval for the project require that the off-site affordable units would be governed by the terms of a deed restriction and, if applicable, rental restrictions similar to that used for the on-site affordable units. 5. that the conditions of approval for the project, or other security such as a cash deposit, bond, or letter of credit, are adequate to require the construction of the off-site affordable units concurrently with the completion of the construction ofthe residential development or within a reasonable period (not to exceedS years). C. Land Dedication. An applicant may dedicate land to the City or city-designated local non-profit housing developer in lieu of construction of some or all of the required affordable units, if the council finds that: 1. that dedication of land in-lieu of constructing units is consistent with the chapter's goal of creating, preserving, maintaining, and protecting housing for very-low, low- and moderate- income households. 2. that the dedicated land is large enough and appropriately zoned to accommodate the number of units that the applicant would otherwise be required to construct by section 8.68.030.A, is useable for its intended purpose, is fr~e of toxic substances and contaminated soils, and is / City of Dublin Zoning Ordinance. 68-3 . September, 1997 Revlsed:January 2003 INCLUSIONARY ZONING REGULATIONS Chapter 8.68 fully improved, with infrastructure, adjacent utilities, grading, and all devëloiinÚmt-iÎnpact fees paid excluding any inclusionary zoning ordinance fees. 3. that the proposed land dedication is of sufficient size to meet the following requirements: a. the dedication includes land sufficient to construct the number of units that the applicant would otherwise be required to construct by Section 8.68.030.A, based on the size of lots in the subdivision for which the applicant is meeting its obligation; and b. in addition, the dedication includes such additional land the market value for which is equal to or exceeds the difference between the value of a market-rate 1200-square foot unit and the price at which such a unit could be sold as an Affordable Unit ($72,176) times the number of units required. D. Credit transfers. An applicant may fully or partially satisfy the requirements of section 8.68.030.A through the use of transfer credits created pursuant to section 8.68.060. Credit certificates shall be presented to the Community Development Director, who shaH note at the time ofproject approval the credit certificate by number. Credit certificates may only be used to satisfy the requirements for Inclusionary Units for the income category (i.e., very low, low, or moderate) and number of bedrooms for which they are issued. E. Waiver of Requirements. The City Council, at its discretion, may waive, wholly or partially, the requirements of this ordinance and approve alternate methods of compliance with this chapter if the applicant demonstrates, and the City Council finds, that such alternate methods meet the purposes of this chapter. 8.68.050. General Procedures for Implementing Inclusionary Zoning Requirements A. Agreements. Prior to the issuance of a building permit for an affordable unit, resale restrictions or rental controls, or both, as the case may be, shall be set forth in an agreement between the City and the developer, in a fornl consistent with the City Council-adopted form agreement, which agreement shall be recorded against the property containing the affordable units. The agreement shall be executed by the City Manager, and its requirements shall run with the land and bind the -applicant's successors. B. Rental Units; Occupancy; Annual Report. Agreements involving rental units shall require the owner of the affordable units to ensure that the units are occupied by tenants whose monthly income levels do not exceed moderate income levels and shall preclude tenants from subletting or subleasing the unit. The agreement shall also require the owner of the affordable unit to submit an annual report to the City Manager, in a format approved by the City. The report shall include, but not be limited to the following information: an identification of the affordable units within the project; the monthly rents charged and proposed to be charged; vacancy information for the prior year; and the monthly income for tenants of each affordable unit throughout the prior year. C. Ownership Units; Occupancy; City's Right of First Refusal. Agreements for ownership units shall specify that the inclusionary units must be occupied by the owner or owners and may not be leased or rented without the written approval of the City. The resale restrictions shall provide that in City of Dublin Zoning Ordinance 68-4 Sèptemb~r 1997 Rev;sed=January 2003 INCLUSIONARY ZONING REGULATIONS Chapter 8.68 the event of the sale of an affordable unit, the City shall have the right to purchase any affordable owner-occupant unit at the maximum price that could be charged to an eligible household. D. Selection Criteria. No household shall be permitted to occupy a unit that is required under this chapter to be affordable unless the City or its designee has approved the household's eligibility. Eligible potential occupants of affordable units will be qualified on the basis of household income, the median combined household income statistics for Alameda County published periodically by the California Department of Housing and Community Development, all sources of household income and assets, the relationship between household size and the size of available units, and any further criteria required by law. The developer shall use an equitable selection method established in confonnance with the terms of this chapter. The selection criteria may not distinguish between adults and children. Selection of qualified person should be based on priorities established in the City's Affordable Housing Program as noted below: · Employed within the boundaries of the City of Dublin (3 points, one per household) · Public Service employee working in the City of Dublin (1 additional point) · Dublin resident (3 points, one per household) · Seniors (1 point, one per household) · Permanently disables (1 point, one per household) To qualify as "Employed within the boundaries of the City of Dublin," the person shall have been employed with the City of Dublin for at least six months. To qualify as a "Dublin resident," the person shall have been a resident ofthe City of Dublin for at least a one-year period prior to the eligibility detennination. 8.68.060. Affordable Unit Credits. A. Creation. Affordable unit credits may be created by the City Council. One affordable unit credit certificate shall be issued for each affordable unit constructed in excess of the number of affordable units required to be constructed for the project by Section 8.68.030.A. The certificate shall designate a specific inco111e category (i.e., very-low-, low-, or moderate income) and number of bedrooms for which they are issued. B. Ownership and use of credits. Affordable unit credit certificates are issued to and become the possession of the project owner, who may then use them to satisfy the requirements of this chapter for another project in the City. If a project owner proposes to sell credit certificates, the parties shall first obtain the consent of the Community Development Director, who will document the transfer by certificate number. 8.68.070. Incentives to Encourage On-Site Construction of Affordable Units. The City may, but shall not be required to, offer incentives or financial assistance to encourage the on-site construction of affordable units in excess of 12.5% of the total number of units in the project to the extent resources for this purpose are available and approved for such use by the City Council or City Manager. Such incentives may include, but shall not be limited to, the following: C,ty of Dublin Zoning Ordinance 68-~ September, 1997 Revlsed"January 2003 INCLUSIONARY ZONING REGULATIONS Ch~pt~r 8.68 A. . Fee Deferral. I. Development Processing Fees. The City Manager may approve deferred payment of City processing fees applicable to the review and processing of the project. The terms and payment schedule of the deferred fees shall be subject to the approval of the City Manager. 2. Development Impact Fees. The City Council may authorize the deferred payment of development impact fees applicable to the affordable units. Approval of this incentive . requires demonstration by the Applicant that the deferral increases the project's feasibility. The applicant must provide appropriate security to ensure future payment of such fees. B. Design Modifications. The City Council may approve design modifications to affordable units that increase the feasibility of the construction of affordable units, including but not limited to, the following: 1. Reduced lot size. 2. Reduced setback requirements. 3. Reduced open space requirements. 4. Reduced landscaping requirements. 5. Reduced interior or exterior amenities. 6. Reduction in parking requirements. 7. Height restriction waivers. 8.68.080. Inelusionary Zoning In-Lieu Fee Fund. In-lieu Fees shall be deposited into a fund known as the "Inclusionary Zoning In-Lieu Fees Fund" ("Fund"). A. Use. All monies in the Fund, together with any interest earnings on such monies 'less reasonable administrative charges, shall be used or committed to use by the City for the purpose of providing very-low-, low-, and moderate-income ownership or rental housing in the City of Dubiin. B. Annual report. The City Manager shall prepare an annual report to the City Council identifying the balance of monies in the Fund and the affordable units provided and any monies committed to providing very-Iow-, low-, and moderate-income housing. The annual report shall also include a review of administrative charges. 8.68.090. Violations. It shall be unlawful for any person, finn, corporation, partnership or other entity that is subject to this ordinance pursuant to section 8.68.030.A to violate any provision or to fail to comply with any of the requirements of this chapter. A violation of any of the provisions or failing to comply with any of the requirements of . this Chapter shall constitute a misdemeanor; except that notwithstanding any other provisions of this Code, any such violation constituting a misdemeanor under this chapter, may in the discretion of the enforcing authority, be charged and prosecuted as an in:fraction. Any person convicted of an in:fraction under the provisions of this Code shall be punishable as provided by the Government Code of the State of California. CIty of Dublin ZonIng OrdInance 68-6 September, 1997 Rev/sed=January 2003 INCLUSIONARY ZONING REGULATIONS Chapter 8.68 8.68.1-00. Enforcement. \. General. The City Manager shall enforce this chapter, and its provisions shall be binding on all agents, successors, and assigns of an applicant. The City Manager may suspend or revoke any building permit or approval upon finding a violation of any provision of this chapter. No land-use approval, building permit, or certificate of occupancy shall be issued for any residential development unless exempt from or in compliance with this chapter. The City may institute any appropriate legal actions or proceedings necessary to ensure compliance herewìth, including, but not limited to, actions to revoke, deny, or suspend any permit or development approval. B. Excessive rents/legal action. lfthe City Manager determines that rents in excess of those allowed by operation of this chapter have been charged to a tenant residing in an affordable unit, the City may take appropriate legal action to recover, and the project owner shall be obligated to pay to the tenant, or to the City in the event the tenant cannot be located, any excess rents charged. 8.68.110. Appeals. Decisions of the City Manager under this Chapter may be appealed as provided in Chapter 8.136. CIty of Dublin Zoning Qrdlnance 68-7 September! 1997 Revised=January 2003 Credit No. Exhibit D CITY OF DU¡?LJN AFFORDABLE UNIT CREDIT CERTIFICATE This Certificate is awarded by the City of Duþlin ("City") to the Lin Family (Chang Su- O-Lin, Hong Lien Lin and Hong Yao Lin) ("Developer") PursWillt to the Fairvvay Ranch, Development Agyeement dated between the City and the Developer. By virtue ofhavÌ11,g constructedafford~ble hQusingil1 the Fairway Ranch Project, Developer is entitkd to an affordable upÌt credit in the amount of units. This certificate is effective as of occupancy was issued for certificate ,vill terminate on effective date. , the date the certificate of (address and building number). The credit , which is thirty (30) years after its Developer may use these credits to satisfy the requirements of the Inclusionary Zoning Regulations for any residential development consisting of up to a maximum of2,655 units in the Affordable Unit Credit Property (Exhibit E of the FaiT\Vay Ranch Development Agyeement), provided that Developer is in compliance with all requirements of the FaiT\Vay Ranch Development Agreement, the Regulatory Agreements and the Loan Agreement referenced in such development agreement. All other aspects of the credit which are not specified in this Credit Certificate shall be as provided in the Fairway Ranch Development Agreement and lnclusionary Zoning Regulations which are attached to such agreement as Exhibit C. CITY OF DUBLIN Date City Manager 13. EXHIBIT E DESCRIPTION ADDITIONAL PROPERTY DUBLIN RANCH DUBLIN, CALIFORNIA ~}lCEL ONE A.NDS OF HONG IJEN UN, EiAL AS DESCRIBED IN DEED RECORDED DECEMBER 15, 1999., IN OClJ\'!E,\¡T SERIES NO. 99-445131, ALAMEDA COUNTY RECORDS. fiN 985-(J()()H102 :\.&([:L nVQ A.NUS OF CHANG SU-O-UN, AS DESCRIBED IN DEED RECORDED JANUARY 6,19-82,11" DOCUMENT ERIES:.Io. 82-001756, ALA.1vlEDA COUNTY RECORDS. PN 986-0004-005-01 t}RCEL THR£,E '>E$lGNATHD RE1\1AINDER AREA NO.1" AS &HOW'N ON THE MAP OF TRACT 7135, RECORDED ON UGUST 10,2001, IN BOOK 259 OF MAPS AT PAGES 57 THROUGH 63, ALAMEDA Cm1Ñ~Y RECORDS. PN 985.19-10 ARCE11J<OUR '>ARCEL 1" AS SHO\\'N ON THE 1"vlAP OF TRACT 7148, RECORDED ON FEBRlJARY 14. 20m. l"i BÜ{)K 57 OF ¡vlAPS AT PAGES 3 THROUGH 7, AL>\MEDA COUNT'\" RECORDS. ,PN 985·09-06 AND 07 ARCEL.J']VE PARl.~EL 9" AS SHOWN ON TIlE MAP OF TRACT 7148, RECORùtID ON FEBRUARY 14, 2001, IN BOOK 57 nç' MAl'S AT PAGES 3 THROUGH 7, ALAMEDA COUNTY RECORDS. .1 ; 5·()9-15 ARCELßIX LOT 4" AS SHO\VN ON "THE MAP OF TRACT 7453, RECORDED ON NUVTIMBER 24,2003, IN BOOK 273 )F ~'1APS AT PAGES 52 THROUGH 56, ALAMEDA COUNTY RECORDS. 'ORTION OF APN 985-27-01 ',I\RCEl<.,âE VEN ANDS OF CflA..NG SU-o..UN, ETAL. DESrGNATED AS "RESULTANT REMAINDER NO.4" OF lo-r LiNE \.DJlJSTMENT NO. L-99-19, AS RECORDED ON APRIL 10,2000 IN DOCUMENT SERIES NO. 2000106747, \.LA1\>ŒDA COUNTY RECORDS. I.PN 985·27-08 AND 985-30-01 IARCE!.. EIQHT PARCEL 3" AS SHOWN ON THE MAP OF TRACT 7148, RECORDED ON FEBRUARY 14,2001, IN BOOK :57 OF MAPS AT PAGB"S:) THRQt,JGH 7, ALAMEDA COUNTY RECORDS. \PN 985-09-09 SURVEYOR NO. 5412 /Jí!~3J 03 DATE/ -~.~..~ TIPPER SPERfSLACE ! GROUP II, LP. , \- .~.~ I fiRST AMERICAN i \ TITLE GUARANTY CO. \ 1 J I 1 J CROAK VAl-FORMOSA ¡NC., et 01 0' '000",2(XX)' . 4000' i, ..STAfB·:8IGtØ1Y..I-580. EXHIBIT E AFFORDABLE UNIT CREDIT PROPERTY DUBLIN RANCH '. ..;~.,s.s aw.t~GilNÐ 'PtNNtflO.1.N4D SUItVEYlNG PL.~ CA. 946eØ' (925) 225-0690 DATE JOB NO. 16004- t 1 DRAWN , ........ . I ,;:.'. ".~. ..........., Cf1YOF OUIUN. IItIMJ _ ItUt-t STATI.··~ ·CAUnJRNIA - - --- 1-- ------~--- i , .__._---~_._-"--_._._--~~.-_.._._--------_._-----~-_...----.---.--.-....---.----... -----1 DUBLIN RANCH 'VEST CHANG SV-O LlN APN 986-0004-005-01 nUHLlN RANCH NORTH IIONG LIEN LlN HONG Y,.\.O UN APN 985-0001-002 RRA ª " l' Legend: [Z] Affected Property Exhibit F: Property Exempt From Dublin Commercial/Linkage Fee Dublin Ranch IIIACICAY.... ~ "....~~~ ~c.o. Itn,:"fU...".¡e --'~, Msp!44\C\16034\photo _iIIustrations\DR~FW-Exh_F~CornmlinkFeeExemptProp 16034-2 3/1/05 B.C. Sheet 1 of 2 DESCRIPTION LANDS OF LIN, ET AL SUBJECT TO THE MASTER DEVELOPMENT AGREEMENT WITH THE CITY OF DUBLIN ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF ALAMEDA. STATE OF CALIFORNIA. MORE pARTICULARL Y DESCRIBED AS FOLLOWS: PARCEL 'A' (FORMER REDGWICK PROPERTY) REAL PROPERTY IN THE UNINCORPORATED AREA, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, BEING THE NORTHWEST Y. OF SECTION 27. IN TO'N'NSHIp 2 SOUTH, RANGE I EAST, MOUNT DIABLO BASE AND MERIDIAN. ApN 985-0 I -02 PARCEL '8' (FORMER WALLIS PROPERTY) REAL PROPERTY IN THE UNINCORpORA TED AREA, COUNTY OF ALAMEDA, STATE OF CALIFORNIA. BEING THE LANDS OF CHANG SU-O LIN AS DESCRIBED IN DOCUMENT SERIES NO. 82-001756, RECORDED JANUARY 6. 1982 AND AS SHOWN ON SHEET 4 OF RECORD OF SURVEY NO 1005, FILED FEBRUARY 1,1993 IN BOOK 16 OF RECORD OF SURVEYS AT PAGES 37 THROUGH 51. ALL IN THE RECORDS OF ALAMEDA COUNTY. ApN 986-04-5-1 PARCEL 'C' (EAST AND SOUTH OF FAIRWAY RANCH) REAL PROPERTY IN THE CITY OF DUBLIN, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, BEING LOT 4, AS SAID LOT IS SHOWN ON THE MAP OF TRACT 7453. FILED NOVEMBER 24,2003, IN BOOK 273 OF MAPS, AT PAGES 52 THROUGH 56. ALAMEDA COUNTY RECORDS. ApN 985-27-09 PARCEL '0' (TOWN CENTER AND AREA 'H') REAL PROPERTY IN THE CITY OF DUBLIN, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, BEING PARCEL 3 AND PARCEL 9 AS SAID PARCELS ARE SHOWN ON THE MAP OF TRACT 7148, FILED FEBRUARY 14.2001. IN BOOK 257 OF MAPS. AT PAGES 3 THROUGH 7, ALAMEDA COUNTY RECORDS. ApN 985-09-92 ApN 985-09- I 5 PARCEL 'E' (AREA T) REAL PROPERTY IN THE CITY OF DUBLIN, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, BEING PARCELS 5, 6, 7, 15, 18 AND 19, AS SAIO PARCELS ARE SHOWN ON THE MAP OF TRACT 7281, FILED SEPTEMBER 3, 2004, IN BOOK 277 OF MAPS AT PAGES 82 THROUGH 88, ALAMEDA COUNTY RECORDS. pTN ApN 985-09-06, 07-03 PTN 985-27-08-6 END OF DESCRIPTION PREPARED BY: ROBERT CHAN LICENSED LAND SURVEYOR NO. 5412 (EXp.9/30106) STATE OF CALIFORNIA DATE IIACKlY'SIIIPS CIVIL ENGINEERING' lAND PlANNING'lAND SURVE'flNG 5142 Franklin Drive Suite 6, Pleasanton. CA 94588-3355 19251 225·0690 16034-2BC2-16,OSLoJ\dsOfLin.doc EXHIBIT "2" PAGE 1 of 2 ++ "- ". ". .- -.. ". .. .. +.. .... +. ++ ", · · · ;. \ ~ I · . . \ ': .~ , , ,~~..~ SPERFSLAGE o' I 1000' 2000' PARCEL B ......................... . MISSION PEAK: FREDRICH HAIGHT PARCEL A ~ SILVERIA "~) ~ ........................ ""~4¡) I, , , I , , \ \ \ \ \ I I I I I I I , , I I I I I I I I BRADDOCK & LOGAN GROUP II, L.P. ~ ¡DUBLIN RANCH o i PHASE 1 ~: · #=u~------ ~ I ¡ < : -.. ~---L__. FIRST AMERICAN ~ : \ TITLE GUARANTY CO. ~ 11 IPARCEL E \ , ! ________J I PARCEL E , rr....... --- , I ! I Of:........... .. . . ---1ARCEL E \\\ ,J I "'Ì C) ¡-- ..__m____________nm .... : ~(~ f¡f! f1 ¡ ~r:: I ': ~ u: 01 .: gl.:¡ , II : Q:" 4&::-'" .... ¡ I~: ~ ~ : Z:: :ROYAL-FORMOSA INC. : :......:::.:....L_ --I : PARCEL C ~!:, et 01 I · .... ----~ \ I.' : ................... n.. :¡ J. . ...-.c;r. ! ¡ PARCEL D ~ :r' EBJ PARTNERS ¡. . . I :............: .... 1iIIIII..... .......... ........... ... ..... CROAK 4000' a.. -' u1 0::: W :z: I- 0::: <C a.. ::c C) ::J <:( Z <:( 0::: CD STATE IDGHWAY 1-580 STATE OF CAUFORNIA lDAelAY & somps CIVIL ENGINEERING-LAND PLANNING.LAND SURVEYING PLEASANTON, CA. 94588 (925) 225-0690 DATE 3-1-05 JOB NO. 16034-2 DRAWN BY: LH DWG.: EXIBIT A EXHIBIT "2" - SHEET 2 OF 2 LANDS or LlN, ETAL SUBJECT TO DEVELOPMENT AGREEMENT COUNTY OF ALAMEDA 3-01-2005 09:26:21 dlala P:\I6034-2\SURVEY\7281-plols\Exhibil ·A·.dwg PAGE 2 of 2