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HomeMy WebLinkAboutOrd 02-23 Approving a Development Agreement Between The City Of Dublin and Bex Development Related to the Branaugh Property ProjectOrd. No. 02-23, Item 4.3, Adopted 03/21/2023 Page 1 of 3 ORDINANCE NO. 02 - 23 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND BEX DEVELOPMENT RELATED TO THE BRANAUGH PROPERTY PROJECT (PLPA-2021-00014) (APN 905-0001-004-04) The Dublin City Council does ordain as follows: SECTION 1. RECITALS A. The Branaugh Property is located in the Fallon Village Project area. Through Ordinance No. 32-05, the City Council adopted a Stage 1 PD-Planned Development Rezone Amendment for the Fallon Village Project Area which, among other approvals, established the maximum number of residential units at 3,108 units for the Fallon Village Project Area. B. The Applicant, Randy Branaugh, is requesting approval of a Planned Development Zoning Stage 2 Development Plan and amendments to the Stage 1 Development Plan. The proposed Project would allow up to 97 residential units and 527,773 square feet of industrial uses. Requested land use approvals include a Planned Development Zoning Stage 2 Development Plan, amendments to the Stage 1 Development Plan, Vesting Tentative Parcel Map No. 9306, and a Development Agreement among other related actions. These planning and implementing actions are collectively known as the “Branaugh Property Project” or the “Project.” C. The 40.16-acre Project site (APN 905-0001-004-04) is located in eastern Dublin, north of Interstate 580 and immediately adjacent to the City limit and urban limit line. D. Pursuant to the requirements of the California Environmental Quality Act (CEQA), the City prepared an Addendum for the Project, which reflected the City’s independent judgment and analysis of the potential environmental impacts of the Project. Prior CEQA analysis for the Project area includes: 1) the Eastern Dublin General Plan Amendment and Specific Plan EIR (1993); 2) the East Dublin Properties Stage 1 Development Plan and Annexation Supplemental EIR (2002); and 3) the Fallon Village Supplemental EIR (2005). Collectively, these three environmental review documents are referred to as the “EDSP EIRs.” E. The proposed Development Agreement is attached to this Resolution as Exhibit A. F. The Planning Commission held a public hearing on the proposed Development Agreement on February 14, 2023, for which public notice was given by law. G. The Planning Commission recommended that the City Council approve the Branaugh Property Project including the Development Agreement by Resolution No. 23-01. H. A public hearing on the proposed Development Agreement was held before the City Council on March 7, 2023 for which public notice was given as provided by law. Ord. No. 02-23, Item 4.3, Adopted 03/21/2023 Page 2 of 3 I. The City Council has considered the recommendation of the Planning Commission, including the Planning Commission’s reasons for its recommendation, the Agenda Statement, all comments received in writing, and all testimony received at the public hearing. SECTION 2: FINDINGS AND DETERMINATIONS Therefore, on the basis of : (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin General Plan; (c) the Eastern Dublin Specific Plan, (d) the EDSP EIRs and Addendum prepared for the Project; (e) the Staff Report; (f) information in the entire record of proceeding for the Project, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: A. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City’s General Plan, and in the Eastern Dublin Specific Plan in that: (a) the Development Agreement incorporates the objectives policies, general land uses and programs in the General Plan and Specific Plan and does not amend or modify them; and (b) the Project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to the provision of infrastructure and public services. B. The Development Agreement is compatible with the uses authorized in, and the regulat ions prescribed for, the land use districts in which the real property is located because the Development Agreement does not amend the uses or regulations in the applicable land use district. C. The Development Agreement is in conformity with public convenience, general welfare, and good land use policies in that the Developer’s Project will implement land use guidelines set forth in the Eastern Dublin Specific Plan and the General Plan. D. The Development Agreement will not be detrimental to the health, safety, and general welfare in that the Developer’s proposed Project will proceed in accordance with all the programs and policies of the General Plan, Eastern Dublin Specific Plan, and future Project Approvals and any Conditions of Approval. E. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan, the Eastern Dublin Specific Plan, and future project approvals. F. The Development Agreement specifies the duration of the agreement, the permitted uses of the property, and the obligations of the Applicant. The Development Agreement contains an indemnity and insurance clause requiring the developer to indemnify and hold the City harmless against claims arising out of the development process, including all legal fees and costs. SECTION 3. APPROVAL The City Council hereby approves the Development Agreement (Exhibit A to the Ordinance) and authorizes the City Manager to execute it. Ord. No. 02-23, Item 4.3, Adopted 03/21/2023 Page 3 of 3 SECTION 4. RECORDATION Within ten (10) days after the Development Agreement is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. SECTION 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 21st day of March 2023 by the following votes: AYES: Councilmembers Hu, Josey, McCorriston, Qaadri and Mayor Hernandez NOES: ABSENT: ABSTAIN: _____________________________________ Mayor ATTEST: ________________________________ City Clerk RECORDING REQUESTED BY: CITY OF DUBLIN WHEN RECORDED MAIL TO: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorderʼs use DEVELOPMENT AGREEMENT BETWEEN THE CIT Y OF DUBLIN AND BEX DEVELOPMENT, LLC FOR T HE BRANAUGH PROJECT Exhibit A 2 THIS DEVELOPMENT AGREEMENT (this “Agreement” or this “Development Agreement”) is made and entered into for reference purposes on this day of , 2023, by and between the City of Dublin, a Municipal Corporation (hereafter “City”), and Bex Development, LLC, a California Limited Liability Company (hereafter “Developer”) pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. City and Developer are, from time-to-time, individually referred to in this Agreement as a “Party,” and are collectively referred to as “Parties.” RECITALS A. California Government Code §§ 65864 et seq. (“Development Agreement Statute”) and Chapter 8.56 of the Dublin Municipal Code (hereafter “Chapter 8.56”) authorize the City to enter into a Development Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property. B. Developer owns certain real property (the “Property”) consisting of approximately 40 acres of land, as more particularly described in Exhibit A, Legal Description of Property, attached hereto and incorporated herein by reference. C. Developer has applied for, and City has approved, various land use approvals in connection with a project consisting of up to 97 residential units and up to 527,773 square feet of industrial development (the “Project”), including, without limitation, an amendment to Planned Development Zoning Ordinance No. 32.-05 Stage 1 Development Plan (Ord. No. ___ adopted on ______, 2023), a Stage 2 Planned Development Rezoning and Development Plan for the Branaugh Project (Ord. No. ___ adopted by the City Council on ______, 2023), Vesting Tentative Parcel Map 9306 for the Branaugh Project (Resolution No. ___ adopted on ______, 2023), and this Agreement (approved by the DA Approving Ordinance (defined below)) (collectively the “Project Approvals”). D. City desires the timely, efficient, orderly and proper development of the Project. E. The City, in collaboration with the City of Livermore, is the lead agency that desires to construct a project generally described as the roadway extension of Dublin Boulevard from Fallon Road to the Dublin city limits, continuing easterly through unincorporated Alameda County and connecting to North Canyons Parkway within the City of Livermore, commonly referred to as 3 the proposed Dublin Boulevard – North Canyons Parkway Extension Project ("Dublin Boulevard Extension”). On September 3, 2019, the City Council adopted Ordinance No. 10-19 to establish Right-of-Way Lines for Dublin Boulevard between Fallon Road and the Eastern City Limit (“Precise Plan”). F. The Valley Link Rail project (“Valley Link Project”) is a new 47-mile, 7-station passenger rail project that establishes rail connectivity between the Bay Area Rapid Transit (BART) system at the existing Dublin/Pleasanton BART Station in Alameda County to the approved Altamont Corridor Express (ACE) North Lathrop Station in San Joaquin County. The proposed project will impact existing transportation corridors, including the existing Interstate 580 (“I-580”) corridor in the City. The Valley Link Project proposes relocation of Collier Canyon Road to accommodate the passenger rail line. The addition of a new rail system would require widening of I-580 right-of-way to the north and respective relocation of Collier Canyon Road (the “Collier Canyon Roadway Relocation”). G. City and Developer have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein. H. The development of the Property and the Project has been evaluated in three environmental impact reports certified by the City: (1) Eastern Dublin General Plan Amendment and Specific Plan Environmental Impact Report, State Clearinghouse No. 91103064; (2) East Dublin Properties Stage 1 Development Plan and Annexation Supplemental EIR (State Clearinghouse No. 2001052114); and (3) Fallon Village Project Draft Supplemental Environmental Impact Report (State Clearinghouse Number 2005062010) (collectively, “Prior EIRs”). The Prior EIRs specifically addressed the General Plan, Specific Plan and Stage 1 Planned Development Zoning and Development Plan for the Project. An Initial Study was prepared for the amendment to Planned Development Zoning Ordinance No. 32.-05 Stage 1 Development Plan, Stage 2 Planned Development Rezoning and Development Plan, a Vesting Tentative Parcel Map 9306, and this Development Agreement to determine whether these approvals will result in any new or substantially more severe significant environmental impacts than those analyzed in these prior EIRs or any other standard requiring further environmental review under CEQA are met (Public Resources Code section 21166 and CEQA Guidelines sections 15162 and 15163). The Initial Study determined that these approvals did not trigger any of the CEQA standards requiring further environmental review. An Addendum was prepared for these approvals explaining the basis for finding no further review is required under CEQA pursuant to CEQA Guidelines section 15164(e). The City Council considered and 4 approved the findings in the Addendum (Reso. No. ___ adopted on ______, 2023) prior to approving the amendment to Planned Development Zoning Ordinance No. 32.-05 Stage 1 Development Plan, Stage 2 Planned Development Rezoning and Development Plan, a Vesting Tentative Parcel Map 9306, and this Development Agreement. I. City has given the required notice of its intention to adopt this Development Agreement and has conducted public hearings thereon pursuant to Government Code Section 65867 and Chapter 8.56. As required by Government Code Section 65867.5, City has found that the provisions of this Development Agreement and its purposes are consistent with the goals, policies, standards and land use designations specified in Cityʼs General Plan. J. On ____________________, 2023, the City of Dublin Planning Commission, the initial hearing body for purposes of development agreement review, recommended approval of this Development Agreement pursuant to Resolution No. ___. K. On ____________________, 2023, the City Council of the City of Dublin adopted Ordinance No. ___ approving this Development Agreement (the “DA Approving Ordinance”). The DA Approving Ordinance took effect on ___, 2023. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, City and Developer agree as follows: AGREEMENT 1. Description of Property. The Property that is the subject of this Agreement is described in Exhibit A. 2. Interest of Developer. Developer has a legal interest in the Property in that it is the owner of the Property. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by the City and Developer and that neither City nor Developer is an agent of the other. The City and Developer hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein 5 or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. 4.Effective Date and Term 4.1 Effective Date. The effective date of this Agreement (“Effective Date”) is the date upon which the DA Approving Ordinance takes effect. 4.2 Te rm . The term of this Agreement shall commence on the Effective Date and shall continue for 10 (ten) years thereafter, unless said term is otherwise extended or terminated as provided in this Agreement (as so extended or terminated, the “Term”). In the event that any third-party lawsuit is filed challenging the Cityʼs issuance of the Project Approvals or its compliance with CEQA, the Term of this Agreement shall be automatically extended for a duration equal to the time from the filing of such lawsuit to the entry of a final order dismissing or otherwise finally terminating such lawsuit, which duration shall include any appeals (“Litigation Extension”). If required by one of the parties, the other party shall enter into a Clarification pursuant to Section 9.4 below memorializing the length of such Litigation Extension. This Agreement shall terminate with respect to any for sale residential lot and such lot shall be released and no longer subject to this Agreement, without the execution or recordation of any further document, when a certificate of occupancy has been issued for the building(s) on such lot. 4.3 Optional Extension. Prior to the expiration of the Term 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 payment to City in the amount of $250,000 (adjusted for inflation from the Effective Date using the CPI-U, San Francisco-Oakland-San Jose Area) for each year of extension requested under this provision. Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the Developer in writing that the Term of the Development Agreement has been automatically extended for an additional time period equal to the time period requested by Developer under this provision, commencing on the date the Development Agreement would otherwise have terminated; provided Developer may exercise its option to extend the Development Agreement no more than five times, for a maximum total Term of the Development Agreement of fifteen years (plus any extensions pursuant to Sections 4.2 or 4.3 hereof). Provided there is an extension period remaining, Developer may request the extension for multiple 6 years and provide the payment due for each yearʼs extension. Each extension shall apply to the entire Property upon payment of one $250,000 (as adjusted in accordance with this Section 4.3) per year extension payment, even if the Property is owned by multiple Developers at that time. 4.4 Te rm of Project Approvals. The term of any Project Approvals (as defined in Recital C) for the Property or any portion thereof, specifically including without limitation the Vesting Tentative Parcel Map 9306, shall be extended automatically for the Term of this Agreement. 4.4.1 Termination of Agreement. In the event that this Agreement is terminated prior to the expiration of the Term, the term of any Project Approval and the vesting period for any final subdivision map approved as a Project Approval shall be the term otherwise applicable to the approval. 5. Vested Rights/Use of the Property/Applicable Law/Processing 5.1 Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of (i) this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement, and (ii) the Cityʼs ordinances, codes, resolutions, rules, regulations and official policies governing the development, construction, subdivision, occupancy and use of the Project and the Property including, without limitation, the General Plan, the Dublin Municipal Code, and the Specific Plan, the permitted uses of the Property, density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings, and the provisions for reservation or dedication of land for public purposes that are in force and effect on the Effective Date of this Agreement (collectively, “Applicable Law”). In exercising its discretion when acting upon subsequent project approvals, City shall apply the Applicable Law as the controlling body of law (within which Applicable Law such discretion shall be exercised). Notwithstanding the foregoing or anything to the contrary herein, any amendment to the Project Approvals shall not become part of the law Developer is vested into under this Agreement unless an additional amendment of this Agreement is entered into between Developer and City in accordance with this Agreement. In the event that such amendments to the Project Approvals are sought for any distinct portion of the Property or Project, such amendments shall not require amendment of this Agreement with respect to any other portion of the Property or Project, except to the extent set forth in such amendment. 7 5.2 Fees, Exactions, Dedications. The City shall not apply to the Project any development impact fee or any application, processing or inspection fee (collectively, “Fees”) that the City first enacts after the Effective Date. Except as otherwise set forth in this Agreement, City and Developer agree that this Agreement does not limit the Cityʼs discretion to impose or require (a) payment of any fees in connection with the issuance of any subsequent project approvals as necessary for purposes of mitigating environmental and other impacts of the Project, (b) dedication of any land, or (c) construction of any public improvement or facilities (collectively “Exactions”). Except as specifically provided herein, nothing in this Agreement shall limit the Cityʼs ability to impose existing development impact Fees at rates that are increased beyond the amounts in effect on the Effective Date or limit Developer ʼs ability to challenge any such increases under state or local law. 5.3 Construction Codes. Notwithstanding the provisions of Section 5.1 above, to the extent Applicable Law includes requirements under the state or locally adopted building, plumbing, mechanical, electrical and fire codes (collectively the “Codes”), the Codes included shall be those in force and effect at the time Developer submits its application for the relevant building, grading, or other construction permits to City. In the event of a conflict between such Codes and the Project Approvals, the Project Approvals shall, to the maximum extent allowed by law, prevail. For construction of public infrastructure, the Codes applicable to such construction shall be those in force and effect at the time of execution of an improvement agreement between City and Developer pursuant to Chapter 9.16 of the Dublin Municipal Code. 5.4 New Rules and Regulations. 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 only to the extent they are not in conflict with the vested rights granted by the Applicable Law, the Project Approvals or this Agreement. In addition to any other conflicts that may occur, each of the following new or modified ordinances, resolutions, rules, regulations or official policies shall be considered a per se conflict with the Applicable Law: 5.4.1 Any application or requirement of such new or modified ordinances, resolutions, rules, regulations or official policies that would (i) cause or impose a substantial financial burden on, or materially delay development of the Property as otherwise contemplated by this Agreement or the Project Approvals, (ii) frustrate in a more than insignificant way the intent or purpose of the Project Approvals or preclude compliance therewith including, 8 without limitation, by preventing or imposing limits or controls in the rate, timing, phasing or sequencing of development of the Project; (iii) prevent or limit the processing or procuring of subsequent project approvals; or (iv) reduce the density or intensity of use of the Property as a whole, or otherwise requiring any reduction in the square footage of, or total number of, proposed buildings, structures and other improvements, in a manner that is inconsistent with or more restrictive than the limitations included in this Agreement and the Project Approvals; and/or 5.4.2 If any of such ordinances, resolutions, rules, regulations or official policies do not have general (City-wide) applicability. 5.5 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, if a City ordinance, resolution, policy, directive, or other measure is enacted or becomes effective, whether by action of the City or by initiative, and if it imposes a building moratorium which affects all or any part of the Project, City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code section 8558, provided that to the extent a moratorium applies to all or any part of the Project then the Term shall automatically be extended for a period of time equal to the period of the moratorium. 5.6 Revised Application Fees. Notwithstanding section 5.2, 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 and are consistent with State law limitations that processing fees not exceed the estimated reasonable cost of providing the service for which they are charged; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent, impose a substantial financial burden on, or materially delay development in accordance with this Agreement. By so agreeing, Developer does not waive its rights to challenge the legality of any such application, processing and/or inspection fees. 5.7 New Taxes . This Agreement shall not prohibit the application of any subsequently enacted city-wide taxes to the Project provided that (1) the application of such taxes to the Property is prospective, and (2) the application of such taxes would not prevent development in accordance with this Agreement. By so agreeing, Developer does not waive its rights to challenge the legality of 9 any such taxes, facially or as applied to its Project or Property, or to claim exemption from any taxes to the extent allowed by law. 5.8 Development of the Project; Phasing, Timing. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such partiesʼ agreement, it is the Partiesʼ intent to cure that deficiency by acknowledging and providing that this Agreement contains no requirements that Developer must initiate or complete any action, including without limitation, development of the Project within any period of time set by City. Nothing in this Agreement is intended to create nor shall it be construed to create any affirmative development obligations to develop the Project, or liability in Developer under this Agreement if the development fails to occur. It is the intention of this provision that Developer be able to develop the Property in accordance with its own time schedules and the Project Approvals. 5.9 Processing. Nothing in this Agreement shall be construed to limit the authority or obligation of City to hold necessary public hearings, nor to limit the discretion of City or any of its officers or officials with regard to subsequent project approvals that require the exercise of discretion by City, provided that such discretion shall be exercised consistent with the vested rights granted by this Agreement, the Applicable Law and the Project Approvals. 6. Property Grading. 6.1 Phasing. For mutual benefit, the Parties desire a mass grading of the Property prior to the Dublin Boulevard Extension through the Property. Pursuant to Dublin Municipal Code Section 7.16.170(B), when the intended use of a site requires approval of a discretionary zoning permit, a grading permit shall not be issued until said approval. The Parties agree that the intended use, exclusively for purposes of Dublin Municipal Code Section 7.16.170(B) and this Section, shall mean the Dublin Boulevard Extension. In accordance with this Section, Developer may apply for, and City may issue a grading permit, notwithstanding approval of a discretionary zoning permit for the intended use of the remainder of the Project site. 6.2 Slope Easement. The Project Approvals require Developer to dedicate a Slope Easement (“SE”) for that portion of the Property adjacent to the future Dublin Boulevard frontage, if mass grading has not commenced per the 10 preliminary grading plan as shown on the Vesting Tentative Parcel Map 9306. Developer shall cooperate in good faith with the City Engineer on the extent of the SE dedication necessary to accommodate the Dublin Boulevard Extension. The SE shall be dedicated by separate instrument, in a form satisfactory to the City Engineer and City Attorney, prior to the first final or parcel map filed by Developer within the three-year period referenced in Section 8.1. If a final or parcel map is not filed by Developer within the three-year period, the SE shall be dedicated in conjunction with the Dublin Boulevard Extension right-of-way dedication described in Section 8.1. 7. Affordable Housing. 7.1 Units Required by Regulations. Developer proposes up to 97 residential units on the Property. Pursuant to the Cityʼs Inclusionary Zoning Regulations (Chapter 8.68 of the Dublin Municipal Code) (the “Regulations”), developers of more than 20 residential units are required to set aside 12.5% of the total number of units in the project as affordable units as specified. 7.2 Alternative Compliance Authorized. Under the Regulations, certain exceptions permit developers to satisfy the obligation other than through on-site construction. For instance, part of this obligation can be satisfied through the payment of a fee in-lieu of construction of units. In addition, developers can satisfy their affordable housing obligations by, among other mechanisms, obtaining City Council approval of an alternative method of compliance that the City Council finds meet the purposes of the Regulations. 7.3 Satisfaction of City Requirements. Developer shall satisfy its affordable housing obligation through compliance with the Regulations. 8. Right-of-Way Dedications. 8.1 Dublin Boulevard Extension. The Project Approvals require Developer to dedicate a portion of the Property to the City in fee as right-of-way for the Dublin Boulevard Extension, in general conformance with the adopted Precise Plan, the most current design plans on file with the office of the City Engineer at the time of dedication, and the Vesting Tentative Parcel Map 9306. Such dedication shall occur no later than three (3) years from the approval date of the Vesting Tentative Parcel Map 9306. The dedicated right-of-way shall be shown on the first final or parcel map filed within three-years of the approval date of Vesting Tentative Map 9306. If a final or parcel map is not filed within the three-year period, the right-of-way shall be dedicated by a separate deed instrument, in a form satisfactory to the City Engineer and City Attorney. The 11 City shall provide Eastern Dublin Transportation Impact Fee (EDTIF) credits for the dedicated right-of-way with the amount of the credits to be determined by the EDTIF Guidelines. 8.2 Collier Canyon Road Realignment. The Project Approvals require Developer to dedicate, or make an irrevocable offer of dedication for, that portion of the Property to the City in fee as right-of-way necessary for the Collier Canyon Road Realignment, in general conformance with the Vesting Tentative Parcel Map 9306, and the most current design plans on file with the office of the City Engineer at the time of dedication. The dedicated right-of-way shall be shown on the first final or parcel map filed. Alternatively, subject to City Engineer approval, the right-of-way may be dedicated by an easement deed for public roadway purposes, in a form satisfactory to the City Engineer and City Attorney. Any such easement deed shall prohibit construction of any permanent improvements and structures, as determined by the City Engineer, within the future right-of-way. 9. Community Facilities District - Mitigation of Dublin Boulevard Extension Permanent Indirect Impacts. 9.1 Mitigation of Permanent Indirect Impacts. Construction of the Dublin Boulevard Extension will impact potential habitat for several special- status species, including California tiger salamander and California red-legged frog. The U.S. Fish and Wildlife Service Biological Opinion 1 issues for the Dublin Boulevard Extension project and the mitigation measures of the Dublin Boulevard Extension projectʼs Environmental Impact Report, require the City to provide compensatory mitigation for impacts to these speciesʼ habitat. To satisfy the compensatory mitigation requirements, the City proposes to provide project- specific mitigation in the form of in-perpetuity preservation, enhancement, and management of suitable habitat for these species. The impacts are categorized into permanent direct impacts, permanent indirect impacts, and temporary impacts. The permanent indirect impacts are identical to the Projectʼs potential permanent direct impacts resulting from the Projectʼs construction. The permanent indirect impacts on the Property is approximately 1.34 acres, which may require a compensatory mitigation at a ratio of 3 to 1, for approximately 4.02 acres. 9.2 Community Facilities District. Developer agrees to cooperate in the formation of, or annexation into, a community facilities district or districts established pursuant to the Mello-Roos Community Facilities District Act of 1982 (Gov. Code §§ 53311–53368.3) (the “Mello-Roos Act”) including 12 approval of the Rate, Method of Apportionment and Manner of Collection of Special Tax ("RMA") for the purpose of financing the Cityʼs acquisition of facilities required for the off-site mitigation of the Dublin Boulevard Extensionʼs permanent indirect impacts (described in Section 9.1). Developer and City agree that the boundaries of the district(s) will include all of the Property as more particularly described in Exhibit A, and that Developer will not contest and will, for and on behalf of all of the Property, vote in favor of formation of or annexation into the district(s) prior to filing the first final map. Developer shall pay its fair share of administrative costs incurred by the City associated with the formation of and/or annexation into the district(s), as determined by the City Engineer. 9.3 Alternative Mitigation. Notwithstanding the foregoing, City agrees that Developer may pursue alternatives to mitigate the impacts described in Section 9.1. If Developer directly acquires mitigation land or credits, fully satisfying the mitigation required by Section 9.1, Developer shall be exempt from compliance with Section 9.2. The City Engineer shall determine, in their sole discretion, whether Developerʼs alternative method fully satisfies Developerʼs mitigation requirements as set forth in Section 9.1. 10. Community Facilities District – Service and Maintenance of Project Facilities and Improvements. 10.1 Community Facilities District. Developer agrees to cooperate in the formation of, or annexation into, a community facilities district or districts established pursuant to the Mello-Roos Community Facilities District Act of 1982 (Gov. Code §§ 53311–53368.3) (the “Mello-Roos Act”) including approval of the Rate, Method of Apportionment and Manner of Collection of Special Tax ("RMA") for the purpose of financing the services and maintenance of certain public facilities/improvements constructed by the Developer. Developer agrees that the boundaries of the district(s) will include all of the Property, and that Developer will not contest and will, for and on behalf of all of the Property, vote in favor of formation of or annexation into the district(s) prior to filing the first final map. Developer shall pay its fair share of administrative costs incurred by the City associated with the formation of and/or annexation into the district(s), as determined by the City Engineer. 10.2 Alternative Method of Compliance. Notwithstanding the foregoing, City agrees that Developer may alternatively establish a maintenance fund, in an amount to be determined by the City Engineer, that compensates for all future maintenance of all public streets (including storm drain systems, street 13 lights, and other street appurtenances) within Parcels 1 and 2 (future residential tract), as shown on the Vesting Tentative Parcel Map 9306, for a period of twenty (20) years after Cityʼs acceptance of improvements. If Developer complies with this Section 10.2 prior to filing the first final map, Developer shall be exempt from compliance with Section 10.1. 11. Eastern Dublin Transportation Impact Fee Credits. Developer shall not use or apply any EDTIF credits that it purchased or transferred from any other credit-holder to satisfy Developerʼs obligations set forth herein. 12. General Plan Amendments. City acknowledges that Developer intends to apply for a General Plan amendment to accommodate the following changes, which shall be subject to the City Councilʼs sole discretion to approve or deny, following review and recommendation by the Planning Commission in accordance with Government Code Section 65350 et seq. and environmental review to the extent required by the California Environmental Quality Act: 12.1 Increase the Industrial Park designationʼs maximum Floor Area Ratio to 0.50; and/or 12.2 Change certain Property land use designations from Industrial Park to General Commercial/Campus Office. 13. Amendment or Cancellation. 13.1 Modification Because of Conflict with State or Federal Laws. The Project and Property shall be subject to state and federal laws and regulations and this Agreement does not create any vested right in state and federal laws and regulations in effect on the Effective Date. In the event that state or federal laws or regulations enacted after the Effective Date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be subject to approval by the City Council (in accordance with Chapter 8.56). Each Party agrees to extend to the other its prompt and reasonable cooperation in so modifying this Agreement or approved plans. 13.2 Amendment of Development Agreement by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the Parties hereto and in accordance with the procedures of the 14 Development Agreement Statute and Chapter 8.56. Review and approval of an amendment to this Development Agreement shall be strictly limited to consideration of only those provisions to be added or modified. No amendment, modification, waiver or change to this Development Agreement or any provision hereof shall be effective for any purpose unless specifically set forth in a writing that expressly refers to this Development Agreement and signed by the duly authorized representatives of both Parties. 13.2.1 Partial Amendment. When a Party seeking such an amendment owns or has an equitable right to only a portion of the whole of the Property (“Portion”), then such Party may only seek amendment of this Agreement as directly relates to the Portion, and the Party owning any other Portion shall not be required or entitled to be a signatory or to consent to an amendment that affects only another Party's Portion. 13.3 Amendments. Any amendments to this Agreement which relate to (a) the Term; (b) the permitted uses of the Property as provided in paragraph 5.1; (c) provisions for “significant” reservation or dedication of land; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) an increase in the density or intensity of use of the overall Project; (f) the maximum height or size of proposed buildings; or (g) monetary contributions by Developer as provided in this Agreement, shall be deemed an “Amendment” and shall require notice or public hearing before the Planning Commission and the City Council before the Parties may execute an amendment hereto. The Cityʼs Public Works Director shall determine whether a reservation or dedication is “significant” in the context of the overall Project. 13.4 Clarifications. If and when, from time to time, during the Term of this Agreement, City and Developer agree refinements and clarifications are necessary or appropriate with respect to the details of performance of City and Developer hereunder, City and Developer shall effectuate such clarifications through letter agreements (each, a “Clarification”) approved by City and Developer, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further clarified from time to time as necessary with future approval by City and Developer. No such Clarification shall constitute an amendment to this Agreement requiring public notice or hearing. The City Manager or his or her designee shall have the authority to determine on behalf of City whether a requested clarification is of such a character to constitute an Amendment subject to Section 9.3 above or a Clarification subject to this Section 9.4. The City Manager shall have the 15 authority to review, approve, and execute Clarifications to this Agreement provided that such Clarifications are not Amendments. 13.5 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 the Development Agreement Statute and Chapter 8.56. Any fees paid pursuant to this Agreement prior to the date of cancellation shall be retained by the City. 14. Annual Review. 14.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2023, and thereafter between each July 15 and August 15 during the Term. Review shall be conducted in accordance with Section 8.56.140 of Chapter 8.56 and the provisions of this Section 11. 14.2 Initiation of Review. The Cityʼs Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to Developer thirty daysʼ prior written notice that the City intends to undertake such review. Not less than thirty days after receipt of the notice, Developer shall provide evidence to the Director, as reasonably determined necessary by the Director, to demonstrate good faith compliance with the material terms and provisions of the Agreement as to the whole or relevant portion of the Property owned by Developer. The burden of proof by substantial evidence of compliance is upon Developer. 14.3 Staff Reports. To the extent practical, the City shall deposit in the mail to Developer a copy of all staff reports, and related exhibits concerning contract performance at least five days prior to any public hearing addressing annual review. 14.4 Costs. Costs reasonably incurred by the City in connection with the annual review shall be paid by Developer in accordance with the Cityʼs schedule of fees in effect at the time of review. 15. Default. 15.1 Remedies Available. Upon the occurrence of an event of default, the parties may pursue all remedies at law or in equity which are not otherwise provided for in this Agreement or in the Cityʼs regulations governing 16 development agreements, expressly including, but not limited to, the remedy of specific performance of this Agreement. 15.2 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. Subject to a Mortgageeʼs right to cure pursuant to Section 13.3 hereof, if the default is not cured by the defaulting party within thirty 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 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 day period and diligently pursues such cure to completion. Any n otice of default given hereunder shall specify in detail the nature of the failures in performance that the noticing Party claims constitutes the event of default, all facts constituting substantial evidence of such failure, and the manner in which such failure may be satisfactorily cured in accordance with the terms and conditions of this Agreement. During the time periods herein specified for cure of a failure of performance, the Party charged therewith shall not be considered to be in default for purposes of (a) termination of this Agreement, (b) institution of legal proceedings with respect thereto, or (c) issuance of any approval with respect to the Project. Failure to give notice shall not constitute a waiver of any default. 15.3 No Damages against City. Notwithstanding anything to the contrar y contained herein, in no event shall damages be awarded against the City upon an event of default or upon termination of this Agreement. 16. Estoppel Certificate. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the Parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying Party, the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certificate within thirty days following the receipt thereof, or such longer period as may reasonably be agreed to by the Parties. The City Manager of the City shall be authorized to execute any certificate requested by Developer. Should the Party receiving the request not execute and return such certificate within the applicable period, this shall not be 17 deemed to be a default, provided that such Party shall be deemed to have certified that the statements in clauses (a) through (c) of this Section are true, and any Party may rely on such deemed certification. City acknowledges that a certificate hereunder may be relied upon by Transferees (as defined in Section 16.2) and Mortgagees (as defined in Section13.1). 17. Mortgagee Protection; Certain Rights of Cure. 17.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage (“Mortgage”). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee (“Mortgagee”) who acquires title to the Property, or any portion thereof, by foreclosure, trusteeʼs sale, deed in lieu of foreclosure, or otherwise. 17.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 13.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 17.3 Notice of Default to Mortgagee and Extension of Right to Cure. If the 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 the City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by the City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the Cityʼs notice. The City, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty days upon request of Developer or a Mortgagee. 18 18.Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal; provided that, if the unenforceability, invalidation, or illegality would deprive either City or Developer of material benefits derived from this Development Agreement, or make performance under this Development Agreement unreasonably difficult, then City and Developer shall meet and confer and shall make good faith efforts to amend or modify this Development Agreement in a manner that is mutually acceptable to City and Developer. 19.Attorneysʼ Fees and Costs. 19.1 Prevailing Party. If the City or Developer initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs in addition to any other relief to which it may otherwise be entitled. 19.2 Third Party Challenge. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any the Project Approvals (including this Agreement), the Parties shall cooperate in defending such action. The Parties hereby agree to affirmatively cooperate in defending said action and to execute a joint defense and confidentiality agreement in order to share and protect information, under the joint defense privilege recognized under applicable law. Developer shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse the City for all reasonable court costs and attorneysʼ fees expended by the City in defense of any such action or other proceeding 20.Transfers and Assignments. 20.1 Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned 19 property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 20.2 Right to Assign. Developer may wish to sell, transfer or assign all or portions of its Property to other developers (each such other developer is referred to as a “Transferee”). In connection with any such sale, transfer or assignment to a Transferee, Developer shall have the right to sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer arising hereunder and that pertain to the portion of the Property being sold or transferred, to such Transferee, provided, however, that: except as provided herein, no such transfer, sale or assignment of Developerʼs rights, interests and obligations hereunder shall occur without prior written notice to City and approval by the City Manager, which approval shall not be unreasonably withheld, conditioned, or delayed. 20.3 Approval and Notice of Sale, Transfer or Assignment. The City Manager shall consider and decide on any transfer, sale or assignment of this Agreement within ten days after Developerʼs notice, provided all necessary documents, certifications and other information are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform Developerʼs obligations hereunder. Notice of any such approved sale, transfer or assignment (which includes a description of all rights, interests and obligations that have been transferred and those which have been retained by Developer) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. 20.4 Considerations for Approval of Sale, Transfer or Assignment. In considering the request, the City Manager shall base the decision upon the proposed assignee's reputation, experience, financial resources and access to credit and capability to successfully carry out the development of the Property to completion. The City Manager's approval shall be for the purposes of: a) providing notice to City; b) assuring that all obligations of Developer are allocated as between Developer and the proposed purchaser, transferee or assignee as provided by this Agreement; and c) assuring City that the proposed purchaser, transferee or assignee is financially capable of performing Developer's obligations hereunder not withheld by Developer. Notwithstanding the foregoing, the City Managerʼs approval shall not be required for an 20 assignment to an entity or entities controlling Developer, controlled by Developer, or under common control with Developer, provided that Developer owns and controls no less than fifty percent of such successor entity or controls the day-to-day management decisions of such successor entity. 20.5 Release upon Transfer. Upon the transfer, sale, or assignment of all of Developerʼs rights, interests and obligations hereunder pursuant to Section 14.2 of this Agreement, Developer shall be automatically released from the obligations under this Agreement, with respect to the Property transferred, sold, or assigned, arising subsequent to the date of City Manager approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or assignee approved by the City Manager expressly assumes all of the rights, interests and obligations of Developer under this Agreement, Developer shall be released with respect to all such rights, interests and assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval. 20.6 Developerʼs Right to Retain Specified Rights or Obligations. Developer may withhold from a sale, transfer or assignment of this Agreement or any portion of the Property transferred, certain rights, interests and/or obligations which Developer wishes to retain, provided that Developer specifies such rights, interests and/or obligations in a written document to be appended to this Agreement and recorded with the Alameda County Recorder prior to the sale, transfer or assignment of the Property. Developerʼs purchaser, transferee or assignee shall then have no interest or obligations for such rights, interests and obligations and this Agreement shall remain applicable to Developer with respect to such retained rights, interests and/or obligations. 20.7 Partial Assignment. In the event of a partial Transfer, City shall cooperate with Developer and any proposed Transferee to allocate rights and obligations under the Development Agreement and the Project Approvals among the retained Property and the transferred Property. Provided that City receives a copy of the assignment and assumption agreement by which Transferee assumes the Transferred rights and obligations associated with the transferred Property: (i) any subsequent breach with respect to the Transferred obligations shall not constitute a breach with respect to the retained rights and obligations of such transferor (or any other Transferee) under the Development Agreement; (ii) and any subsequent breach with respect to the retained obligations of transferor (or any other Transferee) shall not constitute a breach with respect to the Transferred rights and obligations of a Transferee under the 21 Development Agreement. The transferor and the Transferee each shall be solely responsible for the reporting and annual review requirements relating to the portion of the Property owned by such transferor/Transferee. Any amendment to the Development Agreement between City and a transferor or Transferee shall only affect the portion of the Property owned by such transferor or Transferee. 21. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 22. Indemnification. Developer agrees to indemnify, defend and hold harmless the City, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by Developer, or any actions or inactions of Developerʼs contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that Developer shall have no indemnification obligation with respect to negligence or wrongful conduct of the City, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the City or another public entity (except as provided in an improvement agreement or maintenance bond). If City is named as a party to any legal action, City shall cooperate with Developer, shall appear in such action and shall not unreasonably withhold approval of a settlement otherwise acceptable to Developer. 23. Insurance. 23.1 Commercial General Liability Insurance. During the Term of this Agreement, Developer shall maintain in effect a policy of commercial general liability insurance with a per-occurrence combined single limit of not less than $1,000,000. The policy so maintained by Developer shall name the City as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. City and Developer agree that such insurance may include alternative risk management programs, including self-insurance or a combination of self-insurance and insurance, provided that such alternative risk management programs provide protection equivalent to that specified under this Agreement. 23.2 Workers Compensation Insurance. During the Term of this Agreement Developer shall maintain Workerʼs Compensation insurance for all 22 persons employed by Developer for work at the Project site. Developer shall require each contractor and subcontractor similarly to provide Workerʼs Compensation insurance for its respective employees. Developer agrees to indemnify the City for any damage resulting from Developerʼs failure to maintain any such insurance. 23.3 Evidence of Insurance. Prior to issuance of any permits for the Project, including grading permits, Developer shall furnish the City satisfactory evidence of the insurance required in Sections 19.1 and 19.2 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 unless replaced with similar coverage. 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. 24. 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 the City. City agrees that it shall not take any action with DSRSD opposing Developerʼs efforts to reserve water and sewer capacity sufficient to serve the Project described herein. 25. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to the City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 Phone No.: (925) 833-6650 Fax No.: (925) 833-6651 With copies to: City Attorney Notices required to be given to Developer shall be addressed as follows: Bex Development, LLC Randy Branaugh 19077 Madison Ave. Castro Valley, CA 94546 23 Phone No.: (510) 821-1834 Email: rlbranaughex@gmail.com A Party may change address by giving notice in writing to the other Party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier, which shall be deemed given the following day or by facsimile transmission or email, which shall be deemed given upon verification of receipt. 26. Agreement is Entire Understanding. This Agreement, including its exhibits, constitutes the entire understanding and agreement of the Parties and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the subject matter hereof. 27. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property 28. Recitals. The foregoing Recitals are true and correct and are made a part hereof. 29. Counterparts. This Agreement may be executed by each Party on a separate signature page, and when the executed signature pages are combined, shall constitute one single instrument. This Agreement is executed in two duplicate originals, each of which is deemed to be an original. 30. Recordation. The City shall record a copy of this Agreement within ten days following execution by all Parties. Thereafter, if this Agreement is terminated, modified or amended, the City Clerk shall record notice of such action with the Alameda County Recorder. 31. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the 24 Parties and their respective permitted successors and assigns, any rights or remedies hereunder. 32. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 33. Time is of the Essence. Time is of the essence for each provision of this Agreement for which time is an element. 34. Further Actions and Instruments. Each Party to this Development Agreement shall cooperate with and provide reasonable assistance to the other Party and take all actions necessary to ensure that the Parties receive the benefits of this Development Agreement, subject to satisfaction of the conditions of this Development Agreement. Upon the request of any Party, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Development Agreement to carry out the intent and to fulfill the provisions of this Development Agreement or to evidence or consummate the transactions contemplated by this Development Agreement. 35. Section Headings. Section headings in this Development Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Development Agreement. 36. Construction of Agreement. This Development Agreement has been reviewed and revised by legal counsel for both Developer and City, and no presumption or rule that ambiguities shall be construed against the drafting Party shall apply to the interpretation or enforcement of this Development Agreement. 37. Authority. The persons signing below represent and warrant that they have the authority to bind their respective Party and that all necessary board of directorsʼ, shareholdersʼ, partnersʼ, city councilsʼ, or other approvals have been obtained. 38. Non -Intended Prevailing Wage Requirements. Except for public improvements constructed by the Developer and to be dedicated to the City (which are subject to conditions of Project Approval), nothing in this Development Agreement shall in any way require, or be construed to require, Developer to pay prevailing wages with respect to any work of construction or 25 improvement within the Project (a “Non-Intended Prevailing Wage Requirement ”). But for the understanding of the Parties as reflected in the immediately preceding sentence, the Parties would not have entered into this Development Agreement based upon the terms and conditions set forth herein. Developer and City have made every effort in reaching this Development Agreement to ensure that its terms and conditions will not result in a Non- Intended Prevailing Wage Requirement. These efforts have been conducted in the absence of any applicable existing judicial interpretation of the recent amendments to the California prevailing wage law. If, despite such efforts, any provision of this Development Agreement shall be determined by any court of competent jurisdiction to result in a Non Intended Prevailing Wage Requirement, such determination shall not invalidate or render unenforceable any provision hereof; provided, however, that the Parties hereby agree that, in such event, this Development Agreement shall be reformed such that each provision of this Development Agreement that results in the Non-Intended Prevailing Wage Requirement will be removed from this Development Agreement as though such provisions were never a part of the Development Agreement, and, in lieu of such provision(s), replacement provisions shall be added as a part of this Development Agreement as similar in terms to such removed provision(s) as may be possible and legal, valid and enforceable but without resulting in the Non-Intended Prevailing Wage Requirement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. 26 CITY OF DUBLIN By: _____________________________ Linda Smith, City Manager Attest: __________________________ Marsha Moore, City Clerk Approved as to form __________________________ John Bakker, City Attorney DEVELOPER Randall Lee Branaugh By: __________________________ Name: _______________________ Its: __________________________ (NOTARIZATION ATTACHED) Order Number: 0718-6598960 First American Title LEGAL DESCRIPTION Real property in the City of Dublin, County of Alameda, State of California, described as follows: BEGINNING AT A POINT OF INTERSECTION OF THE NORTHERN LINE OF THE STATE HIGHWAY LEADING FROM DUBLIN TO LIVERMORE, KNOWN AS ROAD IV, ALAMEDA COUNTY ROUTE 5, SECTION B, WITH THE EASTERN LINE OF CROAK ROAD ALSO KNOWN AS COUNTY ROAD NO. 6152, AS SAID HIGHWAY AND ROAD EXISTED JANUARY 1, 1949; RUNNING THENCE ALONG THE SAID LINE OF THE STATE HIGHWAY SOUTH 89° 30' EAST (THE BEARING, SOUTH 89° 30' FEET BEING ASSUMED FOR THE PURPOSE OF THIS DESCRIPTION) 1576.50 FEET TO THE SOUTHEASTERN CORNER OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN THE DEED TO ANSELMO MACHADO, ET UX, RECORDED MARCH 10, 1943 IN BOOK 4345, PAGE 274 OFFICIAL RECORDS; THENCE ALONG THE EASTERN BOUNDARY LINE OF SAID MACHADO PARCEL OF LAND NORTH 0° 31' WEST 10 FEET TO A POINT ON THE NORTHERN BOUNDARY LINE OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN DEED TO STATE OF CALIFORNIA, RECORDED MARCH 3, 1950, BOOK 6038, PAGE 519, SERIES NO. AE-18614, OFFICIAL RECORDS; THENCE CONTINUING ALONG SAID EASTERN BOUNDARY LINE OF MACHADO PARCEL OF LAND NORTH 0° 31' WEST 67.02 FEET TO THE NORTHERN LINE OF THE PARCEL OF LAND DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED FEBRUARY 8, 1968, REEL 2122, IMAGE 473, SERIES NO. BA- 13626 OFFICIAL RECORDS; THENCE CONTINUING ALONG SAID EASTERN BOUNDARY LINE OF THE MACHADO PARCEL OF LAND NORTH 0° 31' WEST 992.98 FEET, MORE OR LESS, TO A POINT DISTANT THEREON NORTH 0° 31' WEST 1060 FEET, FROM THE NORTHERN LINE OF THE PARCEL OF LAND DESCRIBED IN SAID DEED TO THE STATE OF CALIFORNIA (6038 OR 519), THE LAST DETERMINED POINT BEING THE ACTUAL POINT OF COMMENCEMENT; THENCE CONTINUING ALONG SAID EASTERN BOUNDARY LINE OF THE MACHADO PARCEL, NORTH 0° 31' WEST 1791.6 FEET, MORE OR LESS, TO THE NORTHERN LINE OF TOWNSHIP 3 SOUTH, RANGE 1 EAST, M.D.B & M.; THENCE ALONG THE LAST MENTIONED LINE EAST 760.2 FEET; THENCE SOUTH 0° 31' EAST 2803 FEET, MORE OF LESS, TO THE NORTHERN LINE OF THE PARCEL OF LAND DESCRIBED IN SAID DEED TO THE STATE OF CALIFORNIA (2122 OR 473); THENCE ALONG THE LAST MENTIONED LINE WESTERLY 381 FEET, MORE OR LESS, TO THE EASTERN LINE OF THE PARCEL OF LAND RECONVEYED BY PARTIAL RECONVEYANCE EXECUTED BY TRANSAMERICA TITLE INSURANCE COMPANY, RECORDED NOVEMBER 7, 1973, REEL 3548, IMAGE 256, SERIES NO. 73-149206, OFFICIAL RECORDS; THENCE ALONG THE LAST MENTIONED LINE NORTH 0° 31' WEST 1005 FEET, MORE OR LESS, TO THE NORTHERN LINE OF THE LAST MENTIONED PARCEL; THENCE ALONG THE LAST MENTIONED LINE DUE WEST 378.5 FEET TO THE ACTUAL POINT OF COMMENCEMENT. APN: 905-0001-004-04 Exhibit A Legal Description of the Property