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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: April 15, 2003
SUBJECT: PUBLIC HEARING: PA 00-013 Dublin Transit Center Master
Development Agreement
(Report prepared by: Michael Porto, Project Planner)
ATTACHMENTS: 1. An Ordinance of the City of Dublin approving a Master
Development Agreement between the City of Dublin and
Alameda County Surplus Property Authority for the Transit
Center (with Master Development Agreement attached as Exhibit
A)
2. Planning Commission Resolution
3. Letter from Alameda County Surplus Property Authority dated
December 16, 2002
RECOMMENDATION: l . Open public hearing and hear Staff presentation
2. Question Staff
IZAP'0' 3. Take testimony from the applicant and the public
4. Close public hearing and deliberate
5. Deny Alameda County Surplus Property request to provide a
$2,670,512 credit against a future Commercial Linkage Fee if
adopted
6. Waive Reading and introduce Ordinance (Attachment 1)
approving the Development Agreement
FINANCIAL STATEMENT: There is no financial impact at this time.
DESCRIPTION:
An Ordinance approving a Master Development Agreement between the City of Dublin and Alameda
County Surplus Property Authority for the Transit Center Development is required by State Law. Items in
the Development Agreement include, but are not limited to, the financing and timing of infrastructure;
affordable housing and a public art contribution.
ANALYSIS:
A Development Agreement provides security to the developer that the City will not change its zoning and
other laws applicable to the project for a specified period of time. Additionally, it is a mechanism for the
City to obtain commitments from the developer that the City might not otherwise be able to obtain.
The proposed Master Development Agreement between the City of Dublin and Alameda County Surplus
Property Authority is attached as Exhibit A of Attachment 1 to this staff report. The Transit Center was
COPIES TO: Applicant
Alameda County Surplus Property Authority
In House Distribution
ITEM NO.
added to the Eastern Dublin Specific Plan Area on December 3, 2002. As this is a master development
agreement, all future specific developments proposed for the Transit Center must enter into Development
Agreements to comply with the Eastem Dublin Specific Plan
City procedure and State Law requires that there be three public heatings on Development Agreements.
The purpose of the heating before the Planning Commission is to recommend approval of the
Development Agreements to the City Council.
The Agreement:
The City Attorney drafted the proposed Master Development Agreement with input from City Staff and
the Alameda County Surplus Property Authority Staff. The Development Agreement sets forth the
agreement between the parties in relation to many items, including, but not limited to, infrastructure
construction and phasing, affordable housing, public art contribution and conveyance of park land.
The Master Development Agreement becomes effective for a term of five years from the date it is
recorded. The Master Development Agreement runs with the land and the rights thereunder can be
assigned. The main points of the Master Development Agreement are highlighted below:
The Development Agreement vests the approved land uses for five years, with the right to ten optional
extensions, at a cost of $100,000 per year.
It specifies the timing of construction of certain infrastructure, which will assure that the entire site
functions well.
It requires construction of 15% of the units to be affordable and provides the developer with a credit for
any affordable units in excess of 15%. It also allows the clustering of the low- and very low-income units
on Site A-2. The moderate units will be constructed on the other sites.
It addresses maintenance of street landscaping and lighting.
It includes a $250,000 contribution for public art for the residential phase.
Finally, it includes the developer's commitment to convey the remaining lands needed for completion of
Emerald Glen Park. The developer will be given credit and/or reimbursed as provided for in the Public
Facility Guidelines and the terms of the Agreement.
Outstanding issues to be resolved by the City Council:
Alameda County Surplus Property Authority has requested a credit against any future commercial linkage
fee for the additional residential units they will provide above the City of Dublin required 12 ½%
affordable housing requirement. The Council authorized Staff to retain a consultant to study whether a fee
on commercial development is justified to provide housing for future workers who are unable to afford
market rate housing. The study is not complete, thus there is not at this time a "commercial linkage fee."
The County has committed to construct 15% of the proposed 1,500 residential units and designate them
for "affordable" housing (225 units). The County is requesting this credit for the 2 ½ % increment above
the 12 ½%. This incremental increase amounts to 37 units. Based on the existing Inclusionary Housing
Fee of $72,176 per unit (X 37 units) the amount of the potential credit the County is seeking is
$2,670,512. Depending upon the amount of the furore of the Commercial Linkage Fee, the County
intends to use the credit on any of its property that would be subject to the future Fee.
Staff does not support the County's request to modify the Development Agreement to provide the County
with a credit of $2,670,512 towards a future Commercial Linkage Fee for the following reasons:
1. The County proposed and the City approved the General Plan/Specific Plan Amendment and a
Stage One PD Rezoning which was predicated upon the County building 15% affordable housing
as part of the Transit Center project.
2. The County's representative, in a letter to the City Attorney, dated December 16, 2002 (see
Attachment 3) requested that credits be provided for only those units which exceeded 15% (not 12
½%). The change in the County's position occurred after the Council's action on the Fairway
Ranch project. The Fairway Ranch project provides considerably more affordable units than the
Transit Center project.
3. The Development Agreement provides the County with the guarantee that the City will not change
those entitlements approved to date for a period of up to 15 years. It also allows the County to
cluster the affordable units which is contrary to the provision of the Inclusionary Zoning
Ordinance. Building 2 ½% more affordable units (without credit) than required by the Ordinance
is part of the consideration which the City receives in exchange for providing the County with a
long term Development Agreement.
ENVIRONMENTAL REVIEW:
The City of Dublin, as the Lead Agency, has prepared an Environmental Impact Report and Mitigation
Monitoring Program for the above-referenced proposed project. The Draft Environmental Impact Report
was available for public review from July 6, 2001 to August 21, 2001 and the City subsequently
recirculated an analysis of additional impacts for a 45-day public review period from July 16, 2002 to
August 30, 2002. The Environmental Impact report was certified by the City Council on December 3,
2002.
Planning Commission Action:
The Planning Commission, at it's meeting of April 8, 2003, heard testimony and questioned Staff and the
applicant about the Transit Center Master Development Agreement. After discussion about the merits of
this Development Agreement, the Planning Commission discussed the issue of clustering the low and very
low-income affordable housing units in one project. The Planning Commission directed Staff to let the
City Council know that all 4 of the attending Planning Commissioners did not feel comfortable with
clustering affordable housing units in one project and they felt that the units should be spread among all of
the proposed housing in the Transit Center. Additionally, the Commission felt that any development for
affordable housing should be indistinguishable from adjacent properties for market rate housing. The
Planning Commission did discuss with Staff, the issue of credits for those affordable units over and above
the inclusionary requirement of 12 ½%; however, the Planning Commission did not formally consider the
County's request. Based on this and a discussion of the applicant's request for consideration of potential
Commercial Linkage Fee credits (as noted above), the Planning Commission voted 3 to 1 (Commissioner
King dissenting and Machtmes absent) in favor of this Master Development Agreement. (See Attachment
2, Planning Commission Resolution)
CONCLUSIONS:
Approval of this Master Development Agreement is consistent with both the General Plan and the
Specific Plan.
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN
APPROVING THE MASTER DEVELOPMENT AGREEMENT FOR PA 00-013
SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY
FOR THE DUBLIN TRANSIT CENTER
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The proposed Dublin Transit Center is located within the boundaries of the Eastern Dublin
Specific Plan ("Specific Plan") in an area, which is designated on the General Plan Land Use Element
Map, and Eastern Dublin Specific Plan Land Use Map as High Density Residential, Campus Office and
Public/Semi Public land uses.
B. Pursuant to the California Environmental Quality Act (CEQA), CEQA Guidelines Section
15182, The City of Dublin, as the Lead Agency, has prepared an Environmental Impact Report and Mitigation
Monitoring Program for the above-referenced proposed project. The Draft Environmental Impact Report was
available for public review from July 6, 2001 to August 21,2001 and the City subsequently recirculated an analysis
of additional impacts for a 45-day public review period from July 16, 2002 to August 30, 2002. The
Environmental Impact Report was certified by the City Council on December 3, 2002.
C. The Master Development Agreement between the City of Dublin and Alameda County
Surplus Property Authority has been presented to the City Council, Exhibit A, attached hereto.
D. A public hearing on the proposed Master Development Agreement was held before the
Planning Commission on April 8, 2003, 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 Master Development Agreement.
F. A public hearing on the proposed Master Development Agreement was held before the
City Council on April 15, 2003 and May 6, 2003, 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 April 8, 2003 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.
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, (f) the individual Mitigated Negative Declarations (g) the Agenda Statement, and on the basis of the
specific conclusions set forth below, the City Council finds and determines that:
1. The Master 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 designations for the site are High Density Residential, Campus Office and Public/Semi Public
Land Uses and the proposed project is a project consistent with those land uses, (b) the project is
consistent with the fiscal policies of the General Plan and Specific Plan with respect to provision of
.ATTACHMENT
infrastructure and public services, and (c) the Master Development Agreement includes provisions
relating to vesting of development rights, and similar provisions set forth in the Specific Plan.
2. The Master 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 PD District Overlay Zone for the Dublin Transit Center and Vesting Tentative Map,
General Plan and Specific Plan Amendment and Site Development Review.
3. The Master Development Agreement is in conformity with public convenience, general
welfare and good land use policies in that the Dublin Transit Center will implement land use guidelines
set forth in the Specific Plan and the General Plan which have planned for residential, commercial, parks,
public and semi-public, open space and campus office uses at this location.
4. The Master Development Agreement will not be detrimental to the health, safety and
general welfare in that the project will proceed in accordance with all the programs and policies of the
Eastern Dublin Specific Plan.
5. The Master 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.
6. The Master Development Agreement provides for subsequent development agreements for
individual projects in compliance with the Eastern Dublin Specific Plan.
Section 3. APPROVAL
The City Council hereby approves the Development Agreement (Exhibits A) and authorizes the
Mayor to sign.
Section 4. RECORDATION
Within ten (10) days after the Development Agreement are 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 May
2003, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
2
City of Dublin
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Space above this line for Recorder's Use
MASTER DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY
FOR THE
DUBLIN TRANSIT CENTER PROJECT
THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on
this day of ,2003, by and between the CITY OF DUBLIN, a
Municipal Corporation (hereafter "City"), and SURPLUS PROPERTY AUTHORITY OF
THE COUNTY OF ALAMEDA, a Public Corporation (hereafter"Developer"), pursuant to
the authority of §§ 65864 et seq. of the Califomia Government Code and Dublin
Municipal Code, Chapter 8.56.
RECITALS
A. California Government Code §§ 65864 et seq. and Chapter 8.56 of the
Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an
Agreement for the development of real property with any person' having a legal or
equitable interest in such property in order to establish certain development rights in
such property; and
B. DEVELOPER desires to develop and holds legal interest in certain real
property located in the City of Dublin, County of Alameda, State of California, consisting
of approximately 77 acres, which property together with approximately 14 acres of
public right-of-way is more particularly described in Exhibit A attached hereto and
incorporated herein by this reference and which real property is hereafter called the
"Dublin Transit Center Property"; and
C. DEVELOPER proposes the development of the Dublin Transit Center
Property with a mixed use project to include a village green, approximately 1,500 high-
density residential units (referred to as Sites A, B and C), approximately two million
square feet of campus office ranging in height from eight to ten stories (referred to as
Sites D-l, D-2, E-l, and E-2), a neighborhood park (Site F), approximately 8.65 acres of
public/semi public uses including a parking garage for the adjacent BART station and
public roads (DeMarcus Boulevard, Iron Horse Parkway, Campus Drive and Altamirano
Road) (together, the "Dublin Transit Center Project"); and
D. DEVELOPER has applied for, and CITY has approved, various land use
approvals in connection with the development of the Dublin Transit Center Project,
including: 1) a general plan amendment (Resolution No. 216-02); 2) an amendment to
the Eastern Dublin Specific Plan to add the Dublin Transit Center Property to the
specific plan area (Resolution No. 216-02); 3)tentative parcel map 7892 to divide 35.1
acres west of Arnold Road into five parcels (Planning Commission Resolution 02-40);
and 4) a PD District rezoning including a Stage I Development Plan (Ordinance No. 21-
02) (collectively the "Dublin Transit Center Project Approvals"); and
E. Development of the Dublin Transit Center Property by DEVELOPER is
subject to certain future discretionary approvals including Stage 2 Development Plans,
and site development review; and
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F. DEVELOPER has requested a development agreement in advance of the
time when a development agreement will be required by CITY for the Dublin Transit
Center Property to comply with Chapter 11 of the Eastern Dublin Specific Plan and
CITY has agreed to enter into this agreement on the condition that a further
development agreement or agreements will be required at the times described
hereinafter in Section 6; and
G. The City Council has found that, among other things, this Development
Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and
has been reviewed and evaluated in accordance with Chapter 8.56; and
H. CITY and DEVELOPER have reached agreement and desire to express
herein a Development Agreement that will facilitate development of the Dublin Transit
Center Project subject to conditions set forth herein; and
I. Pursuant to the California Environmental Quality Act (CEQA) the City
certified an Environmental Impact Report ("EIR") for the Dublin Transit Center Project by
Resolution 215-02 and has found that the EIR is adequate for this Agreement; and
J. On ,2003, the City Council of the City of Dublin adopted
Ordinance No. -03 approving this Development Agreement. The ordinance took
effect on ,2003.
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
Section 1. Description of Property.
The property which is the subject of this Development Agreement is described in
Exhibit A attached hereto (the "Dublin Transit Center Property").
Section 2. Interest of Developer.
The DEVELOPER has a legal or equitable interest in the Dublin Transit Center
Property in that, with the exception of public rights-of-way and a portion of the property
owned by the Bay Area Rapid Transit District, it owns the Dublin Transit Center
Property in fee simple.
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Section 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.
Section 4. Effective Date and Term.
Section 4.1 Effective Date. The effective date of this Agreement shall
be the date upon which this Agreement is signed by CITY.
Section 4.2 Term. The term of this Development 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.
Notwithstanding the preceding sentence, this agreement shall not be applicable to any
portion of the Dublin Transit Center Property following the effective date c~f a Specific
Plan Development Agreement, as defined and described in Section 6:
Section 4.3 Optional Extension. Prior to the termination of this
Development Agreement, as provided in Section 4.2, DEVELOPER may extend the
term of the Development Agreement. To do so, DEVELOPER shall give CITY written
notice at least 90 days prior to the termination date of the Development Agreement. At
the time DEVELOPER provides such notice, DEVELOPER shall make a contribution to
CITY in the amount of One Hundred Thousand Dollars ($100,000). Upon receipt of the
notice and the contribution, the City Manager shall approve the extension and shall
notify the DEVELOPER in writing that the term of the Development Agreement has
been automatically extended for an additional one-year period, commencing on the date
the Development Agreement would otherwise have terminated. The DEVELOPER may
exercise its option to extend the Development Agreement no more than ten times, for a
maximum total term of the Development Agreement of fifteen years. The total
contribution for the maximum extension of ten years will be One Million Dollars
($1,000,000).
Section 5. Use of the Dublin Transit Center Property.
Section 5.1 Right to Develop. Developer shall have the vested right to
develop the Dublin Transit Center Project on the Dublin Transit Center Property in
accordance with the terms and conditions of this Agreement, the Dublin Transit Center
Project Approvals, and any amendments to any of them as shall, from time to time, be
approved pursuant to this Agreement.
Section 5.2 Permitted Uses. The permitted uses of the Dublin Transit
Center Property, the density and intensity of use, the height, bulk and size of proposed
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buildings, general provisions for reservation or dedication of land for public purposes
and general location and maintenance of on-site and off-site improvements, general
location of public utilities (operated by CITY) and other terms and conditions of
development applicable to the Dublin Transit Center Property, shall be those set forth in
this Agreement, the Dublin Transit Center Project Approvals and any amendments to
this Agreement or the Dublin Transit Center Project Approvals.
Section 6. Future Development Aqreement(s) Required.
NOtwithstanding any other provision of this Development Agreement to the
contrary, DEVELOPER shall not be able to develop the Dublin Transit Center Property,
or any portions thereof, until it has entered into another development agreement or
agreements with CITY, applicable to the portions of the Dublin Transit Center Property,
which DEVELOPER proposes to develop as required by Chapter 11 of the Eastern
Dublin Specific Plan (a "Specific Plan Development Agreement"). The purpose of the
"Specific Plan Development Agreement" shall be to comply with the requirement of
Chapter 11. The "Specific Plan Development Agreement" for Sites A, B and C will
include affordable housing provisions consistent with Section 12 of this agreement.
As used herein, "develop" shall mean recordation of a final subdivision map, a
final parcel map for a commercial or office use, a final map for medium, medium high or-
high density residential use or issuance of a conditional use permit, site development
review or a building permit.
Section 7. Applicable Rules, Regulations and Official Policies.
Section 7.1 Rules re Permitted Uses. Unless otherwise expressly
provided in Paragraph 5 of this Agreement, for the term of this Agreement, the City's
ordinances, resolutions, rules, regulations and official policies governing the permitted
and conditional permitted uses of the Dublin Transit Center Property, governing density
and intensity of use of the Dublin Transit Center Property and the maximum height, bulk
and size of proposed buildings shall be those in force and effect on the effective date of
this Agreement.
Section 7.2 Rules re Design and Construction of Public Improvements.
The 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 permit approval for the public improvement.
Section 7.3 Uniform Codes Applicable. Unless expressly provided in
Paragraph 5 of this Agreement, the Dublin Transit Center Project shall be constructed in
accordance with the provisions of the City's adopted 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
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building, grading, or other construction permits for the Dublin Transit Center Project.
Section 8. Moratorium Not Applicable.
Notwithstanding anything to the contrary contained herein, in the event an
ordinance, resolution or other measure is enacted, whether by action of CITY, by
initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the
rate of development, or a voter-approval requirement which affects the Dublin Transit
Center Project on all or any part of the Dublin Transit Center Property, CITY agrees that
such ordinance, resolution or other measure shall not apply to the Dublin Transit Center
Project, the Dublin Transit Center Property, this Agreement or the Dublin Transit Center
Project Approvals unless the building imposed by CITY as part of a declaration of a
local emergency (including a moratorium due to lack of sewer or water capacity) or state
of emergency as defined in Government Code § 8558.
Section 9. Applicable Fees and Dedications; Time of Payment.
The Dublin Transit Center Property shall be subject to those development impact
fees, dedications and other fees applicable to new development required by CITY's
adopted ordinances, resolutions and policies which are in effect at the time of approval
of the last discretionary approval.
All applicable development impact fees for the Dublin Transit Center Property will
be paid by DEVELOPER at the time of issuance of building permits and in the then-
current amount of the impact fee.
DEVELOPER has requested CITY consider amending its Eastern Dublin Traffic
Impact Fee ("TIF") to include the Dublin Transit Center Property within such fee and to
determine whether certain infrastructure improvements required by the parcel map
conditions and the proposed BART parking garage are needed by development within
the Eastern Dublin area and should be included as improvements to be funded by the
fee. These improvements consist of (1) improvements to the Dublin/Dougherty
intersection including Dougherty Road from the intersection to 1-580; (2) Scarlett Drive
extension; (3) Hacienda Drive/l-580 Interchange; and (4) parking spaces in the
proposed BART parking garage estimated to cost $6,000,000.
CITY agrees to consider such amendments to its TIF as expeditiously as
possible.
Section 10. Subsequently Enacted or Revised' Fees, Assessments and Taxes.
Section 10.1 Fees, Exactions, Dedications. CITY and DEVELOPER
agree that the fees payable and exactions required in connection with the development
of the Dublin Transit Center Project for purposes of mitigating environmental and other
impacts of the Dublin Transit Center Project, providing infrastructure for the Dublin
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Transit Center Project and complying with the Specific Plan shall be determined at the
time of future discretionary approvals.
Section 10.2 Revised Application Fees. Any existing application,
processing and inspection fees that are revised during the term of this Agreement shall
apply to the Dublin Transit Center Project provided that (1) such fees have general
applicability; and (2) the application of such fees to the Dublin Transit Center Property is
prospective.
Section 10.3 New Taxes. Any subsequently enacted city-wide taxes shall
apply to the Dublin Transit Center Project provided that the application of such taxes to
the Dublin Transit Center Property is prospective.
Section 10.4 Assessments. Nothing herein shall be construed to relieve
the Dublin Transit Center 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 Dublin Transit Center Property.
Section 10.5 Vote on Future Assessments and Fees. In the event that
any assessment, fee or charge which is applicable to the Dublin Transit Center Property
is subject to Article XlllD of the California Constitution and DEVELOPER does not
return its ballot, DEVELOPER agrees, on behalf of itself and its successors, that CITY
may count DEVELOPER's ballot as affirmatively voting in favor of such assessment, fee
or charge.
Section 11. Infrastructure.
Certain infrastructure improvements will be required for the Dublin Transit Center
Project. Notwithstanding anything to the contrary in the Dublin Transit Center Project
Approvals or this agreement, DEVELOPER will construct, or Cause to be constructed,
the following infrastructure improvements at the times indicated below. All infrastructure
improvements shall be constructed to the satisfaction and requirements of the CITY's
Public Works Director. All other infrastructure for the Dublin Transit Center Project will
be provided as required by the Dublin Transit Center. Project Approvals or future
approvals.
Section 11.t Altamirano Road and Arnold Road to Dublin Boulevard.
Altamirano Road and Arnold Road north to Dublin Boulevard shall be constructed to
provide a second access to the BART garage generally as shown on the diagram
attached as Exhibit B-1.
The Altamirano Road improvements shall, at a minimum, consist of the
southern curb and gutter and a minimum 24-foot wide pavement with a temporary 4-foot
wide rock shoulder on the north frontage. The Arnold Road improvements shall consist
of median curbs with 12- foot wide pavements in each direction and a temporary 4-foot
wide rock shoulder on each frontage. Lighting will be required. Landscaping will not be
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required with this phase of construction.
The DEVELOPER shall enter into an agreement for construction of the
improvements and a right-of-entry to construct the improvements within CITY right-of-
way. DEVELOPER shall complete construction of the improvements and offer them to
CITY for dedication no later than commencement of public use of the BART parking
garage to be constructed to accommodate approximately 1,700 spaces in the area
shown as Public/Semi-Public in the General Plan.
Construction of such improvements shall be at DEVELOPER's sole cost
and expense.
Section 11.2 Martinelli Way (also known as Digital Drive) from Iron
Horse Parkway to Arnold Road. Martinelli Way (Digital Drive) shall be constructed to
provide access from Iron Horse Parkway to Arnold Road generally as shown on the
diagram attached as Exhibit B-2.
The improvements shall consist of median curbs with 12- foot wide pavement
in each direction and a temporary 4-foot wide rock shoulder on each frontage. Lighting
will be required. Landscaping will not be required with this phase of construction.
The DEVELOPER shall enter into an agreement for construction of the
improvements and a right-of-entry to construct the improvements within CiTY right-of-
way. DEVELOPER shall complete construction of the improvements and offer them to
CITY for dedication no later than issuance of a certificate of occupancy for the first
residential building on Site C.
Construction of such improvements shall be at DEVELOPER's sole cost and
expense.
Section 11.3 Dublin/Dougherty Intersection Improvements. Within 60
days of notice from CITY, DEVELOPER will advance to CITY monies for acquisition of
right-of-way needed for the improvements planned for the intersection of Dublin
Boulevard and Dougherty Road and for construction of such improvements. The
amount of money requested by CITY will be based on the DEVELOPER's fair share of
the deficit (spread over those projects which are required to make up the deficit)
between funds available to CITY from Category 2 Eastern Dublin Traffic Impact Fee
funds and the estimated cost of acquiring the right-of-way and constructing the
improvements. The City will request advances in increments as monies are needed,
provided that the amount of money to be advanced shall not exceed Two Million Dollars
($2,000,000).
CITY shall provide a credit to DEVELOPER for any advance of monies made
pursuant to this section. The credit shall be for Category 2 of the Eastern Dublin Traffic
impact Fee. Ail aspects of the credit shall be governed by CITY's Administrative
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Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99) ("TIF
Guidelines").
Section 11.4 Scarlett Drive Right-of-Way. DEVELOPER will recommend
to the County of Alameda ("COUNTY") that, upon request by City to acquire any of the
land owned by the County of Alameda adjacent to the former Southern Pacific Railroad
right-of-way between Dublin Boulevard and Dougherty Road, for construction of a road
known as Scarlett Drive, COUNTY will agree that the value of the portion of such
property to be so acquired shall be the then-current "fair market value," provided in no
event shall the "fair market value" exceed the land value used by CITY in calculating its
then-current Eastern Dublin Traffic Impact Fee. COUNTY agrees that it will sell such
land to CITY when requested by CITY. CITY will use such land for construction of a
new road, to be called Scarlett Drive, and will relocate any portions of the existing Iron
.Horse Trail required to be relocated as part of such construction at CITY's expense.
This section shall survive termination of this Agreement.
Section 12. Affordable Housing.
DEVELOPER shall comply with the provisions of CITY's Inclusionary Zoning
Ordinance (Dublin Municipal Code Chapter 8.68) in effect at the time of approval of Site
Development Review.
All required Iow income and very-low income units for the entire Dublin Transit
Center Project may be located on Site A-2, a portion of Site A.
All required moderate units for the entire Dublin Transit Center Project may be
located on Sites A-l, B and C. City shall require ten percent (10%) of the units on Sites
B and C to be moderate units, with remaining moderate units to be located on Site A-1.
CITY shall use the definition in Dublin Municipal Code §8.68.020.D [80% to 120% of
median income, as adjusted] for "moderate income."
A minimum of 15% of the total units constructed on the Dublin Transit Center
Property shall be inclusionary units consistent with the Inclusionary Zoning Ordinance.
The CITY will provide credits to DEVELOPER for any inclusionary units constructed in
excess of 15% as provided in the Inclusionary Zoning Ordinance.
DEVELOPER shall enter into an affordable housing agreement, as required by
the Inclusionary Zoning Ordinance, for each project within the Dublin Transit Center.
Each project on Sites B and C shall include a minimum of ten percent (10%) moderate
units. The affordable housing agreement shall assure that construction of the
inclusionary units occurs contemporaneously with construction of the market rate units
on Sites A-l, B and C. No building permit for any building on Sites A-1 or C shall be
issued unless the building permits for al! Iow income and very-low income units on Site
A-2 have been issued and construction of such units has commenced.
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This section shall survive termination of this agreement.
Section 13. Maintenance of Landscaping and Street Liqhting.
The City will maintain improvements within the public right-of-way which have
been dedicated to and accepted by CITY, provided that frontage improvements
consisting of sidewalks and landscaping located behind the street curb or extension of
the curb will be maintained by DEVELOPER.
DEVELOPER has asked CITY to form an assessment district pursuant to the
Lighting and Landscaping Act of 1972 to pay for street lighting in order to satisfy
DEVELOPER's obligation to pay for street lighting in the Dublin Transit Center Property.
DEVELOPER will not protest the formation of, or annexation to, such an assessment
district or the levy of an assessment. Furthermore, DEVELOPER agrees to record a
declaration of covenants, conditions and restrictions or a similar document against the
Dublin Transit Center Property before issuance of a Certificate of Occupancy for any
structure on such property, which declaration will covenant DEVELOPER, on behalf of
itself and its successors, to pay a "deed assessment" to CiTY for the costs of street
lighting and street light maintenance in the event that the assessment for street light
costs and maintenance is not levied against the Dublin Transit Center Property, or any
portion of it, in any year.
In the event the assessment district is not formed and assessments are not
levied for the costs of such street light maintenance prior to such costs accruing,
DEVELOPER will pay CITY for such costs directly.
Section 14. Public Art Contribution.
Section 14.1 Residential Phase. DEVELOPER agrees to contribute Two
Hundred Fifty Thousand Dollars ($250,000) to CITY for use by CITY for construction of
public art within the residential phase of the Dublin Transit Center Project (Sites A, B, C,
the Village Green and adjacent to the BART parking garage). DEVELOPER will pay
$125,000 to CITY prior to issuance of the first building permit for a residential building or
unit on Site B. DEVELOPER will pay $125,000 to CITY prior to issuance of the first
building permit for a residential building or unit on Site C, or prior to public use of the
BART parking garage, whichever is first. CiTY will consult with DEVELOPER regarding
the selection of public art to be purchased with such monies.
Section 14.2 Campus Office Phase. DEVELOPER shall be subject to the
CITY's public art policy or requirement in effect at the time of the last discretionary
approval of any projects on Sites D-l, D-2, E-l, or E-2.
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Section 15. Park Land.
Section 15.1 Conveyance of Land for Emerald Glen Park. By grant deed,
DEVELOPER shall convey to CITY in fee simple and free of any assessments the
remaining land needed by CITY for completion of Emerald Glen Park located north of
Central Parkway, west of Tassajara Road and south of Gleason Drive in Dublin
("Remaining Emerald Glen Park Acreage"). The amount of land required is 18.177+/-
acres. The exact location of the "Remaining Emerald Glen Park Acreage" shall be
determined by CITY. DEVELOPER shall provide City with all documentation available
to DEVELOPER that the "Remaining Emerald Glen Park Acreage" and underlying
groundwater are free of hazardous substances, including any Phase I or Phase II
environmental assessments performed for DEVELOPER. CITY may enter such
property for the purpose of performing its own testing to determine if the "Remaining
Emerald Glen Park Average" is suitable for park usages. DEVELOPER will remove all
debris and/or hazardous materials left on the property during the preceding three years
from use of the property as a construction yard.
Section 15.2 Timinq of Conveyance. The "Remaining Emerald Glen Park
Acreage" shall be conveyed to CITY within 10 days of the Effective Date of this
agreement.
Section 15.3 Credit for Conveyance. DEVELOPER shall be entitled to a
credit for conveyance of the "Remaining Emerald Glen Park Acreage" at the time the
deed is accepted by CITY. The credit shall be for community park land, provided the
DEVELOPER may use the credit against its obligation for neighborhood park land for
the Dublin Transit Center Project by using its community park land credit equaling .8029
acres of neighborhood park land. For example, if the DEVELOPER's obligation for
neighborhood park land for the Dublin Transit Center is 4.5 acres, DEVELOPER may
use 5.6 acres of community park land credits to satisfy the 4.5 acre neighborhood park
land obligation (4.5 acres / 0.8029 = 5.6046).
DEVELOPER may use its credit for conveyance of the "Remaining Emerald Glen Park
Acreage" to satisfy its obligation under Dublin Municipal Code Chapter 9.28 (City's
"Quimby Act" ordinance) for community park land or neighborhood park land (with one
community park land credit equaling .8029 acres of neighborhood park land), for any
residential project on the Dublin Transit Center Property or in Eastern Dublin. All other
aspects of use of the credit shall be as provided in CITY's Public Facilities Fee
Administrative Guidelines (Resolution 195-99) ("Public Facilities Fee Guidelines").
Section 15.4 Possible Compensation for "Remaining Emerald'Glen Park
Acreaqe". in the event that the total "Quimby Act" community park land dedication
requirement for the Dublin Transit Center Property and other land owned by
DEVELOPER in Dublin is less than the "Remaining Emerald Glen Park Acreage" and
provided there are sufficient Public Facilities Fee monies for the Community Park Land
"component" of the Fee available, CITY shall compensate DEVELOPER for the
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difference between the "Quimby Act" ordinance dedication requirement and the
"Remaining Emerald Glen Park Acreage" ("the Difference"). In such event,
DEVELOPER agrees that CITY will pay DEVELOPER for the "Difference" at the then-
current "fair market value (based on DEVELOPER's estimation)," provided in no event
shall the "fair market value" exceed the community park land value used by CITY in
calculating its then-current Public Facilities Fee. The payment to DEVELOPER shall
occur upon issuance of the last building permit for construction of a building on the
Santa Rita Property, provided that if there are insufficient Public Facilities Fee monies at
such time, the amount of the payment shall become a right to reimbursement, to be paid
pursuant to adopted guidelines from Fee monies only. As used in this Section, "then
current" means the date of an agreement to purchase or the "valuation date", as defined
in the Eminent Domain Law and "Santa Rita Property" means all lands west of
Tassajara Road which are or were owned by DEVELOPER and generally bounded by l-
580 on the south, the Iron Horse Trail on the west and Gleason Drive on the north.
Section 15.5 Illustrative Example. The following example illustrates the
provisions of Section 15.4:
Assume that the "Quimby Act" dedication requirement for all of the
Dublin Transit Center Property and other lands owned by DEVELOPER within the
Santa Rita Property is 10.5 acres.
DEVELOPER conveys 18:2 acres and receives a credit for 18.2
acres. DEVELOPER's "Quimby Act" dedication requirement of 10.50 acres is
subtracted from 18.2 acres for a total of 7.7 acres for which CITY must compensate
DEVELOPER.
At the time of the conveyance, the "fair market value" of the 7.7
acres
(based on DEVELOPER's estimation) is $600,000 an acre and the
community park land value used by CITY in its then-current Public Facilities Fee is
$538,000 an acre. CITY shall pay DEVELOPER the sum of $4,142,600 (7.7 x
$538,000). Alternatively, if the "fair market value" (based on DEVELOPER's estimation)
is $500,000 an acre, CITY shall pay DEVELOPER $3,850,000.
Section 15.6 Payment of Public Facilities Fee. DEVELOPER will be
subject to CITY's Public Facilities Fee for all development within the Dublin Transit
Center Project.
Section 16. Timin,q.
With the exception of the infrastructure improvements described in Section 11,
this Agreement contains no requirements that DEVELOPER must initiate or complete
development of the Dublin Transit Center Project within any period of time set by CITY.
It is the intention of this provision that DEVELOPER be able to develop the Dublin
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Transit Center Property in accordance with its own time schedules and the Dublin
Transit Center Project Approvals.
Section 17. Amendment or Cancellation.
Section 17.1 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 approved by the City Council in accordance
with Chapter 8.56.
Section 17.2 Amendment 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 State law and Chapter 8.56.
Section 17.3 Insubstantial Amendments. Notwithstanding the provisions
of the preceding paragraph 17.2, any amendments to this Agreement which do not
relate to (a) the term of the Agreement as provided in Section 4; (b) the permitted uses
of the Dublin Transit Center Property as provided in Section 5.2; (c) provisions for
"significant" reservation or dedication of land; (d) conditions, terms, restrictions or
requirements for subsequent discretionary actions; (e) the density or intensity of use of
the Dublin Transit Center Project; (f) the maximum height or size of proposed buildings;
(g) monetary contributions by DEVELOPER as provided in this Agreement; or (h) the
Dublin Transit Center Property shall not, except to the extent otherwise required by law,
require notice or public hearing before either the Planning Commission or the City
Council before the parties may execute an amendment hereto. CITY's Public Works
Director shall determine whether a reservation or dedication is "significant".
Section 17.4 Amendment of Dublin Transit Center Proiect Approvals. Any
amendment of Dublin Transit Center Project Approvals relating to: (a) the permitted use
of the Dublin Transit Center 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; (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. Any other
amendment of the Dublin Transit Center Project Approvals, or any of them, shall not
require amendment of this Agreement unless the amendment of the Dublin Transit
Center Project Approval(s) relates specifically to some provision of this Agreement.
Section 17.5 Cancellation by Mutual Consent. Except as otherwise
permitted herein, this Agreement may be canceled in whole or in part only by the mutual
consent of the parties or their successors in interest, in accordance with the provisions
of Chapter 8.56. Any fees paid and/or land dedicated pursuant to this Agreement prior
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to the date of cancellation shall be retained by CITY. ..~_~
Section 18. Annual Review.
Section 18.1 RevieW Date. The annual review date for this Agreement
shall be July 15, 2004 and each jUly 15 thereafter.
Section 18.2 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 Development Agreement
as provided in Government Code §§65684 et seq. The burden of proof by substantial
evidence of compliance is upon the DEVELOPER.
Section 18.3 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.
Section 18.4 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.
Section 19. Default.
Section 19.1 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.
Section 19.2 Notice and Cure. Upon the occurrence of an event of default
by either party, the nondefaulting party shall serve written notice of such default upon
the defaulting party. If the default is not cured by the defaulting party within thirty (30)
days after service of such notice of default, the nondefaulting party may then commence
any legal or equitable action to enforce its rights under this Agreement; provided,
however, that if the default cannot be cured within such thirty (30) day period, the
nondefaulting party shall refrain from any such legal or equitable action so long as the
defaulting party begins to cure such default within such thirty (30) day period and
diligently pursues such cure to completion. Failure to give notice shall not constitute a
waiver of any default.
Section 19.3 No Damaqes Against CITY. In no event shall damages be
awarded against CITY upon an event of default or upon termination of this Agreement.
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Section 20. Estoppel .Certificate.
Either party may, at any time, and from time to time, .request written notice from
the other party requesting such party to certify in writing that, (a) this Agreement is in full
force and effect and a binding obligation of the parties, (b) this Agreement has not been
amended or modified either orally or in writing, or if so amended, identifying the
amendments, and (c) to the knowledge of the certifying party the requesting party is not
in default in the performance of its obligations under this Agreement, or if in default, to
describe therein the nature and amount of any such defaults. A party receiving a
request hereunder shall execute and return such certificate within thirty (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.
Section 21. Mortgagee Protection; Certain Rights of Cure.
Section'21.1 Mortgagee Protection. This Agreement shall be superior
and senior to any lien placed upon the Dublin Transit Center 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 Dublin Transit Center
Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of
foreclosure, or otherwise.
Section 21.2 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 21.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or
complete the construction of improvements, or to guarantee such construction of
improvements, or to guarantee such construction or completion, or to pay, perform or
provide any fee, dedication, improvements or other exaction or imposition; provided,
however, that a Mortgagee shall not be entitled to devote the Dublin Transit Center
Property to any uses or to construct any improvements thereon other than those uses or
improvements provided for or authorized by the Dublin Transit Center Project Approvals
or by this Agreement.
Section 21.3 Notice of Default to Mortgagee and Extension of Right 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
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DEVELOPER has committed an event of default. Each Mortgagee shall have the right
during the same period available to DEVELOPER to cure or remedy, or to commence to
cure or remedy, the event of'default claimed set forth in the CITY's notice. CITY,
through its City Manager, may extend the thirty-day cure period provided in Section 19.2
for not more than an additional sixty (60) days upon request of DEVELOPER or a
Mortgagee.
Section 22. Severability.
The unenforceability, invalidity or illegality of any provisions, covenant, condition
or term of this Agreement shall not render the other provisions unenforceable, invalid or
illegal.
Section 23. Attorneys' Fees and Costs.
If CITY or DEVELOPER initiates any action at law or in equity to enforce or
interpret the terms and conditions of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs in addition to any other relief to
which it may otherwise be entitled, if any person or entity not a party to this Agreement
initiates an action at law or in equity to challenge the validity of any provision of this
Agreement, the Dublin Transit Center Project Approvals, or CITY's actions pursuant to
this agreement, 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 and for any attorney's fees and
costs awarded to a party to be paid by CITY.
Section 24. Transfers and Assignments.
Section 24.1 Right to Assiqn. DEVELOPER may sell, transfer or assign
all of the Property to another developer ("Transferee"). In connection with any such
sale, transfer or assignment to a Transferee, DEVELOPER may sell, transfer or assign
to such Transferee all rights, interests and obligations of DEVELOPER arising
hereunder 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 shall be for the purpose
of assuring CITY that the proposed transferee can perform DEVELOPER's obligations
hereunder), which approval shall not be unreasonably withheld or delayed.
Section 24.2 Approval and Notice of Sale, Transfer or Assiqnment. The
City Manger shall consider and decide on any transfer, sale or assignment within ten
(10) working days after DEVELOPER's notice, provided all necessary documents,
certifications and other information showing the proposed transferee can perform
DEVELOPER's obligations are first provided to the City Manager. Notice of any such
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approved sale, transfer or assignment 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.
Section 24.3 Effect of Sale, Transfer or Assignment. DEVELOPER shall
be released from any obligations hereunder sold, transferred or assigned to a
Transferee pursuant to subparagraph 24.1 of this Agreement, provided that: a) such
sale, transfer or assignment has been approved by the City Manager pursuant to
subparagraph 24.1 of this Agreement; and b) such obligations are expressly assumed
by Transferee; provided that 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 subparagraph 24.1 of this Agreement.
Section 24.4 Permitted Transfer, Purchase or Assignment. 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 24.1. Any subsequent transfer, sale or assignment by the
Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the
provisions of paragraph 24.1.
Section 24.5 Sale of a Portion of Property. The sale or transfer of a
portion of the Dublin Transit Center Property shall not require approval by the City
Manager but the new owner shall enter into a Specific Plan Development Agreement
pursuant to Section 6, which Agreement will include any of the infrastructure obligations
of Section 11 which DEVELOPER may wish to assign to a new owner.
Section 25. Agreement Runs with the Land.
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 Dublin Transit
Center 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
Dublin Transit Center 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.
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Section 26. Bankruptcy.
The obligations of this Agreement shall not be dischargeable in bankruptcy.
Section 27. Indemnification.
DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its
elected and appointed councils, boards, commissions, officers, agents, employees, and
representatives from any and all claims, costs (including legal fees and costs) and
liability for any personal injury or property damage which may arise directly or indirectly
as a result of any actions or inactions by the DEVELOPER, or any actions or inactions
of DEVELOPER's contractors, subcontractors, agents, or employees in connection with
the construction, improvement, operation, or maintenance of the Dublin Transit Center
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).
Section 28. Insurance.
Section 28.1 Public Liability and Property Dama,qe Insurance. At all times
that DEVELOPER is constructing any improvements that will become public
improvements, 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) and a deductible of not more than ten thousand dollars
($10,000.00) 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.
Section 28.2 Workers Compensation Insurance. At all times that
DEVELOPER is constructing any improvements that will become public improvements
DEVELOPER shall maintain Worker's Compensation insurance for all persons
employed by DEVELOPER for work at the Dublin Transit Center Project site or for work
performed pursuant to this Agreement. 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.
Section 28.3 Evidence of insurance. Prior to commencement of
construction of any improvements which will become public improvements,
DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in
Sections 28.1 and 28.2 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,
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commissions, officers, agents, employees and representatives and to DEVELOPER
performing work on the Dublin Transit Center Property and pursuant to this Agreement.
DEVELOPER may satisfy the requirements of this Section by providing a Certificate of
self insurance.
Section 29. Sewer and Water.
DEVELOPER acknowledges that it must obtain water and sewer permits from
the Dublin San Ramon Services District ("DSRSD") which is another public agency not
within the control of CITY.
Section 30. Notices.
All notices required or provided for under this Agreement shall be in writing.
Notices required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
P.O. Box 2340
Dublin, CA 94568
Notices required to be given to DEVELOPER shall be addressed as follows:
Surplus Property Authority of Alameda County
Manager
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.
Section 31. A.qreement is Entire Understanding.
This Agreement constitutes the entire understanding and agreement of the
parties.
Section 32. Exhibits.
The following documents are referred to in this Agreement and are attached
hereto and incorporated herein as though set forth in full:
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Exhibit A Legal Description of Dublin Transit Center Property
Exhibit B-1 Location Map (Altamirano ROad and Arnold Road north to
Dublin Boulevard)
Exhibit B-2 Location Map (Martinelli Way [Digital Drive] from Iron Horse
Parkway to Arnold Road)
Exhibit C Sites A-1 and A-2
Section 33. Counterparts.
This Agreement is executed in two (2) duplicate originals, each of which is
deemed to be an original.
Section 34. Recordation.
CITY shall record a copy of this Agreement within ten days following execution
by all parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written. ~:
CITY OF DUBLIN:
By: Date:
Janet Lockhart, Mayor
ATTEST:
By: Date:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
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SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY:
Date:
Adolph Martinelli
Its Manager
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Exhibit A
Legal Description
Dublin Transit Center Property
BEING THOSE CERTAIN PARCELS OF LAND DESIGNATED AS PARCELS 1,
2, 3, 4, A & C OF PARCEL MAP 7395 AS FILED ON THE 31sT DAY OF
OCTOBER, 2000, RECORDER SERIES NO. 2000323901, IN BOOK 254 OF
PARCEL MAPS AT PAGES 28 THROUGH 34 ALAMEDA COUNTY RECORDS,
CALIFORNIA.
APNs: 986-0001-006-00
986-0001-009-00
986-0001-010-00
986-0001-011 -00
986-0001-012-00
986-0001-013-02
Exhibit A
Legal Description
Dublin Transit Center Property
BEING THOSE CERTAIN PARCELS OF LAND DESIGNATED AS PARCELS 1,
2, 3, 4, A & C OF PARCEL MAP 7395 AS FILED ON THE 31sT DAY OF
OCTOBER, 2000, RECORDER SERIES NO. 2000323901, IN BOOK 254 OF
PARCEL MAPS AT PAGES 28 THROUGH 34 ALAMEDA COUNTY RECORDS,
CALIFORNIA.
APNs: 986-0001-006-00
986-0001-009-00
986-0001-010-00
986-0001-011 -00
986-0001-012-00
986-0001-013-02
Exhibit A
Legal Description
Dublin Transit Center Property
BEING THOSE CERTAIN PARCELS OF LAND DESIGNATED AS PARCELS 1,
2, 3,4, A & C OF PARCEL MAP 7395 AS FILED ON THE 31sT DAY OF
OCTOBER, 2000, RECORDER SERIES NO. 2000323901, IN BOOK 254 OF
PARCEL MAPS AT PAGES 28 THROUGH 34 ALAMEDA COUNTY RECORDS,
CALIFORNIA.
APNs: 986-0001-006-00
986-0001-009-00
986-0001-010-00
986-0001-011 -00
986-0001-012-00
986-0001-013-02
Exhibit A
Legal Description
Dublin Transit Center Property
BEING THOSE CERTAIN PARCELS OF LAND DESIGNATED AS PARCELS 1,
2, 3, 4, A & C OF PARCEL MAP 7395 AS FILED ON THE 31sT DAY OF
OCTOBER, 2000, RECORDER SERIES NO. 2000323901, IN BOOK 254 OF
PARCEL MAPS AT PAGES 28 THROUGH 34 ALAMEDA COUNTY RECORDS,
CALIFORNIA.
APNs: 986-0001-006-00
986-0001-009-00
986-0001-010-00
986-0001-011 -00
986-0001-012-00
986-0001-013-02
Exhibit A
Legal Description
Dublin Transit Center Property
BEING THOSE CERTAIN PARCELS OF LAND DESIGNATED AS PARCELS 1,
2, 3, 4, A & C OF PARCEL MAP 7395 AS FILED ON THE 31sT DAY OF
OCTOBER, 2000, RECORDER SERIES NO. 2000323901, IN BOOK 254 OF
PARCEL MAPS AT PAGES 28 THROUGH 34 ALAMEDA COUNTY RECORDS,
CALIFORNIAi
APNs: 986-0001-006-00
986-0001-009-00
986-0001-010-00
986-0001-011 -00
986-0001-012-00
986-0001-013-02
CENTRAL PARKWAY
DUBLIN TRANSIT CENTER BOUNDARY ~._~~
'¢~ ~.~'-' PARCEL 3
~ ~ ~ ~ ....
S~te E 2 '
S~te E 1
PARCEL-t ~ ' ~ ~ ~
~ ~ PM73'~ ~ PARCEL 2 o
Site C Site D-I
~'e~~ % '~ ' Site D-2
· BART STATION 1-580 ~ ·
Exhibit A
CENTRAL PARK'wAY ~
DUBLIN TRANSIT CENTER BOUNDA , .-
Site
Site E-2
Site A Site E-1
Site B
DIGITAL DRIVE (Martinelli Way)
Village Green ~ ~ '
Site D-1
Site C
Site D-2
ALTAMIRANO ROAD and
ARNOLD ROAD IMPROVEMENTS /
/
CENTRAL PARI'F~AY
DUBLIN TRANSIT CENTER BOUNDARY
Site F
,, · DUBLIN BOULEVARD
Site E-2
Site A Site E.1
Site B
DIO~TAL DRIVE (Martineili Way)
Village Green ~
DIGITAL DRIVE IMPROVEMENTS
Site
Site C
Site D-2
ALTAMIRANO ROAD
BART STATION 1"580
Exhibit
CENTRAL PARKWAY
DUBLIN TRANSIT CENTER BOUNDARY
Site F
DUBLIN BOULEVARD
=~ Site E-2
. Site A-2 Site E~I ~I
Site B '~i
Site A-I '" =~.
_~ DIGITAL DRIVE (Martinelli Way)
Village Green --
Site D-1
Site C
Site D-2
ROAD
BART STATION 1-580
Exhibi+ C
RESOLUTION NO. 03 - 11
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT A MASTER
DEVELOPMENT AGREEMENT FOR PA 00-013 DUBLIN TRANSIT CENTER
WHEREAS, Pat Cashman on behalf of Alameda County Surplus Property Authority has
requested approval a Master Development Agreement for the Dublin Transit Center North of 1-
580, West of Arnold Road extension, East of Iron Horse Trail, and South of Dublin Boulevard
and Parks RFT, and
WHEREAS, the Development Agreement is required as an implementing measure of the
Eastern Dublin Specific Plan; and
WHEREAS, this project is within the scope of the Eastern Dublin Specific Plan and
General Plan Amendment, for which a Program EIR was certified (SCH 91103064). The City of
Dublin, as the lead agency has prepared an Environmental Impact Report and Mitigation
Monitoring Program for the above referenced proposed project. The Draft Environmental Impact
Report was available for public review from July 6, 2001 to August 21, 2001 and the City
subsequently recirculated an analysis of additional impacts for a 45-day public review period
from July 16, 2002 to August 30, 2002. The Environmental Impact report was certified by the
City Council on December 3, 2002.
WHEREAS, the text of the Draft Master Development Agreement is attached to this
resolution as Exhibit A; and
WHEREAS, the Planning Commission did hold a public hearing on said application
April 8, 2003; and
WHEREAS, proper notice of said public hearing was given in all respects as required by
law; and '
WHEREAS, the Staff Report ;vas submitted recommending that the Planning
Commission recommend that the City Council approve the Master Development Agreement; and
WHEREAS, the Planning Commission did hear and use their independent judgment and
considered all said reports, recommendations and testimony hereinabove set forth.
NOW THEREFORE BE IT RESOLVED THAT THE Dublin Planning Commission
does hereby make the following findings and determinations regarding said proposed Master
Development Agreement:
1. Said Agreement is consistent with the objectives, policies, general land uses and
programs specified in the Eastern Dublin Specific Plan/General Plan in that, a) the Eastern
Dublin Specific Plan/General Plan land use designation for the subject site is proposed to be
ATTACHMENT
Planned Development and that the Dublin Transit Center is consistent with that designation; b)
the projects are consistent with the fiscal policies in relation to provision of infrastructure and
public services of the City's Eastern Dublin Specific Plan/General Plan; c) the Agreement sets
forth the rules the Developer and City will be governed by during the development process which
is required by the Eastern Dublin Specific Plan; and the Mitigation Monitoring Program of the
Eastern Dublin Specific Plan.
2. Said Agreement is compatible with the uses authorized in, and the regulations
prescribed for, the land use district in which the real property is located in that the project
approvals include a Planned Development Rezone, General Plan/Specific Plan Amendments and
Site Development Review.
3. Said Agreement is in conformity with public convenience, general welfare and
good land use practice in that the Dublin Transit Center will implement land use guidelines set
forth in the Eastern Dublin Specific Plan/General Plan, as proposed.
4. Said Agreement will not be detrimental to the health, safety and general welfare in
that the development will proceed in accordance with the Agreements and any Conditions of
Approval for the Project; and
5. Said Agreement will not adversely affect the orderly development of the property
or the preservation of property values in that the development will be consistent with the City of
Dublin Eastern Dublin Specific Plan/General Plan.
NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning
Commission does hereby recommend that the City Council approve the Master Development
Agreement between Alameda County Surplus Property Authority and the City of Dublin for PA
00-013 Dublin Transit Center.
PASSED, APPROVED AND ADOPTED this 8th day of April, 2003
AYES: Cm. Fasulkey, Jennings and Nassar
NOES: Cm. King
ABSENT: Cm. Machtmes
ABSTAIN:
Planning Commission Chairperson
ATTEST:
Planning Manager
G:LPA#k2000\00-013\da\PC reso dev agr.doc
~ Rece:i-ved: 12/16/2002 5:06PM; - ;-.o2.-t: y 01"
FROM COMMUNITY DEVELOPIVIENT AGENOY-ADMIN. (MON) 12, i6' 02 14:55/ST, i4:48/N0. 4862230S17 P 2' ':':!.ii
AI.AMEDA COUNTY COMMUNITY DEVELOPMENT AGEN~C~~
SURPLUS PROPERTY AUTHORITY "
Adolph Maninetti December 16, 2002
Ager~C~ ~ir~'~'i:or
Libby SilVer
patrick Qashman
Ci~ of Dublin
";'"~ P.O. Box 2340
a~.,',.,,, ~ 0 Dublin, Ca 94568
H,5'ward
c~orn~; Re; Dublin T~sit Center M~ Develo~em A~ccment
945~ ~ 2' b
D~ Libby:
~x ~s Io~er is my attempt to 0~0 ~e issu~ ~t I t~ should be ~dress~
~0.670~7~ · ~ter Development Agreement for ~e ~tly approved ~lin Tr~sit Center.
,.,:,,.~,?. ~ve reviewed the Dublin ~h ~ ~velopment Agreement ~d
:::,**~ ~.,,:~0.~.~ '~.:~ go~ model for the Transit
As ~r ~e Dublin Ranch ~& ~ Alsm~ Co~W S~I~ ~y
D~eloper, a~ees that the co~~ T~it Center Master Develo~e~ '
A~eemem does not preclude ~ ~ for subsequent project Development
A~ments. The emitlemenB r~ly ~oved by ~e CiW did not include
S~e 2 Planned Development~ or Si~ Desi~ Keview. All ~e Tmsit
Cen~r projects ~11 req~re ~'~ ~men~ ~d ~11 require a proj~t
s~cific Develo~ent A~m~ ~ ~ ~e. This understo~ding pu~ ~e Transit
~nter M~ter Development A~ ~ ~m~tive ~d reheves it of much of
~e s~ific de~l that o~en. ~~ ~oject Development A~eemen~.
~e ~sues ~t we feel 'should~ ~ ~clu~ the mm of the ~& ph~ing of
in~c~e, the dedication of~~ ~or~le housing, public
m~~ce of street improv~ ~ ~e appli~bitlty of the s~flard
Dubt~ S~cific Plan Area
Iem: The te~ shall ~ for fi~ ~~ ~e option to emnd ~e m~ for ~n
~tio~ one-ye~ ext. e~io~ u~ ~t of $100,000 ~r ye~ e~mion
~ents.
~strncture Phasing: Sin~ ~ ~oj~t ~11 mquke a ~c study ~d ~11 be
~n~fio~d to provide the i~ ~~ for ~t proj~t, e~ct s~uences
for ~~c~ p~sing are ~~ ~ ~e ~A. Never-~l~s
shoed contort provisions tMt ~ ~ m~sm~ng (in~~e p~smg
.... ~ be detemed by future proje~ s~ific ~c ~d utili~ stu~es) ~d shoul, d ~her
~flect ce~n general affeemenB re~ng phasing. Specifically we wo~d like
~A m recogni~ that the D~ Tmnsk Center has two ph~es of i~c~e,
~e Residential Phase a~d the Offi~ P~se.
FROM COMMUNITY DEVELOPMENT AGENCY-ADMI.N, '(MON) 12, 16' 02 !4:55/ST, 14:48/N0, 4862230317
Libby Silver
December 11, 2002
P~ge 2
The Residential Phase and wilt be commenced with the development of one or more '~.
residential developments on Blocks A, B, or C (a copy of a map is attached). The Residential
Phase witl require the improvement of Demamus Blvd. and Iron Horse Parkway and any
in~¢mal streets required within Blocks A, B, and C. Phase One will include the construction of
the new BART Cmrage. The Residential Phase would not require the consmmetion of the
following offsite improvements: Scarlett Drive, Doughtery Road, or Hacienda Drive
Improvements at I580 or above Central Parkway. The Office Phase will be triggered by the
d~v¢lopmcnt of any one of the Blocks E-l, .F.,-2, I~I, and D-2. The Office Phase will requi~
the .improvemem of Dig/tal Drive from Iron Horse Pm-k-way to Itacienda Drive, Campus Drive
from Dublin Blvd. to Altamirano Road, and Altamimao Road from Campus Drive to Arnold.
Parkland Dedication: The City will requ/m the Quimby dedication of the first pqrtion of the
designated Neighborhood Park Site F no sooner tlmm the development of the 863rd residential
unit in the Transit Center. If prior to thai hme, the Ci~ determines that a neighborhood park
site would bc more appropriate in another location, the City take steps to m-designate Site F to
Campus Office and the Developer would pay in-lieu park dedication fees or offer dedication of
parkland ~t anotlx:r site.
Affordable Housing: The MDA should acknowledge that the DUblin Transit Center is subject
to the City's Inclusionary Zoning Regulations. The Developer agrees to exceed the
requirements of those regulations by commitl;[u§ that 15% of the total units will be affordable
units. 50 % of the affordable units will b~ for Modml~ Income residents, 20% of the units wilt
be for Low Income residents, and 30% of IIi~ units will be for Very-Low Income residents., as
defined m the Inclusiona~ Zoning Regulation. The Developer agrees that all required
affordable units are to be built on-site. Th~ C.iB' .a~r~. s that all of the Low and Very-Low
Income units can be concenWated in one or mo~ ~ .parate developments, as long as any such
affordable development meets the City's deign a__audards and is integrated into the
neighborhooc[ Should the Developer choo~ to e~eed the 15% affordable housing
requirement, the City agrees that the Dev~lol~r. would be entitled to earn Affordable Housing
Credits, as may be defined in furore m~nrlm to the. Inclusiormry Zoning Regulations.
Publie Art: The Developer agrees to pr~.. ~.~: .~...,t~0~ 0 for public art in the Transit Center.
The fundins w/Il be providing in conj ~;~.~ development of each ph.ase of~th,e~
development, at a mm of approximately :$~[~. ~, for each of the apprommateiy ~u acres
of resident/al and office acres to bc dcvel~.. ' ..T~ ~velopcr will cooperate with thc City in
the planning and expenditure oft.he pub~i~~tures.
Maintenance of Public Imnrovements: F~-..,~a~. ffmaimenance is a MDA issue but the
areas that would benefit by some clar~fi~~ m do w~th the respons~bihUes for
maintaining the public improvements. The I~A could reflect the understand/ng that the City
FROM CO~[UNITY DEVELOPMENT AGENCY-ADMIN, (MON) 12, ~ 02 t4:55/ST. 14:48/N0, ~862230317 P 4
L~bby Silv~ ~
Dec~mber 11~ 2002
Page 3
Wii~ main~ ~e de--cared p~b] ic impr°vemen~ exe~ for the frontage improvemems
consi~g of~e sidewalks, and landscaping ~ ~e located behind the s~ c~b. w~eh ~1l
be m~m~,~ by the Developer. The CiW ~II ~~ ~ ~reet lighting, whe~er loea~d in
the me~ or in ~e siflewalk area. The ~elo~ ~ eooperam ~h lhe City ff the
chooses to e~d the cx~s~ng Landsca~, Li~ ~d M~ten~ce Dis~ct(~) into fie'
Transit C~r, ~clUding a~eeing to pfiv~ C~ ~ a backup funding source for ~e '
Dis~ct(s).
D~elopment F~: ~ is the understanding of~ ~e CiW and the Developer ~ ~e Dublin
Tr~sit ~n~r, ~ a resuk ofiz~ beeomi~ ~ ~~ ~ ~e Eas~m D~lin Specific Plan Are~,
will be subj~ ~ ~e s~e development f~ ~ ~e ~ of~e Specific PI~ ~ea. We
~de~d ~t ~e CiW may need to rake ~ ~t~s m ~end that existing fee pro~s to
include the Transit ~ntez ~forc the d~s of~ ~aon can be es~lished. N~v~ ~e
less, ~de~dent of the City taking the n~ ~ m amend ~e v~o~ fees, ~e ~A
Shoed establish i~t ~ is ~e intention of~ ~ m integra the Transit Center into the
E~mm ~iiu Specific PI~ ~ea~ incl~g ~e ~fion of the v~ous deveto~ent fees.
BART Garage Tra~c Impact Fee Cr~it~ ~ ~fion ~ ~te~a~g ~e T~nsit Center
the ~te~ Dublin Tr~c Impact Fee pro~m. ~ ~s~ in the ~ove pam~ph, the ~A
shoed ~so refl~t'the intention of the ~.~ ~t~e, m ~e ~ended ~, ~e new B~T
~a~. S~ifi~lly, ~e Tr~s[t Center B~T ~ ~ould be ~ded m ~e T~ as ~
exp~ion of~e a~ilable Eastern DubI~ B~T S~on p~ng by 500 spies, at a T~
project cost of $5,000,000. . .
~s le~ey refl~ the major issues from o~ ~t4f-~ew. The CiW prob~ly h~ ~difio~
issu~ ~t it would ~e to s~ addressed ~ ~~ We ~e requesting ~t you prep~e a
~fi ~A so ~t we can all maintain f~ ~ ~s .~~t dcvelopmem.
Sincerely,
Patrick Cashman
Project Direr. or
Cc: Adolpl~ Marfi~elli. Alameda County- . Rick Judd, Goldfarb & Lipman
Rich Ambrose, City of Dublin
Eddie Peabody, City of Dublin
Lee Thompson, City of Dublin