HomeMy WebLinkAboutPC Reso 16-19 Rec CC Kaiser DA RESOLUTION NO. 16-19
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE APPROVING A
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND KAISER
FOUNDATION HEALTH PLAN RELATED TO THE
KAISER DUBLIN MEDICAL CENTER PROJECT
PA 08-050 and PLPA 2016-00007
(APNs 985-0061-005-00 and 985-0027-009-02)
WHEREAS, the Applicant, Kaiser Foundation Health Plan, submitted a Planning
Application for, and is proposing to obtain approvals for, the Kaiser Dublin Medical Center
project, which is comprised of 950,000 square feet of medical campus uses in three main
buildings, 250,000 square feet of commercial uses, a parking structure, and associated site,
roadway frontage, and landscape improvements Requested land use approvals include a
General Plan Amendment and Eastern Dublin Specific Plan to create two new land use districts,
Planned Development Rezoning (Stage 1 and Stage 2), and a Site Development Review Permit
for Phase 1A (a 220,000 square foot medical office building), a request for a Development
Agreement, and certification of a Final Environmental Impact Report, among other related
actions These planning and implementing actions are collectively known as the "Kaiser Dublin
Medical Center Project" or the "Project', and
WHEREAS, the project is the subject of an Environmental Impact Report (EIR), State
Clearinghouse number 2015012018. On August 23, 2016, the Planning Commission approved
Resolution No. 16-xx, recommending that the City Council certify the Kaiser Dublin Medical
Center Final DR and adopt CEQA findings, a Statement of Overriding Considerations, and
Mitigation Monitoring and Reporting Program for the Project. The Development Agreement was
part of the Project analyzed in the EIR and the impacts of the activities under the Development
Agreement were analyzed in the EIR; and
WHEREAS, the proposed Development Agreement is attached to this Resolution as
Exhibit A-1; and
WHEREAS, on August 23, 2016, the Planning Commission held a public hearing on the
proposed Development Agreement, and
WHEREAS, proper notice of the public hearing was given in all respects as required by
law, and
WHEREAS, the Staff Report was submitted recommending that the Planning
Commission recommend that the City Council adopt an Ordinance approving the Development
Agreement; and
WHEREAS, the Planning Commission did hear and use their independent judgment and
considered all reports, recommendations, and testimony hereinabove set forth
NOW, THEREFORE, BE IT RESOLVED THAT the City of Dublin Planning Commission
does hereby recommend that the City Council make the following findings and determinations
regarding the proposed Development Agreement-
1. The Development Agreement is consistent with the objectives, policies, general
land uses and programs specified and contained in the City's General Plan, and in the Eastern
Dublin Specific Plan in that. (a) the Development Agreement incorporates the objectives,
policies, general land uses and programs in the General Plan and Specific Plan and does not
amend or modify them, and (b) the project is consistent with the fiscal policies of the General
Plan and Specific Plan with respect to the provision of infrastructure and public services
2. The Development Agreement is compatible with the uses authorized in, and the
regulations prescribed for, the land use districts in which the real property is located because the
Development Agreement does not amend the uses or regulations in the applicable land use
district
3. The Development Agreement is in conformity with public convenience, general
welfare, and good land use policies in that the Developer's project will implement land use
guidelines set forth in the General Plan as articulated in Resolution No xx-xx, amending the
General Plan and the Eastern Dublin Specific Plan, adopted by the City Council on
, 2016
4 The Development Agreement will not be detrimental to the health, safety, and
general welfare in that the Developer's proposed project will proceed in accordance with all the
programs and policies of the General Plan, Eastern Dublin Specific Plan, and future Project
Approvals and any Conditions of Approval.
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, the Eastern Dublin Specific Plan, and future Project Approvals
6. The Development Agreement specifies the duration of the agreement, the
permitted uses of the property, and the obligations of the Applicant The Development
Agreement contains an indemnity and insurance clause requiring the developer to indemnify
and hold the City harmless against claims arising out of the development process, including all
legal fees and costs
NOW, THEREFORE, BE IT FURTHER RESOLVED THAT the City of Dublin Planning
Commission does hereby recommend that the City Council adopt the Ordinance, attached as
Exhibit A, approving the Development Agreement between the City of Dublin and Kaiser
Foundation Hospitals related to the Kaiser Dublin Medical Center project
PASSED, APPROVED AND ADOPTED this 23rd day of August 2016.
AYES: Do, Kohli, Goel, Bhuthimethee
NOES:
ABSENT:
Page 2 of 3
ABSTAIN: Mittan
Planning Commission Chairperson
ATTEST:
Assist nt munity Development Director
Page 3 of 3
ORDINANCE NO. XX - 16
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND
KAISER FOUNDATION HEALTH PLAN RELATED TO THE
KAISER DUBLIN MEDICAL CENTER PROJECT
PA 08-050 and PLPA 2016-00007
(APNs 985-0061-005-00 and 985-0027-009-02)
WHEREAS,; and
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A A request has been made by Kaiser Foundation Health Plan ("Applicant") to enter
into a Development Agreement with the City of Dublin for the property known as the Kaiser site,
which includes properties identified by Assessor Parcel Numbers 985-0061-005-00 and 985-
0027-009-02, an approximately 58 acre site, and
B The Applicant, Kaiser Foundation Health Plan, submitted a Planning Application
for, and is proposing to obtain approvals for, the Kaiser Dublin Medical Center project, which is
comprised of 950,000 square feet of medical campus uses in three main buildings, 250,000
square feet of commercial uses, a parking structure, and associated site, roadway frontage, and
landscape improvements Requested land use approvals include a General Plan Amendment
and Eastern Dublin Specific Plan Amendment to create two new land use districts, Planned
Development Rezoning (Stage 1 and Stage 2), and a Site Development Review Permit for
Phase 1A (a 220,000 square foot medical office building), a request for a Development
Agreement, and certification of a Final Environmental Impact Report, among other related
actions These planning and implementing actions are collectively known as the "Kaiser Dublin
Medical Center Project" or the "Project" and
C The Project is the subject of an Environmental Impact Report (EIR), State
Clearinghouse number 2015012018 On August 23, 2016, the Planning Commission approved
Resolution No 16-xx, recommending that the City Council certify the Kaiser Dublin Medical
Center Final EIR and adopt CEQA findings, a Statement of Overriding Considerations, and
Mitigation Monitoring and Reporting Program for the Project The Development Agreement was
part of the Project analyzed in the EIR and the impacts of the activities under the Development
Agreement were analyzed in the EIR, and
D The Applicant has applied for a Development Agreement which will vest the
Project Approvals
E The Planning Commission held a public hearing on the proposed Development
Agreement on August 23, 2016, for which public notice was given by law; and
EXHIBIT A TO
ATTACHMENT 7
F The Planning Commission made its recommendation to the City Council for
approval of the Development Agreement by Resolution; and
G A public hearing on the proposed Development Agreement was held before the
City Council on , 2016 for which public notice was given as provided by law, and
H The City Council has considered the recommendation of the Planning
Commission, including the Planning Commission's reasons for its recommendation, the Agenda
Statement, all comments received in writing, and all testimony received at the public hearing
Section 2 FINDINGS AND DETERMINATIONS
Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b)
the City of Dublin General Plan, (c) the Eastern Dublin Specific Plan, (d) the Kaiser Dublin
Medical Center Project EIR, (e) the Staff Report; (f) information in the entire record of
proceeding for the Project, and on the basis of the specific conclusions set forth below, the City
Council finds and determines that
1 The Development Agreement is consistent with the objectives, policies, general
land uses and programs specified and contained in the City's General Plan, and in the Eastern
Dublin Specific Plan in that (a) the Development Agreement incorporates the objectives
policies, general land uses and programs in the General Plan and Specific Plan and does not
amend or modify them, and (b) the project is consistent with the fiscal policies of the General
Plan and Specific Plan with respect to the provision of infrastructure and public services.
2. The Development Agreement is compatible with the uses authorized in, and the
regulations prescribed for, the land use districts in which the real property is located because the
Development Agreement does not amend the uses or regulations in the applicable land use
district
3. The Development Agreement is in conformity with public convenience, general
welfare, and good land use policies in that the Developer's project will implement land use
guidelines set forth in the Eastern Dublin Specific Plan and the General Plan as articulated in
Resolution No. xx-xx, amending the General Plan and the Eastern Dublin Specific Plan, adopted
by the City Council on 2016
4 The Development Agreement will not be detrimental to the health, safety, and
general welfare in that the Developer's proposed project will proceed in accordance with all the
programs and policies of the General Plan, Eastern Dublin Specific Plan, and future Project
Approvals and any Conditions of Approval
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, the Eastern Dublin Specific Plan, and future Project Approvals
6 The Development Agreement specifies the duration of the agreement, the
permitted uses of the property, and the obligations of the Applicant The Development
Agreement contains an indemnity and insurance clause requiring the developer to indemnify
and hold the City harmless against claims arising out of the development process, including all
legal fees and costs
Section 3 APPROVAL
The City Council hereby approves the Development Agreement (Exhibit A-1 to the
Ordinance) and authorizes the City Manager to execute it
Section 4 RECORDATION
Within ten (10) days after the Development Agreement is fully executed by all parties, the
City Clerk shall submit the Agreement to the County Recorder for recordation.
Section 5 EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of
its passage The City Clerk 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
, 2016 by the following votes
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
RECORDING REQUESTED BY: O��
CITY OF DUBLIN
WHEN RECORDED MAIL TO:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waived per GC 27383
Space above this line for Recorder's use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
KAISER FOUNDATION HOSPITALS
FOR THE KAISER DUBLIN MEDICAL CENTER PROJECT
EXHIBIT B TO
ATTACHMENT 7
THIS DEVELOPMENT AGREEMENT (this "Agreement" or this "Development
Agreement") is made and entered in the City of Dublin on this_day of
2016, by and between the City of Dublin, a Municipal Corporation (hereafter "City") and
Kaiser Foundation Hospitals, a California nonprofit public benefit corporation (hereafter
referred to as "Kaiser") pursuant to the authority of§§ 65864 et seq. of the California
Government Code and Dublin Municipal Code, Chapter 8.56. City and Kaiser are, from
time-to-time, individually referred to in this Agreement as a "Party," and are collectively
referred to as "Parties."
RECITALS
A. California Government Code §§ 65864 et seq. ("Development
Agreement Statute") and Chapter 8 56 of the Dublin Municipal Code (hereafter
"Chapter 8.56") authorize the City to enter into a Development Agreement for the
development of real property with any person having a legal or equitable interest in such
property in order to establish certain development rights in such property.
B. Kaiser owns certain real property (the "Property") consisting of
approximately 58.7 acres of land and that is more particularly described in Exhibit A
attached hereto and is incorporated herein by reference.
C. Kaiser has applied for, and City has approved or is processing, various
land use approvals in connection with the development of the Project, including, without
limitation, a General Plan Amendment (Resolution No. adopted on , 2016), an
Eastern Dublin Specific Plan Amendment (Resolution No. _adopted on , 2016), a
Stage 1 Planned Development Zoning and Development Plan (Ord. No. adopted by
the City Council on , 2016); a Stage 2 Planned Development Rezoning and
Development Plan for Medical Center Phase 1A (Ord. No. adopted by the City
Council on , 2016), Site Development Review(SDR) approval for Phase 1A
(Resolution No. adopted on , 2016), and the DA Approving Ordinance
(defined below), which collectively are referred to herein as the "Existing Project
Approvals" and together with any Subsequent Project Approvals defined below are
referred to herein as the "Project Approvals."
D. On , 2016, the City Council again considered and approved the
DA Approving Ordinance and the other ordinances described above.
E. Development of the Property as currently anticipated by Kaiser will be
subject to other future discretionary and non-discretionary City approvals and permits
(collectively, the "Subsequent Project Approvals") including Stage 2 Planned
Development Plans, a vesting tentative parcel map (an application for which was
submitted to the City by Kaiser on July 28, 2016), and site development review
approvals, which if granted by the City in accordance with this Agreement, shall
automatically become part of the Project Approvals, except as otherwise specified
herein.
F. City desires the timely, efficient, orderly and proper development of the
Project.
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
("Specific Plan"), as both have been amended by the Project Approvals, and has been
reviewed and evaluated in accordance with the Development Agreement Statute and
Chapter 8.56.
H. City and Kaiser have reached agreement and desire to express herein a
Development Agreement that will facilitate development of the Project subject to
conditions set forth herein.
City has undertaken, pursuant to the California Environmental Quality Act
(Public Resources Code Section 21000 et seq., hereinafter "CEQA"), the required
analysis of the environmental effects that would be caused by the Project and has
determined those feasible mitigation measures which will eliminate, or reduce to an
acceptable level, the adverse environmental impacts of the Project. The environmental
effects of the proposed development of the Property were analyzed by the Final
Environmental Impact Report (the "FEIR") certified by City on , 20_.
City has also adopted a mitigation monitoring and reporting program (the "MMRP") to
ensure that those mitigation measures incorporated as part of, or imposed on, the
Project are enforced and completed. Those mitigation measures for which Kaiser is
responsible are incorporated into, and required by, the Project Approvals.
J. The City is aware that the State of California, through its Office of
Statewide Health, Planning and Development, regulates health, safety and internal
design aspects of hospitals and related facilities for public health and safety.
K. On , 2016, the City Council of the City of Dublin adopted
Ordinance No. approving this Development Agreement ("the DA Approving
Ordinance"). The DA Approving Ordinance took effect on ("the
Effective Date").
NOW, THEREFORE, with reference to the foregoing recitals and in consideration
of the mutual promises, obligations and covenants herein contained, City and Kaiser
agree as follows.
AGREEMENT
1. Description of Property. The Property that is the subject of this
Agreement is described in Exhibit A attached hereto ("Property").
2. Interest of Kaiser. Kaiser has a legal interest in the Property in that it is
the owner of the Property.
3. Relationship of City and Kaiser. It is understood that this Agreement is a
contract that has been negotiated and voluntarily entered into by the City and Kaiser
Page 2
and that Kaiser is not an agent of the City The City and Kaiser 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 Kaiser joint venturers or partners.
4. Effective Date and Term
4 1 Effective Date The effective date of this Agreement ("Effective
Date") is (as defined in Recital K).
4.2 Term. The term of this Agreement shall commence on the Effective
Date and shall continue for twenty-five (25) years thereafter, unless said term is
otherwise extended or terminated as provided in this Agreement. In the event that any
third-party lawsuit is filed challenging the City's issuance of the Project Approvals or its
compliance with CEQA, the term of this Agreement shall be automatically extended for
a duration equal to the time from the filing of such lawsuit to the entry of an order
dismissing or otherwise terminating such lawsuit, which duration shall include any
appeals.
4.3 Term of Project Approvals. Pursuant to the Subdivision Map Act
(Government Code § 66410 et seq ), and in particular, Government Code Section
66452.6(a), the term of any tentative or vesting tentative map, parcel map or vesting
parcel map for the Property or any Portion thereof, shall be extended automatically for
the Term of this Agreement, such that such tentative or vesting tentative maps or parcel
maps remain in effect for no less than the Term, and shall also be extended by any
other extension(s) granted under the Subdivision Map Act and/or City ordinance
consistent with the Subdivision Map Act.
5. Vested Rights/Use of the Property/Applicable Law/Processing.
5.1 Right to Develop. Kaiser 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, and the City's
ordinances, codes, resolutions, rules, regulations and official policies governing the
development, construction, subdivision, occupancy and use of the Project and the
Property including, without limitation, the General Plan, the Dublin Municipal Code, and
the Specific Plan, the permitted uses of the Property, density and intensity of use of the
Property and the maximum height, bulk and size of proposed buildings, and the
provisions for reservation or dedication of land for public purposes that are in force and
effect on the Effective Date of this Agreement (collectively, "Applicable Law"). In
exercising its discretion when acting upon Subsequent Project Approvals, City shall
apply the Applicable Law as the controlling body of law(within which Applicable Law
such discretion shall be exercised). Notwithstanding the foregoing or anything to the
contrary herein, any amendment to the Existing Project Approvals shall not become part
of the law Kaiser is vested into under this Agreement unless an additional amendment
of this Agreement is entered into between Kaiser and City in accordance with this
Page 3
Agreement. In the event that such amendments to the Existing Project Approvals are
sought for any distinct portion of the Property or Project (for example, for the
Commercial Parcel as defined herein), such amendments shall not require amendment
of this Agreement with respect to any other portion of the Property or Project, except to
the extent set forth in such amendment.
5.1 Fees, Exactions, Dedications. The City shall not apply to the
Project any development impact fee that the City first enacts after the Effective Date.
Except as otherwise set forth in this Agreement, City and Kaiser agree that this
Agreement does not limit the City's discretion to impose or require (a) payment of any
fees in connection with the issuance of any Subsequent Project Approvals for purposes
of mitigating environmental and other impacts of the Project, (b) dedication of any land,
or (c) construction of any public improvement or facilities (collectively"Exactions"),
unless the Exactions could have been imposed on the Existing Project Approvals, in
which case the City shall be prohibited from imposing them. Notwithstanding the
foregoing, the City shall be permitted to impose any Exaction on the vesting tentative
parcel map application submitted on July 28, 2016 and on a Subsequent Project
Approval that requires an amendment to the Existing Project Approvals. Nothing in this
Agreement shall limit the City's ability to impose existing development impact fees at
rates that are increased beyond the amounts in effect on the Effective Date or limit
Kaiser's ability to challenge any such increases under state or local law.
5.2 Construction Codes. Notwithstanding the provisions of Section 5.1
above, to the extent Applicable Law includes requirements under the state or locally
adopted building, plumbing, mechanical, electrical and fire codes (collectively the
"Codes"), the Codes included shall be those in force and effect at the time Kaiser
submits its application for the relevant building, grading, or other construction permits to
City, unless governed by the State of California as referenced in Recital J. In the event
of a conflict between such Codes and the Project Approvals, the Project Approvals
shall, to the maximum extent allowed by law, prevail. For construction of public
infrastructure, the Codes applicable to such construction shall be those in force and
effect at the time of execution of an improvement agreement between City and Kaiser
pursuant to Chapter 9.16 of the Dublin Municipal Code.
5.3 Rights Under Vesting Tentative Map. Notwithstanding anything to
the contrary contained herein, this Agreement shall not supersede any rights Kaiser
may obtain pursuant to City's approval of the vesting tentative map for the Project. The
parties agree that the vesting tentative map shall confer a vested right to proceed with
development in accordance with the Project Approvals for the life of the vesting
tentative map.
5.4 New Rules and Regulations. During the term of this Agreement,
the City may apply new or modified ordinances, resolutions, rules, regulations and
official policies of the City to the Property which were not in force and effect on the
Effective Date only to the extent they are not in conflict with the vested rights granted
by this Agreement, the Applicable Law, the Project Approvals or this Agreement. In
addition to any other conflicts that may occur, each of the following new or modified
Page 4
ordinances, resolutions, rules, regulations or official policies shall be considered a per
se conflict with the Applicable Law:
5.4.1 Any application or requirement of such new or modified
ordinances, resolutions, rules, regulations or official policies that would (i)cause or
impose a substantial financial burden on, or materially delay development of the
Property as otherwise contemplated by this Agreement or the Existing Project
Approvals, (ii) frustrate in a more than insignificant way the intent or purpose of the
Existing Project Approvals or preclude compliance therewith including, without
limitation, by preventing or imposing limits or controls in the rate, timing, phasing or
sequencing of development of the Project, (iii) prevent or limit the processing or
procuring of Subsequent Project Approvals; or(iv) reduce the density or intensity of use
of the Property as a whole, or otherwise requiring any reduction in the square footage
of, or total number of, proposed buildings, structures and other improvements, in a
manner that is inconsistent with or more restrictive than the limitations included in this
Agreement and the Project Approvals; and/or
5.4.2 If any of such ordinances, resolutions, rules, regulations or
official policies do not have general (City-wide) applicability.
Kaiser specifically acknowledges that it will be subject to new or modified ordinances,
resolutions, rules, regulations or official policies that implement the Municipal Regional
Stormwater NPDES Permit issued by the Regional Water Quality Control Board for the
San Francisco Bay Region from time to time (the "MRP") to the extent that the permit
does not include exemptions that apply to the Project.
5.5 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, if a City ordinance, resolution, policy, directive, or other
measure is enacted or becomes effective, whether by action of the City or by initiative,
and if it imposes a building moratorium which affects all or any part of the Project, City
agrees that such ordinance, resolution or other measure shall not apply to the Project,
the Property, this Agreement or the Project Approvals unless the building moratorium is
imposed as part of a declaration of a local emergency or state of emergency as defined
in Government Code section 8558, provided that to the extent a moratorium applies to
all or any part of the Project then the Term shall automatically be extended for a period
of time equal to the period of the moratorium.
1 5.6 Revised Application Fees. Notwithstanding section 5.1 above5-2
above, any existing application, processing and inspection fees that are revised during
the term of this Agreement shall apply to the Project provided that (1) such fees have
general applicability and are consistent with State law limitations that processing fees
not exceed the estimated reasonable cost of providing the service for which they are
charged; (2)the application of such fees to the Property is prospective; and (3) the
application of such fees would not prevent, impose a substantial financial burden on, or
materially delay development in accordance with this Agreement. By so agreeing,
Kaiser does not waive its rights to challenge the legality of any such application,
processing and/or inspection fees.
Page 5
5.7 New Taxes. This Agreement shall not prohibit the application of
any subsequently enacted city-wide taxes to the Project provided that (1)the application
of such taxes to the Property is prospective, and (2) the application of such taxes would
not prevent development in accordance with this Agreement. By so agreeing, Kaiser
does not waive its rights to challenge the legality of any such taxes, facially or as
applied to its Project or Property, or to claim exemption from any taxes to the extent
allowed by law.
5.8 Development of the Proiect; Phasing, Timing. Since the California
Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d
465, that the failure of the parties therein to provide for the timing of development
resulted in a later adopted initiative restricting the timing of development to prevail over
such parties' agreement, it is the Parties' intent to cure that deficiency by acknowledging
and providing that this Agreement contains no requirements that Kaiser must initiate or
complete any action, including without limitation, development of the Project within any
period of time set by City. Nothing in this Agreement is intended to create nor shall it be
construed to create any affirmative development obligations to develop the Project at all
or in any particular order or manner, or liability in Kaiser under this Agreement if the
development fails to occur. It is the intention of this provision that Kaiser be able to
develop the Property in accordance with its own time schedules and the Project
Approvals.
5.9 Processing. Nothing in this Agreement shall be construed to limit
the authority or obligation of City to hold necessary public hearings, nor to limit the
discretion of City or any of its officers or officials with regard to those Subsequent
Project Approvals that require the exercise of discretion by City, provided that such
discretion shall be exercised consistent with the vested rights granted by this
Agreement, the Applicable Law and this Agreement.
6. Community Benefits.
6.1 Kaiser's Obligation to Allocate Sales and Use Tax Revenue. The
Landowner shall use its best efforts to maximize the City's allocation of sales and use
taxes associated with Project construction and operation as follows:
6.1.1 The parties understand that state law gives construction
contractors the option to allow certain use tax revenues derived from contracts of
$5,000,000 or more to be allocated to the junsdiction in which the jobsite is located,
rather than to the countywide pool. (See California State Board of Equalization ["BOE"],
Compliance Policy and Procedures Manual, Contractors, 260.020.) In order to ensure
that such revenues accrue to the City, Kaiser will include in any construction contracts a
provision that requires qualifying general contractors and subcontractors to exercise
their option to obtain a Board of Equalization sub-permit for the jobsite and allocate all
eligible use tax payments to the City. Prior to commencement of any construction
activity onsite, Kaiser will require that the contractor or subcontractor provide the City
with either a copy of their BOE account number and sub-permit or a statement either
Page 6
that use tax does not apply to their portion of the project or that the contractor is not
eligible for a permit and the reason why.
6.1.2 Kaiser will take commercially reasonable steps to ensure
that its purchases of tangible personal property subject to use tax or its making of
qualified leases of tangible property are completed in a manner that allocates local
taxes from such purchases to City.
6.2 Development of the Commercial Parcel.
6.2.1 Kaiser will promptly begin marketing the commercial site
(designated as "Commercial Parcel" on the Stage 1 Site Plan) (the "Commercial
Parcel") for sale to a buyer intending to develop the Commercial Parcel in a manner
consistent with the uses approved for the Commercial Parcel in the Stage 1
Development Plan. Kaiser shall have an obligation to attempt in good faith to sell the
Commercial Parcel to a reputable developer on reasonable commercial terms,
consistent with the then-current values in the real estate market. The parties recognize
that values will vary depending on the specific development the buyer intends to pursue
on the Commercial Parcel, and that nothing herein obligates Kaiser to establish a
certain sale price for the Commercial Parcel.
6.2.2 In furtherance of its obligation to actively and diligently
market the Commercial Parcel, Kaiser shall engage a commercial real estate broker
that specializes in marketing retail sites, update the City Manager and Economic
Development Director on a monthly basis on the status of its efforts, and update the City
as part of its annual review. The City agrees to assist and cooperate with Kaiser with its
efforts to market the site. City recognizes that aside from simple use categories or
considerations, Kaiser's decision to sell to a particular buyer that will be a long term
neighbor to its investment in the Project will necessarily consider numerous variables
other than use or price.
6.2.3 Notwithstanding the Term set forth in Section 4, the
Agreement shall terminate upon Kaiser submitting to the applicable tax authority a
Claim for Welfare Exemption ("Claim for Exemption") for any development on the
Property, unless Kaiser has completed the sale of the Commercial Parcel consistent
with the requirements of this Section 6.2.
(a) Notwithstanding the foregoing, Kaiser may elect to
continue the Term beyond the termination arising from the filing of the Claim for
Exemption (a "Continuation Period") by making a payment of Two-Hundred Thousand
Dollars ($200,000), adjusted based on the change between the then-most recently
published the CPI-U index for the SF Bay Area and the same index most recently
published on the Effective Date ("Annual Payment") for each one-year period it desires
to continue the Term beyond the submittal of the Claim for Exemption. Thereafter,
Kaiser may continue the Term by making an Annual Payment for each one-year
Continuation Period it desires to continue the Term. The Annual Payments shall be
made, as the case may be, prior to the submission of the Claim for Exemption or the
Page 7
end of the Continuation Period. If, at the time a Claim for Exemption is filed, Kaiser has
entered an agreement for the sale of the Commercial Parcel to a qualified purchaser,
Kaiser may elect to extend the Term beyond the termination date by making a payment
of Fifty Thousand Dollars, adjusted based on the change between the then-most
recently published the CPI-U index for the SF Bay Area and the same index most
recently published on the Effective Date, for each three-month period it desires to
continue the Term beyond the submittal of the Claim for Exemption, not to exceed one
year.
(b) If Kaiser sells the Commercial Parcel consistent with
the requirements of this Section 6.2 at any point prior to submitting the Claim for
Exemption or during any Continuation Period, the Term for the remainder of the
Property shall be as set forth Section 4.
7. Amendment or Cancellation.
7.1 Modification Because of Conflict with State or Federal Laws The
Project and Property shall be subject to state and federal laws and regulations and this
Agreement does not create any vested right in state and federal laws and regulations in
effect on the Effective Date. In the event that state or federal laws or regulations
enacted after the Effective Date of this Agreement prevent or preclude compliance with
one or more provisions of this Agreement or require changes in plans, maps or permits
approved by the City, the parties shall meet and confer in good faith in a reasonable
attempt to modify this Agreement to comply with such federal or state law or regulation.
Any such amendment or suspension of the Agreement shall be subject to approval by
the City Council (in accordance with Chapter 8.56). Each Party agrees to extend to the
other its prompt and reasonable cooperation in so modifying this Agreement or
approved plans.
7.2 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. When a Party seeking such an
amendment owns or has an equitable right to only a portion of the whole of the Property
("Portion"), then such Party may only seek amendment of this Agreement as directly
relates to the Portion, and the Party owning any other Portion shall not be required or
entitled to be a signatory or to consent to an amendment that affects only the other
Party's Portion If any Portion of the Property is subject to a document which creates an
association which oversees common areas and any construction or reconstruction on or
of the same, then the association shall be deemed to be the "owner" of that Portion of
the Property for the purpose of amending this Agreement.
7.3 Major Amendments. Any amendments to this Agreement which
relate to (a) the Term; (b) the permitted uses of the Property as provided in paragraph
5.1; (c) provisions for "significant" reservation or dedication of land; (d) conditions,
terms, restrictions or requirements for subsequent discretionary actions; (e) an increase
in the density or intensity of use of the overall Project; (f)the maximum height or size of
proposed buildings; or(g) monetary contributions by Kaiser as provided in this
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Agreement, shall be deemed a "Major Amendment" and shall require notice or public
hearing before the Planning Commission and the City Council before the parties may
execute an amendment hereto. The City's Public Works Director shall determine
whether a reservation or dedication is "significant" in the context of the overall Project.
7 4 Minor Amendments. Any amendment that is not a Major
Amendment shall be deemed a "Minor Amendment" and shall not, except to the extent
otherwise required by law, require notice or public hearing before the parties may
execute an amendment hereto. The City Manager or his or her designee shall have the
authority to determine if an amendment is a Major Amendment subject to Section 7.3
above or a Minor Amendment subject to this Section 7.4. The City Manager shall have
the authority to review and approve amendments to this Agreement provided that such
amendments are not Major Amendments.
7.5 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 this Agreement prior to the date of cancellation
shall be retained by the City.
8. Annual Review.
8.1 Review Date. The annual review date for this Agreement shall be
between July 15 and August 15, 2017 and thereafter between each July 15 and August
15 during the Term.
8.2 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 Kaiser thirty (30) days' written notice that the City intends to undertake such
review. Kaiser shall provide evidence to the Community Development Director prior to
the hearing on the annual review, as and when reasonably determined necessary by
the Community Development Director, to demonstrate good faith compliance with the
provisions of the Agreement. The burden of proof by substantial evidence of
compliance is upon Kaiser.
8.3 Staff Reports. To the extent practical, the City shall deposit in the
mail to Kaiser a copy of all staff reports, and related exhibits concerning contract
performance at least five (5) days prior to any public hearing addressing annual review.
8.4 Costs. Costs reasonably incurred by the City in connection with the
annual review shall be paid by Kaiser in accordance with the City's schedule of fees in
effect at the time of review.
9. Default.
9.1 Remedies Available. Upon the occurrence of an event of default,
the parties may pursue all remedies at law or in equity which are not otherwise provided
for in this Agreement or in the City's regulations governing development agreements,
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expressly including, but not limited to, the remedy of specific performance of this
Agreement.
9.2 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.
9.3 No Damages against City. Notwithstanding anything to the
contrary contained herein, in no event shall damages be awarded against the City upon
an event of default or upon termination of this Agreement.
9.4 Commercial Parcel. In no event shall Kaiser's failure to complete a
sale of the Commercial Parcel, after diligent and good faith efforts in accordance with
Section 6 of this Agreement, be deemed a default subject to this Section 9. Should
Kaiser partially assign this Agreement as to any portion of the Property, the City shall
not deem a default by Kaiser or its assignee a default by the other.
10. 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. The City Manager of the City shall be
authorized to execute any certificate requested by Kaiser. 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.
11. Mortgagee Protection; Certain Rights of Cure.
11.1 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
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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.
11.2 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 11.1 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.
11.3 Notice of Default to Mortgagee and Extension of Right to Cure. If
the City receives notice from a Mortgagee requesting a copy of any notice of default
given Kaiser hereunder and specifying the address for service thereof, then the City
shall deliver to such Mortgagee, concurrently with service thereon to Kaiser, any notice
given to Kaiser with respect to any claim by the City that Kaiser has committed an event
of default. Each Mortgagee shall have the right during the same period available to
Kaiser to cure or remedy, or to commence to cure or remedy, the event of default
claimed set forth in the City's notice. The City, through its City Manager, may extend
the thirty-day cure period provided in paragraph 12.2 for not more than an additional
sixty(60) days upon request of Kaiser or a Mortgagee.
12. 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.
13. Attorneys' Fees and Costs.
13.1 Prevailing Party. If the City or Kaiser 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.
13.2 Third Party Challenge. If any person or entity not a party to this
Agreement initiates an action at law or in equity to challenge the validity of any provision
of this Agreement or the Project Approvals, the parties shall cooperate in defending
such action. Kaiser shall bear its own costs of defense as a real party in interest in any
such action, and shall reimburse the City for all reasonable court costs and attorneys'
fees expended by the City in defense of any such action or other proceeding.
14. Transfers and Assignments.
14.1 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,
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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.
14.2 Right to Assign. Kaiser may wish to sell, transfer or assign all or
portions of its Property to other developers (each such other developer is referred to as
a "Transferee") In connection with any such sale, transfer or assignment to a
Transferee, Kaiser may sell, transfer or assign to such Transferee any or all rights,
interests and obligations of Kaiser arising hereunder and that pertain to the portion of
the Property being sold or transferred, to such Transferee, provided, however, that:
except as provided herein, no such transfer, sale or assignment of Kaiser's rights,
interests and obligations hereunder shall occur without prior written notice to City and
approval by the City Manager, which approval shall not be unreasonably withheld or
delayed.
14.3 Approval and Notice of Sale, Transfer or Assignment. The City
Manager shall consider and decide on any transfer, sale or assignment within ten (10)
days after Kaiser's notice, provided all necessary documents, certifications and other
information are provided to the City Manager to enable the City Manager to determine
whether the proposed Transferee can perform Kaiser's obligations hereunder. Notice of
any such approved sale, transfer or assignment (which includes a description of all
rights, interests and obligations that have been transferred and those which have been
retained by Kaiser) 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.
14.4 Considerations for Approval of Sale, Transfer or Assignment. In
considering the request, the City Manager shall base the decision upon the proposed
assignee's reputation, experience, financial resources and access to credit and
capability to successfully carry out the development of the Property to completion. The
City Manager's approval shall be for the purposes of: a) providing notice to City; b)
assuring that all obligations of Kaiser are allocated as between Kaiser and the proposed
purchaser, transferee or assignee as provided by this Agreement; and c) assuring City
that the proposed purchaser, transferee or assignee is financially capable of performing
Kaiser's obligations hereunder not withheld by Kaiser. Notwithstanding the foregoing,
the City Manager's approval shall not be required for (i) an assignment in conjunction
with a sale of the Commercial Parcel consistent with Section 6.2 above, provided that
Kaiser shall provide notice of the sale to the City, or (ii) an assignment to an entity or
entities controlling Kaiser, controlled by Kaiser, or under common control with Kaiser,
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provided that Kaiser owns and controls no less than fifty percent (50%) of such
successor entity.
14.5 Release upon Transfer. Upon the transfer, sale, or assignment of
all of Kaiser's rights, interests and obligations hereunder pursuant to Section 14.2 of this
Agreement, Kaiser 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 Kaiser under this Agreement,
Kaiser shall be released with respect to all such rights, interests and assumed
obligations. Notwithstanding the foregoing, such release shall be automatic with
respect to a sale of the Commercial Parcel upon Kaiser's provision of notice to the City
Manager pursuant to Section 14.4. 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.
14.6 Kaiser's Right to Retain Specified Rights or Obligations. Kaiser may
withhold from a sale, transfer or assignment of this Agreement or any portion of the
Property transferred, certain rights, interests and/or obligations which Kaiser wishes to
retain, provided that Kaiser 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 Kaiser'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 Kaiser with
respect to such retained rights, interests and/or obligations.
14.7 Omitted.
15. Bankruptcy. The obligations of this Agreement shall not be dischargeable
in bankruptcy.
16. Indemnification. Kaiser agrees to indemnify, defend and hold harmless
the City, and its elected and appointed councils, boards, commissions, officers, agents,
employees, and representatives from any and all claims, costs (including legal fees and
costs) and liability for any personal injury or property damage which may arise directly
or indirectly as a result of any actions or inactions by Kaiser, or any actions or inactions
of Kaiser's contractors, subcontractors, agents, or employees in connection with the
construction, improvement, operation, or maintenance of the Project, provided that
Kaiser shall have no indemnification obligation with respect to negligence or wrongful
conduct of the City, its contractors, subcontractors, agents or employees or with respect
to the maintenance, use or condition of any improvement after the time it has been
dedicated to and accepted by the City or another public entity (except as provided in an
improvement agreement or maintenance bond). If City is named as a party to any legal
action, City shall cooperate with Kaiser, shall appear in such action and shall not
unreasonably withhold approval of a settlement otherwise acceptable to Kaiser.
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17. Insurance.
17.1 Commercial General Liability Insurance. During the term of this
Agreement, Kaiser shall maintain in effect a policy of commercial general liability
insurance with a per-occurrence combined single limit of not less than one million
dollars ($1,000,000.00). The policy so maintained by Kaiser shall name the City as an
additional insured and shall include either a severability of interest clause or cross-
liability endorsement. City and Kaiser agree that such insurance may include alternative
risk management programs, including self-insurance or a combination of self-insurance
and insurance, provided that such alternative risk management programs provide
protection equivalent to that specified under this Agreement.
17.2 Workers Compensation Insurance. During the term of this
Agreement Kaiser shall maintain Worker's Compensation insurance for all persons
employed by Kaiser for work at the Project site. Kaiser shall require each contractor
and subcontractor similarly to provide Worker's Compensation insurance for its
respective employees. Kaiser agrees to indemnify the City for any damage resulting
from Kaiser's failure to maintain any such insurance.
17.3 Evidence of Insurance. Prior to issuance of any permits for the
Project, including grading permits, Kaiser shall furnish the City satisfactory evidence of
the insurance required in Sections 17.1 and 17.2 and evidence that the carrier is
required to give the City at least fifteen days prior written notice of the cancellation or
reduction in coverage of a policy unless replaced with similar coverage. The insurance
shall extend to the City, its elective and appointive boards, commissions, officers,
agents, employees and representatives and to Kaiser performing work on the Project.
18. Sewer and Water. Kaiser acknowledges that it must obtain water and
sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another
public agency not within the control of the City. City agrees that it shall not take any
action with DSRSD opposing Kaiser's efforts to reserve water and sewer capacity
sufficient to serve the Project described herein.
19. Notices. All notices required or provided for under this Agreement shall be
in writing. Notices required to be given to the City shall be addressed as follows:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fax No. (925) 833-6651
Notices required to be given to Kaiser shall be addressed as follows:
Kaiser Health Foundation
Real Estate Department
1800 Harrison St.
Oakland, CA 94612
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With a copy to:
Kaiser Health Foundation
Legal Department
Attn: Christopher Alonzi
One Kaiser Plaza, 19 Bayside
Oakland, CA 94612
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.
20. Agreement is Entire Understanding. This Agreement constitutes the
entire understanding and agreement of the parties.
21. Exhibits. The following document is referred to in this Agreement and is
attached hereto and incorporated herein as though set forth in full:
Exhibit A Legal Description of Property
22. Recitals. The foregoing Recitals are true and correct and are made a part
hereof.
23. Counterparts. This Agreement is executed in two (2) duplicate originals,
each of which is deemed to be an original.
24. Recordation. The City shall record a copy of this Agreement within ten
(10) days following execution by all parties.
25. No Third Party Beneficiaries. Nothing contained in this Agreement is
intended to or shall be deemed to confer upon any person, other than the Parties and
their respective permitted successors and assigns, any rights or remedies hereunder.
[Execution Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
CITY OF DUBLIN KAISER
Kaiser Foundation Hospitals, a California
nonprofit public benefit corporation
By:
Chris Foss, City Manager By
Attest:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
2690303 3
(NOTARIZATION ATTACHED)
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