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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: November 8, 2000
SUBJECT: PUBLIC HEARING PA 00-003 Emerald Glen Village Center,
Development Agreement (Second Reading)
(Report Prepared by: Anne Kinney, Associate Planner)
ATTACHMENTS: 1. City Council Ordinance approving a Development Agreement
between Shea Properties, LLC, Alameda County Surplus Property
Authority and the City of Dublin for Emerald Glen Village Center
2. Development Agreement
RECOMMENDATION: Open Public hearing
2. Receive staff presentation and public testimony
3. Close public hearing
4. Deliberate
5. Waive reading and adopt Ordinance (Attachment 1) approving
Development Agreement (Attachment 2)
PROJECT DESCRIPTION:
An Ordinance approving a Development Agreement between the City of Dublin, Shea Properties, LLC
and Alameda County Surplus Property Authority for Emerald Glen Village Center. The Development
Agreement is required by the Eastern Dublin Specific Plan. Items included in the Development
Agreement include, but are not limited to, the financing and timing of infrastructure; payment of traffic,
noise and public facilities impact fees; timing of dedication of parkland and general provisions.
BACKGROUND
The project site is located at the northwest corner of Dublin Boulevard and Tassajara Road within the
Eastern Dublin Specific Plan area. The Emerald Glen Village Center project proposes a mixed -use
development including 134, 025 square foot neighborhood shopping center, 390 multi -family apartment
units, structured and surface parking, landscaping and related improvements.
BACKGROUND:
Planning Commission Action:
On September 26, 2000, the Planning Commission reviewed the Staff Report for the proposed project and
adopted a Resolution recommending that the City Council adopt an Ordinance approving a Development
Agreement with Shea Properties, LLC and Alameda County Surplus Property Authority for Emerald Glen
Village Center.
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COPIES TO: The Applicant/Property Owner
PA File
ITEM NO.
G:\pa00-003\ccsrdanov7.doc
City Council Action:
At the Public Hearing of October 17, 2000, the City Council heard a presentation from Staff, took public
testimony and waived the first reading of the Ordinance adopting a Development Agreement with Shea
Properties, LLC and Alameda County Surplus Property Authority for Emerald Glen Village Center.
ANALYSIS:
As required by the City of Dublin Municipal Code, a second reading of the proposed Ordinance is
necessary prior to final adoption of the Development Agreement.
RECOMMENDATION:
Staff recommends that the City Council open the Public Hearing, take testimony from staff and the public,
deliberate, waive the second reading and adopt the Ordinance (Attachment 1 ) approving the Development
Agreement for Emerald Glen Village Center, PA 00-003.
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DUBLIN
APPROVING THE DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF DUBLIN,
SHEA PROPERTIES, LLC (PA 00-003) and
ALAMEDA COUNTY SURPLUS PROPERTY AUTHORITY
FOR EMERALD GLEN VILLAGE CENTER
THE CIIY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1 .. RECITALS
A. The proposed Emerald Glen Village Center (PA 00-003) 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 General Commercial.
B. 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). A Mitigated Negative Declaration
has been prepared for the project because the project will not have environmental effects which were not
examined in the Program EIR. No new effects will occur and therefore no revisions to the Program EIR
'are required. That Mitigated Negative Declaration together with the Program EIR adequately describes the
total project for the purposes of CEQA. Further, that analysis found that the project is in conformity with
the Eastem Dublin Specific Plan. The Mitigated Negative Declaration was certified by the City Council
on July 18, 2000.
C. Implementing actions of the Specific Plan, including Chapter 11 thereof, require that all
projects within the Specific Plan area enter into development agreements with the City.
D. Shea Properties, LLC, have filed an application requesting approval of a development
agreement for Emerald Glen Village Center.
E. A Development Agreement between the City of Dublin, Shea Properties, LLC, and
Alameda County Surplus Property Authority has been presented to the City Council, a copy of which is
attached to the Staff Report as Attachment 2.
F. 'A public heating on the proposed Development Agreement was held before the Planning
Commission on September 26, 2000, for which public notice was given as provided by law.
G. The Planning Commission has made iis recommendation to the City Council for approval
of the Development Agreement.
H. Public hearings on the proposed Development Agreement was held before the City Council
on October 17, 2000, and November 7, 2000, for which public notice was given as provided by law.
ATTACHMENT 1
~o / ///~/~'~
'I. At that public hearing on October 17, 2000, the City Council waived reading and
introduced the Ordinance approving the Development Agreement.
J. At that public hearing on November 7, 2000, the City Council waived reading and adopted
the Ordinance approving the Development Agreement.
K. The City Council has considered the recommendation of the Planning Commission
(Planning Commission Resolution 00-56), 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 Agenda Statement, and on the basis of the specific conclusions set forth below, the City
Council finds and determines that:
1. The Development Agreement is consistent with the objectives, policies, general land uses
and programs specified and contained in the City of Dublin General Plan and the Eastern Dublin Specific
Plan in that, (a) the General Plan and Eastern Dublin Specific Plan land use designation for the subject site
is General Commercial and that the Emerald Glen Village Center project is consistent with that
designation; (b) the project is consistent with the fiscal policies of the General Plan and Specific Plan
with respect to provision of infrastructure and public services, and (c) the Development Agreement
includes provisions relating to financing, construction and maintenance of public facilities, and similar
provisions set forth in the Specific Plan.
2. The Development Agreement is compatible with the uses authorized in, and the regulations
prescribed for, the land use district in which the real property is located in that the project approvals
include a Planned Development Rezoning adopted specifically for the Emerald Glen Village Center
Project.
3. The Development Agreement is in conformity with public convenience, general welfare
and good land use policies in that the Emerald Glen Village Center Project will implement land use
guidelines set forth in the Specific Plan and the General Plan which encourages a mix of residential and
commercial uses at this location.
4. The 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 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.
2
Section 3. APPROVAL
The City Council hereby approves the Development Agreement (Attachment 2 to the Staff Report)
and authorizes the Mayor to sign it.
Section 4. RECORDATION
Within ten (10) days after the Development Agreement is executed by the Mayor, 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 -' day of
November, 2000, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
MAYOR
CITY CLERK
G:PA 00-003 Ord DA
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
DEVELOPMENT AGREEMI~NT
BETWEEN THE
CITY OF DUBLIN
AND
SHEA, LLC
AND
THE SURPLUS PROPERTY AUTHORITY
OF THE COUNTY OF ALAMEDA
FOR THE
EMERALD GLEN VILLAGE CENTER
ATI'ACtlHEM' 2
TABLE OF CONTENTS
1. Description of Property ........................................................................................2
2. Interest of Developer ......' ......................................................................................2
3. Relationship of CITY, COUNTY and DEVELOPER ..............................................3
Effective Date and Term .......................................................................................3
4.1 Effective Date .............................................................................................3
4.2 Term ...........................................................................................................3
Use of the Property ...............................................................................................3
5.1 Ri.qhtto Develop ..........................................................................................3
5.2 Permitted Uses ...........................................................................................3
5.3 Additional Conditions ......................· ...........................................................3
Applicable Rules, Regulations and Official Policies .......................................: ......4
6.1 Rules re Permitted Uses ............................................................................4
6.2 Rules re Design and Construction .............................................................4
6.3 Uniform Codes Applicable ..........................................................................5
Subsequently Enacted Rules and Regulations .....................................................5
7.1 New Rules and Regulations ........................ ...............................L ...............5
7.2 Approval of Application ..............................................................................5
7.3 Moratorium Not Applicable .........................................................................5
Subsequently Enacted or Revised Fees, Assessments and Taxes ......................6
8.1
8.2
8.3
8.4
8.5
Fees, Exactions, Dedications .....................................................................6
Revised Application Fees ...........................................................................6
New Taxes .................................................................................................6
Assessments .............................................. ................................................6
Vote on Future Assessments and Fees ...............................................' ......6
Amendment or Cancellation ..................................................................................6
9.1
9.2
9.3
9.4
9.5
Modification Because of Conflict with State or Federal Laws .....................6
Amendment by Mutual Consent .................................................................7
Insubstantial Amendments .........................................................................7
Amendment of Project Approvals ...............................................................7
Cancellation by Mutual Consent ................................................................7
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Table of Contents - Page i of iii
September 12, 2000
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
Term of Project Approvals ....................................................................................7
Annual Review ................................................................; .....................................8
11.1 Review Date ...............................................................................................8
11.2 Initiation of Review .....................................................................................8
11.3 Staff Reports ..............................................................................................8
11.4 Costs ..........................................................................................................8
Default ..................................................................................................................8
12.1 Other Remedies Available ..... : ...................................................................8
12.2 Notice and Cure .........................................................................................8
12.3 No Damages Against CITY ........................................................................9
Estoppel Certificate ...............................................................................................9
Mortgagee Protection; 'Certain Rights of Cure ......................................................9
14.1 Mortgagee Protection .................................................................................9
14.2 Mortgagee Not Obligated ...............................................................: ...........9
14.3 Notice of Default to Mortgagee and Extension of Right to Cure ............... 10
Severability .........................................................................................................10
Attorneys' Fees and Costs ..................................................................................10
Transfers and Assignments ................................................................................10
17.1 DEVELOPER's Right to Assign ...............................................................10
17.2 Release Upon Transfer ............................................................................11
17.3 Developer's Right to Retain Specified Rights or Obligations .................... 11
17.4 Permitted Transfer, Purchase or Assignment ..........................................11
Agreement Runs with the Land ..........................................................................11
Bankruptcy ..........................................................................................................12
Indemnification ....................................................................................................12
Insurance ............................................................................................................13
21.1 Public Liability and Property Damage Insurance ......................................13
21.2 Workers Compensation Insurance ...........................................................13
21.3 Evidence of Insurance ..............................................................................13
Dublin/Shea, LLC/Alameda
Development Agreement ~ Emerald Glen Village Center
Table of Contents - Page ii of iii
September 12, 2000
22.
23.
25.
26.
27.
28.
Sewer and Water ................................................................................................13
Notices .............................._ ..................................................................................13
Agreement is Entire Understanding ....................................................................14
Exhibits ...............................................................................................................14
Counterparts ............~ ...............................................................' ............................15
Recordation ........................................................................................................15
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Table of Contents - Page iii of iii
September 12, 2000
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this __day of ,2000, by and between the CITY OF DUBLIN, a
Municipal Corporation (hereafter "CITY"), Shea Homes Limited Partnership, a California
limited partnership (hereafter "DEVELOPER") and the Surplus Property Authority of
Alameda County, a public corporation (hereafter "COUNTY") pursuant to the authority
of §§ 65864 et seq. of the California 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. The City Council adopted the Eastern Dublin Specific Plan.by
Resolution No. 53-93 which Plan is applicable to the Property; and
C. The Eastern Dublin Specific Plan requires DEVELOPER to enter into
a development agreement; and
D. DEVELOPER desires to develop and holds legal interest in certain
real property consisting of approximately 19 acres of land, located in the City of Dublin,
County of Alameda, State of California, which is more particularly described in Exhibit A
attached hereto and incorporated herein by this reference, and which real property is
hereafter called the "Property"; and
E: DEVELOPER acquired or will acquire its interest in the Property from
COUNTY pursuant to a purchase and sale agreement which allocates rights and
obligations as between COUNTY and DEVELOPER. COUNTY is a party to this
Agreement because COUNTY will dedicate certain land, construct certain
improvements, and receive certain credits;
F. DEVELOPER proposes the development of the Property for a mixed
use development, consisting of approximately 134,025 square feet of commercial and
390 residential units (the "Project"); and
G. DEVELOPER has applied for, and CITY has approved or is
processing, various land use approvals in connection with the development of the
Project, including a PD District rezoning (Ordinance No. 18-00), tentative parcel map
Site Development Review and Master Sign Program (Planning Commission Resolution
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Page I of 17
September 20, 2000
No. 00-34), (collectively, together with any approvals or permits now or hereafter issued
with respect to the Project, the "Project Approvals"); and
H. Development of the Property by DEVELOPER may be subject to
certain future discretionary approvals, which, if granted, shall automatically become part
of the Project Approvals as each such approval becomes effective; and
I. CITY desires the timely, efficient, orderly and proper development of
said Project; and
J. 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
K. CITY~ COUNTY and DEVELOPER have reached agreement and
desire to express herein a Development Agreement that will facilitate development of
the Project subject to conditions set forth herein; and
L. Pursuant to the California Environmental Quality Act (CEQA) the City
has found, pursuant to CEQA Guidelines section 15182, that the Project is within the
scope of the Final Environmental Impact Report for the Eastern Dublin General Plan
Amendment and Specific Plan. which was certified by the Council by Resolution No. 51-
93 and the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR")and the
Mitigated Negative Declaration for the Project found that the EIR and Mitigated
Negative Declaration were adequate for this Agreement; and
M. On
adopted Ordinance No.__
took effect on
,2000, the City Council of the City of Dublin
approving this Development Agreement. The ordinance
,2000.
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contair~ed,
CITY, COUNTY and DEVELOPER agree as follows:
AGREEMENT
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
2. Interest of Developer.
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Page 2 of 17
September 20, 2000
The DEVELOPER has a legal or equitable interest in the Property,
3. Relationship of CITY, COUNTY and DEVELOPER.
It is understood that this Agreement is a contract that has been
negotiated and voluntarily entered into by CITY, COUNTY and DEVELOPER and that
neither the DEVELOPER nor COUNTY is an agent of CITY. The CITY, COUNTY 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, COUNTY and
DEVELOPER joint venturers or partners.
4. Effective Date and Term.
4.1 Effective Date. The effective date of this Agreement shall be
the date upon which this Agreement is signed by CITY.
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.
4.3 Earlier Termination Upon Issuance of Certificates of
Occupancy. Upon issuance of the final Certificate of Occupancy for the Project, this
Development Agreement shall terminate 'with respect to DEVELOPER only and
DEVELOPER shall have no further obligations hereunder. This Development
Agreement shall continue in effect with respect to the COUNTY until terminated
pursuant to Section 4.2.
5. Use of the Property.
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
this Agreement, the Project Approvals (as and when issued), and any amendments to
any of them as shall, from time to time, .be approved pursuant to this Agreement.
5.2 Permitted Uses. The permitted uses of the Property, the
density and intensity of use, the maximum height, bulk and size of proposed buildings,
provisions for reservation or dedication of land for public purposes and location and
maintenance of on-site and off-site improvements, location of public utilities (operated
by CITY) and other terms and conditions of development applicable to the Property,
shall be those set forth in this Agreement, the Project Approvals and any amendments
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Page 3 of 17
September 20, 2000
to this Agreement or the Project Approvals.
5.3 Additional Conditions. Provisions for the following
("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated
herein by reference.
5.3.1 Subsequent Discretionary Approvals. Conditions,
terms, restrictions, and requirements for subsequent discretionary
actions. (These conditions do not affect D.EVELO PER's responsibility
to obtain all other land use approvals required by the ordinances of
the City of Dublin.)
Not Applicable
5.3.2 Mitigation Conditions. Additional or modified
conditions agreed upon by the parties in order to eliminate or mitigate
adverse environmental impacts of the Project or otherwise relating to
development of the Project.
See Exhibit B
5.3.3 Phasing, Timing. Provisions that the Project be
constructed in specified phases, that construction shall commence
within a specified time, and that the Project or any phase thereof be
completed within a specifiedtime.
See Exhibit B
5.3.4 Financing Plan. Financial plans which identify
necessary capital improvements such as streets and utilities and
sources of funding.
See Exhibit B
5.3.5 Fees, Dedications.
fees or dedication of property.
See Exhibit B
Terms relating to payment of
5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.3.7
Miscellaneous. Miscellaneous terms.
See Exhibit B
6. Applicable Rules, Regulations and Official Policies.
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Development Agreement - Emerald Glen Village Center
Page 4 of 17
September 20, 2000
6.1' Rules re Permitted Uses. For the term of this Agreement,
the City's ordinances, resolutions, rules, regulations and official policies governing the
permitted uses of the Property, governing density and intensity of use of the 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.
6.2 Rules re Design and Construction. Unless otherwise
expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules,
regulations and official policies governing design, improvement and construction
standards and specifications applicable to the Project shall be those in force and effect
at the time of the applicable discretionary Project Approval. In the event of a conflict
between such ordinances, resolutions, rules, regulations and official policies and the
Project Approvals, the Project Approvals shall prevail.
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.
6.3 Uniform Codes Applicable. Unless expressly provided in
Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the
provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes
and Title 24 of the California Code of Regulations, relating to Building Standards, in
effect at the time of approval of the appropriate building, grading, or other construction
permits for the Project.
7. Subsequently Enacted Rules and Regulations.
7.1 New Rules and Regulations. During the term of this
Agreement, the CITY may apply new or modified ordinances, resolutions, rules,
regulations and official policies of the CITY to the Property which were not in force and
effect on the effective date of this Agreement and which are not in conflict with those
applicable to the Property as set forth in this Agreement and the Project Approvals if:
(a) the application of such new or modified ordinances, resolutions, rules, regulations or
official policies would not prevent, impose a substantial financial burden on, or
materially delay development of the Property as contemplated by this Agreement and
the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or
official policies have general applicability.
7.2 Approval of Application. Nothing in this Agreement shall
prevent the CITY from denying or conditionally approving any subsequent land use
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Page 5 of 17
September 20, 2000
permit or authorization for the Project on the basis of such new or modified ordinances,
resolutions, rules, regulations and policies except that such subsequent actions shall be
subject to any conditions, terms, restrictions, and requirements expressly set forth
herein.
7.3 Moratorium Not 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 which affects the Project on all or any part of the
Property, CITY agrees that such ordinance, resolution or other measure shall not apply
to the Project, the Property, this Agreement or the Project Approvals unless the building
moratorium is imposed as part of a declaration of a local emergency or state of
emergency as defined in Government Code § 8558.
8. Subsequently Enacted or Revised Fees, Assessments and Taxes.
8.1 Fees, Exactions, Dedications. CITY and DEVELOPER
agree that the fees payable and exactions required in connection with the development
of the Project Approvals for purposes of mitigating environmental and other impacts-of
the Project, providing infrastructure for the Project and complying with the Specific Plan
shall be those set forth in the Project Approvals and in this Agreement (including Exhibit
B). The CITY shall not impose or require payment of any other fees, dedications of
land, or construction of any public improvement or facilities, shall not increase or
accelerate existing fees, dedications of land or construction of public improvements, in
connection with any subsequent discretionary approval for the Property, except as set
forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph
5.3.5).
8.2 Revised Application Fees. Any existing application,'
processing and inspection fees that are revised during the term of this Agreement shall
apply to the Project provided that (1) such fees have general applicability; (2) the
application of such fees to the Property is prospective; and (3) the application of such
fees 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
.application, processing and/or inspection fees.
8.3 New Taxes. Any subsequently enacted city-wide taxes shall
apply to the Project provided that: (1) the application of such taxes to the Property is
prospective; and (2) the application of such taxes would not prevent development in
accordance with this Agreement. By so agreeing. DEVELOPER does not waive its
rights to challenge the legality of any such taxes.
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Development Agreement - Emerald Glen Village Center
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September 20, 2000
8.4 Assessments. Nothing herein shall be construed to relieve
the Property from assessments levied against it by CITY pursuant to any statutory
procedure for the assessment of property to pay for infrastructure and/or services which
benefit the Property.
8.5 Vote on Future Assessments and Fees. In the event that
any assessment, fee or charge which is applicable to the Property is subject to Article
XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER
agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's
ballot as affirmatively voting in favor of such assessment, fee or charge.
9. Amendment or Cancellation.
9.1 Modification Because of Conflict with State or Federal Laws.
In the event that state or federal laws or regulations enacted after the effective date of
this Agreement prevent or preclude compliance with one or more provisions of this
Agreement or require changes in plans, maps or permits approved by the CITY, the
parties shall meet and confer in good faith in a reasonable attempt to modify this
Agreement to comply with such federal or state law or regulation. Any such
amendment or suspension of the Agreement shall be approved by the City Council in
accordance with Chapter 8.56.
9.2 Amendment by Mutual Consent. This Agreement may be
amended in writing from time to time by mutual consent of the parties hereto and in
accordance with the procedures of State law and Chapter 8.56.
9.3 Insubstantial Amendments. Notwithstanding the provisions
of the preceding section 9.2, any amendments to this Agreement which do not relate to
(a) the term of the Agreement as provided in section 4.2; (b) the permitted uses of the
Property as provided in section 5.2; (c) provisions for "significant" reservation or
dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or
requirements for subsequent discretionary actions; (e) the density or intensity of use of
the Project; (f) the maximum height or size of proposed buildings; or (g) monetary
contributions by DEVELOPER as provided in this Agreement, shall not, except to the
extent otherwise required by law, require notice or public hearing before either the
Planning Commission or the City Council before the parties may execute an
amendment hereto. CITY's Public Works Director shall determine whether a
reservation or dedication is "significant".
9.4 Amendment of Project Approvals. Any amendment of
Project Approvals relating to: (a) the permitted use of the Property; (b) provision for
reservation or dedication of land; (c) conditions, terms, restrictions or requirements for
Dublin/Shea, LLC/Alameda
Devet0pment Agreement - Emerald Glen Village Center
Page 7 of 17
September 20, 2000
subsequent discretionary actions; (d) the density or intensity of use of the Project; (e)
the maximum height or size of proposed buildings; (f) monetary contributions by the
DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall
require an amendment of this Agreement. Such amendment shall be limited to those
provisions of this Agreement which are implicated by the amendment of the Project
Approval. Any other amendment of the Project Approvals, or any of them, shall not
require amendment of this Agreement unless the amendment of the Project Approval(s)
relates specifically to some provision of this Agreement.
9.5 Cancellation by Mutual Consent. Except as otherwise
permitted herein, this Agreement may be canceled in whole or in part only by the
mutual consent of the parties or their successors in interest, in accordance with the
provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of
this Agreement prior to the date of cancellation shall be retained by CITY.
10. Term of Project Approvals.
Pursuant to California Government Code Section 66452.6(a), the term
of the tentative map described in Recital G above shall automatically be extended for
the term of this Agreement. The term of any other Project Approval shall be extended
only if so provided in Exhibit B.
11. Annual Review.
11.1 Review Date. The annual review date for this Agreement
.shall be August 15, 2001 and each August 15 thereafter.
11.2 Initiation of Review. The CITY's Community Development
Director shall initiate the annual review, as required under Section 8.56.140 of Chapter
8.56, by giving to DEVELOPER thirty (30) days' written notice that the CITY intends to
undertake such review. DEVELOPER shall provide evidence to the Community
Development Director prior to the hearing on the annual review, as and when
reasonably determined necessary by the Community Development Director, to
demonstrate good faith compliance with the provisions of the Development Agreement.
The burden of proof by substantial evidence of compliance is upon the DEVELOPER.
11.3 Staff Reports. To the extent practical, CITY shall deposit in
the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits
concerning contract performance at least five (5) days prior to any annual review.
11.4 Costs. Costs reasonably incurred by CITY in connection
with the annual review shall be paid by DEVELOPER in accordance with the City's
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Page 8 of 17
September 20, 2000
schedule of fees in effect at the time of review.
12. Defau It.
12.1 Other Remedies Available. Upon the occurrence of an
event of default, the parties may pursue all other remedies at law or in equity which are
not otherwise provided for in this Agreement or in City's regulations governing
development agreements, expressly including the remedy of specific performance of
this Agreement.
12.2 Notice and Cure. Upon the occurrence of an event of
default by any party, the nondefaulting party shall serve written notice of such default
upon the defaulting party. If the default is not cured by the defaulting party within thirty
(30) days after service of such notice of default, the nondefaulting party may then
commence any legal or equitable action to enforce its rights under this Agreement;
provided, however, that if the default cannot be cured within such thirty (30) day period,
the nondefaulting party shall refrain from any such legal or equitable action so long as
the defaulting party begins to cure such default within such thirty (30) day period and
diligently pursues such cure to completion. Failure to give notice shall not constitute a
waiver of any default.
12.3 No Damages Against CITY. In no event shall damages be
awarded against CITY upon an event of default or upon termination of this Agreement.
13. Estoppel Certificate.
Any 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 or COUNTY. Should the party
receiving the request not execute and return such certificate within the applicable
period, this shall not be deemed to be a default, provided that such party shall be
deemed to have certified that the statements in clauses (a) through (c) of this section
are true, and any party may rely on such deemed certification.
Dublin/Shea, LLC/Alameda
Development Agreement ~ Emerald Glen Village Center
Page 9 of 17
September 20, 2000
14. Mortgagee Protection; Certain Rights of Cure.
14.1 Mortgagee Protection. This Agreement shall be superior
and senior to any lien placed upon the Property, or any portion thereof after the date of
recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render
invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but
all the terms and conditions contained in this Agreement shall be binding upon and
effective against any person or entity, including any deed of trust beneficiary or
mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by
foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise.
14.2 Mortga.qee Not Obligated. Notwithstanding the provisions of
Section 14.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or
complete the construction of improvements, or to guarantee such construction of
improvements, or to guarantee such construction or completion, or to pay, perform or
provide any fee, dedication, improvements or other exaction or imposition; provided,
however, that a Mortgagee shall not be entitled to devote the Property to any uses or to
construct any improvements thereon other than those uses or improvements provided
for or authorized by the Project Approvals or by this Agreement.
14.3 Notice of Default to 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
DEVELOPER has committed an event of default. Each Mortgagee shall have the right
during the same period available to DEVELOPER to cure or remedy, or to commence
to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY,
through its City Manager, may extend the thirty.day cure period provided in section 12.2
for not more than an additional sixty (60) days upon request of DEVELOPER or a
Mortgagee.
15. Severability.
The unenforceability, invalidity or illegality of any provisions, covenant,
condition or term of this Agreement shall not render the other provisions unenforceable,
invalid or illegal.
16. Attorneys' Fees and Costs.
Dublin/Shea, LLC/Alameda
Development Agreement- Emerald Glen Village Center
Page 10 of 17
September 20, 2000
If CITY, COUNTY or DEVELOPER initiates any action at law or in
equity to enforce or interpret the terms and conditions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and costs in addition to any
other relief to which it may otherwise be entitled. If any person or entity not a party to
this Agreement initiates an action at law or in equity to challenge the validity of any
provision of this Agreement or the Project Approvals, the parties shall cooperate in
defending such action. DEVELOPER and COUNTY shall bear their own costs of
defense as a real party in interest in any such action, and DEVELOPER and COUNTY
shall reimburse CITY on an equal basis for all reasonable court costs and attorneys'
fees expended by CITY in defense of any such action or other proceeding, unless the
action is baed on an obligation of either COUNTY or DEVELOPER, in which case that
party shall. be wholly obligated to reimburse CITY.
17. Transfers and Assignments.
17.1 DEVELOPER's Right to Assign. All of DEVELOPER'S
rights, interests and obligations hereunder may be transferred, sold or assigned in
conjunction with the transfer, sale, or assignment of all of the Property subject hereto at
any time during the term of this Agreement, provided that no transfer, sale or
assignment of DEVELOPER's rights, interests and obligations hereunder shall occur
without the prior written notice to CITY and approval by the City Manager, which
approval shall not be unreasonably withheld or delayed. The City Manager shall
consider and decide the matter within 10 working days after DEVELOPER's notice
provided and receipt by City Manager of all necessary documents, Certifications and
other information required by City Manager to decide the matter. 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; and c) assuring CITY that the proposed purchaser,
transferee or assignee is capable of performing the DEVELOPER's obligations
hereunder not withheld by DEVELOPER pursuant to section 17.3. Notwithstanding the
foregoing, provided notice is given as specified in Section 23, no CITY approval shall
be required for any atrasnfer, sale, ro assignment in Section Agreement to: (1) any
entity which is an affiliate or subsidiary of DEVELOPER; (2) any Mortgagee; or (3) any
transferee of a Mortgagee.
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Page 11 of 17
September 20, 2000
17.2 Release Upon Transfer. Upon the transfer, sale, or
assignment of all of DEVELOPER's rights, interests and obligations hereunder pursuant
to section 17.1 of this Agreement, DEVELOPER shall be released from the obligations
under this Agreement, with respect to the Property transferred, sold, or assigned,
arising subsequent to the date of City Manager approval of such transfer, sale, or
assignment; provided, however, that if any transferee, purchaser, or assignee approved
by the City Manager expressly assumes all of the rights, interests and obligations of
DEVELOPER under this Agreement, DEVELOPER shall be released with respect to all
such rights, interests and assumed obligations. In any event, the transferee, purchaser,
or assignee shall be subject to all the provisions hereof and shall provide all necessary
documents, certifications and other necessary information prior to City Manager
approval.
17.3 Developer's Right to Retain Specified Rights or Obligations.
Notwithstanding sections 17.1 and 17.2 and section 18, DEVELOPER may withhold
from a sale, transfer or assignment of this Agreement certain rights, ihterests and/or
obligations which DEVELOPER shall retain, provided that DEVELOPER specifies such
rights, interests and/or-obligations in a written document to be appended to this
Agreement and recorded with the Alameda County Recorder prior to the sale, transfer
or assignment of the Property. 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.
18. A.areement 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 Property, or any portion thereof, or any interest therein, whether by operation of law
or in any manner whatsoever. All of the provisions of this Agreement shall be
enforceable as equitable servitude and shall constitute covenants running with the land
pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code
of the State of California. Each covenant to do, or refrain from doing, some act on the
Property hereunder, or with respect to any owned property, (a) is for the benefit of such
properties and is a burden upon such properties, (b) runs with such properties, and (c)
is binding upon each party and each successive owner during its ownership of such
properties or any portion thereof, and shall. be a benefit to and a burden upon each
party and its property hereunder and each other person succeeding to an interest in
such properties.
19. Bankruptcy.
Dublin/Shea, LLC/Alameda
Development Agreement- Emerald Glen Village Center
Page 12 of 17
September 20, 2000
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
20. 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
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).
COUNTY 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 COUNTY, or any actions or inactions of
COUNTY's contractors, subcontractors, agents, or employees in connection with the
construction, improvement, operation, or maintenance of the Project, provided that
COUNTY shall have no indemnification obligation with respect to negligence or
wrongful conduct of CITY, its contractors, subcontractors, agents or employees or with
respect to the maintenance, use or condition of any improvement after the time it has
been dedicated to and accepted by the CITY or another public entity (except as
provided in an improvement agreement or maintenance bond).
21. Insurance.
21.1 Public Liability and Property Damage 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
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Page 13 of 17
September 20, 2000
cross~liability endorsement.
21.2 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 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 DEVELQPER's failure to maintain any such insurance.
21.3 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 21.1 and 21.2 and evidence that the carrier is required to give the CITY'at
least fifteen days prior written notice of the cancellation or reduction in coverage of a
policy. The insurance shall extend to the CITY, its elective and appointive boards,
commissions, officers, agents, employees and representatives and to DEVELOPER
performing work on the Project.
22. Sewer and Water.
DEVELOPER acknowledges that it must obtain water and sewer
permits from the Dublin San Ramon Services District ("DSRSD") which is another public
agency not within the control of CITY.
23. Notices.
All notices required or provided for under this Agreement shall be in
writing. Notices required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
P.O. Box 2340
Dublin, CA 94568
Notices required to be given to COUNTY shall be addressed as follows:
Patrick Cashman
Project Director
Surplus Property Authority of Alameda County
224 W. Winton Avenue, Room .151
Hayward, CA 94544
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Page 14 of 17
September 20, 2000
and
Adolph Martinelli
Community Redevelopment Director
County of Alameda
224 W. Winton Avenue, Room 110
Hayward, CA 94544
Notice required to be given to DEVELOPER shall be addressed as follows:
Robert Burke, Vice President / General Manager
Shea Properties
2155 Las Positas Court, Suite U
Livermore, CA 94550
A party may change address by giving notice in writing to the other party and thereafter
all notices shall be addressed and transmitted to the new address. Notices shall be
deemed given and received upon personal delivery, or if mailed, upon the expiration of
48 hours after being deposited in the United States Mail. Notices may also be given by
overnight courier which shall be deemed given the following day or by facsimile
transmission which shall be deemed .given upon verification of receipt.
24. Recitals.
The foregoing Recitals are true and correct and are made a part
:hereof.
25. Agreement is Entire Understanding.
This Agreement constitutes the entire understanding and agreement
of the parties.
26. Exhibits.
The following documents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
Exhibit A Legal Description of Property
Exhibit B Additional Conditions
27. Counterparts.
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Page 15 of 17
September 20, 2000
This Agreement is executed in three (3) duplicate originals, each of
which is deemed to be an original.
28. 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:
Mayor
Attest:
By: Date:
City Clerk
Approved as to Form:
City Attorney
SURPLUS PROPERTY AUTHORITY
OF ALAMEDA COUNTY:
Adolph Martinelli
Its Manager
Approved as to Form:
Date:
Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Page 16 of 17
September 20, 2000
Attorney for Surplus Property
Authority of the County of Alameda
SHEA HOMES LIMITED PARTNERSHIP
by J. F. Shea Co., Inc., a Nevada Corporation
its managing general partner
General Partner
(NOTARIZATION ATTACH ED).
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Dublin/Shea, LLC/Alameda
Development Agreement - Emerald Glen Village Center
Page 17 of 17
September 20, 2000
· ' EXHIBIT
Page i DESC~TION
Order No. 91!17S
CITY OF DUBLIN
PARCEL A:
A PORTION OF TEE 3636.1222. ACRE TRACT OF LAND ACQUIRED BY THE UNITED STATES OF
AMERICA, BY DECREE OF FINAL CONDENEqATION, MADE BY THE DISTRICT COURT OF.TEE
UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, SO~RN DIVISION, CASE
~ER 22352-1, A CERTIFIED COPY OF WltICH WA~ RECORDED AUGUST .1, 1947, IN BOOK
5132 OF OFFICIAL RECORDS, PAGE 1, ~DA COUNTY RECORDS, DESCRIBED AS FOLLOWS:
COMMENCING AT TEE INTERSECTION OF THE'WESTERN LINE OF TASSAJ/~RJ~ ROAD, ALSO KNOWN
AS COLTNTY'ROAD NO. 2568, E A LIlqE DRAWN PEEL WIT~{ AlqD PERPENDIC~Y
DIST/hN'T 62.00 FEET NORTHERLY FROM THE ORIGINAL CENTER LIE OF STATE HIGHWAY
SAID'POII~T BEING ALSO THE SOUTHEASTERN CORNER OF SAID 3636.!222 ACRE TRACT;
RUNNING TI{ENCE ALONG SAID WESTERN LIE OF SAID TASSAJAP. A ROAD, NORTH 1~ 13' 15"
EAST, 1874.22 FEET TO THE ACTUAL POINT OF BEGIlqNING OF-THE PARCEL OF LAND TO BE
DESCRIBED; THENCE NORTH 88~ 46i 45" WEST, 417.00 FEET; THENCE SOUTH 1: 13' 15"
WEST, 450.00 FEET; THENCE SOUTH 88~ 46' 45" EAST, 400.00 FEET TO THE WESTERLY
LINE OF TASSAJARA ROAD; THENCE NORTHERLY ALONG THE WESTERLY LINE' OF SAID
TASSAJARA ROAD TO THE ACTUAL POINT OF BEGINNING.
EXCEPTING FROM PARCEL A:
THE-INTEREST CONVEYED TO THE CIY~/ OF DUBLIN BY INSTRUFLENT RECORDED APRIL 6,
2000, SERIES NO. 2000102720, OFFICIAL RECORDS
ASSESSOR'S PARCEL N0. 986-0005-005
PARCEL B:
PARCEL 3 OF PARCEL MAP NO. 7355, FILED SEPTEMBER 1, 2999, IN BOOK 246 OF PARCEL
MAPS, AT PAGES· 35'THROUGH 42, ~DA COUNTY RECORDS.
ASSESSORtS PARCEL NO. '986-0005-028 (PORTION)
Exhibit A
Page 1 of 4
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'ON XV-,.1
Comment:
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3
above.
Subparagraph 5.3.1 -- Subsequent Discretionary Approvals
NODe.
Subparagraph 5.3.2 -- Mitigation Conditions
Subsection a. Infrastructure Sequencing Program
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of dedication)
described below and those identified in Resolution No. 00-34 of the Planning
Commission Approving the Tentative Parcel Map and Site Development Review shall
be completed by DEVELOPER or, with respect to Condition Nos. 18, 21 and 22 by
Resolution No. 00-34, by COUNTY to the satisfaction of the Public Works Director at
the times and in the manner specified in Resolution No. 00-34 unless otherwise
provided below. All such roadway improvements shall be constructed to the
satisfaction and requirements of CITY's Public Works Director.
The obligations of Condition Nos. 18, 21 and 22 of Resolution No. 00-34
and any other conditions of such resolution which are to be completed "as specified by
the Director of Public Works" or "when determined necessary by the Public Works
Director" ("The Deferred Conditions") shall be of no force or effect until DEVELOPER
records a final map or building permit (whichever comes first) for the Project.. Once
effective, such obligations shall be the obligation of the COUNTY and shall survive
termination of this Agreement as to the COUNTY.
COUNTY shall provide CITY with security for COUNTY's fair share as
determined by CITY for the costs of design and construction of The Deferred
Conditions as follows:
Condition 18 [I-580 Eastbound Offramp at Santa
Rita/Tassajara Road Exit.
A payment to CITY in cash in the amount of the
deficiency, if any, between funds available to CITY to
construct the improvements at the eastbound offramp at
Dublin/Shea, LLC/Surplus AuthOrity
Development Agreement - Emerald Glen Village Center - Exhibit B
Page 1 of 9
September 20, 2000
Santa Rita/Tassajara Road exit (one exclusive through
lane and 2 left-turn lanes; modification to signal to
provide protected left-turn phasing on east and west
legs) and the cost of such project, such payment to be
made within 30 days of written notice from the Public
Works Director to be given following bid opening;
Condition 21 [Additional Left-Turn Lane at Westbound
Approach on Pimlico Drive.]
A payment to CITY in cash in the amount of the
deficiency, if any, between funds available to CITY to
construct the improvements at the westbound approach
to 1-580 on Pimlico Drive (second left-turn lane) and the
cost of such project, such payment to be made within 30
days of written notice from the Public Works Director to
be given following bid opening;
Condition 22 [Dublin Boulevard/Dougherty Road
Intersection Improvement]
A payment'to CITY in cash in the amount of the
deficiency, if any, between funds available to CITY for
CIP Project #9689 [Dougherty Road/Dublin Blvd.
Intersection] and the cost of such project, such payment
to be made within 30 days of written notice from the
Public Works Director to be given following bid opening;
COUNTY shall provide CITY with security for COUNTY's fair share as
determined by CITY for the costs of design and construction of the following additional
improvement:
· 1-580 EB approach to Hacienda Drive
A payment to CITY in'cash in the amount of the deficiency,
if any, between funds available to CITY to construct the I-
580' EB approach to Hacienda Drive improvements and the
cost of such project, such payment to be made within 30
days of written notice from the Public Works Director to be
given following bid opening
(ii) Sewer
Dublin/Shea, LLC/Surplus Authority
Development Agreement - Emerald Glen Village Center - Exhibit B -
Page 2 of 9
September 20, 2000
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with the tentative
parcel map and DSRSD requirements.
(iii) Water
An all weather roadway and an approved hydrant and water supply
system shall be available and in service at the site in accordance with the tentative
parcel map to the satisfaction and requirements of the CITY's fire department.
All potable water system components to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with the tentative
parcel map and DSRSD requirements.
Recycled water lines shall be installed in accordance with the tentative
parcel map.
(iv) Storm Drainage
Prior to issuance of the first Certificate of Occupancy for any building
which is part of the Project, the storm drainage systems off site, as well as on site
drainage systems to the areas to be occupied, shall be improved to the satisfaction and
requirements of the Dublin Public Works Department applying CITY's and Zone 7
(Alameda County Flood Control and Water Conservation District, Zone 7) standards
and policies which are in force and effect at the time of issuance of the permit for the
proposed improvements and shall be consistent with the Drainage Plan. The site shall
also be protected from storm flow from off site and shall have erosion control measures
in place to protect downstream facilities and properties from erosion and unclean storm
water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to
CITY's master drainage plan.
(v) Other Utilities (e.g. gas, electricity, cable televisions, telephone)
Construction of other utilities shall be complete by phase prior to
issuance of the first Certificate of Occupancy for any build(ng within that specific phase
of occupancy.
Subsection b. Miscellaneous
(i) Completion May be Deferred.
Notwithstanding the foregoing, CITY's Public Works Director may, in his
or her sole discretion and upon receipt of documentation in a form satisfactory to the
Public Works Director that assures completion, allow DEVELOPER or COUNTY to
Dublin/Shea, LLC/Surplus Authority
Development Agreement - Emerald Glen Village Center - Exhibit B
Page 3 of 9
September 20, 2000
defer completion of discrete portions of any of the public improvements required for the
Project until after issuance of Certificate of Occupancy for the first building for the
Project if the Public Works Director determines that to do so would not jeopardize the
public health, safety or welfare.
Dublin/Shea, LLC/Surplus Authority
Development Agreement - Emerald Glen Village Center - Exhibit B
Page 4 of 9
September 20, 2000
(ii) Improvement Agreement
Prior to constructing any Improvements described in Resolution No. 00-
34 or this Agreement, DEVELOPER or COUNTY shall submit plans and specifications
to CITY's Public Works Director for review and approval and shall enter into an
improvement agreement with CITY for construction and dedication of the public
facilities. All such improvements shall be constructed in accordance with City's
standards and policies which are in force and effect at the time of issuance of the
permit for the proposed improvements including, but not limited to, "Precise Plans" for
Eastern Dublin Santa Riata area prepared for the Surplus Property Authority by Brian
Kangas Foulk.
(iii) Bonds
Prior to execution of the Improvement Agreement, DEVELOPER or
COUNTY (or its assignee) shall provide a cash monument bond, a performance bond
and labor and materials bond or other adequate security to insure that the
Improvements will be constructed prior to the times specified above. The performance
bond or other security shall be in an amount equal to 100% of the engineer's estimate
of the cost to construct the improvements (including design, engineering,
administration, and inspection) and the labor and materials bond shall be in an amount
equal to 50% of the engineer's estimate. The bonds shall be written by a surety
licensed to conduct business in the State of California and approved by CITY's City
Manager.
(iv) Right to Construct Additional Road Improvements
With the prior written consent of CITY's Public Works Director,
DEVELOPER or COUNTY may construct roadway improvements which are not
described in this Exhibit B if such improvements are described in the resolution
establishing the Eastern Dublin Traffic Impact Fee and if such improvements are
constructed in their ultimate location.
DEVELOPER or COUNTY shall be required to enter into an
Improvement Agreement and provide bonds for such improvements, as provided in
Subsection (b)(ii) and (iii) above, prior to construction. CITY shall provide a credit to
DEVELOPER or COUNTY for the cost of such improvements in the manner and subject
to the conditions provided in City's Administrative Guidelines regarding credits
(Resolution No. 23-99).
Subparagraph 5.3.3 -- Phasing, Timing
Dublin/Shea, LLC/Surplus Authority
Development Agreement - Emerald Glen Village Center - Exhibit B
Page 5 of 9
September 20, 2000
With the exception of the road improvements described in Subparagraph
5.3.2(a)(i), this Agreement contains no requirements that DEVELOPER must initiate or
complete development of the Project within any period of time set by CITY. It is the
intention of this provision that DEVELOPER be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
Subparagraph 5.3.4 -- Financing Plan
DEVELOPER will install all street improvements necessary for the Project at
its own cost (subject to credits for certain improvements as provided in Subparagraph
5.3.6 below).
Other infrastructure necessary to provide sewer, potable water; and recycled
water services to the Project will be made available by the Dublin San Ramon Services
District. COUNTY has entered into an "Area Wide Facilities Agreement" with the Dublin
San Ramon Services District to-pay for the cost of extending such services to the
Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and
(iii) above.
Subparagraph 5.3.5 -- Fees, Dedications
Subsection a. Traffic Impact Fees.
DEVELOPER shall pay all traffic impact fees applicable to the Project which
are in effect at the time of issuance of any building permit for the Project in the amounts
and at the times set forth in the implementing resolution. Such fees include the Traffic
Impact Fee for Eastern Dublin established by Resolution No. 225-99, including any
future amendments to such fee.
DEVELOPER, COUNTY and CITY acknowledge that COUNTY is entitled to
certain credits ("1991 Credits") against payment of the Traffic Impact Fee for Eastern
Dublin by separate agreements previously entered into between COUNTY and CITY in
1991 (as such agreements have been amended). COUNTY is also entitled to certain
other credits ("Prior Agreement Credits") against payment of the Traffic Impact Fee for
Eastern Dublin by other development agreements entered into between COUNTY and
CITY. COUNTY agrees that, notwithstanding its entitlement to such 1991 Credits, its
1991 Credits cannot be applied against payment of the "Section 2" portion of the Traffic
Impact Fee for Eastern Dublin for the Project. DEVELOPER (and its assignee) will,
rather, pay the "Section 2" portion of the fee in cash.
COUNTY further agrees that it (and its assignee) will use the 1991 Credits
and/or Prior Agreement Credits against at least one-half (¼) of the "Section 1" portion
of the Traffic .Impact Fee for Eastern Dublin for the Project provided that it has sufficient
such credits. CITY shall determine which of the 1991 Credits and/or Prior Agreement
Credits shall be used pursuant to this paragraph.
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Notwithstanding anything herein to the contrary, DEVELOPER further agrees
that it (and its assignee) will pay at least seven percent (7%) of the "Section 1" portion
of the Traffic Impact Fee for Eastern Dublin in cash.
Subsection b.
Traffic Impact Fee to Reimburse Pleasanton for Freeway
Interchanges.
DEVELOPER shall pay a Eastern Dublin 1-580 Interchange Fee in the
amounts and at the times set forth in City of Dublin Resolution No. 155-98, or in the
amounts and at the times set forth in any resolution revising the amount of the Eastern
Dublin 1-580 Interchange Fee.
Subsection c. Public Facilities Fees.
DEVELOPER shall pay a Public Facilities Fee in the amounts and at the
times set forth in City of Dublin Resolution No. 60-99, or in the amounts and at the
times set forth in any resolution revising the amount of the Public Facilities Fee.
Notwithstanding the foregoing paragraph, not later than 12 months of the effective
date of this Agreement COUNTY shall dedicate to CITY in fee simple 3.90 acres of land
for Emerald Glen Park. The exact location of the land to be dedicated shall be
determined by CITY. The land to be dedicated and underlying groundwater shall be
free of hazardous substances. The dedication of 3.90 acres by COUNTY shall satisfy
DEVELOPER's obligation under Dublin Municipal Code Chapter 9.28 (CITY's "Quimby
Act Ordinance") for community park land and neighborhood park land and shall be a
credit against the portion of the Public Facilities Fee for the Project for "Community
Parks, Land" and "Neighborhood Parks, Land." This paragraph shall supersede
Condition No. 44 of Resolution No. 00-34.
Subsection d. Noise Mitigation Fee.
DEVELOPER shall pay a Noise Mitigation Fee in the amounts and at the
times set forth in City of Dublin Resolution No. 33-96, or in the amounts and at the
times set forth in any resolution revising the amount of the Noise Mitigation Fee.
Subsection e. School Impact Fees.
School impact fees shall be paid by DEVELOPER in accordance with
Government Code section 53080 and the existing agreement between COUNTY and
the Dublin Unified School District.'
Subsection f. Fire Impact Fees.
' DEVELOPER shall pay a fire facilities fee in the amounts and at the times set
Dublin/Shea, LLC/Surplus Authority
Development Agreement - Emerald Glen Village Center - Exhibit B
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September 20, 2000
forth in City of Dublin Resolution No. 37-97 or in the amounts and at the times set forth
in any resolution revising the amount of such fee.
Subsection g. Tri-Valley Transportation Development Fee.
DEVELOPER shall pay the Tri-Valley Transportation Development Fee in the
amount and at the times set forth in City of Dublin Resolution No. 89-98, or in the
amounts and at the times set forth in any resolution revising the amount of such fee.
COUNTY agrees that its 1991 Credits and Prior Agreement Credits cannot be applied
against payment of this fee.
Subparagraph 5.3.6 -- Credit
Subsection a. Traffic Impact Fee Improvements Credit
CITY shall provide a credit to COUNTY for the those improvements described
in the resolution establishing the Eastern Dublin Traffic Impact Fee if such
improvements are constructed by the DEVELOPER in their ultimate location pursuant
this Agreement. All aspects of credits shall be governed by CITY's Administrative
Guidelines regarding credits (Resolution No. 23-99).
Subsection b. Traffic Impact Fee Right-of-Way Dedications Credit
CITY shall provide a credit to either DEVELOPER or COUNTY for any TIF
area right-of-way dedicated by DEVELOPER or COUNTY to CITY which is required for
improvements which are described in the resolution establishing the Eastern Dublin
Traffic Impact Fee: All aspects of credits shall be governed by CITY's Administrative
Guidelines regarding credits (Resolution No. 23-99).
Subsection c. Use of Excess Credits
In the event that credits referred to in Subsections (a) to (b) of this
Subparagraph 5.3.6 are in excess of the amount of credits which can be applied
against the traffic impact fee payable pursuant to Subsection (a) of Subparagraph 5.3.5
(i.e., one-half of the "Section 1" portion of the Traffic Impact Fee for Eastern Dublin, less
7% of the "Section 1" portion), COUNTY shall be entitled to "bank" such credits
(referred to as "Excess Credits") and may use them as provided in CITY's
Administrative Guidelines for Credits and Reimbursements (Resolution No. 23-99).
Subparagraph 5.3.7 -- Miscellaneous
Subsection a. Landscaping Maintenance Along Streets and Creek
CITY has formed a landscape maintenance district known as the "Landscape
Maintenance Assessment District No. 97-1 (Santa Rita Area)" pursuant to a petition
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September 20, 2000
from COUNTY, and imposed an assessment against the Property to pay for street and
creek landscape maintenance. In addition, on September 24, 1996, COUNTY recorded
a Declaration of Covenants, Conditions and RestriCtions which covers the Property,
whereby COUNTY, on behalf of itself and its successors (including DEVELOPER), has
covenanted to pay a "Deed Assessment" to CITY for maintenance of street and creek
landscaping.
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Dublin/Shea, LLC/Surplus Authority
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