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HomeMy WebLinkAboutOrd No. 15-22 Item 4.8 Approving a Development Agreement SCS Development Company Related to the SCS Dublin Project Ord. No. 15-22, Item 4.8, Adopted 12/06/2022 Page 1 of 3 ORDINANCE NO. 15 - 22 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND SCS DEVELOPMENT COMPANY RELATED TO THE SCS DUBLIN PROJECT (PLPA-2022-00005) (APNs 985-0051-004, 985-0051-005, 985-0051-006, 985-0052-024, and 985-0052-025) The Dublin City Council does ordain as follows: SECTION 1. RECITALS A. A request has been made by SCS Development Company to enter into a Development Agreement with the City of Dublin for the property known as the SCS Dublin Project site, which includes properties identified by Assessor Parcel Numbers 985-0051-004, 985- 0051-005, 985-0051-006, 985-0052-024, and 985-0052-025, an approximately 76.2-acre site. B. The Property Owner, SCS Development Company, is requesting a Planned Development Rezoning with Stage 1 and Stage 2 Development Plans. The proposed Project includes up to 500 market rate residential units and up to 100 affordable units, up to 265,000 square feet of retail commercial development, and related infrastructure and landscape improvements. Requested land use approvals include a General Plan Amendment and Eastern Dublin Specific Plan Amendment, a Planned Development Rezoning with Stage 1 and Stage 2 Development Plans, and a Development Agreement, among other related actions. These planning and implementing actions are collectively known as the “SCS Dublin Project” or the “Project.” C. The Project site is approximately 76.2 acres generally bounded by Tassajara Road, Gleason Drive, Brannigan Street and I-580 (APNs 985-0051-004, 985-0051-005, 985-0051-006, 985- 0052-024, and 985-0052-025). D. The project is the subject of an Environmental Impact Report (EIR), State Clearinghouse No. 2022040022. The activities under the Development Agreement do not result in any impacts beyond what was previously analyzed in the EIR. 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 October 25, 2022, for which public notice was given by law. G. The Planning Commission recommended that the City Council approve the SCS Dublin Project including the Development Agreement by Resolution No. 22-13. H. A public hearing on the proposed Development Agreement was held before the City Council on November 15, 2022, for which public notice was given as provided by law. Ord. No. 15-22, Item 4.8, Adopted 12/06/2022 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 SCS Dublin Project EIR; (e) the Staff Report; (f) information in the entire record of proceeding for the Project, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 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 regulations 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 as articulated in Resolution No. 136-22, amending the General Plan and the Eastern Dublin Specific Plan, adopted by the City Council on November 15, 2022. 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. 15-22, Item 4.8, Adopted 12/06/2022 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 6th day of December, 2022 by the following votes: AYES: Councilmembers Josey, Kumagai, McCorriston and Mayor Hernandez NOES: RECUSED: Councilmember Hu _____________________________________ Mayor ATTEST: ________________________________ City Clerk RECORDING REQUESTED BY: CITY OF DUBLIN WHEN RECORDED MAIL TO: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder’s use DEVELOPMENT AGREEMENT FOR THE SCS DUBLIN PROJECT –2– THIS DEVELOPMENT AGREEMENT (this “Agreement” or this “Development Agreement”) is made and entered into for reference purposes on this day of , 2022, by and between the City of Dublin, a Municipal Corporation (hereaffer “City”) and AWARD HOMES, INC., a California corporation (“Award”), SCS DEVELOPMENT COMPANY, a California corporation (“SCS Development”), and SANTA CLARA VALLEY HOUSING GROUP, INC., a California corporation (“SCV Housing”) (Award, SCS Development, and SCV Housing are collectively referred to herein as “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 (hereaffer “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 76.9 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 500 market rate residential units, up to 100 atfordable units, and up to 265,000 square feet of retail commercial development (the “Project”), including, without limitation, a General Plan and Eastern Dublin Speciffc Plan Amendment for the SCS Dublin Project (Resolution No. 136-22 adopted on November 15, 2022) and a Stage 1 and Stage 2 Planned Development Rezoning and Development Plan for the SCS Dublin Project (Ord. No. __-22 adopted by the City Council on ______, 2022) (the “PD”), and this Agreement (approved by the DA Approving Ordinance (deffned below)) (collectively the “Project Approvals”). D. Development of the Project will require additional approvals from the City, including but not limited to a subdivision map or maps and Site –3– Development Review approval or approvals (the “Subsequent Project Approvals”). E. City desires the timely, elficient, orderly and proper development of the Project. F. 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. G. City has undertaken, pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq., hereinaffer “CEQA”), the required analysis of the environmental etfects that would be caused by the Project and has determined those feasible mitigation measures which will eliminate, or reduce to an acceptable level, the adverse environmental impacts of the Project. The environmental etfects of the proposed development of the Property were analyzed by the Final Environmental Impact Report and certiffed by the City Council on November 15, 2022. City has also adopted a mitigation monitoring and reporting program to ensure that those mitigation measures incorporated as part of, or imposed on, the Project are enforced and completed. Those mitigation measures for which Developer is responsible are incorporated into, and required by, the Project Approvals. City also has adopted ffndings of fact and statements of overriding considerations for those adverse environmental impacts of the Project that may not or cannot be mitigated to a less than signiffcant level. H. 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 speciffed in City ’s General Plan. I. On October 25, 2022, 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. 22-13. J. On , 2022, the City Council of the City of Dublin adopted Ordinance No. ___ approving this Development Agreement (the “DA Approving Ordinance”). The DA Approving Ordinance took etfect on , 2022. –4– 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. Upon the City’s vacation of the Northside Drive PA1 Property (as deffned in Section 8.1 herein) pursuant to Section 8.1, the Northside Drive PA1 Property automatically shall become part of the Property and City and Developer shall execute and record a Clariffcation (as deffned in Section 9.4) of this Agreement in accordance with Section 9.4 to amend the legal description of the Property attached hereto as Exhibit A to add such Northside Drive PA1 Property. 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 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 Etfective Date. The etfective date of this Agreement (“Effective Date”) is the date upon which the DA Approving Ordinance takes etfect. 4.2 Term. The term of this Agreement shall commence on the Etfective Date and shall continue for ffve years thereaffer, 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 ffled challenging the City’s 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 ffling of such lawsuit to the entry of a ffnal order dismissing or otherwise ffnally 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 Clariffcation pursuant to Section 9.4 below memorializing the length of such Litigation Extension. This Agreement –5– 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 certiffcate 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 inifation from the Etfective 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 th an ffve times, for a maximum total Term of the Development Agreement of ten 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 years and provide the payment due for each year’s 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 Term of Project Approvals. The term of any Subsequent Project Approvals (as deffned in Recital D) for the Property or any portion thereof, speciffcally including, without limitation, subdivision map or maps and Site Development Review approval or approvals, 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 ffnal subdivision map approved as a Project Approval shall be the term of the approval but for this Section 4.4. –6– 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 City’s ordinances, codes, resolutions, rules, regulations and olficial 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 Speciffc 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 etfect on the Etfective 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). Upon approval by the City, and provided that the speciffc Subsequent Project Approvals are consistent with the Project Approvals, the subsequently approved tentative map or maps and Site Development Review approval or approvals for the Project shall become a Project Approval and shall become part of the law Developer is vested into under this Agreement without the need to amend this Agreement. 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. 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 ffrst enacts affer the Etfective Date. Except as otherwise set forth in this Agreement, City and Developer agree that this Agreement does not limit the City ’s discretion to impose or require (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 speciffcally –7– provided herein, nothing in this Agreement shall limit the City ’s ability to impose existing development impact Fees at rates that are increased beyond the amounts in etfect on the Etfective Date or limit Developer’s 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 ffre codes (collectively the “Codes”), the Codes included shall be those in force and etfect at the time Developer submits its application for the relevant building, grading, or other construction permits to City. In the event of a conif ict 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 etfect 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 modiffed ordinances, resolutions, rules, regulations and olficial policies of the City to the Property which were not in force and etfect on the Etfective Date only to the extent they are not in conifict with the vested rights granted by the Applicable Law, the Project Approvals or this Agreement. In addition to any other conificts that may occur, each of the following new or modiffed ordinances, resolutions, rules, regulations or olficial policies shall be considered a per se conifict with the Applicable Law: 5.4.1 Any application or requirement of such new or modiffed ordinances, resolutions, rules, regulations or olficial policies that would (i) cause or impose a substantial ffnancial 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 insigniffcant way the intent or purpose of the Project Approvals or preclude compliance therewith including, without limitation, by preventing or imposing limits or controls in the rate, timing, phasing or sequencing of development of the Project; (iii) prevent or limit the processing or procuring of Subsequent Project Approvals; or (iv) reduce the density or intensity of use of the Property as a whole, or otherwise requiring any reduction in the square footage of, or total number of, proposed 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 –8– 5.4.2 If any of such ordinances, resolutions, rules, regulations or olficial 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 etfective, whether by action of the City or by initiative, and if it imposes a building moratorium which atfects 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 deffned 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 ffnancial 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 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 parties’ agreement, it is the Parties’ intent to cure that deffciency by acknowledging and providing that this Agreement –9– 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 alfirmative 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 Project Phasing. The Property will develop in phases and ultimately will be subject to market conditions. Notwithstanding anything to the contrary in this Agreement, Developer agrees to the following conditions on phasing shall apply: 5.9.1 Phase 1 will consist of site preparation and mass grading of the entire Project site. 5.9.2 Phase 2 is composed of the horizontal development (e.g., construction of streets, utilities, etc.) and vertical construction of the Project, which will happen in sub-phases across all of the Project’s Planning Areas. However, to ensure that the residential portions of the Project do not wholly develop in advance of the retail/commercial portions, the following restrictions are imposed on the issuance of permits: No building permits shall be issued for a for-sale, market rate residential unit on any portion of the Project site until improvement plans have been approved, bonds posted, and a building permit has been issued for construction of a non-residential building within the Finnian Way Commercial area in Planning Area 2c (as defined, described, and depicted in the PD). 5.10 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 olficers or olficials 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. Community Benefit; Potential Formation of Community Facilities District. 6.1 Community Benefft Payment. Developer will make a cash contribution of $1,000,000 to the City as a Community Benefft (the “Community Benefit Payment”). The Community Benefft Payment shall be paid prior to the –10– issuance of the ffrst building permit in the Project. Each Community Benefft Payment in the amounts set forth above shall apply to the entire Property even if the Property is owned by multiple Developers at that time. Notwithstanding anything to the contrary herein, Developer agrees, on behalf itself and its successors, that, should it fail to make any payments when due, the City may withhold any permits or approvals within the Project until the payment or payments have been made, even if the rights to those permits and approvals are then held by Developer ’s successors. 6.2 Community Facilities District. 6.2.1 Developer intends to propose the formation of a community facilities district or districts by the City pursuant to the Mello-Roos Community Facilities District Act of 1982 (Gov. Code §§ 53311–53368.3) (the “Mello-Roos Act”) to ffnance public facilities. The City agrees to, upon Developer’s presentation of a landowner’s petition and Developer’s payment of a fee, as described in subdivision (d) of Government Code section 53318, use its best etforts to commence proceedings to form a CFD to ffnance certain public facilities, so long as Developer’s proposal is consistent with the City’s CFD Goals (Resolution No. 50-17 ) and would not, if approved, allow the etfective tax rate to exceed 1.75% or the term of the bonds to exceed 35 years. The City Council is not obligated to approve the CFD. 6.2.2 If the City approves the CFD and issues bonds, the amount of the Community Benefft Payment shall be increased by an amount that would result in the City receiving 10% of the aggregate face value of all bonds issued less $1,000,000. 7. Affordable Housing. 7.1 Units Required by Regulations. The Project includes up to 500 residential units. Pursuant to the City’s Inclusionary Zoning Regulations (Chapter 8.68 of the Dublin Municipal Code) (the “Regulations”), developers of more than 20 residential units are required to set aside 12.5% of the units in the project as atfordable units as speciffed. Based on 500 units and the currently anticipated mix of rental and for sale units, the Developer ’s inclusionary zoning obligation would be 63 units broken down as follows: 38 moderate income units and 25 low income. 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 satisffed –11– through the payment of a fee in-lieu of construction of units. In addition, developers can satisfy their atfordable housing obligations by, among other mechanisms, obtaining City Council approval of an alternative method of compliance that the City Council ffnds meet the purposes of the Regulations. 7.3 Alternative Compliance for the Project. Developer shall satisfy its 69-unit atfordable housing obligation through the following “alternative method of compliance” under Section 8.68.040.E of the Regulations: 7.3.1 Atfordable Accessory Dwelling Units. While Developer is contemplating Subsequent Projects Approvals that would include the production of 106 detached accessory dwelling units (“ADUs”), the processing of those Subsequent Project Approvals could result in a decrease in the number of ADUs. Therefore, as may be speciffed in the Subsequent Project Approvals authorizing the development of market rate housing, Developer shall enter into an otherwise standard atfordable housing agreement that requires it to provide approximately 100 (and not less than 85) deed-restricted detached ADUs, with half in the moderate-income category and half in the low-income category. 7.3.2 Contribution of Atfordable Housing Site. As may be speciffed in the Subsequent Project Approvals authorizing the development of market rate housing, with respect to the 3.8± acre Public/Semi-Public site within Planning Area 2 (as deffned, described, and depicted in the PD) (the “P/SP Site”), Developer shall elect to either: (a) Enter into an agreement with the City that ensures, to the satisfaction of the City, that Developer or its successor will complete a multi-family project on the P/SP Site that, upon completion, would allow the City to report on its next annual report prepared pursuant to Government Code section 65400 the completed project as having satisffed the City’s regional housing needs obligation for 100 lower-income units; or (b) Dedicate the P/SP Site to the City or its designee on the applicable ffnal map (or by other instrument) prior to the Project’s ffrst residential building permit. If Developer elects to dedicate the P/SP Site, it shall, prior to the dedication, complete the rough grading of the P/SP Site and associated improvements (including street frontage improvements, including, but not limited to, curb, gutter, sidewalk, landscape, irrigation, and ac cess roadways on all sides of the dedicated parcel that are adjacent to current and future roadways) all as speciffed in the approved tentative map associated with the dedication, if any, and provide evidence acceptable to the City Engineer –12– demonstrating that the land to be conveyed (including any imported ffll) meets applicable environmental standards for residential development or such lesser standard acceptable to the City. 7.3.3 Moderate-Income Units or Contribution to First Time Homebuyer Program. As may be speciffed in the Subsequent Project Approvals authorizing the development of market rate housing, Developer shall, prior to issuance of the ffrst residential building permit, (a) enter into an otherwise standard atfordable housing agreement that requires it to provide 6 moderate- income, for-sale, entry-level townhome units within Planning Area 3A of the Project and (b) contribute $1,000,000 to the City’s ffrst-time homebuyer program, with such agreement requiring that the City set aside such funds to assist ffrst- time homebuyers purchasing homes within the Property, until such time as all for-sale units in the Project have been sold at least once. 7.3.4 Satisfaction of City Requirements. Through its approval of this Agreement, the City Council hereby ffnds that the “alternative method of compliance” in this section 7.3 meets the purposes of the Regulations and will promote the City’s atfordability and Housing Element goals. 7.4 Additional Market-Rate Units. Any additional market-rate residential development on the Property above 500 units shall be subject to the requirements of the Regulations, notwithstanding the Inclusionary Zoning Regulations limitation to projects of 20 or more units. 8. Dedications; Vacations. 8.1 Northside Drive. As part of this Agreement, the City shall take the necessary actions to vacate Northside Drive. Provided that City has vacated Northside Drive, Developer shall acquire the portion Northside Drive within Planning Area 1 (the “Northside Drive PA1 Property”), as depicted in Exhibit B, from the City for its “Fair Market Value” (determined in accordance with Section 8.3.1 herein), prior to the issuance of a building permit for Planning Area 1. 8.1.1 Determination of Fair Market Value. City shall have the Northside Drive PA1 Property appraised and deliver to Developer a written notice (the “Fair Market Value Notice”) setting forth the proposed fair market value of the Northside Drive PA1 Property based on the appraisal (the “Fair Market Value”). Developer, within ten business days affer Developer’s receipt of the Fair Market Value Notice, shall either (i) deliver to City written notice (the “Acceptance Notice”) that Developer accepts the Fair Market Value set forth in the Fair Market Value Notice, or (ii) if Developer disagrees with City’s –13– determination of the Fair Market Value, deliver to City written notice of rejection (the “Rejection Notice”). If Developer fails to provide City with an Acceptance Notice or Rejection Notice within such ten business day period, Developer shall be deemed to have delivered an Acceptance Notice. (b) If Developer delivers a Rejection Notice, Developer and City shall meet and confer in good faith regarding the Fair Market Value. In the event Developer delivers a Rejection Notice and the Parties are not able to agree in writing on the Fair Market Value by the date that is twenty business days affer City’s delivery of the Fair Market Value Notice, then Developer may elect to prepare its own appraisal. (c) Upon completion of its appraisal, Developer shall deliver City a written notice setting forth the proposed fair market value (“Developer’s Fair Market Value Notice”). If the Parties are not able to agree in writing on the Fair Market Value by the date that is twenty business days affer the delivery of the Developer’s Fair Market Value Notice, then within ffve business days the Parties shall attempt to agree on an appraiser to determine the Fair Market Value. If the Parties are unable to agree in that time, then each Party shall designate an appraiser within ffve days thereaffer. Should either Party fail to so designate an appraiser within that time, then the appraiser designated by the other Party shall determine the Fair Market Value. Should each of the Parties timely designate an appraiser, then the two appraisers so designated shall appoint a third appraiser who shall, acting alone, determine the Fair Market Value. Any third party appraiser designated hereunder shall have an M.A.I. certiffcation or equivalent with not less than 5 years’ experience in the valuation of commercial property in Alameda County, California. (d) Within ffve business days following the selection of the appraiser, Developer and City shall each submit in writing to the appraiser its determination of the Fair Market Value (respectively, the “Developer Determination” and the “City Determination”). Should either Party fail timely to submit its Fair Market Value determination, then the determination of the other Party shall be conclusive and binding on the Parties. The appraiser shall not disclose to either party the Fair Market Value determination of the other party until the expiration of that ffve business day period or, if sooner, the appraiser ’s receipt of both the Developer Determination and the City Determination. (e) Within twenty days following the selection of the appraiser and such appraiser ’s receipt of the Developer Determination and the –14– City Determination, the appraiser shall determine whether the Fair Market Value determined by Developer or by City more accurately reifects the fair market value of the property. Accordingly, either the Developer Determination or the City Determination shall be selected by the appraiser as the Fair Market Value. At any time before the decision of the appraiser is rendered, either Party may, by written notice to the other Party, accept the Fair Market Value submitted by the other Party, in which event such value shall be deemed adopted as the agreed Fair Market Value. The fees of the appraiser(s) shall be shared equally by the Parties. 8.2 Brannigan Extension. The Project Approvals anticipate an extension of Brannigan Street that would extend south of Dublin Boulevard (the “Brannigan Extension”). Future approvals of development of the portion of the Property south of Dublin Boulevard will require Developer to construct the Brannigan Extension and to make good faith etforts to acquire the necessary land title and interests from the adjoining property owner. Government Code section 66462.5 (“Section 66462.5”) provides that, under circumstances in which neither the City nor the Developer has the necessary property interests to complete an improvement required by the tentative map conditions, the City shall either (a) require Developer to enter into an agreement that requires the completion of the improvement at such time as it has acquired the interests or (b) acquire the necessary interests within 120 days of ffling the map or waive the condition requiring the improvement. Developer desires more certainty regarding when the improvements will be completed, and the City desires that a diligent, good-faith etfort be made by the Developer to acquire the necessary interests with the agreement of the adjacent property owner. Accordingly, the City agrees, upon Developer ’s demonstration of such diligent, good faith etforts to the satisfaction of the City Manager, to commence the process described under Section 66462.5 within 90 days of providing such evidence to the City Manager. All costs associated with acquisition shall be the obligation of Developer. Notwithstanding the foregoing, in the event of acquisition of the Brannigan Extension right-of-way by City through negotiation or settlement (rather than by ffnal judgment in an eminent domain action), City shall not pay more than ten percent (10%) above the fair market value of the Brannigan Extension right-of-way (determined in accordance with the procedures set forth in Section 8.1.1 herein) without Developer’s prior written consent, in Developer’s sole discretion. 8.3 Community Center. As may be speciffed in the Subsequent Project Approvals authorizing the development of any portion of Planning Area 2 (as deffned, described, and depicted in the PD), Developer shall construct and –15– dedicate (or permanently make available free of charge) to the City community center/event space (improved to a “warm shell”) (the “Community Center”) for use as the Community Center. The Community Center shall consist of a minimum of 1,800 square feet of indoor space and serve as event space and for City programming and will contribute to the City’s etfort to add additional community space as deffned in the City’s Parks and Recreation Master Plan. The Community Center shall be dedicated (or permanently made available) to the City, via deed or ffnal map. Development of the Community Center shall be subject to an improvement agreement to be entered into at a later date between City and Developer that shall address the details, delivery, timing and maintenance of the Community Center. As part of the any transfer of property to the City, the Developer shall record a public parking easement on the adjoining parcel(s) to ensure adequate public parking for the facility. Developer shall receive a credit against its parkland and facilities fees from the Public Facility Fee Program for the dedication of the Community Facility. 9. Amendment or Cancellation. 9.1 Modiffcation Because of Conifict 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 etfect on the Etfective Date. In the event that state or federal laws or regulations enacted affer the Etfective 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. 9.2 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 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 modiffed. No amendment, modiffcation, waiver or change to this Development Agreement or any provision hereof shall be etfective for any purpose unless speciffcally set forth in a writing –16– that expressly refers to this Development Agreement and signed by the duly authorized representatives of both Parties. 9.2.1 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 atfects only another Party’s Portion. 9.3 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 “signiffcant” 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 City ’s Public Works Director shall determine whether a reservation or dedication is “signiffcant” in the context of the overall Project. 9.4 Clariffcations. If and when, from time to time, during the Term of this Agreement, City and Developer agree reffnements and clariffcations are necessary or appropriate with respect to the details of performance of City and Developer hereunder, City and Developer shall etfectuate such clariffcations through letter agreements (each, a “Clariffcation”) approved by City and Developer, which, affer execution, shall be attached hereto as addenda and become a part hereof, and may be further clariffed from time to time as necessary with future approval by City and Developer. No such Clariffcation 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 clariffcation is of such a character to constitute an Amendment subject to Section 9.3 above or a Clariffcation subject to this Section 9.4. The City Manager shall have the authority to review, approve, and execute Clariffcations to this Agreement provided that such Clariffcations are not Amendments. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance –17– 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. 10. Annual Review. 10.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2023, and thereaffer 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. 10.2 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 days’ prior written notice that the City intends to undertake such review. Not less than thirty days affer 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. 10.3 Statf Reports. To the extent practical, the City shall deposit in the mail to Developer a copy of all statf reports, and related exhibits concerning contract performance at least ffve days prior to any public hearing addressing annual review. 10.4 Costs. Costs reasonably incurred by the City in connection with the annual review shall be paid by Developer in accordance with the City ’s schedule of fees in etfect at the time of review. 11. Default. 11.1 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 City’s regulations governing development agreements, expressly including, but not limited to, the remedy of speciffc performance of this Agreement. 11.2 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 Mortgagee’s right to cure pursuant to Section 13.3 hereof, if the default is not cured by the defaulting party within –18– thirty days affer 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 b egins to cure such default within such thirty day period and diligently pursues such cure to completion. Any notice 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 speciffed 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. 11.3 No Damages against City. Notwithstanding anything to the contrary contained herein, in no event shall damages be awarded against the City upon an event of default or upon termination of this Agreement. 12. 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 etfect and a binding obligation of the Parties, (b) this Agreement has not been amended or modiffed 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 certiffcate 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 certiffcate requested by Developer. Should the Party receiving the request not execute and return such certiffcate within the applicable period, this shall not be deemed to be a default, provided that such Party shall be deemed to have certiffed that the statements in clauses (a) through (c) of this Section are true, and any Party may rely on such deemed certiffcation. City acknowledges that a –19– certiffcate hereunder may be relied upon by Transferees (as deffned in Section 16.2) and Mortgagees (as deffned in Section13.1). 13. Mortgagee Protection; Certain Rights of Cure. 13.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof affer 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 etfective against any person or entity, including any deed of trust beneffciary 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. 13.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 13.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or affer 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. 13.3 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 City’s notice. The City, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty days upon request of Developer or a Mortgagee. 14. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the –20– other provisions unenforceable, invalid or illegal; provided that, if the unenforceability, invalidation, or illegality would deprive either City or Developer of material beneffts derived from this Development Agreement, or make performance under this Development Agreement unreasonably dilficult, then City and Developer shall meet and confer and shall make good faith etforts to amend or modify this Development Agreement in a manner that is mutually acceptable to City and Developer. 15. Attorneys’ Fees and Costs. 15.1 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. 15.2 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 alfirmatively cooperate in defending said action and to execute a joint defense and conffdentiality 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 attorneys’ fees expended by the City in defense of any such action or other proceeding 16. Transfers and Assignments. 16.1 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 benefft 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 property, (a) is for the benefft of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and –21– each successive owner during its ownership of such properties or any portion thereof, and shall be a benefft to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 16.2 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 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, conditioned, or delayed. 16.3 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 affer Developer’s notice, provided all necessary documents, certiffcations and other information are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform 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 olficial records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. 16.4 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, ffnancial 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 ffnancially capable of performing Developer's obligations hereunder not withheld by Developer. Notwithstanding the foregoing, the City Manager’s approval shall not be required for an assignment to Landsea Homes of California, Inc. (“Landsea”), an entity or entities controlling Developer or Landsea, controlled by Developer or Landsea, –22– or under common control with Developer or Landsea, provided that Developer or Landsea, as the case may be, owns and controls no less than ffffy percent of such successor entity or controls the day-to-day management decisions of such successor entity. 16.5 Release upon Transfer. Upon the transfer, sale, or assignment of all of Developer’s 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, certiffcations and other necessary information prior to City Manager approval. 16.6 Developer’s Right to Retain Speciffed 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 speciffes such rights, interests and/or obligations in a written document to be appended to this Agreement and recorded with the Alameda County Recorder prior to the sale, transfer or assignment of the Property. Developer ’s purchaser, transferee or assignee shall then have no interest or obligations for such rights, interests and obligations and this Agreement shall remain applicable to Developer with respect to such retained rights, interests and/or obligations. 16.7 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 –23– 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 atfect the portion of the Property owned by such transferor or Transferee. 17. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 18. Indemnification. Developer agrees to indemnify, defend and hold harmless the City, and its elected and appointed councils, boards, commissions, olficers, 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 Developer ’s contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that Developer shall have no indemniffcation 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 affer 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. 19. Insurance. 19.1 Commercial General Liability Insurance. During the Term of this Agreement, Developer shall maintain in etfect 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 speciffed under this Agreement. 19.2 Workers Compensation Insurance. During the Term of this Agreement Developer shall maintain Worker’s Compensation insurance for all –24– persons employed by Developer for work at the Project site. Developer shall require each contractor and subcontractor similarly to provide Worker ’s Compensation insurance for its respective employees. Developer agrees to indemnify the City for any damage resulting from Developer ’s failure to maintain any such insurance. 19.3 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 ffffeen 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, olficers, agents, employees and representatives and to Developer performing work on the Project. 20. 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 Developer’s etforts to reserve water and sewer capacity sulficient to serve the Project described herein. 21. 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 Fax No. (925) 833-6651 Email: linda.smith@dublin.ca.gov Notices required to be given to Developer shall be addressed as follows: Daniel M. Ikeda, Chief Financial Olficer SCS Development Co 404 Saratoga Ave. Suite 100 Santa Clara, CA 95050 Phone No.: 408-985-6000 Fax No.: 408-985-6050 –25– Email: dikeda@scsdevelopment.com A Party may change address by giving notice in writing to the other Party and thereaffer 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 affer 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 veriffcation of receipt. 22. 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. 23. 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 the Property Exhibit B Northside Drive PA1 Property 24. Recitals. The foregoing Recitals are true and correct and are made a part hereof. 25. 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. 26. Recordation. The City shall record a copy of this Agreement within ten days following execution by all Parties. Thereaffer, if this Agreement is terminated, modiffed or amended, the City Clerk shall record notice of such action with the Alameda County Recorder. 27. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties and their respective permitted successors and assigns, any rights or remedies hereunder. 28. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. –26– 29. Time is of the Essence. Time is of the essence for each provision of this Agreement for which time is an element. 30. 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 beneffts 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 alfidavit if reasonably required, and ffle 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 fulffll the provisions of this Development Agreement or to evidence or consummate the transactions contemplated by this Development Agreement. 31. 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. 32. 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 draffing Party shall apply to the interpretation or enforcement of this Development Agreement. 33. Authority. The persons signing below represent and warrant that they have the authority to bind their respective Party and that all necessary board of directors’, shareholders’, partners’, city councils’, or other approvals have been obtained. 34. Non-Intended Prevailing Wage Requirements. Except for public improvements constructed by the Developer and to be dedicated to the City (which will or may be required by conditions of approval on Subsequent Project Approvals) and as may be required by Section 6.2 (“Community Facilities District”), 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 improvement within the Project (a “Non-Intended Prevailing Wage Requirement ”). But for the understanding of the Parties as reifected in the immediately preceding sentence, the Parties would not have entered into this Development Agreement based upon the terms and conditions –27– set forth herein. Developer and City have made every etfort in reaching this Development Agreement to ensure that its terms and conditions will not result in a Non-Intended Prevailing Wage Requirement. These etforts 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 etforts, 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 ffrst above written. –28– CITY OF DUBLIN By: _____________________________ Linda Smith, City Manager Attest: __________________________ Marsha Moore, City Clerk Approved as to form __________________________ John Bakker, City Attorney DEVELOPER Award Homes, Inc., a California corporation By: __________________________ Name: _______________________ Its: __________________________ SCS Development Company, a California corporation By: __________________________ Name: _______________________ Its: __________________________ Santa Clara Valley Housing Group, Inc., a California corporation By: __________________________ Name: _______________________ Its: __________________________ (NOTARIZATION ATTACHED) Exhibit A Legal Description of the Property Exhibit A Exhibit B Northside Drive PA1 Property RIGHT OF WAY TO BE DEDICATED EX PA-1 BOUNDAR( �� , �Yi� lij, 'l,() \tt---EX AT&T BOX f'I NORTHSIDE DRIVE R/W (WITHIN PA-1) NORTHSIDE DRIVE R/W (OUTSIDE OF PA-1) PA-1 RIGHT-OF-WAY TO BE VACATED (SQFTJ 69,265± SOFT 73, 030± SQFT I I � LEGEND PRELIMINARY CAL TRANS RIGHT OF WAY PER BART TO LIVERMORE EXTENSION BART ROADWAY ALIGNMENT AL TERNA Tl VE #1 PLANS DATED 06/24/2016 _ _ _ _ _ _ _ _ PUBLIC ACCESS EASEMENT (PAE) & PUBLIC UTILITY EASEMENT (PUE) --------EX FIBER OPTIC --------EX AT&T PARCEL 1 PARCEL MAP 9003 292 PM 89 0 -N- 150 1 inch = 150 ft. 300 ----- C'\j 8 --=----- - -- - - -= --r i - -- -- - -=--==-====-----l - � .:=--------r----=-----=--=-------=-=-----=----=== NORTHSIDE DRIVE VA CATION SCS DUBLIN RUGGERI-JENSEN-AZAR ENGINEERS ■ PLANNERS ■ SURVEYORS 4690 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94588 PHONE: (925) 227-9100 FAX: (925) 227-9300 aTY OF DUBLIN, ALAMEDA COUNTY, CALIFORNIA DATE: JANUARY 29 2018 JOB NO.: 171026E SHEET: 1 OF 1 EXHIBIT B Ex h i b i t C Ord. No. 16-22, Item 4.9, Adopted 12/06/2022 Page 1 of 6 ORDINANCE NO. 16 – 22 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AMENDMENTS TO THE PLANNED DEVELOPMENT ZONING STAGE 1 DEVELOPMENT PLAN AND APPROVING A STAGE 2 DEVELOPMENT PLAN FOR SITES D-2 AND E-2 OF THE DUBLIN TRANSIT CENTER (APNs: 986-0034-012-00 AND 986-0034-014-00) (PLPA-2022-00036) The Dublin City Council does ordain as follows: SECTION 1. RECITALS A. The State of California requires cities and counties to adopt a comprehensive, long-term General Plan for the physical development of the City. B. The Housing Element is one of seven mandated elements of the General Plan and must address the existing and projected housing needs for all economic segments of the community. C. State law requires Housing Elements to be updated and certified by the California Department of Housing and Community Development (HCD) every eight years. D. The City of Dublin prepared the 2023 – 2031 Housing Element in accordance with State law. E. The Housing Element must include an inventory of specific sites or parcels that are suitable for residential development and available for use in the planning period to accommodate the City’s Regional Housing Needs Allocation (RHNA), which is included as Appendix D: Adequate Sites Analysis in the 2023 – 2031 Housing Element. F. After accounting for pipeline projects, accessory dwelling units, and existing zoning to accommodate the RHNA, the Adequate Sites Analysis identified a “remaining need” of 755 units. G. A portion of the remaining need is proposed to be accommodated on Sites D-2 and E-2 (APNs: 986-0034-012-00 and 986-0034-014-00) at the Dublin Transit Center. H. On December 3, 2002, the City Council adopted Ordinance No. 21-02 approving a Planned Development Rezone with a Stage 1 Development Plan for the Dublin Transit Center, which among other approvals, established a maximum of 1,800 residential units for the Transit Center and specified Sites D-2 and E-2 shall be developed with a Campus Office use. I. The City proposes to amend Ordinance No. 21-02 to change the allowed land use on Sites D-2 and E-2 from Campus Office to Campus Office/High-Density Residential and increase the maximum residential density from 1,800 units to 2,515 units (“the Project”).