HomeMy WebLinkAboutOrd 20-07 Sorrento East Area F
ORDINANCE NO. 20 - 07
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
***********
APPROVING THE DEVELOPMENT AGREEMENT FOR
P A 04-042 SORRENTO EAST AT DUBLIN RANCH (DUBLIN RANCH AREA FEAST)
BETWEEN THE CITY OF DUBLIN AND SR STRUCTURED LOT OPTIONS I, LLC
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1.
RECITALS
A. The proposed project known as Sorrento East at Dublin Ranch (Dublin Ranch Area FEast)
is located within the boundaries of the Eastern Dublin Specific Plan, and was included in a group of
approvals for Planned Development under P A 04-042.
B. Pursuant to the California Environmental Quality Act (CEQA), CEQA Guidelines Section
15168, the Developer's project is within the scope of the Final Environmental Impact Report for the
Eastern Dublin General Plan Amendment and Specific Plan, which was certified by the City Council by
Resolution No. 51-93, the Addenda dated May 4, 1993 and August 22, 1994 (hereafter "Eastern Dublin
EIR" or "program EIR") (SCH911 03064). The Program EIR was integral to the City Planning
Department and is incorporated herein by reference. The program EIR was integral to the planning
process and examined the direct and indirect effects, cumulative impacts, broad policy alternatives, and
area wide mitigation measures for developing Eastern Dublin. In connection with project P A 01-037 for
Dublin Ranch Area F, the City Council certified an EIR Addendum (Resolution No. 43-04) that is
available for review in the planning department and is incorporated herein by reference. In connection
with project PA 04-042 Sorrento at Dublin Ranch Area F West and Area F East and consistent with
CEQA and the CEQA Guidelines, the City made a determination that the project was adequately
addressed and would cause no environmental impacts beyond those previously identified and addressed.
All adopted supplemental mitigation measures continue to apply to the project area; and
C. A Development Agreement between the City of Dublin and SR Structured Lot Options I,
LLC, a Delaware limited liability corporation ("Developer") has been presented to the City Council,
Exhibit A, attached hereto.
D. A public hearing on the proposed Development Agreement was held before the Planning
Commission on August 28,2007, for which public notice was given as provided by law.
E. The Planning Commission has made its recommendation to the City Council for approval
of the Development Agreement.
F. A public hearing on the proposed Development Agreement was held before the City
Council on September 18, 2007 for which public notice was given as provided by law.
G. The City Council has considered the recommendation of the Planning Commission who
considered the item at the August 28,2007 meeting, including the Planning Commission's reasons for its
recommendation, the Agenda Statement, all comments received in writing and all testimony received at
the public hearing.
Ord No. 20-07, Adopted 10/02/07, Item 4.2
Page 1 of3
Section 2.
FINDINGS AND DETERMINATIONS
Therefore, on the basis of: (a) the foregoing Recitals which are incorporated herein; (b) the City of
Dublin's General Plan; ( c) the Eastern Dublin General Plan Amendment; (d) the Specific Plan; (e) the
EIR; (t) the individual Mitigated Negative Declarations; (g) the Addendums; and (h) the Agenda
Statement, and on the basis of the specific conclusions set forth below, the City Council finds and
determines that:
1. The Development Agreement is consistent with the objectives, policies, general land uses
and programs specified and contained in the City's General Plan, as amended by the Eastern Dublin
General Plan Amendment, and in the Specific Plan in that: (a) the General Plan and Specific Plan land use
designation for the site is Medium Density Residential, Neighborhood Park, and Elementary School, and
the proposed project is consistent with that land use; (b) the project is consistent with the fiscal policies of
the General Plan and Specific Plan with respect to provision of infrastructure and public services; and (c)
the Development Agreement includes provisions relating to vesting of development rights and similar
provisions set forth in the Specific Plan.
2. The Development Agreement is compatible with the uses authorized in, and the regulations
prescribed for, the land use districts in which the real property is located in that the project approvals include a
Stage 1 Development Plan Amendment, Stage 2 Development Plan, and Vesting Tentative Maps.
3. The Development Agreement is in conformity with public convenience; general welfare
and land use policies in that the Developer's project will implement land use guidelines set forth in the
Specific Plan and the General Plan which have planned for Medium Density Residential, Neighborhood
Park, and Elementary School uses at this location.
4. The Development Agreement will not be detrimental to the health, safety and general
welfare in that the Developer's project will proceed in accordance with all the programs and policies of
the Eastern Dublin Specific Plan.
5. The Development Agreement will not adversely affect the orderly development of property
or the preservation of property values in that the project will be consistent with the General Plan and with
the Specific Plan.
Section 3. APPROVAL
The City Council hereby approves the Development Agreement (Exhibit A to the Ordinance) and
authorizes the Mayor to execute it.
Section 4. RECORDATION
Within ten (10) days after the Development Agreement is fully executed by all parties, the City
Clerk shall submit the Agreement to the County Recorder for recordation.
Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of its
passage. The City Clerk ofthe 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.
Ord No. 20-07, Adopted 10/02/07, Item 4.2
Page 2 of3
PASSED, APPROVED AND ADOPTED this 2nd day of October, 2007, by the following vote:
AYES: Councilmembers Hildenbrand, Oravetz and Sbranti, and Mayor Lockhart
NOES: None
ABSENT: Councilmember Scholz
ABSTAIN: None
ATTf:{ (
~ ~( t9r
Deputy City Clerk
Ord No. 20-07, Adopted 10/02/07, Item 4.2
Page 3 of3
RECORDING REQUESTED BY:
CITY OF DUBLIN
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waived per GC 27383
Space above this line for Recorder's use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
SR STRUCTURED LOT OPTIONS I, LLC
FOR SORRENTO EAST AT DUBLIN RANCH
(DUBLIN RANCH AREA FEAST)
.i:"l1-H Q \ T A
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered
in the City of Dublin on this 7th day of August, 2007, by and between the City of
Dublin, a Municipal Corporation (hereafter "City"), and SR Structured Lot
Options, I LLC, a Delaware limited liability company (hereafter "Developer"),
pursuant to the authority of 99 65864 et seq. of the California Government Code
and Dublin Municipal Code, Chapter 8.56.
RECITALS
A. California Government Code 99 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
B. DEVELOPER desires to develop and holds legal interest in certain
real property consisting of approximately 80 acres of land, located in the City of
Dublin, County of Alameda, State of California, which is designated as Tract
7651 and is more particularly described in Exhibit A attached hereto and
incorporated herein by this reference, and which real property is hereafter called
the "Area F East Property"; and
C. The City Council adopted the Eastern Dublin Specific Plan by
Resolution No. 53-93 which Plan is applicable to the Property; and
D. The Eastern Dublin Specific Plan requires Developer to enter into
this development agreement; and
E. DEVELOPER acquired its interest in the Area F East Property from
Chang Su-O-Un, Hong Lien Un and Hong Yao Lin (the "Lins") or the Lins
successors in interest; and
F. The Lins and CITY are parties to a "Master Development
Agreement Between the City of Dublin and The Un Family for the Dublin Ranch
Project (Areas A, 8, C, D, E, F, G and H) ("Master Development Agreement") ,
section 7 of which requires DEVELOPER to enter into a project-specific
development agreement in accordance with the Eastern Dublin Specific Plan;
and
G. DEVELOPER proposes the development of the Property with 694
residential units (the "Project"); and
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H. DEVELOPER has applied for, and CITY has approved various land
use approvals in connection with the development of the Project, including an
amendment to the General Plan and Eastern Dublin Specific Plan (City Council
Resolution No. 47-04), PD District rezoning and related Stage 1 and Stage 2
development plans (City Council Ordinances No. 12-04 and No. 24-05), Master
Vesting Tentative Map for Tract 7651 (Planning Commission Resolution No. 05-
52), Neighborhood Vesting Tentative Maps for Tract 7652 (Neighborhood 6),
Tract 7653 (Neighborhood 7), Tract 7654 (Neighborhood 8), Tract 7655
(Neighborhood 9), Tract 7656 (Neighborhood 10) (Planning Commission
Resolution 05-52), and site development review (Planning Commission
Resolution No. 05-52) (collectively, together with any approvals or permits now or
hereafter issued with respect to the Project, the "Project Approvals"); and
I. Development of the Property by Developer may be subject to
certain future discretionary approvals, which, if granted, shall automatically
become part of the Project Approvals as each such approval becomes effective;
and
J. City desires the timely, efficient, orderly and proper development of
said Project; and
K. The City Council has found that, among other things, this
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. 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; and
M. On Oelobe1r 2.. ,2007, the City Council of the City of Dublin
adopted Ordinance. No.1i).(fl approving this Agreement. The ordinance took
effect on N01'eft1 bel~ I ,2007 (lithe Approval Date").
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein
contained, City and Developer agree as follows:
AGREEMENT
1. Description of Property.
The Property that is the subject of this Agreement is described in Exhibit A
attached hereto.
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2. Interest of Developer.
The Developer has a legal or equitable interest in the Property in that it
owns the Property in fee simple.
3. Relationship of City and Developer.
It is understood that this Agreement is a contract that has been negotiated
and voluntarily entered into by City and Developer and that the Developer is not
an agent of City. The City and Developer hereby renounce the existence of any
form of joint venture or partnership between them, and agree that nothing
contained herein or in any document executed in connection herewith shall be
construed as making the City and Developer joint venturers or partners.
4. Effective Date and Term.
4.1. Effective Date. The effective date of this Agreement shall be the
Approval Date.
4.2. Term. The term of this Agreement shall commence on the
Effective Date and extend five (5) years thereafter, unless said term is otherwise
terminated or modified by circumstances set forth in this Agreement.
5. Use of the Property.
5.1. RiQht to Develop. Developer shall have the vested right to develop
the Project on the Property in accordance with the terms and conditions of this
Agreement, the Project Approvals (as and when issued), and any amendments
to any of them as shall, from time to time, be approved pursuant to this
Agreement.
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 and incorporated herein by
reference.
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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
othe~ approvals from regulatory agencies.)
Not Applicable
5.3.2. Mitiaation 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. Phasina, Timine. 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. Financina Plan. Financial plans which identify necessary
capital improvements such as streets and utilities and sources of funding.
See Exhibit B
5.3.5. Fees. Dedications. Terms relating to payment of fees or
dedication of property.
See Exhibit B
5.3.6. Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See ExhibIt B
5.3.7. Miscellaneous. Miscellaneous terms.
See Exhibit B
6. Applicable Rules. Reaulations and Official Policies.
6.1. Rules re Permitted Uses. For the term of this Agreement, the City's
ordinances, resolutions, rules, regulations and official policies governing the
permitted uses of the Property, governing density and intensity of use of the
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Property and the maximum height, bulk and size of proposed buildings shall be
those in force and effect on the Effective Date of the Agreement.
6.2. Rules re besian and Construction. Unless otherwise expressly
provided in Paragraph 5 of this Agreement. the ordinances, resolutions, rules.
regulations and official policies governing design, improvement and construction
standards and specifications applicable to the Project shall be those in force and
effect at the time of the applicable discretionary approval, whether the date of
that approval is prior to or after the date of this Agreement. Ordinances.
resolutions, rules, regulations and official policies governing design, improvement
and construction standards and specifications applicable to public improvements
to be constructed by Developer shall be those in force and effect at the time of
the applicable discretionary approval. whether date of approval is prior to or after
the date of this Agreement.
6.3. Uniform Codes Aoolicable. Unless expressly provided in
Paragraph 5 of this Agreement, the Project shall be constructed in accordance
with the provisions of the Uniform Building, Mechanical, Plumbing, 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. Subseouently Enacted Rules and Reoulations.
7.1. New Rules and Reoulations. During the term of this Agreement,
the City may apply new or modified ordinances, resolutions, rules, regulations
and official policies of the City to the Property which were not in force and effect
on the Effective Date of this Agreement and which are not in conflict with those
applicable to the Property as set forth in this Agreement if: (a) the application of
such new or modified ordinances. resolutions, rules, regulations or official
policies would not prevent, impose a substantial financial burden on, or materially
delay development of the Property as contemplated by this Agreement and the
Project Approvals and (b) if such ordinances, resolutions, rules, regulations or
official policies have general applicability.
7.2. Aoproval of Apolication. Nothing in this Agreement shall prevent
the City from denying or conditionally approving any subsequent land use permit
or authorization for the Project on the basis of such new or modified ordinances,
resolutions, rules, regulations and policies except that such subsequent actions
shall be subject to any conditions, terms, restrictions, and requirements expressly
set forth herein.
7.3. Moratorium Not Aoolicable. 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
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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 Government Code 9 8558.
8. Subseauentlv Enacted or Revised Fees. Assessments and Taxes.
8.1. Fees. Exactions. Dedications City and Developer agree that the
fees payable and exactions required in connection with the development of the
Project for purposes of mitigating environmental and other impacts of the Project,
providing infrastructure for the Project and complying with the Specific Plan shall
be those set forth in the Project Approvals and in this Agreement (including
Exhibit B). The City shall not impose or require payment of any other fees,
dedications of land, or construction of any public improvement or facilities, shall
not increase or accelerate existing fees, dedications of land or construction of
public improvements, or impose other exactions in connection with any
subsequent discretionary approval for the Property, except as set forth in the
Project Approvals and this Agreement (including Exhibit B, subparagraph 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 only; and (3) the
application of such fees would not prevent, impose a substantial financial burden
on, or materially delay development in accordance with this Agreement.
8.3. New Taxes. Any subsequently enacted city-wide taxes shall apply
to the Project provided that: (1) the application of such taxes to the Property is
prospective; and (2) the application of such taxes would not prevent development
in accordance with this Agreement.
8.4. Assessments. Nothing herein shall be construed to relieve the
Property from assessments levied against it by City pursuant to any statutory
procedure for the assessment of property to pay for infrastructure and/or services
which benefit the Property.
8.5. Vote on Future Assessments and Fees. In the event that any
assessment, fee or charge which is applicable to the Property is subject to Article
XIIID of the Constitution and Developer does not return its ballot, Developer
agrees, on behalf of itself and its successors, that City may count Developer's
ballot as affirmatively voting in favor of such assessment, fee or charge.
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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 of
this Agreement prevent or preclude compliance with one or more provisions of
this Agreement or require changes in plans, maps or permits approved by the
City, the parties shall meet and confer in good faith in a reasonable attempt to
modify this Agreement to comply with such federal or state law or regulation.
Any such amendment or suspension of the Agreement shall be subject to
approval by the City Council in accordance with Chapter 8.56.
9.2. Amendment bv Mutual Consent. This Agreement may be amended
in writing from time to time by mutual consent of the parties hereto and in
accordance with the procedures of State law and Chapter 8.56.
9.3. Insubstantial Amendments. Notwithstanding the provisions of the
preceding paragraph 9.2, any amendments to this Agreement which do not relate
to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted
uses of the Property as provided in paragraph 5.2; (c) provisions for "significant"
reservation or dedication of land as provided in Exhibit B; (d) conditions, terms,
restrictions or requirements for subsequent discretionary actions; (e) the density
or intensity of use of the Project; (f) the maximum height or size of proposed
buildings; or (g) monetary contributions by Developer as provided in this
Agreement, shall not, except to the extent otherwise required by law, require
notice or public hearing before either the Planning Commission or the City
Council before the parties may execute an amendment hereto. The City
Engineer shall determine whether a reservation or dedication is "significant".
9.4. Amendment of Proiect Aoorovals. 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; or (g) public improvements to be
constructed by Developer shall require an amendment of this Agreement. Such
amendment shall be limited to those provisions of this Agreement which are
implicated by the amendment of the Project Approval. Any other amendment of
the Project Approvals, or any of them, shall not require amendment of this
Agreement unless the amendment of the Project Approval(s) relates specifically
to some provision of this Agreement.
9.5. Cancellation bv Mutual Consent. Except as otherwise permitted
herein, this Agreement may be canceled in whole or in part only by the mutual
consent of the parties or their successors in interest, in accordance with the
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provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit
B of this Agreement prior to the date of cancellation shall be retained by City.
10. Term of Proiect Approvals.
10.1. Pursuant to California Government Code Section 66452.6(a), the
term of the vesting tentative map described in Recital H above shall automatically
be extended for the term of this Agreement. The term of any other Project
Approval shall be extended only if so provided in Exhibit B.
11. Annual Review.
11.1. Review Date. The annual review date for this Agreement shall be
between July 15 and August 15, 2007 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 the Agreement. The
burden of proof by substantial evidence of compliance is upon the Developer.
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 concerning
contract performance at least five (5) days prior to any annual review.
11.4. Costs. Costs reasonably incurred by City in connection with the
annual review shall be paid by Developer in accordance with the City's schedule
of fees in effect at the time of review.
12. Default.
12.1. Other Remedies Available. Upon the occurrence of an event of
default, 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
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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 Damaoes Aaainst 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. .
13.1. Either party may, at any time, and from time to time, request written
notice from the other party requesting such party to certify in writing that, (a) this
Agreement is in full force and effect and a binding obligation of the parties,
(b) this Agreement has not been amended or modified either orally or in writing,
or if so amended, identifying the amendments, and (c) to the knowledge of the
certifying party the requesting party is not in default in the performance of its
obligations under this Agreement, or if in default, to describe therein the nature
and amount of any such defaults. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days following the receipt
thereof, or such longer period as may reasonably be agreed to by the parties.
City Manager of City shall be authorized to execute any certificate requested by
Developer. Should the party receiving the request not execute and return such
certificate within the applicable period, this shall not be deemed to be a default,
provided that such party shall be deemed to have certified that the statements in
clauses (a) through (c) of this section are true, and any party may rely on such
deemed certification.
14. Mortoaaee. Protection: Certain Riohts of Cure.
14.1. Mortoaoee 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, trustee's sale, deed in lieu of foreclosure, or
otherwise.
14.2. Mortaaaee Not Obliaated. Notwithstanding the provisions of
Section 14.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to
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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 Mortaaoee 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 paragraph 12.2 for not more than an additional sixty (60) days upon
request of Developer or a Mortgagee.
15. Severabilitv.
15.1. The unenforceability, invalidity or illegality of any provisions,
covenant, condition or term of this Agreement shall not render the other
provisions unenforceable, invalid or illegal.
16. Attornevs' Fees and Costs.
16.1. 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 Assianments.
17.1. Rioht to Assion. 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
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Transferee any or all rights, interests and obligations of Developer arising
hereunder and that pertain to the portion of the Property being sold or
transferred, to such Transferee, provided, however, that: no such transfer, sale or
assignment of Developer's rights, interests and obligations hereunder shall occur
without prior written notice to City and approval by the City Manager, which
approval shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing sentence, no City approval shall be required for any transfer, sale, or
assignment of this Agreement from Developer to Sorrento at Dublin Ranch II,
L.P. ("Toll") in conjunction with the sale of all or a portion of the Property,
provided that Developer has given notice to City of such transfer, sale or
assignment pursuant to section 23, and provided that Developer has, at the time
of the transfer, sale or assignment complied with all obligations of this Agreement
or provided evidence satisfactory to the City Manager demonstrating that the
remaining obligations have been allocated between Developer and Toll.
17.2. Approval and Notice of Sale. Transfer or Assianment. The City
Manager shall consider and decide on any transfer, sale or assignment within ten
(10) days after Developer's notice, provided all necessary documents,
certifications and other information are provided to the City Manager to enable
the City Manager to determine whether the proposed Transferee can perform the
Developer's obligations hereunder. Notice of any such approved sale, transfer or
assignment (which includes a description of all rights, interests and obligations
that have been transferred and those which have been retained by Developer)
shall be recorded in the official records of Alameda County, in a form acceptable
to the City Manager, concurrently with such sale, transfer or assignment.
17.3. Effect of Sale. Transfer or Assianment. Developer shall be
released from any obligations hereunder sold, transferred or assigned to a
Transferee pursuant to subparagraph 17.1 of this Agreement, provided that: a)
such sale, transfer or assignment has been approved by the City Manager
pursuant to subparagraph 17.1 of this Agreement; and b) such obligations are
expressly assumed by Transferee and provided that such Transferee shall be
subject to all the provisions hereof and shall provide all necessary documents,
certifications and other necessary information prior to City Manager approval
pursuant to subparagraphs 17.1 and 17.2 of this Agreement.
17.4. Permitted Transfer. Purchase or Assianment. 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 deed of trust encumbering
Developer's interest in the Property shall not require City Manager approval
pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or
assignment by the Purchaser to a subsequent transferee, purchaser, or assignee
shall be subject to the provisions of paragraph 17.1.
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August7,2007
17.5. Termination of Aareement Upon Sale of Individual Lots to Public.
Notwithstanding any provisions of this Agreement to the contrary, the burdens of
this Agreement shall terminate as to any lot which has been finally subdivided
and individually (and not in "bulk") leased (for a period of longer than one year) or
sold to the purchas~r or user thereof and thereupon and without the execution or
recordation of any further document or instrument such lot shall be released from
and no longer be subject to or burdened by the provisions of this Agreement;
provided, however, that the benefits of this Agreement shall continue to run as to
any such lot until a building is constructed on such lot, or until the termination of
this Agreement, if earlier, at which time this Agreement shall terminate as to such
lot.
18. Aqreement Runs with the Land.
18.1. All of the provisions, rights, terms, covenants, and obligations
contained in this Agreement shall be binding upon the parties and their
respective heirs, successors and assignees. representatives, lessees, and all
other persons acquiring the Property, or any portion thereof, or any interest
therein, whether by operation of law or in any manner whatsoever. All of the
provisions of this Agreement shall be enforceable as equitable servitude and
shall constitute covenants running with the land pursuant to applicable laws,
including, but not limited to, Section 1468 of the Civil Code of the State of
California. Each covenant to do, or refrain from doing, some act on the Property
hereunder, or with respect to any owned property, (a) is for the benefit of such
properties and is a burden upon such properties, (b) runs with such properties,
and (c) is binding upon each party and each successive owner during its
ownership of such properties or any portion thereof, and shall be a benefit to and
a burden upon each party and its property hereunder and each other person
succeeding to an interest in such properties.
19. Bankruptcv.
19.1. The obligations of this Agreement shall not be dischargeable in
bankruptcy.
20. Indemnification.
20.1. 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,
Dublin/SR Structured Lot Options I, LLC Development Agreement
For Sorrento East at Dublin Ranch (Area FEast)
Area FEast TolI_SOITenlo DA]INAL
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August 7,2007
improvement, operation, or maintenance of the Project, provided that Developer
shall have no indemnification obligation with respect to negligence or wrongful
conduct of City, its contractors, subcontractors, agents or employees or with
respect to the maintenance, use or condition of any improvement after the time it
has been dedicated to and accepted by the City or another public entity (except
as provided in an improvement agreement or maintenance bond).
21. Insurance.
21.1. Public Liabilitv and Prooertv DamaQe Insurance. During the term of
this Agreement, Developer shall maintain in effect a policy of comprehensive
general liability insurance with a per-occurrence combined single limit of not less
than one million dollars ($1,000,000.00) with a One Hundred Thousand Dollar
($100,000) self insurance retention per claim. The policy so maintained by
Developer shall name the City as an additional insured and shall include either a
severability of interest clause or cross-liability endorsement.
21.2. Workers Comoensation 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 insural1ce.
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.
22.1. 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.
23.1. 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
Dublin/SR Structured Lot Options I, LLC Development Agreement
For Sorrento East at Dublin Ranch (Area FEast)
Area FEast ToILSorrento DA_FINAL
Page 14 of 16
August 7,2007
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:
SR Structured Lot Options, I LLC
c/o Stark Onshore Management, LLC
3600 South Lake Drive
St. Francis, WI 53231
Attn: Devi S. Koya
FAX No. (414) 294-7625
A party may change address by giving notice in writing to the other party
and thereafter all notices shall be addressed and transmitted to the new address.
Notices shall be deemed given and received upon personal delivery, or if mailed,
upon the expiration of 48 hours after being deposited in the United States Mail.
Notices may also be given by overnight courier which shall be deemed given the
following day or by facsimile transmission which shall be deemed given upon
verification of receipt.
24. Aoreement is Entire Understandino.
This Agreement constitutes the entire understanding and agreement of the
parties.
25. Exhibits.
The following documents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
Exhibit A
Legal Description of Property
Exhibit B
Additional Conditions
26. Counterparts.
This Agreement is executed in three (3) duplicate originals, each of which
is deemed to be an original.
27. Recordation.
City shall record a copy of this Agreement within ten (10) days following
execution by all parties.
Dublin/SR Structured Lot Options I, LLC Development Agreement
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August7,2007
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date and year first above written.
. . . . . . . . . .
ATT
By: Date:
Fawn Holman, City Clerk
APPROVED AS TO FORM:
C/4~ ~
-t2'T-~bEith H. Silver, City Attorney
SR STRUCTURED LOT OPTIONS I, LLC,
a Delaware limited liability company
Stark Offshore Management, LLC,
A Wisconsin limited liability company,
Its Manager
Date: n7-/I-D 7
(NOTARIZATION ATTACHED)
Dublin/SR Structured Lot Options I, LLC Development Agreement
For Sorrento East at Dublin Ranch (Area FEast)
Area F East TolLSorrento DA_FINAl
Page 16 of 16
August7,2007
STATE OF Wisconsin
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COUNTY OF Milwaukee
On -Jullj I\, r?('CO , before me, 9ntdo ~'VLClr+'(]-t'?
PublIc, personally appeared "J D 'Sep VI T 111 ('{) 5,'TJr
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 their person(s) acted, executed the instrument.
WITNESS my hand and official seal.
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Signature
(Seal)
My Commission Expires; February 14.2010
Notary
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Exhibit A
Legal Description of Area F East Property
Real property in the City of Dublin, County of Alameda, State of California,
described as follows:
Parcel 7 (APN 985-0053-003) and Parcel 13 (APN 985-0054-003) as shown on
the Final Map of Tract 7281 , filed September 3, 2004, Map Book 277, Pages 82
to 85 inclusive, Alameda County Records.
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subparagraph 5.3.1 .. Subsequent Discretionary Approvals
None.
Subparagraph 5.3~2 - Mitigation Conditions
Subsection .!:.
Infrastructure Sequencing Program
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of
dedication) identified in Resolution No. 05-52 of the City of Dublin Planning
Commission approving Site Development Review for Sorrento at Dublin Ranch
Area F, Master Vesting Tentative Tract Map 7651 for Area F East, and
Neighborhood Vesting Tentative Tract Maps 7652,7653,7654,7655, and 7656
for Neighborhoods 6 through 10 for PA 04-042 (hereafter "SDR and VTM
Resolution") shall be completed by Developer to the satisfaction of the City
Engineer at the times and in the manner specified in the SDR and VTM
Resolution unless otherwise provided below. All such roadway improvements
shall be constructed to the satisfaction and requirements of City's City Engineer.
(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.
(Hi) 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.
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Recycled water lines shall be installed in accordance with the
tentative map conditions of approval.
(iv) Storm Drainaae.
The storm drainage systems off-site, as well as on-site drainage
systems for the areas to be occupied. shall be improved consistent with the
tentative map conditions of approval and to the satisfaction and requirements of
the Dublin Public Works Department applying City's standards and policies which
are in force and effect at the time of issuance of the permit for the proposed
improvements. Proper erosion control measures must be installed at
development sites within the City during construction, and all activities shall
adhere to Best Management Practices.
(v) Other Utilities (e.a. aas, 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 for the Project.
Subsection b.
Miscellaneous
(i) Completion Mav Be Deferred.
Notwithstanding the foregoing, the City Engineer may, in his or her
soJe 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 City Engineer
determines that to do so would not jeopardize the public health, safety or welfare.
(ii) Neiahborhood Park
Condition 14 to Tract 7651 (Area F East) as set forth in the SDR
and VTM Resolution shall be revised to read as follows:
Neighborhood Park. The Neighborhood Park, Parcel 7, shall
contain a minimum of 5.12 acres and be shown on the Final Map
as future parkland to be deeded to the City of Dublin by separate
document. The parcel line shall be at the standard location for a
street right of way at back of sidewalk (26 feet from centerline).
The Neighborhood Park shall be rough graded, as shown on the
Tract 7651 Tentative Map Grading Plan including erosion control
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measures, to the satisfaction of the City Engineer, and dedicated to
the City of Dublin prior to the issuance of building permit for the
30rJh unit within Tract 7651. Developer will not be granted
neighborhood parkland credits for the dedication of the
Neighborhood Park parcel until either (a) the City and Developer
have executed an agreement, in which developer irrevocably offers
the Neighborhood Park parcel for dedication and in which the
parties agree upon standards for the grading and timing for the
City's acceptance of the dedication, or (b) the City has accepted the
parcel.
Since the obligations in Condition 14 to Tract 7651, as revised,
cannot be satisfied prior to the recording of the final map, DEVELOPER agrees,
in exchange for the City's allowing the Tract 7651 final map to be recorded, that
Condition 14 to Tract 7651 shall survive recordation of the final map for Tract
7651 and that the City may withhold the issuance of (and DEVELOPER will not
oppose City's refusal to issue) more than 299 building permits within the Project
until such time as the Neighborhood Park is rough graded and dedicated as
contemplated in Condition 14 to Tract 7651, as revised.
(iii) School Site
Condition 15 to Tract 7651 (Area F East) as set forth in the SDR
and VTM Resolution reads as follows:
School Site: The school site, Parcel 8, shall contain a minimum of
10.00 acres and be shown on the Final Map as future school site to
be deeded to the Dublin Unified School District under separate
document. The Developer shall rough grade the school site,
including erosion control measures, as generally shown on the
Tentative Map Grading Plan, including erosion control, to the
satisfaction of the City Engineer prior to the issuance of building
permit for the 40dh unit within Tract 7651 or one year after
notification from the School District to complete the bulk grading,
whatever occurs first.
Since the obligations in Condition 15 to Tract 7651 cannot be
satisfied prior to the recording of the final map, DEVELOPER agrees, in
exchange for the City's allowing the Tract 7651 tinal map to be recorded, that the
City may withhold the issuance of (and will not oppose City's refusal to issue)
more than 399 building permits within the Project until such time as the School
Site is rough graded and dedicated as contemplated in Condition 15 to Tract
7651.
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(iv) Private Recreational Facilities In Tract 7651
Condition 9 to Site Development Review as set forth in the SDR
and VTM Resolution ("Condition 9") reads as follows:
Private Recreational Facilities In Tract 7651: Complete building
permit application for the private recreation facility within Tract 7651
shall be submitted to the Building Department prior to the issuance
of the first building permit within Tracts 7652 - 7656
(Neighborhoods 6 - 10). The private recreation facility shall be
completed and open prior to the issuance of the occupancy permit
for the 40rJh unit within Tracts 7652 - 7656 (Neighborhoods 6 - 10).
Notwithstanding anything to the contrary in Condition 9, the City
may issue building permits within Tract 7656 (Neighborhood 10) prior to the
submission of a complete building application for the private recreation facility,
since Tract 7656 is served by a separate private recreation facility. DEVELOPER
further agrees that the City may withhold issuance of (and will not oppose City's
refusal to issue) any building permits within Tracts 7652 - 7655 until a complete
building permit application for the private recreation facility is submitted to the
City and that the City may withhold issuance of occupancy permits within Tracts
7652-7655 in excess of 399 until such time as the private recreation facility is
completed and open.
Subparaaraph 5.3.3 .- Phaslna. Timina
This Agreement contains no requirements that Developer must initiate or
complete development of the Project within any period of time set by City. It is
the intention of this provision that Developer be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
Subparaaraph 5.3.4 - Financina Plan
Developer will install all improvements necessary for the Project at its own
cost (subject to credits for any improvements which qualify for credits as provided
in Subparagraph 5.3.6 below).
Other infrastructure necessary to provide sewer, potable water, and
recycled water services to the Project will be made available by the Dublin San
Ramon Services District. Developer will enter into an "Area Wide Facilities
Agreement" with the Dublin San Ramon Services District to pay for the cost of
extending such services to the Project. Such services shall be provided as set
forth in Subparagraph 5.3.2(a)(ii) and (iii) above.
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Subparaaraph 5.3.5 - Fees. Dedications
Subsection!!:. Traffic Impact Fees.
Developer shall pay the Eastern Dublin Traffic Impact Fee (ClTIF")
established by Resolution No. 111-04, including any future amendments to such
fee that may be in effect at the time of issuance of building permits. Developer
will pay such fees no later than the time of issuance of building permits and in the
amount of the impact fee in effect at time of building permit issuance.
Developer further agrees that it will pay eleven percent (11%) of the
"Section 1/Category 1" portion ofthe TIF in cash.
Developer also agrees that it will pay twenty-five percent (25%) 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 25% 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.
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for
Freewav Interchanaes.
Developer shall pay the Eastern Dublin 1-580 Interchange Fee in the
amounts and at the times set forth in Resolution No. 155-98 and by any
subsequent resolution which revises such Fee that may be in effect at the time of
issuance of building permits. Developer will pay such fees no later than the time
of issuance of building permits and in the amount of the impact fee in effect at
time of building permit issuance.
Subsection ~. 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 that may be
in effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits and in the then-current
amount of the fee at time of building permit issuance.
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Subsection g. Noise Mitiaation Fee.
Developer shall pay a Noise Mitigation Fee established by City of Dublin
Resolution No. 33-96, including any future amendments to such fee that may be
in effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits and in the amount of the fee
in effect at time of building permit issuance.
Subsection !.: School Impact Fees.
School impact fees shall be paid by Developer in accordance with
Government Code section 53080 and the agreement between Developer's
predecessor in interest and the Dublin Unified School District regarding payment
of school mitigation fees.
Subsection 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 that may be
in effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits and in the amount of the fee
in effect at time of building permit issuance.
Subsection 9:. Tri.Vallev Transportation Development Fee.
Developer shall pay the Tri-Valley Transportation Development Fee in the
amount and at the times set forth in City of Dublin Resolution No. 89-98 or any
subsequent resolution which revises such fee. Developer will pay such fees no
later than the time of issuance of building permits and in the amount of the
impact fee in effect at time of building permit issuance.
Subparaaraph 5.3.6 -- Credit
Subsection,!. 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").
Subsection b. Traffic Impact Fee Riaht-of-Wav Dedications - Credit
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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.
Subsection c. Public Facility Fee - Neiahborhood Parkland
Component
City shall provide a credit to Developer for any neighborhood parkland to
be dedicated by the Developer which exceeds the amount required under section
9.28 of the Dublin Municipal Code. Such credits shall be expressed in acres of
parkland. All aspects of the credits shall be governed by the City's Public
Facilities Fees Administrative Guidelines (Resolution No. 195-99)
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