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Home My WebLink About4.09 Hacienda/CreeksideDevAgmtAGENDA STATEMENT CITY COUNCIL MEETING DATE: May 19, 1998 SUBJECT: Annual Review of Development Agreements for the Santa Rita Commercial Center (PA94-001) (now known as Hacienda Crossings Commercial Center and Creekside Business Park (PA96-020) (Report Prepared by Jeri Ram, Senior Planner EXHIBITS ATTACHED: 1) Development Agreement Between the City of Dublin and Homart Development Co. and Surplus Property Authority of the County of Alameda for the Santa Rita Commercial Center recorded April 10, 1995. 2) Development Agreement Between the City of Dublin and Surplus Property Authority of the County of Alameda recorded on May 13, 1997, for the Creekside Business Park �'� Project RECOMMENDATION: Make motion that developers have complied in good faith with the terms and provisions of the Development Agreements and conclude the Annual Review. FINANCIAL STATEMENT: The fiscal impacts of these projects were addressed as part of a fiscal analysis performed for the approved projects. BACKGROUND: The Annual Review of Development Agreements is required by State law and the City's Municipal Code. During the review period the City Council has the opportunity to review the compliance of the parties of the Agreement and either determine the parties are in compliance and conclude the review; or, if the City Council determines that parties have not complied in good faith, the City Council may modify or terminate the Agreement. The burden of proof of good faith compliance is on the developer. If the City Council or Staff has concerns about the compliance of a particular development agreement, the report could be either 1) scheduled as a public hearing by staff, or, 2) pulled from the consent calendar by the City Council and set for a public hearing at the next City Council meeting. Staff has scheduled these two development agreement annual reviews for the consent calendar because they appear to be non -controversial and the developers have evidenced compliance with the terms of the Agreements. COPIES TO: Alameda County Surplus Prop. Opus West Regal Theater AutoNation In House Distribution 9, ITEM NO. U 110- ANNUAL REVIEW: A. Development Agreement relating to the Homart Project (now known as Hacienda Crossings Commercial Center): The development provided for by the Agreement has not yet commenced. Building permit applications . have been submitted for Regal Theater, Mimi's Cafe, Amerisuites and portions of the retail center. All the items required by the Agreement will be implemented when development occurs. There has been no indication from either Alameda COWlty, Opus West, or AutoNation of any problems regarding future compliance with the Agreement. B. Development Agreement relating to the Creekside Business Park Project (Humphrey Systems Project): Significant progress has been made on the Creekside Business Park Site. Although the public improvements are not yet completed because of weather delays, it is anticipated that they will be completed in a timely matter in accordance with the terms of the Development Agreement. Conclusion: The Developers have complied in good faith with the terms and conditions of the Development Agreements during the past year. RECOMMENDATION: Staff recommends that the City Council make a determination that the developers have complied in gOOd. faith with the terms and conditions of the Agreement during the past year and conclude the period of , reVIew. G:\Devagmt\dasrI . -:L.- . . . - ~ "...... .; :......,.. 1""'0 ... - 1 ,/ ::: D .. ,- :L\Y 2 1995 :::-:..~' (~-;. ::: ,-- '" ~ Recording Requested by: I Recorde~ in ~fficial Records, Alameda County . Patr~ck 0 Connell, Clerk-Recorder 11I~lllm~II~11 No Fee 95075863 11:46arn 04/10/95 005 26014756 26 31 A15 44 7.00 129.00 0.00 0.00 0.00 0.00 0.00 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 AGREEMENT BETWEEN ThE CITY OF DUBLIN AND HOM..~T DEVELOPMENT CO. AND SURPLUS PROPERTY AUTHORITY OF THE COUNTY, OF Ah~~DA FOR TEL TRI-V_~LEY CROSSINGS PROJECT/SANTA RITA COMMERCIAL CENTER EXHIBIT 1 .-.- Feb=a..-y 6. 2.9.9 5 2::L~\agree\devlp52;agr INDEX RECITALS AGREEMENT 1. Description of Property. 2. Interest of Developer. 3. Relationship of City, County and Developer. 4. Effective Date and Term. 4.1 Effective Date 4.2 Term 5. Use of the Property 5.1 Right to Develop 5.2 Permitted Uses 5.3 Additional Conditions. 5.3.1 Conditions, terms, restrictions, and requirements for subsequent discretionary actions. . . _ . . 5.3.2 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. . . . . 95075863 AcJS'Y . 1 2 2 3 3 3 3 3 4 4 4 e." 4 4 4 provisions that the Project be constructed in specified phases, that construction shall commence within a specified time, and that the Project or any phase thereof be completed within a specified time.- 5.3_3 5.3.4 Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. . . . . . . . . 5.3.5 -". - Terms relating to subsequent reimbursement over time for financing of necessary public 5 5 . . 7. . 8 . 95075863 /' - ~I /7.7"7 /. I -=- ./ facilities. ............ 5.3.6 Terms relating to payment of fees. . 5.3.7. Miscellaneous terms. 5.4 subsequent Approvals. . - 6. Applicable Rules, Regulations and Official policies. ........... .... 6.1 Rules re Permitted Uses. 6.2 Rules re Design and Construction 6.3 Uniform codes Applicable ....... Subsequently Enacted Rules and Regulations. 7.1 New Rules and Regulations . .. .. .. .. .. 7.2 Moratorium Not Applicable. Subsequently Enacted or Revised Fees, Assessments and Taxes. . 8.1 New Fees 8.2 Construction of Off-Site Traffic Improvements . . .. ..... 9. . 8.3 Revised Application Fees 8.4 New Taxes. . 8_5 Assessments. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. 9.2 Amendment by Mutual Consent. 9.3 Insubstantial Amendments 9.4 Amendments of Project Approvals. 9.5 Cancellation by Mutual Consent. 10. Term of Project Approvals. 11. Annual Review- .. . .. .. .. .. 5 5 5 5 5 5 6 6 6 6 6 7 7 7 7 7 7 8 8 8 8 8 9 9 9 95075863 f/ .75":6[/ 11.1 Review Date. 11.2 Initiation of Review 11.3 Staff Reports . 11.4 Costs ....................... 12. Default. . .. .. .. .. .. . 12.1 Other Remedies Available 12.2 Notice and Cure. . .. .. .. .. .. .. 13. Estoppel Certificate. 14. Mortgagee Protection; Certain Rights of Cure. 14.1 Mortgagee Protection. . . 14.2 Mortgagee Not Obligated 14.3 Notice of Default to Mortgagee. 15. Severability. 16. Attorneys' Fees and Costs. 17. Transfers and Assignments. .-- 9 9 9 10 10 10 10 10 II II 11 1l . 11 12 12 17.1 Right to Assign Project as Whole or Either Phase . . . . . . . . . 12 17.2 Release Upon Transfer. 17.3 Sale of a Portion of Either Phase 18. Agreement Runs with the Land. 19. Bankruptcy. 20. Indemnification. 21. Insurance. 21.1 Public Liability and Property Damage Insurance. ...... _ . . . 21.2 Workers Compensation Insurance. 21.3 Evidence of Insurance. 12 13 13 13 13 14 14 14 . 1 - -~ ~ . 22_ 23_ 24_ 25_ 26_ 27. 28. 2.9. 30. . . Sewer and Water Notices. 4 . .. .. .. . . Agreement is Entire Understanding. Meaning of "DEVELOPER and/or COUNTY" . Status . . ......... Exhibits . Time of the Essence- Recordation .. . .. . .. . Counterparts EXHIBIT A . . EXHIBIT B 95075863 sc;<"zl 15 15 .. '" . .. .. .. 16 16 16 17 17 .. . .. .. .. .. 17 17 21 22 95075853 b ~<~ y fI ... ." THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this 31st day of January, 1995, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "CITY"), the SURPLUS PROPERTY AUTHORITY of the County of Alameda, a public corporation (hereafter IICODNTY"), and HOMART DEVELOPMENT CO., a Delaware Corporation (hereafter "DEVELOPER"), pursuant to the authority of ~~ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.12. RECITALS A. California Government Code ~~ 65864 et seq. and Chapter 8.12 of the Dublin Municipal Code (hereafter "Chapter 8.1211) authorize the CITY to enter into a binding 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 and COUNTY desire to develoo and Developer holds legal ,interest in certain real property consisting of approximately 75 acres of land, located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibit A-1 and A-2 attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property"; and E. COUNTY is the owner of property in the City of Dublin consisting of approximately 620 acres of land, which includes the approximately 75 acres which DEVELOPER has option on rights to acquire; F. DEVELOPER and COUNTY propose the phased development of the Property with a 75-acre 'retail commercial development (the "Project"); and G. CITY, COUNTY, and DEVELOPER acknowledge that development of the Project is a large scale undertaking, involving major investments by DEVELOPER and COUNTY, with development occurring in phases over several years. . DEVELOPER and COUNTY are unwilling to incur the required February b, ~995 ~~4\agree\devlp52.agr 1 . . . (' 95075863 /j .cf" 71' investment in development of the Project without assurance from CITY that all phases of the Project can be developed in accordance with the approvals granted by CITY. CITY, in turn, cannot be assured of realizing the benefits of development of the Project without granting assurance of continuity of CITY'S approvals to DEVELOPER and COUNTY; and H. DEVELOPER and COUNTY have applied for, and CITY has approved, various land use approvals in connection with the development of the Project, including a PD District rezoning (Ord. No. 2-95), and intend to process a tentative parcel map and site development review (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the IIproject Approvalsll); and I. CITY desires the timely, efficient, orderly and proner development of said Project in accordance with this-agreement; and J. The Master Development Agreement approved by CITY Resolution No. 109-94 was used as the format for negotiating this Agreement; and K. 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 8.12; and L. -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 M. On January 31, 1995, the City Council of the City of Dublin adopted Ordinance No. 3-95 approving this Development Agreement. The ordinance took effect on March 2, 1..9.95. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutua~ promises, obligations and covenants herein contained, CITY, COUNTY and DEVELOPER agree as follows: Februa...ry (;. ~~95 ~14\agree\devlp52.agr 2 95075863_ 9' cf gj/ e- AGREEMENT 1. DescriDtion of ProDertv. The Property which is the subject of this Development Agreement is a portion of Assessor's Parcel Number 946-15-1-4, consisting of approximately 75 acres at the southeast corner of Hacienda Drive and Dublin Boulevard in the City of Dublin as depicted on the map attached as Exhibit A-1 hereto ("Property"). The parties agree that a legal description of the Property will be attached hereto by CITY as Exhibit A-2 at the time of approval of the tentative parcel map and will become a part hereof without further action. 2. Interest of DeveloDer. The DEVELOPER has a legal or equitable interest in the Property in that it has an option to purchase the Property in fee simple which may be exercised in two phases. DEVELOPER shall incur no obligations hereunder unless and until it purchases the Property or any portion of it in fee simple. 3. RelationshiD of City. Countv and DeveloDer. e. 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 COUNTY nor the DEVELOPER 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 when signed by all parties. 4.2 Term. Unless said term is otherwise terminated or modified by circumstances set forth in this Agreement or by mutual consent of the parties hereto by amendment of this Agreement, the term of this Development Agreement shall commence on the effective date and extend until the earlier of a) ten (10) years thereafter, or b) when DEV3LOPER has completed its obligations under this Agreement for Phase 1 or Phase 2, and has completed development of Phase 1 or Phase 2, as the case may be, or c) e when COUNTY has completed its obligations under this 3 February 6, J.995 J.J.4\agree\devlp52.agr . . . -2""'-2. :--"r 95075863 4' d --;:! I J -' Agreement for Phase 1 or Phase 2 and has completed development of Phase 1 or Phase 2, as the case may be. 5. Use of the PrODertv. 5.1 Rioht to DeveloD. DEVELOPER and/or COUNTY 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 and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1 Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin.) Not Applicable. 5.3:2 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 provisions that the Project be constructed in sDecified phases, that construction shail commence within a specified time, and that the Project or any phase thereof be completed within a specified time. Februa-~ 6, l~~5 l14\asree\devlp52.agr -4 95075863 /0 ~ 1:/ .- See Exhibit B. 5.3.4 Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B. 5.3.5 Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B. 5.3.6 Terms relating to payment of fees. See Exhibit B. 5.3.7. Miscellaneous terms. See Exhibit B. ." 5.4 Subseauent ADDrovals. Development of the' Property by DEVELOPER and/or COUNTY is subject to certain. future discretionary approvals including, but not necessarily limited to, subdivision, and site development review approval. Upon approval and issuance of any such s~sequent discretionary approval (including conditions of such approval) e~ch such approval shall automatically become part of the approvals which vest hereunder as each such approval becomes effective following final action by CITY, and DEVELOPER and/or COUNTY shall be entitled to develop in accordance with such approvals as provided in this Agreement as though such approval existed upon the effective date of the Agreement and was initially incorporated herein. ., 6. Annlicable Rules, Reaulations and Official Policies. 6.1 Rules re Permitted Uses. Notwithstanding any future changes in the General Plan, Eastern Dublin Specific Plan, Zoning Ordinances or any future rules, regulations, or policies adopted by the CITY, including initiatives applicable to the Property, 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 Februa-~ 6, 1995 114\agree\devlp52_agr 95075863 // ~ xi . proposed buildings shall be those in force and effect on the effect~ve," date of this Agreement. 6.2 Rules re Desiqn 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. Ordinances, resolutions, rules, regulations and official policies governing.~esign, improvement and construction standards and specifications applicable to public improvements to be constructed by DEVELOPER and/or COUNTY shall be those in force_and effect ~t the time of the- applicable permit approval. ' . _ 6.3 Uniform codes Annlicable. 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, and Electrical 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. Subseauentlv Enacted Rules and Reaulations. . 7.l New Rules and Reaulations. During the term of this Agreement, the, CITY may apply new or modified ordinances, resolutions, rules, regulations and official policies of the CITY only if they were not in force and effect on the effective date of this Agreement, if they are not in conflict with those applicable to the Property as set forth in this Agreement and if the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent or materially delay development of the Property as contemplated by this Agreement and the Project Approvals. 7.2 Moratorium Not Annlicable. 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 Proj ect" the Property, this Agreement or the Proj ect Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code 9 8558. Feb=a...ry 6. 1995 114\agree\devlp52.agr 6 95075863 /7 tji'( ."- 8. Subseauentlv Enacted or Revised Fees. Assessments and Taxes. 8.2 New Fees. The CITY, DEVELOPER, and COUNTY agree that the fees payable and exactions required in connection with the development and buildout of the Project for the 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 PD Ord. No.2-95 orin this Agreement. The CITY shall not impose or require payment of any other fees, dedication of any land, or construction of any public improvements or facilities,.in connection with any subsequent discretionary approval for the Property or any portion of it, except as set forth in PD Ord. No. 2-95 and this Agreement. - -- 8_2 Construction of Off-Site Traffic Imnrovements. The CITY, DEVELOPER, and COUNTY agree that DEVELOPER and/or COUNTY'S obligation to mitigate the traffic impacts of the project with respect to either constructing or contributing to the cost of any off-site improvements are limited to those set forth in this Agreement. No other off- site improvements, or contributions to off-site improvements, shall be required of DEVELOPER and/or COUNTY at any phase of development of the Project. .' 8.3 Revised Annlication Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (2) 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. , 8.4 New Taxes. Except as set forth below, any subsequently enacted city-wide taxes shall apply to the Project provided that: (2) 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. No excise tax on the privilege of developing property shall apply to the Proj~ct. 8.5 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. . 7 February 6, 1995 ll4\a~ee\devlp52_a~ 95075863 /'" d/) l' ./ -:J . 9. Amendment or Cancellation. 9.l 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 8.12. 9.2 Amendment bv Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Dublin Ordinance No. 8-91. . 9.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the _Property as provided in paragraph 5.2; (c) provisions for 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 and/or COUNTY as provided in this Agreement, including, Exhibit,B, shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto. 9.4 Amendments of Pro~ect ADDrovals. No amendment of Project Approvals shall require an amendment of this Agreement. Instead, any such amendment automatically shall be deemed to apply to the Project and shall be subject to this Agreement. 9.5 Cancellation bv Mutual Consent. . Except as otherwise permitted herein, this Agreement may be cancelled in whole or in part only by the Februa.--y 6. 1995 114\agree\devlp52.agr B - ':-_..:.....;-""- _r 95075863 II < g / . mutual consent of the parties or their SUccessors in interest, in accordance with the provisions of Chapter 8.12 of the Dublin Municipal Code. 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. Any credit due to COUNTY under paragraph 5.3.6 shall be carried over to future projects on COUNTY's remaining property. Upon completion of Phase 1 or Phase 2, the parties may agree in writing to cancellation of this Agreement as to'Phase 1 or Phase 2, as the case may be, in accordance with the provision of Chapter 8.12 of the Dublin Municipal Code. 10. Term of Proiect ADDrovals. Pursuant to California Government Code Section 66452.6778(a), the term of the tentative parcel map described in Recital H above shall automatically be extended for-_ the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. - 11. ~'nual Review. .. 11.1 - Review Date. The annual review date for this Agreement shall be April 1, 1996, and each April 1 thereafter. 11.2 Initiation of Review. The CITY's Planning Director shall initiate the annual review, as required under Section B.12~140 of ChaDter 8.12 of the Dublin MuniciDal Code, by giving to COUNTY and DEVELOPER thirty (30) days' written notice that the CITY intends to undertake such review. DEVELOPER and/or COUNTY shall provide evidence to 'the Planning-Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Planning 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 and/or COUNTY. The review shall be for the purpose set forth in Government Code section 65865.1. 11.3 Staff Renorts. To the extent practical, CITY shall deposit in the mail and fax to COUNTY and DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least three (3) 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 9 February 6, ~995 ~14\agree\devlp52.agr 95015853 /~ -J't" 1 . and/or COUNTY in accordance with the City's schedule of fees in effect at the time of review. 1.2. Default. 1.2.1. 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 speciIic performance of this Agreement. . .. 22.2'. 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 serviee 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 aScthe 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. 1.3. EstoDDel Certificate. . Any party, or prospective party or lender of any party hereto may, at any time, and from time to time, request written notice from the other parties hereto requesting such party to certify in writing that, to the knowledge of the certifying party, (a) this '"Agreement is ~n 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) the requesting party or the party about which information is recruested 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 and/or COUNTY and County Administrator shall be authorized to execute any certificate for COUNTY. Failure to execute an estoDDel certificate shall not be deemed a default. .. February 6. 2995 ll4\agree\devlp52.as= lO 95075863 It ~/ y;/ .-. 14. Mortaaaee Protection; Certain Riahts of Cure. 14.1 Mortaaaee 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 Agreementi 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 for 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. 1.4.2- Mortaaaee Not Obliaated. 'Notwithstanding the provisions of Section 14.1.. above, no Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion; provided, however, that.a Mortgagee,shall not_be entitled to devote' the. Property to any uses or to constrlict"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 Mortaaaee. 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. l5~ Severabilitv. The unenforceability, invalidity qr illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal_ l6. Attornevs' Fees and Costs. If CITY~ COUNTY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and . 11 Februs-~ 6, ~995 ~~4\agree\devlp52.agr 95075863 /1 c-) 'J C; . conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. . If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. DEVELOPER shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse CITY for all reasonable court costs and attorneys' fees expended by CITY in defense of any such action or other proceeding. 17. Transfers and Assianments. 17.1 Richt to Assian proiect as Whole or Either Phase. . In the event that DEVELOPER and/or COUNTY proposes to assign this Agreement in whole or as to the entirety of Phase 1 or Phase 2, (exclusive of any portions of Phase 1 or Phase 2 transferred pursuant to subparagraph 17.3) DEVELOPER and/or COUNTY shall give CITY ten (10) working days written notice of such proposed assignment and the right to review and comment on the proposed assignment document. DEVELOPER and/or COUNTY agree to give all reasonable consideration to CITY's comments but shall retain the right to assign this Agreement as herein stated without CITY's approval. Each successor in interest 'to the DEVELOPER and/or COUNTY shall be bound by all of the terms and provisions hereof after the effective date of the assignment of this Agreement, and DEVELOPER and/or COUNTY shall be relieved of any obligations, liabilities or the like incurred after the effective date of the assignment. 17.2 Release Unon Transfer. . Except as provided otherwise, upon the sale, transfer, or assignment of DEVELOPER'S and/or COUNTY'S rights and interests under this Agreement under subparagraph 17.1 , DEVELOPER and/or COUNTY shall be released from their obligations under this Agreement with respect to the portion of the Property and/or Project so transferred; provided however,that (i) DEVELOPER and/or COUNTY is not then in default beyond all applicable cure periods pursuant to written notice given under this Agreement; (ii) DEVELOPER ~id/or COUNTY have provided written notice of such transfer to CITY and (iii) subject to the exceptions stated herein below, the transferee executes and delivers to CITY a written Assumption Agreement in which (a) the name and Februa... -y 6. J..9!' 5 ~~4\agree\devlps2-agr 12 95075863 /5 c;/';?j/ .- address of the transferee is set forth and (b) the transferee expressly and unconditionally assumes all of the obligations of the DEVELOPER and/or COUNTY under this Agreement with respect to the portion of the Property and/or Project transferred. 17.3 Sale of a Portion of Either Phase Neither DEVELOPER nor COUNTY shall be relieved of its respective obligations under this Agreement upon the sale of a portion of the Property comprising Phase 1 or Phase 2 and no such sale shall require approval from CITY pursuant to this Agreement. 18. Acrreement 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 Irom 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. e.., 19. BankruDtcv. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. In addition to the Processing Fee Agreement Form signed by DEVELOPER, which is incorporated herein, DEVELOPER and COUNTY each agrees to indemnify and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any . and all claims, costs and liability for any personal injury or property damage which may arise directly or indirectly as 13 February 5, 2995 114\agree\oevlpS2.agr 95075863 / l ~' /f . a result of any actions, or inactions by the DEVELOPER and/or COUNTY, respectively, or any actions or inactions of DEVELOPER's and/or COUNTY's respective contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project. No trustee shareholder, officer, director, employee, parent or subsidiary company, DEVELOPER affiliate or partner of DEVELOPER shall in any event at any time be personally liable for tbe payment or performance of any obligation under this Development Agreement. Nothing in this paragraph shall be construed to mean that DEVELOPER shall defend, indemnify or hold CITY or its elected or appointed representatives, officers, agents and employees harmless from any claims of personal injury, death or property damage arising from or alleged to have arisen from, tbe maintenance or repair by CITY of improvements that have been offered for dedication and accepted by CITY for maintenance or arising out of the negligence of CITY or its elected or appointed representatives, officers, agents and employees. 21. Insurance. 21..1. Public Liabilitv and ProDertv Damaae Insurance. . During the term of this Agreement, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000) and a deductible of not more than ten thousand dollars ($10,000) per claim. The policy so maintained by DEVELOPER shall name the CITY and COUNTY as additional insureds and shall include either a severability of interest clause or cross-liability endorsement. 21..2 Workers Comnensation Insurance. During the term of this Agreement DEVELOPER and/or COUNTY shall maintain Worker's ComDensation 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. D~LOPER and/or COUNTY, as the case may be, agree to indemnify the City for any damage resulting from DEVELOPER's and/or COUNTY's failure to maintain any such insurance. 21..3 Evidence of Insurance. . Prior to City Council approval of this Agreement, DEVELOPER shall furnish CITY satisfactory February 6, ~~~s ~14\agree\devlpS2.agr 14 95075863 /} 0 :::-," ,!.."7' ,7 r j . evidence of the insurance required in Sections 21.1 and 22.2 in the form of a certificate of insurance 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 and each contractor and subcontractor performing work on the Project. 22. Sewer and Water. DEVELOPER and COUNTY acknowledge that water and sewer permits must be obtained 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 and delivered in person (by overnight mail) or sent by certified mail, postage prepaid. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin P.O. Box 2340 Dublin,- CA 94568 .. I Notices required to be given to DEVELOPER shall be addressed as follows: Homart Develooment Co. ATTN: Community Centers Counsel 55 West Monroe, Suite 2700 Chicago, IL 60603 with copy to Executive Vice President Notices required to be given to COUNTY shall be addressed as follows: County Administrator County of Alameda 2222 Oak Street,Room 555 Oakland, CA 94622 . February 6. :L!'!'5 :L:L4\agree\devlp52.agr 15 ~ -,... -- 95075863 "2/,-/70 .:/' ~j /)/ . with a copy to: Planning Director Alameda County 399 Elmhurst St. Hayward, CA 94544 A party may change address by giving notice in writing to the other parties 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 Stat~s Mail. . - 24. Aareement's Entire understandinq. . This Agreement is executed in three duplicate originals, .. each of whic;h is deemed to be an original. . This Agreement and all Exhibits attached hereto contain the sole and entire agreement between the parties concerning the Project. The parties acknowledge and agree that none of them has made any representations with respect to the subject matter of this Agreement or any representations inducing the execution and delivery hereof, except such representations as are specifically set forth herein, and each party .acknowledgesthat it has relied on its own judgment in entering into this Agreement. 25. Meanincr of "DEVELOPER and/or COUNTY". DEVELOPER and COUNTY will provide CITY with a memorandum signed by both parties specifying which party will be obligated to perform the obligations. herein. This memorandum will be provided prior to issuance of the first building permit for phase 1 and phase 2, respectively, and will be incorporated into this Agreement at such time. 26. Status Upon the request of DEVELOPER and/or COUNTY, CITY agrees that it shall certify to DEVELOPER and/or COUNTY, or to any prospective purchaser or lender of DEVELOPER's and/or COUNTY's interest in the Property, as to 'the status of the completion of ~~y obligation to be performed by DEVELOPER and/or COUNTY u-~der this Agreement. CITY shall respond to such a request within thirty (30) days following the receipt thereof. . Februa..-y 6'. ~995 ~14\agree\devlp52.agz 16 9.....07- J ,Ja63 ;1 ~ :>-,,: % y ../ .- 27. 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-2 Map of Property Exhibit A-2 Legal Description of Property Exhibit B Additional Conditions 28. Time of the Essence. Time is of the essence in the performance of each and every covenant and obligation to be performed by the parties hereunder. 29. Recordation. CITY shall record this Agreement when the legal description (Exhibit A-2) is attached, as provided in paragraph 2, which shall occur within ten days after CITY executes this Agreement. 30. Counteroarts. This Agreement may be executed in three seuarate counteroarts, each of which shall constitute an original. - . ., IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be' executed as of the date and year first above written. . February b, 1995 114\agree\devlp52.ag= 95075863 ~3 ~'-7f F' .J . HOMART DEVELOPMENT CO. a Delaware Corporation ~ By: ame: ~......Al-1) L- ~~ ~."b\J,CC; ~lj:cJr (NOTARIZATION ATTACHED) . . February 6, ~995 ~14\agree\devlp52.agr ~B 95075863 I ,- -;// ""', n ,)7 ? J -(,.\1 ~ nO I -S State of La ) . ....... ~::o):- ) 5S. County of 4!d-cul;cJa ) On :::te't.i\,{A.A...>1....-i.j. d~1 jC,q':;Pefore me, a Notary Public, personally appeared ~a/ L. C~4"""'" personally known to me rc- p=ovcj ~o me O~ the-basi-s-oi ..>::=t-; c:::'f:::lr-t-aqL.ev..i..dpnr"'+ to be the person rn' whose name ~ isfar~ subscribed to the within instrument and acknowledged to me that hefshe/~~~executed the same in his/he~/t~~ir authorized capacityf-f..e..s+, and that by hisfheL/Llle.ir- signature'~ on the instrument the person(s+, or the entity upon behalf of which the personf~r acted, executed the instrument. WITNESS my hand and official seal. .' /LI_ /)71 ~/~>,~;.,. /(. uJeO;,o..d.:; NOTARY PUBLIC "OFFICIAL SEAL" THERESA R. ZUKOWSKI NOTARY PUBLIC. STATE OF ILL!NOIS MY COMM!SSION EXPIRES 1 (719B . Feb::uary 6, 195'5 ll{\a~~ee\devlp52.agr -..:.:. -:...- 95075863 "1/ ',-:U (7\~' Yj' 'i 7 ., State of California ) ) ss. County of Alameda ) On "- personally appeared personally known to me to me on the basis of satisfactory evidence) to be the personj,SJ whose name yt) is/~ subscribed to the within instrument and acknowledged to me that he/~~y executed the same in his/~~ autho:rized capacity 0)' and that by his~/;..aelr signature~ on the instrument the personJs1, or the entity upon bebalf of which the personJs1 acted, executed the . inst.~ment. WITNESS my hand and official seal. -........------.....--1 KAY KECK ~ comm.1S77713 G) . HDTARY PUBL.IC. CAL.lFORNIAO ALJ-IoIEDA couNTY ~ c:m: E~P'::" ~v~. ~ t c1{aud fcL NOTARC_ ljL1. c ..... . February 6, 1995 ll4\a~'ee\devlp52_ag~ Attest: CJ(M:J(EL-L Cit~Clffrk ~ '950 758 5 3 ,/ 6, ~"J/ F f ::~ 2fr1'~ Mayo l~.PPROVED AS TO FORM: -25/~ ?I ~~ City Attorney February 6, 19s>5 ll4\agree\devlp52.agr 19 .- .' . . . . 95075863 } ?,~/ 1Y SURPLUS PROPERTY AUTHORlTY OF THE COUNTY OF ALAMEDA By: /'jJ ~ President Gail Steele APPROVED AS TO FORM: I hereby certify un~er penalty of perjury that the President of the Surplus Property Authority of the County of Alameda wud~wilio~~~~&~~d~m~ ATTEST: WILLL.o\M MEHRWEIN, Gerlt, Board of Supervisors, County of Alameda, State oi California. _ /1 _, I ,-' /~. );:) By: ,( ,,::'P'-'-;"';'U!..- j / )!#~ Deputy / [SEAL] February 6,1995 20 ;Z 'T ::rr r Y' 95075863 . : _.~ . " I " I I I . ~! ~ 5 ;f ~!. :;r : .. EXHIBIT A-I Page 2 9 5 0 7 5 3' 6' 3 /7 ~/ ~-f :J - . ~ 17'\ 'G7 ~ \11 CIN1TY 11AP (N.T.S.) J c.wP ;>,.;;xs . Subiect ITooerty -; ~ ~ 3: ~\ ;: :>; i::'_'SUH E!t.Y!J. I ~ ~_.__.. I ! [' it~.A ).r~ _.,.J _ .~ ~ I\~ ~lc: I t.1CA - : I C:...;._~i7~ ;:;c,ac~,r ~'-'c: . -= "='-::--:I..~;;-';G .../'\'1 iJ"j 1= 1:IJ:J1 -:" II II;' _.:fP fj/ lll~ \ it f /: ~. . il ..' . j ".....:. ...~ . EXHIBIT A-2 Legal Description of the Property 95075863 30 %,8'f' 23 February 6, ~9~5 ~14\agree\devlp52_agr e. . . - ~.,.......~. ".- 95075863 J/erfsf . EXIUBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Section 1. Suboaraqraoh 5.3.1: None. Section 2. SuboaraaraDh 5.3.2: Subsection a. Infrastructure Secruencina Proaram The Infrastructure Sequencing Program for the Project is set forth below.- As used herein, "occupancy" shall mean the receipt from CITY of a "Certificate of Occupancy for Eastern Dublin Development" which shall be issued by CITY when the building is ready to be opened to the public. (i) Roads: ~ A. Phase 2 Prior to occupancy of any portion of Phase 1, the project-specific roadway improvements (and offers of dedication) identified in the Traffic Impact Analysis/Regional Discount Retail Center report dated November 2994 prepared for Homart Community Centers by Barton-Aschman Associates, Inc. (hereafter "Project Specific Traffic Report") shall be completed by DEVELOPER and/or COUNTY. Certain additional improvements (hereafter ' II Oversized Improvements II) may be constructed by DEVELOPER and/or COUNTY as herein provided which, together with offers of dedication of the right-of way for the Oversized Improvements and the Project Specific Improvements, are collectively referred to below as "Full Improvements". Hacienda Drive between 1-580 and Dublin Boulevard: . Total offer of dedication of 'a minimum of 94 foot right-of-way of which DEVELOPER and/or COUNTY is responsible for a minimum of 32 feet (adjacent to the property) and for 62 feet for oversizing the improvements for the Traffic Impact Fee (TIF). Additional right-of-way for turn lanes is recruired. Full Imorovements include median (minimum 24 foot width, maximum 24 feet if two left- turn pockets required), two 12 foot southbound travel lanes, Februa....ry 6. B!:'5 114\agree\devlp52.agr 24 95075853 3;2 -- - 7(/ - j - / three 12 foot north-bound travel or right turn lanes with 8 foot emergency parking/bike lane, necessary right-turn lanes for project entrance and Dublin Boulevard (12 foot lane with 5 foot bike lane in place of 8 foot emergency parking/bike lane), 12 feet of parkway area which includes 8 feet of sidewalk, and left-turn pockets as required by the Dublin Public Works Director. Of the Full Improvements, the Project-Specific improvements include 10 foot of median improvements if two left-turn pockets are required, one 12 foot northbound travel lane with 8 feet of emergency parking/bike lane, necessary right-turn lanes for project entrance (12 foot lane with 5 foot bike lane in place of 8 foot emergency parking/bike lane), and 12 feet of parkway area which includes 8 feet of sidewalk. Of the Full Improvements, the Oversized Improvements include full improvement of the median (minimum 14 foot width, maximum 24 foot if two left-turn pockets are required), two 12 foot southbound and two 12 foot northbound travel lanes. DEVELOPER and/or COUNTY is responsible for adequate transition between"existing improvements and proposed improvements to the satisfaction of the Dublin Public Works Director applying CITY'S standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements.. Dublin Boulevard between Hacienda Drive and Eastern-Most proiect Entrance: e- e., Total offer of dedication of a m~n~mum of 102 foot right-ot-way of which DEVELOPER and/or COUNTY is responsible for a minimum of 40 feet (adjacent to the property) and tor 62 feet for oversizing the improvements for the Traffic Impact Fee (TIF). Additional right-ot-way for turn lanes is required. Full Improvements include median (minimum 14 foot width, maximum 24 feet if two left- turn pockets required), two 12 foot westbound travel lanes,' three 12 foot east-bound travel lanes with 8 foot emergency parking/bike lane, necessary right-turn lanes for project entrance (12 foot lane with 5 foot bike lane in place of 8 foot emergency parking/bike lane), 20 feet of parkway area (adj,acent to the property) which includes 8 feet of sidewalk (20 foot parkway will be reduced to 15 feet when two left- turn pockets are required and to 12 feet when right-turn lanes are required), and left-turn pockets as required by Dublin's Public Works Director. .. Of the Full Improvements, the Project-Specific Improvements include 10 foot of median improvement if two-left turn pockets are required, one 12 foot eastbound travel lane with an 8 foot emergency parking/bike lane, necessary right-turn lanes for project e entrance (12 foot lane with 5 foot bike lane in place of 8 25 February 6, ~995 ~~4\agree\devlpS2_agr 95075863 ?'3--;y/ . foot emergency parking/bike lane}, and 20 feet of parkway area (adjacent to the property) which includes B feet of sidewalk (20 foot parkway will be reduced to 25 feet when two left-turn pockets are required and to 22 feet when right-turn lanes are required). Of the Full Improvements, the Oversized Improvements include Full Improvement of the median (minimum 24 foot width, maximum 24 foot if two left- turn pockets are required), two 22 foot southbound and two 22 foot northbound travel lanes. DEVELOPER and/or COUNTY is responsible for adequate transition between existing improvements and . proposed improvements to the satisfaction of the Dublin Public Works Director applying CITY's standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. B. Phase 2 . Prior to occupancy of any portion of Phase 2, the Project specific Improvements (and offers of dedication) set forth below shall be completed by DEVELOPER and/or COUNTY~ In addition, the following Oversized Improvements (and offers of dedication) may be constructed by DEVELOPER and/or COUNTY as herein provided.. Dublin Boulevard between Eastern-Most proiect Entrance and Tassaiara Bridae: . Total offer of dedication of a minimum of 102 foot right-of-way of .which DEVELOPER and/or COUNTY is responsible for a minimum of 40 feet (adjacent to the property) and for 62 feet for oversizing the improvements for the Traffic Impact Fee (TIF). Additional right-of-way for turn lanes is required. Full Improvements include median (minimum ~4 foot width, maximum 24 feet if two left- turn pockets required), two 22 foot westbound travel lanes, three l2 foot eastbound travel lanes with 8 foot emergency parking/bike lane, necessary right-turn lanes for project entrance (l2 foot lane with 5 foot bike lane in place of 8 foot emergency parking/bike lane), 20 feet of parkway area (adjacent to the property) which includes 8 feet of sidewalk (20-foot parkway will be reduced to 15 feet when two left- turn pockets are required and to 12 feet when right-turn lanes are required), and left-turn pockets as required by Dublin's Public Works Director. Of the Full Improvements, the Project-Specific Improvements include 10 foot of median improvement if two-left turn pockets are required, one ~2 foot eastbound travel lane with an 8 foot emergency parking/bike lane, necessary right-turn lanes for project entrance (~2 foot lane with 5 foot bike lane in place of 8 Feb:nla.--y 6. J.!?!?5 J.J.4\agree\devlp52-ag~ 26 9 5' 0 7 -5 8 6 3 3f "f;~ gf foot emergency parking/bike lane), and 20 feet of parkway area (adjacent. to the property) which includes 8 feet of sidewalk (20 foot parkway will be reduced to 15 feet when two left-turn pockets are required and to 12 feet when right-turn lanes are required).. Of the Full Improvements, the Oversized Improvements include Full Improvements of the median (minimum 14 foot width, maximum 24 feet if two left- turn pockets are required), two 12 foot southbound and two 12 foot northbound travel lanes. . - DEVELOPER and/or COUNTY is responsible for adequate. transition betwe~ existing improvements and proposed improvements to the satisfaction of the Dublin Public Works Director applying CITY's standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. C. General Drawincr DeDictinq Imnrovements .A'drawing signed by all parties and depicting the Project-Specific Improvements and the OVersized Improvements may be attached hereto as Exhibit C, in which event it shall,replace the foregoing de~criptions of th~ . Project Speciflc Improvements and Overslzed Improvements. Sianalization As provided in the Project Specific Traffic Report the DEVELOPER and/or the COUNTY shall install signals 1) at the intersections of Dublin Blvd/Hacienda Drive and Dublin Blvd/Tassajara Road and 2) at all driveways onto Hacienda Drive. and Dublin Boulevard where access to the driveway would require median opening. Theforegoing signals shall be installed prior to occupancy of Phase 1 provided the signals at driveways onto Dublin Boulevard shall be: installed as part of Phase 1 or security in a form and amount satisfactory_ to CITYrs Public Works Director shall be provided to CITY by DEVELOPER and/or COUNTY to secure such obligation. Maintenance CITY will maintain the Proje~t-Specific Improvements and Oversized Improvements once they are completed and prior to formal acceptance thereof, provided that City's liability shall be limited to its negligent maintenance thereof until acceptance. . February 6, ~~~5 ~~4\agree\devlp52_agr 27 95075863 ? c. ,.;..___ .......1-0 -'" C/ _:' / . (ii) Sewer The Dublin San Ramon Services District has prepared a report ("Eastern Dublin Facilities Plan Final Report" dated December, 1993, prepared by C. S. Dodson & Associates (the "DSRSD Report") which determined the sizes and approximate location of pipelines to provide potable water distribution, wastewater collection and recycled water distribution within the Eastern Dublin area at ultimate buildout. All references hereinafter to the DSRSD Report shall be to the report as periodically updated and in effect at the time of the applicable improvements and as such report is interpreted and applied by the Dublin San Ramon Services District. Prior to occupancy of any portion of Phase 1, trunk line sanitary sewer improvements to serve the property as well as la~erals hooked up to the buildings to be occupied shall be complete to the satisfaction and requirements of the Dublin San Ramon Services District applying the District's standards and shall be consistent with the DSRSD Report. . ~ (iii) Water Prior to ~ombustible construction and/or storage of 'combustible materials on site, sufficient water storage and pressure shall be available at the site to the satisfaction and requirements of the Dougherty Regional Fire Authority applying the Authority's standards. Prior to occupancy of any portion of Phase 1, trunk line potable water system components to serve the property as well as laterals hooked up to the buildings to be occupied shall be complete and in working order to the satisfaction and requirements of the Dublin San Ramon Services District applying the District's standards and shall be consistent with the DSRSD Report. Prior to occupancy of any portion of Phase 1, recycled water lines shall be installed on site and within adjacent roadways to the satisfaction and requirements of the Dublin San Ramon Services District applying the District's standards and shall be consistent with the DSRSD Report. If such lines are not installed prior to occupancy of any portion of Phase 1, security in a form and amount satisfactory to the District shall be provided to District by DEVELOPER and/or COUNTY to secure such obligation. . Feb:::uary {;, J..995 J..J..4\agree\devlp52.agr 28 . ~:-..:..;. 7'";.- 95075863 5b'&(J"/ . (iv) Storm Drainaoe COUNTY has retained a consultant (Brian Kangas Foulk) to prepare a master drainage plan (the "Drainage Plan") showing the routes and sizes of major storm drainage facilities for all of COUNTY's approximate 620 acres. All references hereinafter to the Drainage Plan shall be to the plan as periodically updated and in effect at the time of the applicable improvements and as such report is interpreted and applied by CITY. Prior to the occupancy of any portion of Phase 1, the storm drainage systems to the site as well as on site drainage systems to the areas to be occupied shall be . complete to the satisfaction and requirements of the Dublin Public Works Department applying CITY1s 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. (v) Other Utilities (e.o. cras, electricitv) Prior to occupancy. Subsection b.M;scellaneous (i) Completion Mav 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 and/or COUNTY to defer completion of discrete portions of any of the above public lmprovements until after occupancy if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. (ii) Improvement Aoreement Prior to constructing the Project-Specific Improvements 'and the Oversized Improvements, DEVELOPER and/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 . February 6, ~995 ~~4\agree\oevlp52.agr 95075863 .)7 .-/ t ( 6 . 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. ' (iii) Bonds Prior to issuance. of any building permit in Phase 1. or Phase 2, DEVELOPER and/or COUNTY shall provide a performance bond and labor and materials bond or other adequate security to insure that the Project-Specific Improvements and the Oversized Improvements (if to be constructed) will be constructed prior to occupancy. The performance bond or other security shall be in an amount equal", to lOO%- 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. . Section 3. Subparaqranh 5.3.3: DEVELOPER and COUNTY intend to construct the Project in two phases. Phase 1 will consist of an approximately 50-acre retail center. Phase 2 will consist of approximately 25 acres of retail development which, if constructed, will be constructed to function in harmony with the Phase 1. retail center. This Agreement contains no requirements that DEVELOPER and/or COUNTY must initiate or complete development of either Phase 1. or Phase 2 or any portion of either phase within any period of time set by CITY. It is the intention of this nrovision that DEVELOPER and/or COUNTY be able to develop the-Property in accordance with their own time schedules. Section 4. SubDa"'-aoraDh 5.3.4: . Except as provided in Section 2, subsection b(l) (Completion May Be Deferred), DEVELOPER and COUNTY will provide all infrastructure necessary and as set forth in this Agreement for the each phase of Project prior to occupancy by any tenant in such Phase of the Project. DEVELOPER and COUNTY intend to install all street improvements necessary for the Project at their own cost (subject to credits for any Overs~zed Improvements as provided in Section 5, subparagraph 5.3.5 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 Februa.ry 6. J..!?95 ~~4\a.gree\devlp52.agr 30 .9507.5853 :?~ ~ ?f' 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. Section 5. Subnaraoranh 5.3.5: COUNTY and/or DEVELOPER may construct Oversized Improvements on Dublin Boulevard and Hacienda Drive fronting the Project as described above. COUNTY shall be entitled to a credit against Traffic Impact Fees for the Project for construction of any such Oversized Improvements. The total value of the Oversized Improvements and right-of-way is $4,574,140 less $808,870 (which is the value of that part of the Oversized Improvements previously constructed by the City of Pleasanton) for a net credit of $3,765,270 -(hereafter "Net Credit"). The Net Credit shall be given at the time DEVELOPER and/or COUNTY enter into an improvement agreement with CITY for construction of the Oversized Improvements. Although DEVELOPER and/or COUNTY currently contemplate constructing all of the Oversized Improvements as part of Phase 1, it is possible that they may defer construction of a portion of the permanent Oversized Improvements to Phase 2. In that event, the amount of the Net Credit for Phase 1 shall be reduced in the following manner. For those Oversized Improvements not constructed (or right-Of-way not offered to be dedicated,) as part of permanent Dublin Boulevard, the Net Credit shall be reduced by $1,140 per lineal foot not constructed and not offered to be dedicated. For those Oversized Improvements not constructed (or right-of-way not offered to be dedicated ) as part of permanent Hacienda Drive, the Net Credit shall be reduced by $942 per lineal foot not constructed and not offered to be dedicated_ If. the Net Credit is so reduced and the permanent Oversized Improvements are later constructed as part of Phase 2, DEVELOPER and\or COUNTY shall be entitled to the amount of the reduced Credit at tha t.. time. Section 6. Subnaraoranh 5.3.6: Subsection a. Traff;c Imnact Fees_ .- .' Except as hereinafter provided, DEVELOPER and/or COUNTY agree that the Project will be subject to Traffic Impact Fees in an amount not to exceed $5,162,719, to be . paid by COUNTY. This amount is based on the City's Traffic Impact Fe~ for Eastern Dublin (Resolution No. 1-95, adopted by the Coun~il on January 9, 1995) on a maximum building February 6, 1~~5 114\agree\devlp52.agr . r . . -, :" 9 5 0 1 5 8 5 3 ~ -." C/ 31 c;f.. ,j / square footage for the, Project of ~~QJ~oo square feet as set forth in PD Ord. No. 2-95, and a trip generation rate for . the Project as determined in the Project Specific Traffic Report , as follows: : r Section 2 Fee: Section 2 Fee: section 3 Fee: $3,665,002 $ 969,222 $ 528,606 Total: $5,1.62~729 The total Traffic.Impact Fee (IITIFll) of $5,262,729 shall be reduced, however, by the Net Credit for Oversized Improvements provided in Subparagraph 5.3.5 for a net TIF due of $2,397,450 for the Project if the Oversized Improvements are .constructed or guarant~ed. For purposes of applying the Net Credit, the following ,shall apply: When a building permit is issued, CITY will: calculate the square footage of the building. CITY will then calculate the amount of the credit to be used , for 'sl.lch~.building- by multiplying the square footage of the building by $6.4533987 which equals the total TIF of $5,J.62~7J.9 divided by the maximum Project square footage of 800,000' square feet" to arrive at the credit for such building; The Net Credit will be reduced by the amount of the credit for such building. A sample calculation follows for illustrative purposes only: Total Net Credit $3,765,270 Building 2 (20,000 sq.ft.J TIF $ 64,534 Remaining Credit $3,700,736 Building 2 (25, oo~o sq. ft.) TIF $ 96,802 Remaining Credit $3,603,935 When the Net Credit has been exhausted or if the Oversized Improvements are not constructed or guaranteed, thereafter COUNTY will pay the applicable TIF in accordance with Resolution No. 2-95, as adopted January 9, 2995, as follows: When a building permit is issued,. CITY will calculate the square footage of the building~ CITY will then calculate the amount of the TIF to be used for such building by mu~tiplying the square footage of, the building by~6_. 4533..987~which equals the total TIF of $5,162,71.9 divide~ythe maximum project square footage of 800,000 square feet to arrive at the TIF for such building. Februa--y 6, 1995 114\agree\devlp52.agr 32 9507586-3 Yo C/~ zy . Payment of the TIP by COUNTY following exhaustion of the Net Credit will be made in cash or, with the approval of the City Manager, by use of credits towards the Eastern Dublin Traffic Impact Fee accumulated by the COUNTY through prior agreements with CITY (Agreement Between City of Dublin, City of Pleasanton, the County of Alameda and the Surplus Property Authority Regarding Construction of Certain Roadway Improvements, as amended, and Agreement Between the City of Dublin, the City of Pleasanton, the County of Alameda and the Surplus Property Authority Regarding Construction of Certain Freeway Improvements) . Notwithstanding the foregoing, COUNTY may, if it constructs or guarantees the Oversized Improvements elect to defer application of all or a portion of the Net Credit and first pay all or a portion of the applicable TIF as hereinabove provided. In such event if COUNTY does not use all of the Net Credit for this Project, COUNTY shall-be entitled to carry over the unused Net Credit to another project on its remaining property within the Eastern Dublin Specific Plan~'Should the COUNTY elect this option, the TIF funds shall be used by' CITY to repay BART the "short term loan" owed by CITY to BART and guaranteed by COU'N'TY. The TIF for the Project may be increased by the CITY to reflect increases to the Eastern Dublin TIF attributable solely to construction cost increases (including increases in right-of-way acquisition) and/or interest due on loan repayments to BART and/or Pleasanton. Such Project TIF increases shall only apply to building permits issued after adoption of a TIF increase by the CITY and shall not be retroactive. . Subsection b. Possible Traffic ImDact Fee to Reimburse Pleasanton for Freewav Interchanaes. In addition to the foregoing, if CITY amends the TIF, as adopted by Resolution No. 2-95, to include a fee to repay Pleasanton for Eastern Dublin's proportionate share of improvements to the-Ropyard, Hacienda and Santa Rita Interchanges constructed by Pleasanton, COUNTY agrees that it will pay any such additional fee attributable to the Property even if building permits have already been pulled Drior to the time CITY amends the TIF_ COUNTY shall be released from its obligation, as set forth in the preceding sentence, if a lawsuit is filed challenging the Project approvals, this Agreement, the negative declaration prepared for the project, the TIF as adopted by Resolution No. 1-95 . or any other aspect of the development of the Property. The obligation set forth in this subsection (b) is not February <;, :1.995 114\agree\devlp52.agr . . . - ~",--- -- , ..... 95075863 1/ ~ g-j applicable to DEVELOPER and shall not be released pursuant to Paragraph l7.2. subsection c. Reoional Transportation Miticration. In addition to payment of the above Traffic Impact Fee, COUNTY shall enter into a binding commitment to convey l5 (plus/minus) acres of land adjacent to the Eastern Dublin BART station to'the Bay Area Rapid Transit District for use as surface parking and, related facilities. COUNTY shall also dedicate-to CITY up to 2,acres of right-oi-way deemed necessary by CITY for access to the BART station from Dublin Boulevard. CO~'s obligation in this subsection (c) shall not be released pursuant to,Paragraph l7.2 subsection d. Public Facilities Fees. . CITY has retained a consultant who prepared a draft report (November ll, 1994 Memorandum to Richard Ambrose from Recht Rausrath & Associates, hereafter the "Draft Study") to calculate the. amount of a Public Facilities Fee for funding the cost of new public facilities required for development in the Eastern Dublin area (the Eastern Dublin General Plan Amendment and Specific Plan Areas). The Draft Study calculates the amount of a Public Facilities Fee for neighborhood parks, community parks, community facilities, libraries and buildout of the Civic Center (hereafter "public facilities").' It concludes that the amount of the PUblic Facilities Fee for retail development is $290 per 1,000 Building Square Feet. Except as provided in the next paragraph, COUNTY agrees that, prior to the issuance of each building permit as part of the Project, it will pay a Public Facilities Fee (hereafter "Fee") in the amount of $362.50 per 1,000 Square Feet of Building. The fee of $362.50 represents $290 per l,OOO Building Square Feet plus a 25% contingency. City has retained a consultant to prepare a more comprehensive report to determine the cost of the public facilities and how such cost should be apportioned among properties witbin the Eastern Dublin area. When CITY appioves and adopts the comprehensive report, the amount of the Public Facilities Fee to be paid by COUNTY pursuant to the preceding paragraph shall thereafter be the amount included in such report for retail uses for all such public facilities, provided that in no event shall the Fee be more than $362.50-per 1000 Square Feet of Building. If the Fee paid by COUNTY pursuant to the preceding paragraph is more than the amount included in such report for retail uses for February 6, 1995 114\agree\oevlp52_agr 34 95075863' 7:: ~ 7-;/ .u. all such public facilities, CITY will refund the difference to COUNTY within 30 days of a request for a refund. COUNTY may, at its option to be exercised prior to the time the Fee is payable, dedicate land to CITY in fee simple in lieu of payment of the Fee provided that land may not be dedicated unless it is in excess of the amount' of land which COUNTY will be required to dedicate pursuant to Dublin Municipal Code Chapter 9.28 (CITY's "Quimby Act Ordinance") when COUNTY subdivides the remainder of its approximately 600 acres for residential uses.' If COUNTY exercises its option to dedicate land in lieu of paying the Fee, the value of the land to be dedicated shall be calculated in the same manner as the value of land was calculated in the Draft Study and in any subsequent study prepared for CITY to calculate the Fee imposed by CITY. CITY shall not be obligated to accept any such land until CITY and COUNTY have agreed on the value of the land to. be dedicated and CITY has determined that the land is - appropriate for park and/or community facility uses. In no event shall the failure of CITY and COUNTY to agree on either the value of the land to be dedicated or the appropriateness of such land for park and/or community . facility use be an impediment to the development of the Project. Subsection e. Noise Miticration Fee. When CITY adopts a resolution imposing noise mitigation fee pursuant to Mitigation Measure 3.10\7.0 of the Mitigation Monitoring Program for the purpose of mitigating noise on existing residences along Tassajara Road, DEVELOPER will pay its proportionate fee into the fund established by such resolution, provided that in no event will DEVELOPER be required to pay more than $3,000. For purposes of calculating DEVELOPER's proportionate fee, CITY will use 270 trips per day which is the number of trips on Tassajara Road which are attributable to the Project, as determined by the Project-Specific Traffic Report. Any fee to be paid by DEVELOPER pursuant to this paragraph shall be paid no later than issuance of a certificate of occupancy (or equivalent approval) for the last building in Phase 2. If no fee has been established by such time, no fee shall be payable. . Subsection f. School ImDact Fees and Fire ImDact Fees. Any school impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080. . 1H 1995 . 95075863 LjA J '7 i/ :? . . _ 7 J Any fire capital impact fees shall be paid by DEVELOPER,in accordance with applicable requirements of the Dougherty Regional Fire Authority. COUNTY agrees it will pay fire capital impact fees to the Dougherty Regional Fire Authority in advance of issuance of a building permit or permits if requested to do so by CITY provided that CITY gives COUNTY twenty working days' advance written notice. Any fire capital impact fees paid in advance which are not required for the Project may be,applied by COUNTY to ot~er projects constructed on coUNTY's remaining lands within the Eastern Dublin Specific Plan. . When development occurs on property to the east of and directly adjacent to the Property, COUNTY will comply with all provisions of the Eastern Dublin Specific Plan and all mitigation measures of the Environmental ImDact Report for the Eastern Dublin General Plan Amendment and SDecific Plan which relate to improvements of Tassajara Creek. Such provisions include but are not limited to Specific plan Action Programs 5C, 6A, 6E, Mitigation Measures 3.3\16.0, 3.4\29.0 [reference to trail corridor], 3.4\36.0 [reference to stream corridors] and 3.7\13.0 [reference to dedication of land and improvements along both sides of stream corridors]. COUNTY's obligations in this subsection (a) shall not be released pursuant to Paragraph 17.2. Subsection b. Contractor Sub-Permits. Section 7. SubDaraqraph 5.3.7: Subsection a. Creek ImDrovements. . DEVELOPER will include a provision in its notice to bidders requiring its contractor(s) to obtain a sub- permit(s) from the State Board of Equalization for the jobsite if the construction contract(s) is (are) in excess of $5,000,000 and shall use its best efforts to assure that its contractor(s) obtain such sub-permit(s). In no event, however, shall DEVELOPER be in default of this Agreement or be liable to CITY for damages as a result of the failure of a contractor to obtain a sub-permit. Subsection c. Fire Station site. COUNTY will dedicate property for a site for a fire station when requested by the Dougherty Regional Fire Authority provided that COUNTY does not waive any claim to compensation for the fair market value of the land so dedicated and provided that the site is mutually agreeable . 36 February 6, 1~~5 114\agree\devlpS2.agr 95075863 ff~~ to COUNTY and CITY. COUNTY's obligation in this subsection (c) shall not be released pursuant to Paragraph 27.2. Subsection d. Future Sewer, Water, ReCYcled Water and Storm Drainaqe Facilities County agrees that all trunk line sanitary sewer and potable water system improvements, all recycled water lines and all storm drainage systems to serve other projects on COUNTY's remaining lands within the Eastern Dublin Specific Plan shall be consistent with the DSRSD Report and the Drainage Plan, respectively. COUNTY's obligation in this subsection (d) shall not be released pursuant to Paragraph 17.2 February 6, 1995 114\agree\devlp52.agr ~ . . Y:; rf' 71 e- Recording Requested by: City of Dublin t' S '\'\7hen Recorded Mail To: j r-- ~~ ...:; "J ;"~-......:::- I VJ City Oerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space above this line for Recorder's Use DEVELOPMENT AGREEMENT -.., BETVvEEN THE CITY OF DUBUN .AND THE SURPLUS PROPERTI' AUTHORlTI' OF THE coUNTI OF.ALAMEDA FOR THE SANTA RITA BUSINESS CENTERPROJECT . -":." :.&. E1Ji~B~1 2 ,- :=;, 8. 9. t/~ ~ gf/ TABLE OF CONTENTS . . '\-~........ . 1. Desoiption of Property. ........................................ 2 2. Interest of Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3. Relationship of City and Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. Effective Date and Tenn. ........................................ 3 4.1 Effective Date. ........................................... 3 4.2 Term.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 .). Use of the Property. ............................................ 3 5.1 Right to Develop ......................................... 3 5.2 Permitted Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5.3 Additional Conditions ..................................... 3 6. Applicable Rules. Re~ations and Official Policies .................... 5 6.1 Rules re Permitted Uses. . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6.2 Rules re Design and Constnlction ............................ 5 6.3 Unifonn Codes Applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 :..' .. . ~:~ 7. Subsequently Enacted Rules and Regulations. . . . . . . . . . . " . . . . . . . . . . . . . 5 7.1 New Rules and Re!?Jlations ........................ ~ . . . . . . . . 5 7.2 Approval of Application .. . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . . . . 6 7.3 Moratorium Not ApplicaQk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Subseouentlv Enacted or Revised Fees. Assessments and Taxes. . . . . . . . . . . 6 ~ . 8.1 Fees. Exactions. Dedications . _. . . . . . . . . .. . . . . . . : . _ _ . . .. . . . . . 6 8.2 Revised Application Fees ................................... 6 8.3 New Taxes ............................................... 7 8.4 ASsessments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8.5 Vote on Future Ac;sessrnents and Fees ................. _ . . . . . . . 7 Amendment or Cancellation. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 9.1 Modification Because of Con.r1ict with State or Federal LaVi'S ....... 7 9.2 Amendment by Mutual Consent ........... _ . . . . . . . . . . . . . . . . _ 7 . . . . .... ....-.. Dublinl.A.lam:::da Development Agre--..ment ror Santa Rita Business Center Project b Table of Contents - Page i of ill February 3, -1997 .'.. - ..0." ., -- ... ,. ..:::-- '/1 .;-/ gj' u 9.3 Insubstantial Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 9.4 .Amendment of Project Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.5 Cancellation by Mutual Consent . . . . . . . . . . . . . - . - - . . . . . . . . . . . . 8 10. Term of Project Approvals ................... - - . . . .. . . . . . . . . . . . . . 8 1 L jlnnual Review ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 8 11.1 Review Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.2 Initiation of Review .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.3 Staff Reports ............................................ 9 11.4 Costs ....................... _ . . . . . . . . . . . . . . . . - . . . . . . . . . 9 12. Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - - . . . . . . 9 12.1 Other Remedies Available .................................. 9 12.2 Notice and Cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.3 No Damages Ag-ainst OIT ................................. 9 13. EstOl1pel Certificate ........................................... 10 ...:.:. 14. .. . . . . ..-' & . ~.. 15 _ .$everabilitv . . . . . . . . . . . . . . _ . . . . . _ . . . . . . . . - . . . .. . . . . . . . . . . . . . . . 11 16. Attornevs' Fees and CostS __ . _ . . . . _ . . _ . . . . - . . . . . . . - . . . . - . . - . - . - - . 11 17. Transfers and AssiVlments . . _ . . . . . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . II 17_1 17.2 17.3 17.4 18. A~eement Runs V\rim the Land 13 ,. .. .. .. .. .. . .. .. .. .. .. . .. .. .. .. .. .. .. .. .. .. .. .. .. .. . . .. .. .. .. .. 19 _ Bankruptcv _ . . . __ . _ . __ . __ _ _ . . __ . . _ _ . - - - - - . . - . . - - - -- - - . . - -- . .. 13 , 20. Indemnification 13 - . . . . . . . . . .' . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dublin/Alameda Developm~tAgreement ror Santa Rita Business Center Project Table of Conttnts - Page ii of ill February 3, 1997 Ii Yi cJ 7/ 21. Insurance. . . . . . . . . . . . . . . . . . - _ . _ . . . . . _ . . . _ . _ . . . . . . . . . . . . . . . . . 14 ...;:.- 21.1 Public Liability and Property Damage Insurance. . . . . . . . . . . . _ . . . 14 21.2 \V orkers Compensation In~urance . . . . . . _ . . . . . . . . . . _ . . . _ . _ . . . 14 21.3 Evidence ofIn~urance -........... _... _... _ .. .... .. _. . . _ .. 14 24. ?- _J. ?'" _0. 27. 22. Sewer and Water ............................... _.... _ . . . _ . . . . 14 23. N oti ces . . . . . . . . . . . . . . . . . . . . . - . . . . . _ . _ _ . . . . . .. . . . . . _ . . . . . . . . . . 14 Agreement is Entire Under~tanding ........... _ . . . . . . . . . . . . . . . . . . . 15 Exhibit~ ................................ _ . . . . . . . . _ . . . . . . _ . . _ 15 Counterparts ........................... _ . .. . . . . . . _ _ . . . . _ . _ . . . 16 Recordation ................................................. 16 Dublinl.Alameda Development Agre"'...ment for 52Ilta Rita Business Center Project ~ Table of Contents - Page ill of ill February 3, 1997 .. . - . e;: . .' . - - ~ .. . -.. .... . .. . . .. . ~_r - - -..-__r' f/l --< - Fl" ./ THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this _ day of April, 1997, by and between the CrTY OF DUBLIN, a Municipal Corporation (hereafter "Ci1)"'), and the Surplus Property Authority of Alameda County. a public corporation (hereafter "Developer"), ,pursuant to the authority of s~ 65864 et seq. of the California Government Code and Dublin Ivfunicipal Code, Chapter 8.12. RECITALS .A California Govenunent Code ~s 65864 et seq. and Chapter 8.12 of the Dublin 1\1unicipal Code (hereafter "Chapter 8.12") authorize the CITY to enter into an Agreement for the development of real property '\\~th any person having a . legal or equitable intereSt in such property in order to establish cenain 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 ~o, enter into a development agreement; 2nd D. DEVELOPER desires to develop and holds legal interest. in certain real property consisting of approximately 25 acres of land, located in the City of Dublin, County of Alameda, State of California. which is more particuJarly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "PropertYl; and E. DEVELOPER proposes the development of the Property with a 400,000 square foot office/industrial park (the "Project"); and F. DEVELOPER has applied for, and QTYhas approved or is processing, "anous land use approvals in connection with the devclopment of the Project, including a PD District rezoning (Ordinance No. 2-97). Land Use and Development Plan (Res. No. 3-97), tentative parcel map (Res. of Conun. Dev. Dir. No. 2-97). and site development review (collectively. together with any approvals or permits now or hereafter issued V\~th respect to the Project, the "Project ApprovalS"); wd G. Development of the Property by DEVELOPER may be subject to Dublin!J>J.ameda Development. Agreement. rOT Santa Rita Business Center Project Page 1 of 17 March 6. 1997 -1 50 7f 77 c~L.ain future discretionary- approvals including site development review, which, if granted, shall automatically become pan of the Project Approvals as each such approval becomes effective; and .., H. CITY desires the timely, efficient, orderly and proper development of said Project; and I. 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 revirnred and evaluated in accordance with Chapter 8.12; and J. CITY and DEVELOPER have reached agreement and desire to eA-press herein a Development Agreement that will facilitate development of !be Project subject to conditions set forth herein; and K. Pursuant to the California Environmental Quality Act (CEQA) the City prepared a l\1itigated Negative Declaration for the Project and found that the Mitigated Negative Declaration was adequate for this Agreement; and On [ date], the City Coundl of the City of Dublin adopted approving this Development Agreement. The ordinance took [date]. . -.' .'. ".'r" L. Ordinance No. effect on -....... NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPER agree as fo11o\l\"5: 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. The DEVELOPER has a legal or equitable interest in the Property in that it owns the Property in fee simple. . Dublin/Alameda D:.-:vdopment Agre~ent for Santa Rita Busim:ss Center Project Page 2 of 17 March 6, 1997 Ib e: . .' ~~ ~_.~ . -.- ~ . .'.- ~ _ r ~ ..c/ / ... ~/ d J -' I 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and volunurrily entered into by 01Y and DEVELOPER and that the DEVELOPER is not an agent of CITY. The 01Y and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY and DEVELOPER joint venturers or partners. 4. Effective Date and Tenn. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is recorded in the Office of the Alameda County Recorder. 4.2 Term. The term of this Development Agreement shall commence on the effective date and o..'tend ten (10) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. U~e of the Property. 5.1 Ri~ht to Develop. DeVeloper shall have the vested right to develop the Project on the Property in accordance with the t= and conditions of this Agreement, the Project Apprcm1s (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 proposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by 01Y) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for me following ('Uditiorull Conditions") are set forth in Exhibit B attached hereto and incorporated . herein by reference. DublinlA1amecl2. Development Agre~ent for Santa. Rita 'Business Center Project Page 3 of 17 March 6, 1997 )1 5/' c~;:' if 5.3.1 Subsequent Discretionary Approval~. Conditions, terms, restrictions, and requirements for subsequent . ~ discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin.) 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 Pha~ne. Timing. Provisions that the Project be consUUcted in specified phases, that construction shall commence within a spedfi.ed time, and that the Project or any phase thereof he completed witbin a specified time. See Exhibit B 5.3.4 Financinf Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B .. .. .. 5.3.5 Fees. Dedications. Terms relating to payment of fees or dedication of property. See Exhibit B 5.3.6 Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public fadlities. See Exhibit B 5.3.7 Miscellaneous. .:Miscellaneous terms. See Exhibit B ',' . DphlinJAlameda Devclopment Agreement for S211ta Rita Bminess Center Project Page 4 of 17 March 6. 1997 /?-- f" .: .~:~ .. . ~ . ~ .... .' . . . .- ~ .~ -- ,~./.(I C -'.- . I ,/ ./ - 6. Applicable Rules. Regplations and Official Policies. 6.1 Rulesre Permitted Uses. For the term of this Agreement, the City's ordinm=. resolutions. rules. regulations and official policies governing the pennitted 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 Ie Design and Construction. Unless otherwise "'--pressly 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 discretional)' Project Approval. Ordinances. resolutions. roles, 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 6.3 !Jnifonn Codes Applir..able. Unless eA-pressly provided in Paragraph 5 of this Agreement, the Project shall be constrUcted in accordance with the provisions of the Uniform Building.. Mechanical, Plumbing. and Electrical Codes and TItle 24 of the California Code of Regulations, re1atingto Building Standards. in effect at the time of approval of the appropriate building, grading, or other construction pennits for the Project. 7 ~ SubsequentJy Enacted Rules and Re~ations. 7_1 New Rules and Re~lations. 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 V\~th those applicable to the Property as set forth in this A"ureement 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 cont=plated by this Agreement and the Project /Ipprovals 1lIld (b) if suth .ordinances. resolutions, roles. regulations or official policies have general applicability- Dublin/Alameda Development Agreement tor Santa Rita Business Center Project Page 5 of 17 March 6, 1997 \$ 51 ~ 6/ 7.2 Approval of Application. Nothing in this Agreement shall .o. . prevent the CITY from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances. resolutions. rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, .md requirements e>..]JTeSsly set fonh herein. , 7.3 J\10ratorium No! Applicable. Notvi'ithStanding anything to the contrary contained herein. in the event an ordinance, resolution or other measure is enacted. 'w:hether by action of CTIY, by initiative, referendum. or otherwise. that . inlposes a building moratorium vdtich 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 S 8558. 8. SubRequentJy Enacted or ReviRed Fees. Assessments and Taxes. 8.1 PeeR. Exactions. Dedications. CITY and DEVELOPER agree that the Jees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in Ordinance No. 2-97, Resolution No. 3-97 and in this Agreement (including Exhibit B). The CTIY shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or fadlities, shall not increase or accelerate existing fees. dedications of land or construction of public improvements, in connection VI':i.tl1. any subsequent discretionary approval for the Property. except as set forth in Ordinance No. 2-97, Resolution No. 3-97 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 ~oreement shall apply to the Project provided that (1) such fees have general applicability; (2) tl1.e application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance witl1. this Agreement. By so agreeing, DEVELOPER does not waive its rights to challenge tl1.e legality of any such application, processing and/or inspection fees. Dublinl.Al2meda Development Agreement for Santa. Rita Business Center Project Page 6 of 17 March 6, 1997 .'.- .~ - ~ ~< ~~~.~: . -. . ., ..' ..-. , . .' , . " .... .' . :. .~:. ..:..." .". -. -0.....-. :.... . -"--.- ~. . .- - - .-.... :--- -+.._.----..-........ - --- ... . -...- _ ',7-'" .-.-". . .r - .. ",,-W _--.W . ~- -' 5< ~ '7/.-/ -- . J (..' / 8.3 l:'Jew Taxes. Any subsequently enacted ciry-'wide taXes shall apply to the Project provided that: (I) 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. 8.4 Assessments. Nothing herein shall be constroed to relieve the Property from assessments levied against it by City pursuant to any statutoty procedure for the assessment of property to pay for infrastructure andlor services which benefit the Property. 8.5 Vote on Future AssessmentS and Fees. In the event th~t any assessment, fee or charge which is applicable to the Property is subject to Article :x:r:rrD 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 urws. 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 A"oTeement 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 accorrumce 'with Chapter 8.12. 9.2 .Amendment bv Mutual Consent. This Agreement may be . amended in writing from time to time bY mutual consent of the parties hereto and in accordance with the procedures of State law and Dublin Ordinance No. 8-91. 9.3 InsubstantiaJ ArnendmentE. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do notrelate to (a) the t.erID oftheA"areement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (cl provisions for "significant" reservation or dedication of land as provided in Exhibit B; (dl conditions, ,enDS, resrrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed Dublin/Alameda Development Agreement Tor Santa Ri'ta Business Center Project Page 7 of 17 March 6, 1997 IS /""", if,:/ 5b ~ ~I '--' buildings; or (g) monetary contributions by DEVELOPER as provided in this .' .c'. Agreement, shall not, except to the e>..."tent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the p2Ities may execute an amendment hereto. CITY's Public "\V orks Director shall determine 'whether a reservation or dedication is "significant". 9.4 Amendment of Project Approval.s. .Any amendment of Project Approvals relating to: (a) the pennitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the denSity or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) moneta1y 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 Agr=ent unless the amendment of the Project Approval(s) relates spedfica11yto some provision of this Agreement. 95 Cancel1ation by Mutual Con~en1- Except as otherwise pennitted herein, this Agreement may be canceled in whole or in pan only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Olapter 8.12. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation ~hall be retained by CITY. ::. 10. Tenn of Project Approvals. Pursuant to California Goverrunent Code Section 66452.6(a), the term of the tentative map described in Recital F above shall automatically be eA"tended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit E. 1 I. . Jumual Review. , 11.1 Review Date. The annual review date for this Agreement shall be March IS, 1998 and each March IS thereafter. 11.2 Initiation of Review. The CIJ1ns Community Devclopment Director shall initiate tile annual review, as required under Section 8.12.140 of Otapter 8.12, by giving to DEVELOPER thirty (30) days' ... Dublin/Alameda Development ~ore--...ment for Sanr.a Rita BUSin~5 Center Project Page 8 of ] 7 March 6, 1997 . ~: .:. ~ .~-.~::~.~:-~. ~ . .. b 51c-f~11 ;,J . writtedn notld' ce thatt ththe CcITY inte~dsDto une} dertake DS~ch review. DEVEth LhOPER shall .u .. pro'~ e evi ence 0 e ommuruty ev opment rrector prior to e earing on the annual r"'~ew, as and V\~en reasonably determined necessary by the Community D",'e1opment Director, to demonsuate good faith compliance with the provisions of the Development A,,<>reetnent. The burden.of proof by substantial ",~dence 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 repons, and related exhibits concerning contract performance at least three (3) days prior to any annual review. 11.4 . .costs. Costs 'reasonably incurred by em in connection ,,~th the armual review shall be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. 12. Default. .' '_0" " . 12.1 Other Rememes Available. Upon the occurrence of an event of default, the parties may pursue all other =ernes at law or in equity which are not otherwise pro,~ded for in this Agreement or in CitiS regulations governing development agreements. . e:>..-pressly including the remedy of specific perfonnance of this Agreement. .. . 12.2 Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; pravided, 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 arre such default within such thirty (30) day period and diligerrtly pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Dama~es A~nst CITY. In no event shall damages be awarded against OTY upon an event of default or upon t=ination of this Agreement.. . - :-~.. ---. ~ . '. . -. -. ~ . 7"_ ".' Dublin/.A1am~fut Deve1opme..lt Agr~~ent ror Santa Rita :Business eener Project Page 9 of 17 March 6, 1997 1'7 C"? -/' Yj' /' u 13. Estoppel Cenifica~. Either party may, at any time, and from time to time, request wriuen notice from the other party requesting such party to certify in writing that, to the knowledge of the certiiying party, (a) this Agreement is in fu11 force and effect and a binding obligation of the parries, (b) this A"oreement has not been amended or modified either orally or in writing, Or if so amended, identii)>ing the amendments, and (c) thi:: requesting party is not in default in the perfonnance 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 parries. City Manager of City shall be authorized to =ane anYCertiticate requested by DEVELOPER Should the party receiving the request not execute and return such certificate 'within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are nue, and any party may rely on such deemed certification. 14. l\1onga~ee Protection: C~rtain Rig;hts of Cure. 14.1 Mortga~ee ProtectioIl. This AgTeement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this A"oreement, including the lien for any deed of trust or mortgage ("Mortgagett). 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 tenns and conditions contairied in this A"oreement shall be binding upon and effective against any person or entity, induding any deed of trust beneficiary or mortgagee (ttMortgageett) who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obli~ted. Notwithstanding the provisions of Secrion 14.1 above, no Mortgagee shall have any obligation or duty under this A"oreement, 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 complerion, or to pay, perfonn 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 au00rized by the Project Approvals or by this Agreement. Dublin/Alameda Development Agreement for Santa. Rita Business Center Project Page 10 of 17 March 6, 1997 , . " e., ..w _ .;..--.. .". -. .. ...-4 :.-w. - r+, . " .. , - ~ ". .. - ..~. :. -0, . _00. : ....'.., . ....-., ". ... - "0.. . -. . .' . +' .. ...... ~ -'.. ' .. ." . '. , . . , ." " , . . w.. .' :..'... '. . . ~ . :.-_::::".7', . .-~ -.~. - '. -.' ..' - -. .... ... .-.": - 0-, . .. ' . ., w-' ", "'; ~.: :~{~:"..;. . . .~ -;.:~:~_:~ ~ . . r r ~ & ~ --:- . ~~ . . r- /-o/'/""j ./, .J - 14.3 Notice of Default to Mort~~ee and EAtension ofRi~ht to ~. If em receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereW1der 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 conunitted an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to rure or remedy. or to commence to cure or remedy. the event of default claimed set forth in the CTIYs notice. CITY. through its City l\1anager. may e>.."tend the thirty-day cure period provided in paragraph 12.2 for not more than an additionalsiA"t)" (60) days upon request of DEVELOPER or a Mortgagee. 15. Severabilitv. The unemorceability. invaJidity or illegality of any provisiDns. covenant, cDndition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If OTY or DEVELOPER initiates :my action at law or in equity to enforce or interpret the terms and conditions Df 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 nDt a party. to this Agreement initiates .an action at law or in equity to challenge the validity of any provision or this ~oreement or the Project .Af>provals. the parties shall CODperate in defending such action. DEVELOPER shall bear its own costs of defense as a real parry in interest in any such action. and shall reimburse CITY for all reasonable court costS and attorneys' rees e>qJended by CITY in defense or any such action Dr other proceeding. 17. . TTaTIsfers and Assi~ent5. 17.1 Ri~ht to Assi~. It is anticipated that DEVELOPER -will 5~ the PropITty t.o another developer. .All or DEVELOPER'S rights, interests and obligations hereunder may be tra..'l1Sferred, sold or assigned in conjunction with the U2I'Srer, sale, or assignment or all or the Prop~-ry subject hereto at any time dunng me term or this Agreement, provided that no transfer, sale or assignment of D~EVELOPERls rights, interestS and obligations hereunder shall OCL-uT 'without the Dub3inI~ D:.-:vdopme.nt ~or.=crne.nt ror Santa Rita Busin::ss Center Proj~ct Pa.O'e 11 of 17 C> March 6, 1997 I~ 156 .~~%r pr.ior.writt~l 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 days after DEVELOPER's notice. 17.2 Release Upon Transfer. Upon the transfer, sale, or 2.ssignment of all of DEVELOPER's rights, interests and obligations hereunder pursuant to subparagraph 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 "l..:.-zIlsfer, sale, or assignm~t; provided, however, that if any transferee, purchaser, or 2Ssignee approved by the City Ivfanager e:>..pressly assumes all of the rights, interests 2nd obligations of DEVELOPER under this Agreement, DEVELOPER shall be released with respect to all such rights, interests and assmned obligations. In any event, the tr2nSferee, purchaser, or assignee shall be subject to all the provisions nITf:of and shall provide all necessary documents, certiikations and other necessary information prior to City Manager approval. 17.3 DeveJoT'er's Rifht to Retain Specified Ri~t~ or Oblifations. Notwithstanding subparagraphs 17.1 and 17.2 DEVELOPER may 'Viiihhold from a sale, transfer or 2Ssigrunent of this Agreement certain rights, interests . "-"dlor obligations which DEVELOPER shalJ retain. pTO\~ded that DEVELOPER .'-.-.~:" specifies such rights, interesrs and/or obligations in a 'written document to be appended to this ~o:reement and recorded Vi~th the Alameda County Recorder prior to the sale, ~fer or assignment of the Property. DEVELOPER's purchaser, ll2I1Sferee: or assignee shall then have no interest or obligations for such rights, interests and obligations and this Agreement shall remain applicable to DEVELOPER VI'i-JJ. Iespect to such retained rights, interests and/or obligations. ' 17.4 Permitted Transfer. Purchase or ksi~ent. The sale or oiller uansfer of any interest in the Propeny to a purch2Ser ("Purchaser") pursuant to the EXercise of any right or remedy under a deed of trust encumbering DEV"'"..c.LOPER'S interest in the Property shall not require City Manager approval plli-:sIl2I1t to the provision of paragraph 17_1. .Any subsequent transfer, sale or assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 17.1. . Dublin/.Alameda D:vdopme.nt ~~e.nt for 5an~ Rr..a Busin=ss Ce.nt.e.r Proje~ Page 12 of 17 March 6, 1997 : .~:._: :"w. :.' +-.-.- a_. _. ~ . ......... 6 / ~- z- fI 18. A~eement Runs wjth the Land. All of the provisions, rights, terms, covenantS, and obligations contained in this Agreement shall be binding upon the pames and their respective heirs. successors and assignees. represeritatives. lessees. and all other persons acquiring the Property. or any portion thereof. or any interest therein. whether by operation of Jawor in any manner whatsoever. All of the provisions of this A,oreement shall be enforceable as equitable seT\~tude 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 VI~th 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. 13ankmptcy. . The obligations of this Agreement shall not be dischargeable in . ~ ~...::. -:.:,-. . ~ -.~: .!:~ - _&+ . bankruptcy. ~~. 20. ' . Indemnification. DEVELOPER agrees to indemnify. defend and hold hannless CITY. and its elect.edand 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 constroction. 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 a=pted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). - . ~. ..".. .. . .- ~ - -' r _" _-. .- . -~ Dublin/Alameda. Development ~crreement for Santa. Rita Business Center Project Page 13 of 17 March 6, 1997 J-/ 21. rnsuranc~. 6';2 :?J> 37 21.1 Public Liability and Properryr Damage Insurance. During the term of this Agreement, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) and a deductible of not more than ten thousand dollars ($10,000.00) per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. Notwithstanding the foregoing, as long as the Surplus Property Authority of Alameda County is the "Developer" it may self insure to satisfy the foregoing requirements. 21.2 vV' orkers Compensation Insurance. During the term of this Agreement DEVELOPER shall maintain '~orker's Compensation insurance for all persons employed by DEVELOPER for work at the Project site. DEVELOPER shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to City Council approval of this ~oreement, 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 CI1Y at least fifteen days prior 'written notice of the cancellation or reduction in coverage of a policy. The insurance shall o..'tend to the' CITY, its elective and appointive boards, Commissions, officers, agents, employees and representatives and to DEVELOPER and each contractor and subcontractor perfOnning work on !be Project. 22. Sewer and Water. DEVELOPER aclmowledges 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 and delivered in person or sent by certified mail, postage prepaid. Notices Dublin/Alameda DevdopmentAgreement ror Santa Rita Business Center Project Page 14 of 17 Marc:h 6, 1997 -.. . - , "-.":.-"&-. ..-.,- ~ .c 2/ . required to be given to CITY shall be addressed as follows: City Manager City of Dublin P.O. Box 2340 Dublin, CA. 94568 . ~ . .~. - ~ ~ . .~.~:..: ~ . Notices required to be given to DEVELOPER shall be addressed as follows: Patrick Cashman Project Director Surplus Propeny Authority of Alameda County 225 Vv. Winton Avenue, Room 151 Hayward, CA 94544 and Adolph Martinelli Director of Planning County of Alameda 399 Elmhurst Street Ha~'ard, CA 94544 z.</ ,.j ....--" ,-. 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 e:xpiration of 48 hours after being deposited in the United States Mail. 24. A~eement i~ Entire Understanding. nus Agreement constitutes the entire understanding and agreement of the parties- Dublin/Alameda Development Agreement ror Santa IDta Business Cent~ Project. ~9 Page 15 of 17 March 6. 1997 ,r/ ....."7'" (/ /v ~ .,'; / 01 -J -, 25 - Exhibit~. The fOllo'wing documents are referred to in this Agreement and are attached hereto and incorporate.d herein as though set fonh in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions Exhibit G Off Site Improvements 26. .counterpans. This ~OYeement is executed in two (2) duplicate originals, each of 'which is deemed to be an original. 27. Recordati on. CITY shall record a COpy of this Agreement Vidthin ten days folJo"i'i'hlg execution by all parties. IN WITN.Ess WHEREOF, the parties h=o have caused. this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN:' By: Mayor Date: APPROVED AS TO FORM: ATTEST: City Attorney City Clerk Dublin/.A1ameda Dc:vd.opment Agreement for Santa Rita Business Center Project Page 16 of 17 March 6, 1997 " -, .... . .-'.... &. .ww_ . ..-.. l ~ ....; . .' --. .:. :.-::. '. , .-: ~~'. :-:~: :>& t; Surplus Property Authority of Alameda Coumy: 4I!:., . -~. -. -.... . Adolph Martinelli Its Manager ...6:.PPROVED AS TO F0R11: Attorney for Surplus Property Authority of the County of Alameda ili5:rj:a J:\\'1'PD\Mh'Tp.5W\114\AGREE\B6\OPU5AGR..306 Date: / .:-: :.c:-> ..../ ~ -' 51 ./ (NOT.ARIZATION ATTACHED) --.....-:-:. Dublinl.AJ;m1eda Development Agreem:nt for Santa Rita Business Center ,Project '1- tf.:? Page 17 of 17 March 6, 1997 Brian Kangas Foulk .0' , . .:f 1/ G:..~ - - / :nflineers .. Surveyors .. Planners BKF Project No. 940158-14 February 4, 1997 PROPOSED PA.ReEL ONE PARCEL MAP 7042 All that real property situate in the CiT}' of Dublin, County of .tJameda,. State of California, being a portion of Parcel 1 as said parcel is described in the Quitclaim Deed recorded Ju1y 11, 1969, in Reel 2439 at Image 213, Official Records oL4Jameda County. and described as fonows: COJ\1ME1\TClN'G at a found monument box v.~th brass disk stamped "/ua Co. RS 385 27 1969" as said monument is shown on that certain map entitled "P AReEL J\1AP 6879" filed on November 4, 1996 in Book 125 of Parcel Maps at Pages 61. through 75, inclusive. /uameda County Rec.ords; ..., . ' 1 HENCE southerly along the monument line of Arnold Road (formerly known as Oxsen Road and Sebille Road) 2S said monument line is shown on said map South 010 23' 35" West 364.83 fuet; C." ,.. a.-. I:'iENCE leaving said monument line of Arnold Road South 88036' 25" East 80.00 feet to a point on a line that is parallel 'with and distant 80.00 feet easterly, measured at right angles, from said monument line to the IRUE POINT OF BEGIl\TJ\iJNG of this description; , 1 HENCE northerly along said parallel line North 01023' 35" East 731.83 feet; THENCE leaving said parallel line North 460 35' 00" East 39.73 feet to a point on a line that is parallel 'With and distant 75.00 feet southerly, me2SUred at right angles, from the monument line of Gleason Road (fonnerly known as 7th. Street) as said monument line is shown on that certain 'uCORD OF SURVEr'filed on November 19, 1992, in Book 16 of Records of Survey at Page 77, /ilameda County Records; THENCE easterly along said p~-a1Jelline South 880 ]3' 36" East 1099.71 feet; THENCE leaving said parallel line South 01046' 24" West 9.00 feet to a point on a line rbat is p~a11el with and distant 84.00 feet southerly, measured at right angles, from said monument line of GleasoD Road; Exhibit "A" Page 1 of2 ~~ ..:':,.. .:':-: . .:---: ~ :::.~_:~: ~:-.- ~.~,.--- . ::.. -. . .: - ~.. ..-. . ".-.." .w_ __" . -&:-(~-~:.: ,/ () / P -' ~ ---"'I './ 1.-' BKF Job No. 940158-14 Febroary 4, 1997 PROPOSED PARCEL O}\.'IE THENCE easterly along said panllle1 line South 88D ]3' 36" East 160.00 feet; THENCE leaving said panillelline South 43D 30' 51" East 39.40 feet to a point on a line that is pa,-aI1el with and distant 51.00 feet westerly, mezsured at right angles, from the northerl)' p,olongation of the monument line of Hacienda Drive as said monument line is shown on that certain . maD entitled "RECORD OF SURVEY NO. 1199" filed on June 1,1995, in Book 19 of Records of Survey at Pages 55 through 58, inclusive, Alameda County Records; THEN CE southerly along said parallel line South OJ D I l' 51 " West 713.32 fee110 a point on a line fuat is panillel with and distant 835.00 feet southerly, measured at right angles, from said monument line of GleasoD Road; THENCE W'"..sterry along said parallel line North 88D 13' 36" West 1418.12 :feet to the TRUE P01}.'T OF BEG1NNJJ'1G. ContBining an area of 1,073,412 square feet or 24.642 acres, more or less. Tnis description was prepared by the lIDdersigned in confmmance ".;fu the Land Surveyor's Act and shJill not be us-...d in any conveyance which may ,~olate the Subdi,~sion Map Act of the State of C::lliTomia or local ordinanc.es. /J. /J~ ~ By: (/ tl/~ . p e.Q.. . pau11Gttredge, P _L.S: . 5790 License Eh.1>ITes: 06BO/OO Dated: ,2/11 /q7 bsurv::y\940 lSE.sO\l::gals\pan=ll ..mlm . .-.& Exhibit "A" Page 2 of2 8-1 6 0-- c~tr g1. EXHIBIT B ,.- Additionil Conditions ..., The follm1iIDg Additional Conditions are hereby imposed pursuant to P2I2graph 5.3 above. Subparagraph 5.3. J - Subsequent Discretionary Approvals Not applicable. Subparav-apn 5.3.2 - Mitigation Conditions Subsection a. Infrastructure Sequencing ProfTam The Infr2structure Sequencing Program for the Project is set forth below. Off siLe improvements are depicted in Exhibit C. . (i) Roads A Improvements to be Constructed Prior to Certificate of .Occupancv .'.-, :."'.~.:..: :. . . . ~:..':-:.:.: ~. '. .' Prior to issuance of the :first Certificate of Occupancy for any building vduch is part of the Project, the project-specific roadway improvements (2nd offers of dedication) identified in this Agreement and in the Traffic Study for the Santa Rita. Business Center, dated September 9, 1996 prepared for the City of Dublin by T]I<Jv1 Transportation Consultants, which are described below shall be completed by PEVELOPER to the satisfaction ofihe Public Works Director. . 1. Hacienda Drive Bernreen Gleason Drive and the North Section of Dublin Boulevard Hacienda Drive shall be eA"tended from Dublin Boulev2Td to GIE.2.Son Drive. The ToadV\-'aY segment shall consist of one southbound 2nd one norillbound 12-root lane with an 8-foot emergency parkingfnike lane on each side.. The norillbound and southbound lanes shall be separated 'with a median. 'This work shaJ] acco:rru]:lOdate future widening. In addition, right-turn and Jeft-tum 1211es .. E.xrubit B Opus D=,'~opm:.nt Agr:::~:.nt Page 1 of 15 February 3, 1997 ".". . ".-. A:: ~ ~. ~: &._. .- -..- .:;~::-: .;.":: , . . '. .-.- . ". : .".:. . ~. . . -. ~- . , . 6 ? ~ 1'/ are required. The locations will be determined by the Public Works Director. luong the Project frontage a 6-foot concrete sidewalk in a 12-foot landscaped p2Ikway 2Iea shall be consUUcted at its ultimate location. Adequate pedesulan access shall be provided between the Project and Central Park.way EA"tension. . 2. Gleason Drive Between ,.vestem and Eastern Edges of Project Gleason Drive is currently a 2-lane roadway lying along the nor-chern bOundary of the Property. A por-Jon of the ultinlate southern half of the street shall be constrUcted along the Project boundary. consisting generally of one 12-foot uavel lane. one 8-foot emergency p2Ikinglbike lane, and a 12-foot VI>ide landscaped p2I1.-way 2Iea including a 6-foot VI>ide sidewalk. A left-turn pocket may be consuucted for westbound uaffic VI>ith the approval of the Public .W orks Director. The location of the left-turn pocket shall be approximately equidistant from Hacienda Drive and.Arr1old Road. 3. .Arnold Road Between Gleason Drive and Southerly Propert:)!: Line .Arnold Road shall be relocated parallel and directly to the east of the eDsting Arnold Road along the project frontage. It shall be consuucted to a 4 ~ foot road""y VI>ith curb and gutter. Tne eDsting roadway shall be removed and convE:.L-red to a drainage channel. DEVELOPER shan dedicate a 11 O-foot right-of-way to the City, to include 30 feet within Dm.p Parks for a road and drainage easement. Tne roadway Elld drainage charmel improvements shall be uansitioned to match the v:isting facilities. .AJong the Project frontage a 6-foot concrete sid~ in a l2-Toot landscaped parkway 2It:a shall be consuucted at its ultimate location. ..-. -_&_- . . -~ . - . . . :.--,.--.- ~.- .. Page 2 of 15 February 3, 1997 ~ -.. & ~bit D Onus D=vil oPITIent Aooreement . . ... .r) . . 1,::J ~ rf'. ..1 Intersection Improvements 2) Hacienda Drive at Gleason Drive: Nonhbound Hacienda south of Gleason Drive shall be 'widened to one 12-root right-turn and one 12-foot left-tum lane and one 5 foot bike l2I1e. Eastbound Gleason Boulev2.rd west of Hacienda Drive shall be 'widened to one 12 foot through lane, one 12-foot right-turn l2.J.'1e 2Ild one 5 ioot bike lane. b) Hacienda Drive at Dublin Boulevard (Central Parkwav E:)..'tension ): Southbound. Hacienda Drive north of the Centzal Park'''w2Y fu.'tension shall be viridened to one 12-foot right-turn lane, one 12- foot through 12.J.le. and (at the option of DEVELOPER and with consent of CTJ"Yls Public Vlorks Director) one 12-foot left-tum lane. In addition, a 5-foot bike lane sh2l1 be provided. Northbound Hacienda Drive south of the Central Park.'way D..'tension shall be 'widened to one 12-foot northbound left-turn lane, one 12-foot nonhbolllld through lane, and one 8-foot nonhbound emergency D2IkinCT lanelbike lane. ... 0 Eastbound Central Park--way b.-tension west of Hacienda Drive shall be widened to one 17-foot eastbound right-turn lane, one 12- faD! e2Stbounp left-turn. lane, and (at the option of DEVELOPER with consent of .CIJYts Public 1Vorks Director) one 12-foot future eastbound through lane. c) Hacienda Drive at Dublin Boulevard: Southbound Hacienda Drive nor-ill of Dublin Boulevard shall be widened to one] a-foot left-tUITllane, one future 1 a-foot left turn l2.J.le (2t the option of DEVELOPER and ~rith consent of crr-.ts Public Works Director), two 12-foo! through lanes, and an 8-foot emergency parkinglbike Jane. ~::hibii: B Op1!S D:"~Dpm:.ntAgr~:m:.nt Page 3 of 15 February 3, 1997 ..'. . , iI' " ." ." -.-".':. '. "."00 .". ::. .....-. ~_ ~_o_ -:". ~ . ~ ~ .. ~. . & " - ~ . " & "... . ~ . ~. -::' .. : . ~.' " . " ,.. - .. . ~ ~"_ "00. . '7'-..".":+' .- .- .OA. . ~"- .-. 1/ ~ 31 d) Transitions . DEVELOPER shall be responsible for U2IlSitioning existing improvementS to matcli improvementS required by this Agreement including dedications, to the satisfaction of the CITY's Public ,'Yorks Director. B. Traffic Signals at the Projects Entrances Traffic signals are not currently "i\l2ITanted at the Project enuances along the southerly Property boundary and both Arnold Road and Hacienda Drive on the parcel map; however, such signals may be warranted in the future. Prior to issuance of the first building permit for the Project, DEVELOPER shall dedicate additional rightS-of-way or easements to OTY to accommodate future signals at the main Project entrances along the southerly Propert)' boundary and both .A....1'Tlold Road and Hacienda Drive. . ,"7hen traffic signal ~rarrant5 require a traffic signal at the southerly Property boundary and},rnold Road (':Arnold Signal") ami/or at the southerly Property boundmy and Hacienda Drive ("Hacienda Signal"), DEVELOPER 2.grees that it, and itS successors in interest to both the Property and DEVELOPER's p.-operty surrounding the Propert)', will contribute to OTY one-half of the cost of the ......-nold Signal and one-qumter of the cost of the Hacienda Signal and will not protest or contest 1:11e iridusion of the Project's srurre of such signals 25 a condition of approval of a project for adjacent property which also contributes to the need for such signals. This paragraph shall survive temJination of this Development Agreement.. c. Improvements Needed at Time of Development of Other Pro; ects , L Tassa~ara Road/Gleason Drive The Public Vvarks Director shall determine when a ==fic signal at T 25sajara and Gleason Drive is required. Within one y= of wrinen noili'ication '::'om the Public .Works Director, DEV J:.LOPER shall design and ins'"uill me signal to the satisfac"Jon of the Public Works Director. To the ""tent prac:-Jcal me notice shall be 1imed so that me work shall be completed immediately prior to =.:mibit B Opus DevaDpm~t Agreement Page 4 of 15 February 3. 1997 '] r Lr,e need for the signal, based on traffic signal warrants. 1~ 11 ~y 2. Dublin Boulevard. between Hacienda Drive and BART Station Tne Public 1IV orks Director shall detennine when a 4-lane road is required between Hadenda and the BART Station. 1Vithin one year of written notification from the Public Works DiIector, and provided that the Surplus PropE:.tLy Authority of Alan1eda County has obtained title to the required right-of- \'i~.ay, the DEVELOPER shall design and construct the 4-lane road to the satisfaction of me Public 1Vorks Director. To the extent practical, the notice shall be timed so that the work shall be completed immediately prior to the need for the in1provements, based on Average Daily Traffic (ADT) warrants. D. Miscellaneous The obligation of subsection C (1) to (2) above shall be of no force or effect until DEVELOPER pulls the first building permit for the Project. ' Once effective, such obligation shall survive termination of this Agreement. Prior to'issuance of the .first building pemut for the Project, DEVELOPER shall provide CITY with security for me costs of design and construction oftbe improvements described in subparagraph C (1) and (2) above in an amount satisfactory to the Public 1IV orks Director. 'J.'he security shall consist of a document, satisfactory to the City Attorney, pledging DEVELOPER's existing credits against payment of the traffic impact fees 2.S security. The security required by the preceillng sentences is not a substitute for the lmprovementAgreement and bonds required by Subparagraph 5.3.2. subsection (b)(ii) and (ill) below. The CITY may impose a condition on future projects which benefit from the improvements described in subparagraph eel) and (2) to conttibute such future project's share of the cost of the improvement, provided the improvements are not constructed by DEVELOPER prior to the approval of such future projeC'"LS. (ii) Sewer Tne Dublin San R2mon Services Di~LIict has prepared a report (JlE2.5temDublin Fac:ilities Plan Final Report" dated December, 1993. prepared by G. :.rlUbit B )pus D~vdDpm~t A~-Inent Page 5 of 15 February 3. 1997 . ,,":-. . . "" +7 .,' . .:.. ~ .' A.". .., ::.: -_10. .""." "-:--'" -:-:-",". ..' .' " :. "; , ' , .' . ".' . . " . ' .~. ,,' -.-. .".. .. -.-,_...: . -...... . :. . -. '. , .' ~...=.-. ...---------- fa. ~_,_ i , . :.~.::~.~.. -~.,. . . ~ --~ ~- -. :_'w'. . :..::w:::" . .', W_o' , .--.-.. :. .-.- - ." &-.-. _ -r- 15 ~ 'if S. Dodson &.Associates [the "DSRSD Repon"]) which determines the sizes and approximate locations of pipelines to provide potable ,,-ater facilities, wastewater collection facilities and recycled waer facilities ,,~thin the Eastern Dublin area at ultimate build-out. All references hereinafter to the DSRSD Repon shall be to the repon as it is periodically updated and in effect at the time of the applicable improvements and as such repon is inte:rpreted and applied by the Dublin San ~J.10n Services District. prior to iSSUa..l1ce of the first building permit for the Project, all s>nitary sewer improvements to serve all building sites in the Project (or any recorded ph!se of the Project) shall be complete to the satisfaction and requirements of the Dublin San R2n1on Services District. (iii) \.'\T ater Prior to combustible consuuction and/or storage of combustible materials on site, sufficient water storage and pressure shall be available at the site to the satisfaction and requirements of the Dougherty Regional Fire Authority or its successor. - Prior to issuance of the .first building permit for the Project, all potable water system components to serve all building sites in the Project (or any recorded phase of the Project) shall be complete and in woIking order to the satisfaction and requirements of the Dublin San Ramon Services District. prior to occupancy of any porJon of the Project, recycled 'water limos shall be installed on site and ,,~thin adjacent road,,'2}'5 to the satisfaction and reouirements of the Dublin San Ramon Servi= District consistent with the DSRSD "- policy for recycled water and all recycled water connection fees shall be paid. (iv) Stonn Drainave The City h2.s a master drainage plan (the ''Drainage Plan") which sh211 be used 2S a guideline to dete...rmine dr2inage facility requirements. Prior to lsSU2-LICe of the first Certificate of Occupancy for any buildingw'nich is part of the Projec" the stonn drainage systems off site as well as on si,e drainage systems to the areas to be occupied shall be complete to the satisfaction aTld requirements of the Dublin Public 'Works Dep",-nnent applying CITY's and Zone b:iUbit B Opus D=:ve1opment Agreement PatTe 6 of 15 C> Febroary 3, 1997 /f ~ %f 7 (A.12ffieda County Flood Con~ol and '''Vater Conservation District. Zone 7) SL2..:id2Tds and policies which are in force and effect at the time of issuance of the e. ' . PEITIUt for the proposed improvements and shall be consistent with the Drainage PlaIl. The site shall also be protected from stann flO1V from off site and shall have erosion control measures in place to protect dOVi'J1Str~ facilities and prop6t.ies from erosion and unclean storm "water consistent with the Drainage Plan. (v) Other Utilities (e.f. f'as. electricity) Construction shall be complete prior to issuance of the first err-tincate of Occupancy for any building 'which. is pan of the Project. Subsection b. J\1iscel1aneous (i) Completion l\1av be Deferred. Notwithstanding the foregoing, cmns Public "\tV arks Director n12Y, in his or her sDle discretiDn and upon receipt of documentation in a fonn satisfactory to the Public V'lDrks Director that assures completion, allow DEVELOPER to defer cDmpletion of discrete porJons Df any of the above public IDlprovements until after final inspection of the first building pen:nit for the Project if the Public Works Director determines that to do so would not jeopardize the public health. safety or welfare. - ':~,.. ....-...... .. -._- .."'..... (ii) Improvement AfTeement Prior to consuucting the ImprDvements described in Subparagraph 5_3.2 (a) (i) and (iv) above (roads and storm drainage), DEVELOPER shall submit plans and sp edfi cations to CITIs Public Works Director fDr review and approval and shall enter into an Improvement Agreement Vi':ith CITY for construction and dedication of the public facilities. All such improvements shall be constructed in accordance with Otis standards and policies 'which are in force and effect at the time of issuance of the pennit for the proposed improvements, and to the satisfaction of the Public Works Department. " .:. (ill) Bonds Prior to execution of the ImprovementAgreement, DEVELOPER sh2ll provide a performance bond and labor arid materials bond Dr oilier adequate .. . . .r__". '. . -~ ~- ...... ... Exhibit B Opus D~vdDpm~t Agreem~nt Page 7 of 15 February 3. 1997 .. ~... . ..... .-:...~- :. ,.:,-" .=i.::-~~r~.~.._:~~_~;~~..::_;:? _:.~-:--:-:.:_~;,~'>:.:.'. -.-.. . . .. ! . ." -:...~:.& .:.. ....-: ~:- ~.':.:-~ ~ . _w; r_o.,., -:- - :.- --. . . ." --- ~ :- . & - . . 15 ~ &'1 security to insure that the Improvements described in Subparagraph 5.3.2(a)(;) wd (iv) above 'will be constructed prior to issuance of the first certificate of Occupanty for wy building which is part of the Project. The perfonnwce 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) Rirht to Construct Additional Road Improvementli With the prior ,,'litten consent of ernns Public "\IV orks Director, DEVELOPER may construct roadway improvements which are not described in this Exhibit B if such improvements are described in the resolution establishing the E<>tem Dublin Traffic Impact Fee and if such improvements are constrUcted in their ultimate location. If the DEVELOPER proposes to e>.1:end 1\JJ10ld Road to Dublin Boulev2Id. the intersection of Dublin Boulevard and Arnold Road shall be widened to accommodate right and left turn lanes from Dublin Boulevard to Arnold Drive. DEVELOPER shall be required to enter into an Improvement Agreement and pro,~de bonds for such improvements, as pro,~ded in Subsection (b)(ii) and (iii) above, prior to construcrion. CITY shall pro,~de a credit to DEVELOPER for the cest of such improvements in the manner and subject to the conditions provided in Subparagraph 5.3.6, Subsections (a), (b) and (c). SubuaTao-ravh 53.3 - PhasintT. Timiner - - -~ This Agreement contains no requirements that DEVELOPER must initiate or complete development of the Project or any phase 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 a=dance with its own time schedules. The conditions contained in this EXhibit B shall become applicable at the time set forth herein once DIv"ELOPER initiates the Project. subpaTa~aph 53.4 - Finandn~Plan Except as prO\~ded in Subparagraph 5.3.2('0) (i) (Completion May Be Deferred), DEVELOPER will pr()\~de all jnfrast:rUctUIe described in Subparagraph 5.3.2(a)(i)(A) priono isswmce of the fu5t Cer"cificate of Occupancy for the Project. Page 8 of 15 February 3, 1997 =.0ibit B ' op~ D=vdDpm~nt Agre~rn=nt 16 ~ /"1 DEVELOPER intends to install all road improvements necess2l)' for the Project at its Q"ivn cost (subject to credit for any Traffic Impact Fees as provided in Subp2Iagraph 5.3.6 below). Other infrastructure necessary to provide sewer1 potable water, and recycled W2Ier services to the Project will be made available by the Dublin S2Il Ramon S~\1jces District. DEVELOPER has entered into an '~ea '\t\Tide Facilities Agreen1ent" wiih the Dublin San Rmlon Services District to pay for the cost of o.."te!lding such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (ili) above. SUDDaragraph 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 pennit for the Project. Such fees indude the Tr;:!mc Impact Fee for Eastern Dublin established by Resolution No. 41- 96, including any future amendments to such fee. In applying the provisions of Resolution No. 41-96, establishing the Traffic In1pacr Fee for Eastern Dublin, aDd any amendments thereto, to the Project the amount of the t:raffic impact fee shan be based on the actual use of each builqing for which a building permit is requested. If such use is not lmo'wn at the time of issuance of the building permit, the amount of such fees shall be baSed on ttindustriar and shEJ] be adjusted (by increase or decre2.Se) at time of Certi..J.-1cate of Occupancy if the actual use is known. DEVELOPER and CITY acJalOwledge that DEVELOPER is entitled to certain credits ('r1991 Credits") against payment of the Tramc Impact Fee for Eastern Dublin by separate agreements previously entqed into between DEVELOPER and CITY in 1991. DEVELOPER agrees iliat, notwithstancling its entitlement to such 1991 Credits. it will not apply its 1991 Credits against payment of the "Section 2" and "See-Jon 3" portion of the Traffic Impact Fee for Eastern Dublin but will, rather. pay such fees in cash. DEVELOPER further agrees that it V\ill use the 1991 Credits against one-half (6) of me "Section 1" porJon of the Traffic Impact Fee for Emern Dublin. CITY shall deIWIDne which of the 1991 Credits shall be used p1.1ISuant to this paragraph. =.x.hibit B )pus Developm=nt Agre:"''T1~nt Page 9 of 15 February 3,1997 -- e' .::: ....~'1. _," -:" .. .' ~ . ". .'..". -- . .+.7."._ ..:. -- ..- .&. . " . ,". .". -: .. +." ;.;; ,~>: , " .. .:. ~ :,-,- .' "'." , '. , . .-... - ' .~: "p'.:--. -: : :.. ~~- '. -... .-. . : :"~;:,, f;~:.--:-"-;;''-:~:':~''--''--'-- -.---'- '. -'-."w - .~.. -:::.. :..-.. . ...... .. .. -~ }:/}~. .-.. ... - ~...':.. \:. . \:' , 1""' . ,. .-- ,\.,.;-".:, . . --'. .. -': -. ,.' " -'. :. . Subsection b. 11 ~11 Traffic Impact Fee to Reimburs:e pleasanton for EreeViray Interchanges. DEVELOPER shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11- 96 or any subsequent resolution which r",~ses such Fee if such Fee is effective at the time of issuance of any building permits for me Project.. DEVELOPER shall be released from its obligation, as set forth in the preceding sentence, if a lawsuit is filed challenging the Project approvals, this AgTwnent, the City's compliance with CEQA for the Project, me Eastern Dublin TI2-ific Impact Fee or any other aspect of me development of me Property. In applying the provisions of Resolution No. 11-96, establishing the Eastern Dublin 1-580 Interchange Fee, and any amendments thereto to the Project, the amount of the uaffic impact fee shall be based on the actual use of each building for which a building permit is requested. If such use is not lmown at me time of issuance of the building permit, the amount of such fees shall be based on "indusnial" and shall be adjusted (by increase or decrease) at time of Certifieate of OCOlpancy if the actUal use is lrnOVi'l1. 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- 32-96, adopted by me City Council on Mm:h 26, 1996, or in the amounts and at the times set fMh in.any resolution re\>ising the 2lDount of the Public Facilities Fee. In applying the provisions of Resolution No. 32-96, establishing the Public Facilities Fee, md any amendments thereto to the Project, me amount of the Public Facilities Fee shall be based on the actual use of each building for which a building . pe:onit is requested. If such use is not lmown at the time of issuance of the building pe:onit, the 2IDount of such fees shall be based on an "industrial" use and shall be acijusted (by increase or decre25e) at time of Cer.meate of Occupancy. Subsection d. Noise Miti~ation Fee. DEVELOPER shall pay a Noise Mitigation Fee in me amounts and at the times set forill i'1. City of Dublin Resolution No. 33-96, adopted by the City Council onM2Ich 26,1996. ~:,it :B Op:.!S Development Agre::ment , ..... :{C, Page 10 of 15 February 3. 1997 71 ~ jf . Subsection e. School Impact Fees and Fire Impact Fees. _. School impact fees shall be paid by DEVELOPER in accordance 'with Government Code section 53080. .'- -.' . ...... Any tire capital impact fees shall be paid by DEVELOPER in accordance with . applicable requirements of the Dougheny Regional Fire Authority (DRFA) if the fee is imposed prior to July I, 1997, or in accordance with applicable requirements of the cmr if the fee is imposed on July 1, 1997 or fonowing. Such fees shall be deemed to be '"imposed" w:hen the tentative map is approved. '~p1icable requirements" include bOw1 the amount of the fee and the timing of payment of the fee, provided however that if the amount of the fee would be more lll1der the applicable requirements of em: then DEVELOPER shall pay the fee based on CTD:'s requirements even if the fee is imposed by DRFA prior to July 1, 1997. Subsection f. Regional Transportation Impact Fee. In the event that the Tri-Valley Transportation Council recommends and the City Council adopts a Regional Transportation Impact Fee to pay for regional tr:aJ.:.sportation improvements in the Tri-Valley area, DEVELOPER "I'iill pay any such fee ii"1 effect at the time of issuance of any building permits for the Project. By so agreeing. DEVELOPER does not waive its rights to challenge the legality of any such fee.. ;1'1> " Subsection g-_ Specific Plan ImDlementation Fee Prior to approval of its parcel map. DEVELOPER shall pay a "Specific Plan Implementation Fee". The amount of the fee shall be the Project's pro rata share on an acreage basis of CITY's then current costs for implementation of the 5pedfic Plan and the mitigation measures Df the final EnvirDnmental Impact Report for the Snecific Plan. ... .. -'. .: :~: Subsection h. Dedications " ' DEVELOPER agrees to dedicate the foDo'wing property required ror roadway improvements to CITY in fee simple and both the land and groundwater shall be free of hG.Z2Idous subS---LEnces: 1. Four lanes, medi2Il aTld landscaped parl.'\~~2Y of Hacienda Drive from . Exhibit B Opm D~dDpment Agreement Page 11 of 15 February 3, 1997 .-."_....- .",. -. 00 "--. ....*- -- ." ~.~~-::.:.: ,;,::-:;,:,:_",::'_'.'11._.~ _"_~_ -'.-- ,---- ~ ~ ~ _~:.-:::_.\ .:"".A.. ~ , t}f if 1 f . Dublin Boule,<rd to Gleason Drive. .....".. . . ~". . ..... . ":.~: .~.. - A ~ . .....,- . . ~-' . . . & ~~ . .. .- _A:- ~-_,::._ .",_O.A. ........ 2. Four lanes, median and landscaped parh\ray of Gleason Drive from .A.rnold Road to Hacienda Drive. 3. Four lanes, median and landscaped parkway of Arnold Road from Gleason Drive to the southerly property line of the Propeny. 4. Any additional right of way necessary to consuuct the intersection improvements and transitions listed in Subparagraph 5.3.2a(i)(A)(4) above. Subpara~aph 5.3.6 - Reimbursement/Credit Subsection a. Traffic Impact Fees/Credit CITY shan pro,~de a credit to DEVELOPER for the improvements desctibed in Subparagraph 5.3.2, subsection (a) (i) (C) (I )-(2) (Tassajara Road/Gleason Drive; Dublin Boulevard between Hacienda Drive and BART Station) and 12 feet of roadway improvements along Am old Road described in Subparagraph 5.3.2, Subsection (a)(i)(A)(3), if such improvements are described in the resolution es-.ablishing the Eanem Dublin Traffic Impact Fee and if such improvements are constructed in their ultimatE: location. The amount of the credit to be given shall be detenninedhy CITY'S Public '1'1' orks Director' at the time of payment of the Eastern Dublin Traffic Impact Fee 1l5ing the coSts of constroction used by OTY in calculating and establishing the T:;;>ffic Impact Fee. The amount of the credit, once established, shall not be increased for IDfJation nor shall interest accrue on the amount of the credit. The credit shall be applied against the "Section 1" portion of the traffic impact f= required to be paid pursuant to Subsection (a) of subparagraph 5.33. Subsection b. Rj ~ht-of- ,"'7 ay Dedi carl ons/Credits CITY shall provide a credit to DEVELOPER for the follo'wing TIF area right- of-way to be dedicated by D:r:v-.tlDPER to OTY which is required for roadway 5ln:provements wroch are described in the resolution es-.ablishing the Eastem Dublin T ;2..!.-TIC Inroad. Fee: ..... ~bit B 0?us DevdDpm~t Agre~~t Patre 12 of 15 D FebIU2ry 3, 1997 j;;.. czr ijl .' 1. Two lanes, median and parkways of Hacienda Drive ITom Dublin Boulevard to Gleason Drive (112 feet maximunl total). 2. Two lanes, median and parkways of Gleason Drive from Arnold Road to Hacienda Drive (102 feet total). 3. Two lanes, median, parb1i"2)'s and drainage channel of Arnold Road from Gleason Drive to the southerly property line of the Property (80 foot street right-of-"\vay and DEVELOPER'S easement interest in 30 feet of additional right-of-way adjacent to Anny lands). The anlount of the credit to be given shall be determined by cmns Public \~Torks Director at the time of payment of the Eastern Dublin Traffic Impact Fee using the right-of-way values used by CITY in calculating and establishing the Traffic Inlvact Fee. The anlount of the credit, once established, shall not be increased for ""- inflation nor shall interest accrue Dn the amOlmt of the credit. Tne credit shall be applied against the "SectiDn 1 " portiDn of the traffic lllpact fees required tD be paid pursuant to Subsection (a) of Subparagraph 5.3.5. Subsection c. Use of Excess Credits In the event that credits referred to in Subsections (a) and (b) of this Subparagraph 5.3.6 (TIF Credit fDr Tassajara RDad/Gleason, Dublin BDulevard beI\7\Teen Hadenda Drive and B.ART station, and 12 feet of improvements along Arnold Road; and credit for right-of-'way) are in excess of the amount of credits which can be applied against the traffic impact fee payable pmsuant to Subsection (a) of Subparagraph 5.3.5 (Le., one-half of the "Section 1" portion Df the Traffic Impact for Eastern Dublin)~ DEVELOPER shall be entitled to "bank" such credits (referred to as "Excess Creditsn) and may use them as provided herein. The Excess Credits shall not bear interest, nor shall the amount thereof be increased for inflation. The Excess Credits may onJy be used for future projects on DEVELOPER'S "Santa Rita" proptJ.-r:y. Subsection d. Illustrative Example The foTIoVimg is an example fDr pili-pOSes of illustraTIDn oruy and not using ann:;! 1 numbers or how the payment or the Traffic Impact Fee would be accomplished 1."1 C2.SD 2nd through me use of credits: Exhibit E Op1!S De\'eJDpm~t Agr~~ment Page 13 of 15 r:bruary 3, 1997 - e:.. .\' ':h~( :; '. ' , , .... ., -.... --. 0" .. -. ". -.... 0+ _.~: . .. ~.. . .- .- . . . 9 7 I I 9 l} 4 3 g'/ pt{ g1 Traffic Impact Fee Section I Section 2 Section 3 $1,500,000 $ 450,000 $ 192,850 Total: $ 2,142,850 Credit for Construction of Improvements and Dedication of Right-of-Way TIF Credits for Construction (Exhibit B, ~5.3.6(a)) $ 100,000 Right-of-Way credit (Exhibit B, ~5.3.6(b)) $1,300,000 Total: $1,400,000 Payment of Traffic Impact Fees Section 1 $750,000 paid by use of prior credit from Roadway Agreement ("1991 credits") $750,000 paid by use of new credit for right-of-way dedicated and road improvements construction as part of project Section 2 $450,000 cash Section 3 $192,850 cash "Excess Credits" if any (Exhibit B, ~5.3.6 (c)) $650,000 Exhibit B Opus Development Agreement Page 14 of 15 February 3, 1997 97r 19443 g;2eif "$( 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 from DEVELOPER, and imposed an assessment against the Property to pay for street and creek landscape maintenance. In addition, on September 24, 1996, DEVELOPER recorded a Declaration of Covenants, Conditions and Restrictions which covers the Property, whereby DEVELOPER, on behalf of itself and its successors, has covenanted to pay a "Deed Assessment" to CITY for maintenance of street and creek landscaping. EHS:rja J :\WPD\MNRSW\I 14\AGREE\86\OPUSEXB.203 Exhibit B Opus Development Agreement Page 15 of 15 February 3, 1997 . . . . 1 . '7l C r r ~ N m o :;:J > ~ Z ~ Ul > < > F > tc r m > -l -l ~ . m (J ::; -< o "ll o C tc r Z -0 m 'lJ > :;:J -l ;;:: m Z -I o "ll 'lJ C CJ r a ~ o :;:J ^ !II . -or ::zm mrO -c-<> c. 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I i 1.1 I \ ,I, Ii 1 i: I L! 0;1 .1", ~I iiH i; d~ I 'fih-'" , - : l~i I: ~ 1 i jj' :;! ; ! I ,~. " "'... -'II.. I -' :;f.' i ----,-- ~ . -. I I I - ~ -;-- ~ - - n r::; i .. _-,- _._~__~..:J.:....j :~;:---;:..:;;,. j - - :-:- -I" '-I' . t. - ~ "1T..~1 o. : .O^l8 ':,,: ,; NOSV'3l8 ~ I' i , , I ." ~-u ~J> r:o ~() -em :::; :.,r o ~ .... II> ." ~-o gJ> r:o ~() ." m ;-r ... o ~ ... II> OPUS DEVELOPMENT AGR==MENT EXHIBIT C ADDmONAL CONDmONS .\l......~~ .:;.:.u-.....- tultJI< .:". - -- ~'_. Brian Kangas Fuulk [^9;"'~*r'S ... ~,." . P1.a1'lft.n- )> :::a z o r o ::0 o )> o . :.- o. ~ - & .._ ". -............ -.-. . ... 0.. >- .!. ~ ~ ~ ;:+::. :::-:.:~: ~....:::r"'~ ~C1".-;.io....-.1 ~=::= :r"'~ " - -'~- . "_:=-. -~ ~ . -- - "- - ~~ ! ,., . ~ ,+ i - ~ ~ I ,>\ . .' j ..., c r r en N m o :J )>- ::!: Z l:'l en > < > r > :l! r m > -l -l m n ::; -< o ..., o c ;r::::,~-~ , ~ ~:.. . ~. ... > :=J -l :::: m Z -t o ..., u ,.... ;;0 .. n ~ o :J I~ I' 1"01: I;;;~g; 1]:<> ,- % ':"n> t-:;z n;;o -<:r oc~ ::>"'==> :'\UI=o 1'"5:; ~::p 1;:;;;0 n",'" o~5 :1<-% IT> On'" -n.....= ......0 =o::E .~,:f '.. d -;<~ :=~!B 5o~ ... !:"'> - z . ""<:::. ..~--I-I U 'x j _..- I I - OJ -..-' :. , I f-... I I IT ,..- I ;- ,.. I .,' - I I :1 i I ..~ =... I~i ." I:~ I ;;. I I I I I I [ I I I h I: 1= I I I I I -g ~u ~}> . 1:;0 ~() -m tr ... ~-o. II> l l-!)-""III r~""'.al '- ;.,., --: Z-:>- -a^ l8 NOSV3l9 ~ @ ~ . OPUS DEVELOPMENT AGR!:EMENT EXHIBIT C ADDITION I CONDITIONS o :II h I: 1 ,. I r I I I I : 1!,'" I ! r cfil) ~ : I r., Brian Kan!l~Jnulk . Engd-wr.z .. ~N - PJClln,...I"'J ",==--- if ~'f'/ . . . )./IIlIiIIIIIIC!:oW!'lO..! ~ c:"". :.a. ..-=c +wou-<= ..r.v&U-~ !",,U'J