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Home My WebLink About6.1 Jefferson-DublinDevAgmtCITY CLERK File # E]Can- AGENDA STATEMENT CITY COUNCIL MEETING DATE: June 2, 1998 SUBJECT: PUBLIC HEARING: Jefferson at Dublin Development Agreement (PA 97-018) (Report prepared by: Jeri Ram, Senior Planner EXHIBIT ATTACHED: 1) Ordinance Approving Development Agreement 2) Development Agreement RECOMMENDATION: 1) 2) 3) 4) 5) 6) FINANCIAL STATEMENT: BACKGROUND: Open public hearing Receive staff presentation and public testimony Close public hearing Deliberate Waive reading and introduce Ordinance Continue public hearing to June 16, 1998 No financial impact anticipated. The City Council approved an amendment to the Eastern Dublin Specific Plan for the entire Santa Rita area (primarily owned by The Alameda County Surplus Property Authority) in October, 1996. As part of that action, this site was given a new Specific Plan and General Plan Land Use Designation of Medium and Medium High Density Residential. On February 10, 1998, the Planning Commission approved a Site Development Review for the Project. On March 3, 1998, the City Council approved a Planned Development Rezone for the Jefferson at Dublin Project. Planning Commission Public Hearing: A public hearing on the proposed Development Agreement was held by the Planning Commission on May 26, 1998. The Planning Commission unanimously recommended approval of the Development Agreement to the City Council. COPIES TO: Alameda County Surplus Property Authority JPI PA File ITEM NO. �� - , ANAL YSIS: Procedural Background: . One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into Development Agreements with developers in the plan area. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project for a specified period of time. Additionally, it is a mechanism for the City to obtain commitments from the developer that the City might not otherwise be able to obtain. The Development Agreement is one means the City has to assure that the Specific Plan goal that new development fund the costs of infrastrucmre and service is met. Attached to this Staff Report is a Development Agreement (Exhibit 2) between the City of Dublin and the Surplus Property Authority of the County of Alameda (Alameda County). This Development Agreement is based on the standard Development Agreement developed by the City Attorney and adopted by the City Council for Eastern Dublin Projects. In general, the Agreements reflect what has been determined to be the infrastrucmre needs for the specific project. These needs are determined based on submittal of engineering studies and plans. The Agreement: The City Attorney drafted the proposed Development Agreement with input from City staff, Alameda County Surplus Property Staff JPI and their attorneys. The Development Agreement sets forth the agreements between the parties in relation to many items, including, but not limited to, infrastrucmre construction and phasing, .... parkland dedication and the payment of various required impact fees. The Development Agreement becomes effective for a term of five years from the date it is recorded. The Development Agreement runs with the land and the rights thereunder can be assigned. The main points of the Development Agreement can be found in Exhibit B of the Development Agreement and are highlighted below: Infrastructure Construction and Traffic Impact Fees: The City requires that Developers in Eastern Dublin pay traffic impact fees for certain City wide improvements to the circulation system. Additionally, fees are charged for certain circulation improvements specific to Eastern Dublin. Developers are also required to make certain improvements to the circulation system that are required as a result of their project. The City determines the direct project impact through a traffic study that is conducted. Based on the traffic study conducted for the Jefferson at Dublin Apartment Project, it was determined that certain improvements were required to the circulation system as a result of the projected future traffic from the project. These improvements include widening some roads, the improvement of certain intersections, the ultimate construction of the approved alignment of Dublin Boulevard between Hacienda Dr. and the Bart Station, and improvements to the 1-580 at Santa Rita Road/Tassajara Road Eastbound Ramp. Some of these improvements will be required immediately as a result of the construction of the apartment project. Other improvements that were identified could be phased and put in as required by traffic warrants or when other . 2 ;." ..c - ~. _~..,. "..~,<_'~..'.. _....- .~- projects come on line. The Agreement sets forth the City and Alameda County's understanding in relation to the phasing of infrastructure construction. Public Facilties Fees: Additionally, the Agreement provides for the dedication of2.84 additional acres ofland (above the Public Facilities Fee Requirement of 3.68 acres) for the future City Park to be located east of Tassajara Creek. This additional acreage will be dedicated early to enable the City to move forward on a new park at that location. The 2.84 acres will be credited to the developer and used as a credit for future projects towards their parkland dedication requirements. Conclusion: The Development Agreement furthers the goals of the General Plan and Eastern Dublin Specific Plan by requiring new development to fund the costs of its infrastructure and service. The City of Dublin and Alameda County have agreed on the sequencing of infrastructure construction, the payment of impact fees as well as other items required by the Eastern Dublin Specific Plan. RECOMMENDATION: Staff recommends that the City Council open the public hearing, deliberate, waive reading and introduce the Ordinance and continue the public hearing to June 16, 1998. . G:\PA98-018\ccdasrl . 3 ORDINANCE NO. . AN ORDINANCE OF THE CITY OF DUBLIN APPROVING THE DEVELOPMENT AGREEMENT FOR P A 97-018, THE JEFFERSON AT DUBLIN PROJECT THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The proposed Jefferson at Dublin Project (PA97-018) is located within the boundaries of the Eastern Dublin Specific Plan ("Specific Plan") in an area which is designated on the General Plan Land Use Element Map and Eastern Dublin Specific Plan Land Use Map as Medium High Density Residential. B. A Program Environmental Impact Report ("EIR") was prepared for the Specific Plan and the Eastern Dublin General Plan Amendment and certified by the City Council by Resolution No. 51-93. . C. Implementing actions of the Specific Plan, including Chapter 11 thereof, require that all projects within the Specific Plan area enter into development agreements with the City. D. The Surplus Property Authority of the County of Alameda has filed an application requesting approval of a development agreement for the Jefferson at Dublin Project. E. A Development Agreement between the City of Dublin and the Surplus Property Authority of the County of Alameda ("Development Agreement") has been presented to the City Council, a copy of which is attached hereto as Attachment 1. F. A public hearing on the proposed Development Agreement was held before the Planning Commission on May 26, 1998, for which public notice was given as provided by law. G. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreement, which recommendation includes the Planning Commission's determinations with respect to the matters set forth in Section 8.12.080 of the Dublin Municipal Code. .' . H. A public hearing on the proposed Development Agreement was held before the City Council on June 2, 1998, and June 16, 1998, for which public notice was given as provided by law. ", 1 Il:VHR~!l""= 1 ~.l\.a g D ~ ~ ..L- J. The City Council has considered the recommendation of the Planning Commission (Planning Commission Resolution 98-20), including the Planning Commission's reasons for its recommendation, the Agenda Statement, all comments received in writing and all testimony received at the public hearing. . K. Pursuant to the California Environmental Quality Act, an analysis by staff found that the project is exempt according to Section 15182 of the State CEQA Guidelines. That analysis showed that the proposed residential project is within the scope of the final Environmental Impact Report (FEIR) for the Eastern Dublin General Plan Amendment which was certified by the City Council by Resolution No. 51-93, and the Addenda dated May 4, 1993, and August 22, 1994. The analysis indicated that no new effects could occur and no new mitigation measures would be required for the Jefferson at Dublin Project that were not addressed in the fEIR. Further, that analysis found that the project is in conformity with the Eastern Dublin Specific Plan. Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin's General Plan, (c) the Eastern Dublin General Plan Amendmem, (d) the Specific Plan, (e) ihe ErR, (1) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: . 1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City's Gerieral Plan, as amended by the Eastern Dublin General Plan Amendment, and in the Specific Plan in that (a) the General Plan and Specific Plan land use designation for the site is Medium High Density Residential (MHDR) and the proposed project is an apartment project consistent with that land use, (b) the project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to provision of infrastructure and public services, and (c) the Development Agreement includes provisions relating to financing, construction and maintenance of public facilities, dedication of parklands and similar provisions set forth in the Specific Plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located in that the project approvals include a Planned Development Rezoning adopted specifically for the Jefferson at Dublin Project. 3. The Development Agreement is in conformity witKpublic convenience, general welfare and good land use policies in that the Jefferson at Dublin Project will implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for residential uses at this location. . 2 ,..-. .' 4. The Development Agreement will not be detrimental to the health, safety and general welfare in that the project will proceed in accordance with all the programs and policies of the Eastern Dublin Specific Plan. . 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan and with the Specific Plan. Section 3. APPROV AL The City Council hereby approves the Development Agreement (Attachment 1) and authorizes the Mayor to sign it. Section 4. RECORDATION Within ten (10) days after the Development Agreement is executed by the Mayor, the City Clerk shall submit the Agreement to the County Recorder for recordation. Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE . This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council ofthe City of Dublin, on this 16th day of June, 1998, by the following votes: AYES: NOES: ABSENT: ABSTAIN: MAYOR ATTEST: /- CITY CLERK . G:\PA97-01 S\daord 3. 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 CrTYOF DUBLIN AND THE SURPLUS PROPERTY AUTHORITY OFTHECOUNTYOF~EDA FOR THE JEFFERSON AT DUBLIN PROJECT IEXI-iIBiT L . . . . .' . TABLE OF CONTENTS 1. Description of Property. ........................................ 2 2. Interest of Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3. Relationship of City and Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. Effective Date and Term. ........................................ 3 4.1 Effective Date. ........................................... 3 4.2 Ihnn.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5. Use of the Property. ........................................ . . . . 3 5.1 Right to Develop ......................................... 3 5.2 Permitted Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5.3 Additional Conditions ..................................... 3 6. Applicable Rules. RegJilations and Official Policies .................... 4 6.1 Rules re Permitted Uses . . . . . . . . . . . . . . . . . . . . ~ . . . . . . . . . . . . . . . 4 6.2 Rules re DesigJ1 and Construction ............................ 5 6.3 Uniform Codes Applicable . . . . . . . . . . . . . . . . . . . . ; . . . . . . . . . . . . . 5 7. Subsequently Enacted Rules and Regulations. . . . . . . . . . . . . . . . . . . . . . . . . 5 7.1 New Rules and Revliations ................................. 5 ? .2 Approval of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7.3 Moratorium Not Applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 8. Subsequently Enacted or Revised Fees. Assessments and Taxes. . . . . . . . . . . 6 8.1 Fees. Exactions. Dedications ................................ 6 8.2 Revised Application Fees ................................... 6 8.3 New Taxes .............................................. 6 8.4 Assessments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8.5 Vote on Future Assessments and Fees ......................... 7 9. Amendment or Cancellation . . . . . . . . . . . . . . . . . . .-:'. . . . . . . . . . . . . . . . . . 7 9.1 Modification Because of Conflict with State or Federal Laws ......' '7 9.2 Amendment by Mutual Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Dublin/Alameda Development Agreement Jefferson at Dublin Project Tabi~ of Contents - Page i of Hi May 12, 1998 9.3 9.4 Insubstantial Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Cancellation bv Mutual Consent .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 . . 10. Term of Project Approvals ........................................ 8 II. Annual Review .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.1 Review Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.2 Initiation of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.3 Staff Reports ............................................ 8 11.4 ~ ..................................................8 12. Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.1 Other Remedies Available .................................. 9 12.2 Notice and Cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.3 No Damages Against CITi" ................................. 9 13. Estoppel Certificate ............................................ 9 14. Mortgagee Protection: Certain Ri~hts of Cure ....................... 10 14.1 Mortga~ee Protection . . . . . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . . 10 14.2 Mortgagee Not Obligated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 . 14.3 Notice of Default to Mortgagee and Extension of Right to Cure. . . . 10 IS. Severability. . . . . . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II 16. Attorneys' Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II 17. Transfers and Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. II 17.1 Right to Ac;sign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II 17.2 Release Upon Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 17.3 Developer's Right to Retain Specified Rights or Obligations ....... 12 17.4 Permitted Transfer. Purchase or Assienment ................... 12 18. Agreement Runs with the Land .................................. 12 19. Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 /. 20. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . r'3 Dublin/Alameda Development Agreement Jefferson at Dublin Project '. Table of Contents - Page ii of iii May 12, 1998 . .- .' . 21. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 21.1 Public Liability and Property Damage Insurance . . . . . . . . . . . . . . . . 13 21.2 Workers Compensation Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 21.3 Evidence of Insurance .................................... 14 22. Sewer and Water ............................................. 14 23 . Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 24. Agreement is Entire Understanding ............................... 15 25. Exl1ibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 26. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 27. Recordation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ..- Dublin/Alameda Development Agreement Jefferson at Dublin Project " Table of Contents - Page iii of iii May 12, 1998 THIS DEVELOPMENT AGREEMENT is made and entered in the City of ... Dublin on this _ day of , 1998, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and the Surplus Property Authority of Alameda County, a public 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 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and C. The Eastern Dublin Specific Plan requires DEVELOPER to enter into a development agreement; and . D. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 16.17 acres of land, located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibit A attached he=:~o and incorporated herein by this reference, and which real property is hereafter called the "Property"; and E. DEVELOPER proposes the development of the Property with a 368- unit multi-family apartment complex (the "Project"); and F. DEVELOPER has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the Project, induding a PD District rezoning induding the Development Plan (Ord. No. 4-98), parcel map (City Council Resoluton No. 35-98), and site development review (Planning Commission Res. No. 98-04) (collectively, together with any approvals or permits now or hereafLer issued with respect to the Project, the "Project Approvals"); and / Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 1 of 16 May 12, 1998 . . . . G. CITY desires the timely, efficient~ orderly and proper development of said Project; and H. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and 1. CITY and DEVELOPER have reached agreement and desire to eA-press herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein; and J. Pursuant to the California Environmental Quality Act (CEQA) the City has found, pursuant to CEQA Guidelines section 15182, that the Project is within the scope of the Final Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan which was certified by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994 (the "EIR") and found that the EIR was adequate for this Agreement; and K. On adopted Ordinance No. ordinance took effect on , 1998, the City Council of the City of Dublin approving this Development Agreement. The ,1998. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPER agree as follows: AGREEMENT 1. Description of Property. The Property 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 Development Agreement for Jefferson at Dublin Project Page 2 of 16 May 12, 1998 3. Relationship of City and Developer. . It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by CITY and DEVELOPER and that the DEVELOPER is not an agent of CITY. The CITY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY and DEVELOPER joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by the CITY. 4.2 Term. The term of this Development Agreement shall commence on the effective date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Property. 5.1 Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. . 5.2 Permitted Uses. The pennitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by CITI) 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. Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 3 of 16 May 12, 1998o . . . . 5.3.1 Subsequent Discretionary Approvals. 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 Phasing. Timing. Provisions that the Project be constructed in specified phases, that construction shall corrunence within a specified time, and that the Project or any phase thereof be comFl~ted within a specified time. See Exhibit B 5.3.4 Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5 Fees. Dedications. 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 facilities. See Exhibit ,B 5.3.7 Miscellaneous. Miscellaneous terms. See Exhibit B 6. Applicable Rules. ReVIlations and Official Policies. ,r 6.1 Rules re Permitted Uses. For the term of this Agreement, the CitYs ordinances, resolutions, rules, regulations and official policies governing the Dublin! Alameda Development Agreement for Jefferson at Dublin Project Page 4 of 16 May 12. 1998 permitted uses of the Property, governing density and intensity of use of the Property . and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the Effective Date of this Agreement. 6.2 Rules re Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project. shall be those in force and effect at the time of the applicable discretionary Project Approval. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards. and specifications applicable :c public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable permit approval. 6.3 Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Regulations. . 7.1 New Rules and Regulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the Effective Date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2 Approval of Application. Nothing in this Agreement shall prevent the CITY from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 5 of 16 May 12. 1998 . _. . . . eA-pressly set forth herein. 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of CITY, by initiative, referendum, or otherwise, that imposes a building moratorium which affects the Project on all or any part of the Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code ~ 8558. 8. Subsequently Enacted or Revised Fees. Assessments and Taxes. 8.1 Fees. Exactions. Dedications. CITY and DEVELOPER agree that the fees payable and exactions required in connection with the development of the Project 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. 4-98 (including the Development Plan), the parcel map and site development review and in this Agreement (including Exhibit B). The CITY shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or constnlction of public improvements, in connection with any subsequent discretionary approval for the Property, except as set forth in Ordinance No. 4-98, the parcel map and site development review and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. By so agreeing, DEVELOPER does not waive its rights to challenge the legality of any such application, processing and/or inspection fees. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property . is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. By so agreeing. DEVELOPER does not waive its Dublin! Alameda Development Agreement for Jefferson at Dublin Project Page 6 of 16 May 12, 1998 rights to challenge the legality of any such taxes. 8.4 Assessments. So long as the same does not conflict with any term or condition of this Agreement, nothing herein shall be construed to relieve the Property from assessments levied against it by City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5 Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and DEVELOPER does not return its ballot after receiving the same in the ordinary course, DEVELOPER agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's ballot as affirmatively voting in favor of such assessment, fee or charge. 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.12. 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto.All such amendments shall be in accordance with the procedures of State law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of the second sentence 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 "significant" reservation or dedication ofland as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings; or (g) monetary contributions by DEVELOPER as Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 7 of 16 May 12, 1998 . ." . . . . provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. CITY's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual written consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by CITY. 10. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the parcel map described in Redtal F above shall automatically be extended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be August 15, 1999 and each August 15 thereafter. 11.2 Initiation of Review. The CITIs Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER thirty (30) days' written notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reportS, and related exhibits concerning contract performance at least five (5) days prior to any annual review. Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 8 of 16 May 12, 1998 ( 11.4 ~. Costs reasonably incurred by CITY in connection with the annual review shall be paid by DEVELOPER in accordance with the City's . schedule of fees in effect at the time of review. 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. . 12.3 No Dama~es Against CITY. In no evpnt shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall be Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 9 of 16 May 12, 1998 . . . . authorized to execute any certificate requested by DEVELOPER. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mortgagee Protection: Certain Ri~hts of Cure. 14.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obligated. Notwithstanc~:1g the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to Mortgagee and Extension of Right to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereunder and specifying the address for service thereof, then CITY shall deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that DEVELOPER has committed an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to conunence to cure or remedy, the event of default claimed set forth in the CITI's notice. CITY, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee. Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 10 of 16 May 12, 1998 IS. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement 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 Assignments. 17.1 Rieht to Assign. It is anticipated that DEVELOPER will sell the Property to another developer. All of DEVELOPER'S rights, interests and obligations hereunder may be transferred, sold or assigned in conjunction with the transfer, sale, or assignment of all of the Property subject hereto at any time during me term of this Agreement, provided that no transfer, sale or assigrunent of DEVELOPER's rights, interests and obligations hereunder shall occur without the prior written notice to CITY and approval by the City Manager, which approval shall not be wrreasonably withheld or delayed. The City Manager shall consider and decide the matter 'Within 10 calendar days after DEVELOPER's notice, provided all necessary documents, certifications and other information are provided to the City Manager. 17.2 Release Upon Transfer. Upon the transfer, sale, or assigrunent of all of DEVELOPER's rights, interests and obligations hereunder pursuant to subparagraph 17.1 of this Agreement, D EVELO PER shall be released from the obligations under this Agreement, 'With respect to the Property transferred, sold, or assigned, arising subsequent to the date of City Manager approval of such transfer, sale, or assigrunent; provided, however, that if any transferee, purchaser, or Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 11 of 16 May 12, 1998 . . . . . . assignee approved by the City Manager expressly asswnes all of the rights, interests and obligations of DEVELOPER under this Agreement, DEVELOPER shall be released with respect to all such rights, interests and assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval. 17.3 Developer's Right to Retain Specified Pjg~-t:.s or Obligations. Notwithstanding subparagraphs 17.1 and 17.2 and paragraph 18, DEVELOPER may vvithhold from a sale, transfer or assignment of this Agreement certain rights, interests and/or obligations which DEVELOPER shall retain, provided that DEVELOPER specifies such rights, interests.and/or obligations in a written document to be appended to this Agreement and recorded with the Alameda County Recorder prior to the sale, transfer or assignment of the Property. DEVELOPER's purchaser, transferee or assignee shall then have no interest or obligations for such rights, interests and obligations and this Agreement shall remain applicable to DE"fELOPER with respect to such retained rights, interests and/or obligations. 1 7.4 Permitted Transfer. Purchase or Assi!7lment. The sale or other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to the exercise of any right or remedy under a deed of trust encumbering DEVELOPER'S interest in the Property shall not require City Manager approval pursuant to the provision of paragraph 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. 18. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement, except those retained by DEVELOPER pursuant to Section 17.3, 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, except those retained by DEVELOPER pursuant to Section 17.3, shall be enforceable as equitable servitude and shall constitute covenants nmning with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code' of the State of California. Except for any covenant retained by DEVELOPER pursuant to Section 17.3, each covenant to do, or refrain from doing, some act on the Property hereunder, Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 12 of 16 May 12, 1998 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 sh31l be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy . 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, corrunissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the DEVELOPER, or any actions or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or . maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation with respect to negligence or wrongful conduct of CITY, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). 21. Insurance. 21.1 Public Liability and Property 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. Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 13 of 16 May 12, 1998 . .~. 21.2 Workers Compensation Insurance. During the term of this Agreement DEVELOPER shall maintain Worker's Compensation insurance for all persons employed by DEVELOPER for work at the Project site. DEVELOPER shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indenmify 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 Agreement, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the CITY at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER 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. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin P.O. Box 2340 Dublin, CA 94568 Notices required to be given to DEVELOPER shall be addressed as follows: Patrick Cashman Project Director Surplus Property Authority of Alameda CoUnty 225 W. Winton Avenue, Room 151 Hayward, CA 94544 . Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 14 of 16 May 12, 1998 and Adolph Martinelli Director of Community Development Agency County of Alameda 399 Elmhurst Street Hayward, CA 94544 .- A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Av-eement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 25. Exhibits. .-; The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: . Exhibit A Legal Description of Property Exhibit B Additional Conditions 26. Counterparts. This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. 27. Recordation. CITY shall record a copy of this Agreement within ten days following execution by all parties. ,.- Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 15 of 16 May 12, 1998 . ~- . . . IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above vvritten. CITY OF DUBLIN: By: Mayor Date: ATTEST: By: City Clerk Date: APPROVED AS TO FORM: City Attorney Surplus Property Authority of Alameda County: Date: Adolph Martinelli Its MaJ).ager APPROVED AS TO FORM: Attorney for Surplus Property Authority of the County of Alameda (NOTARIZATION ATTACHED) EHS:rja J:\WPD\MNRSW\114\108\AGREE\TPI_DA518 Dublin/Alameda Development Agreement for Jefferson at Dublin Project Page 16 of 16 May 12, 1998 EXHIBIT A Description of the Property . [INSERT LEGAL DESCRIPTION] . /. . . State of California ) ) ss. County of Alameda ) On personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) before me, a Notary Public, . to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/shelthey executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. NOTARY PUBLIC -' .; (' ~: n "'-"" SCHEDULE A o .Order No: 9710147 MEW Your Ref: 1. The estate or interest in the land hereinafter described or referred to covered by this report is: . A FEE 2. Tille to said estate or interest at the date hereof is vested in: SURPLUS PROPERTY AUTHORITY OF THE COUNTY OF ALA~EDA, CALIFORNIA, A PUBLIC CORPORATION 3. The land referred to in this report is situated in the State of California, County of Alameda and is described as follows: CITY OF DUBLIN ~~CEL TWO OF PARCEL MAP NO. 7257, FILED APRIL 13, 1998, IN BOOK 234 OF PARCEL YAPS, AT PAGES 65 THROUGH 71, Ah~~EDA COUNTY RECORDS. ~SSESSOR'S PARCEL NO. 986-0001-001-10 (PORTION) .. EXHIBIT R Pt=E..A -10/3'/;:DI-. -- ~.. -- - - - . --.. ~ - - - .- . EXHIBIT B . Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparagraph 5.3.1 -- Subsequent Discretionary Approvals None. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Sequencing Program The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: . Except for those improvements set forth below, Developer shall complete all road improvements to serve the project site (including both on-site and off-site improvements) in accordance with the Site Development Review conditions (Planning Commission Resolution No. 98-04) prior to issuance of the First Certification of Occupancy. All such road improvements shall be constructed to the satisfaction and requirements of the CITY's Public Works Director. A. Traffic Signal at (Hacienda Drive and <<S" Street DEVELOPER will pay OTY $45,000 (which is estimated to be 25% of the total cost) at the time of issuance of the first building permit to fund the cost of a traffic signal at Hacienda Drive and "s" Street. If the total cost of the signal (including construction, interconnections, design and contingencies) is in excess of $180,000, DEVELOPER shall pay 25% of the excess to CITY within 30 days of demand therefore. If the total cost of the signal is less than $180,000, CITY shall refund 25% of the difference to DEVELOPER within 30 days of acceptance of the signal by the City. DEVELOPER'S obligation under this'paragraph shall terminate if and when the full cost of the traffic signal is provided for and guaranteed by DEVELOPER or others. . Dublin/Alameda Development Agreement for Jefferson at Dublin Project - Exhibit B Page 1 of 11 May 12. 1998 I -- B. 1-580 at Santa Rita Roadffassajara Road Eastbound Off Ramp (Condition 29. SDR Resolution 98-04) .' The Public Works Director shall determine when the eastbonnd off-ramp from 1-580 at the Santa Rita/Tassajara Road exit shall be widened or restriped to provide one exclusive through lane and two left-turn lanes (with the existing free right-turn lane remaining). In conjunction with this improvement, the traffic signal shall be modified to provide protected left-turn phasing on the east and west legs (removing the existing split phasing). The Public Works Director shall also determine when the westbound approach on Pimlico Drive will need to provide a second left turn lane. Within one year of notification by the Public Works Director, unless otherwise constructed by others and provided consent from Caltrans and the City of Pleasanton, if necessary, has been obtained, DEVELOPER shall design and construct these improvements to the satisfaction of the Public Works Director with input from the City of Pleasanton where applicable. To the extent practical, the notice shall be timed so that the work shall be completed immediately prior to the point where Level of Service E occurs. C. Traffic Signal -- Tassajara Road at Gleason Drive (Condition No. 27. SDR Resolution 98-04) . DEVELOPER will construct the traffic signal at Tassajara Road and Gleason Drive, unless constructed by others. Within one year of notification from the Public Works Director, DEVELOPER shall construct such signal. D. Dublin Boulevard West of the Project (Condition No. 31 SDR Resolution 98-04) The DEVELOPER shall extend the new alignment for Dublin Boulevard from the BART westerly access road to Hacienda Drive (at Dublin Boulevard adjacent to the Hacienda Crossings Project) to four lanes including 81 shoulders. . DEVELOPER shall construct a minimum of 5 foot wide pedestrian path on the north side of Dublin Boulevard from Hacienda Drive to the SP right-of-way. Dublin/Alameda Development Agreement for Jefferson at Dublin Project - Exhibit B ( Page 2 of 11 May 12, 1998 . . . . Within one year of notification by the Public Works Director, DEVELOPER shall design and construct these improvements to the satisfaction of the Public Works Director. To the extent practical, the notice shall be timed so that the work shall be completed immediately prior to the point where Level of Service E occurs. E. Tassajara Road (1-580 to North of Dublin Boulevard) (Condition No. 29. SDR Resolucion 98.04) No later than March I, 1999, DEVELOPER will widen Tassajara Road to four through lanes between Dublin Boulevard and 1-580. The widening shall consist of: two northbound lanes, two southbound lanes, two northbound left-turn lanes and two shoulders. The widening shall extend north of Dublin Boulevard with smooth transition to existing conditions and shall include relocation of the existing traffic signal at Dublin Boulevard. Within thirty (30) days of the Effective Date, DEVELOPER shall provide CITY with security for the costs of design and construction of the improvements described in subsection (E) above in an amount satisfactory to the Public Works Director. The security shall consist of a performance bond and labor and materials bond as set forth in Subparagraph 5.3.2, subsection (b)(iii) below. Notwithstanding the preceding paragraph, DEVELOPER shall not be required to post a performance bond and labor and materials bond to secure the improvements described in this subsection (E) if a performance bond and a labor and materials bond are provided to CITY by another developer pursuant to a different . development agreement. In addition, if DEVELOPER does provide CITY with such bonds within 30 days of the Effective Date hereof and another developer subsequently provides bonds to CITY before March I, 1999 to secure the identical improvements, CITY will return the bonds to DEVELOPER within five working days of receipt of the bonds from another developer. .As used in this paragraph, "another developer" may be DEVELOPER. F. Miscellaneous The- obligation of subsection (A) to (E) above shall be of no force or effect until DEVELOPER obtains the first building pennitrfor the Project. Once effective, such obligations shall survive tennination of this Agreement. Dublin/Alameda Development Agreement for Jefferson at Dublin Project - Exhibit B Page 3 of II May 12, 1998 The CITY may impose a condition on future projects which benefit from the improvements described in subsection (B) above to contribute such . future project's share of the cost of the improvement provided the improvement is not constructed by DEVELOPER prior to the approval of such future projects. DEVELOPER shall be responsible for transitioning existing improvements to match improvements required by this Agreement, including dedications, to the satisfaction of the CITY's Public Works Director. (ii) Sewer All sanitary sewer improvements to serve the project site shall be completed prior to paving any street under which the improvements are located in accordance "With SDR Resolution No. 98-04 and DSRSD requirements. (iii) Water An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance "With SDR Resolution 98-04 and to the satisfaction and requirements of the CITY's fire department. . All potable water system components to serve the project site (or any recorded phase of the Project) shall be completed in accordance with SDR Resolution 98-04 and DSRSD requirements. Recycled water lines shall be installed in accordance "With SDR Resolution 98-04. (iv) Storm Drainage Prior to issuance of the first Certificate of Occupancy for any building which is part of the Project, the off-site storm drainage systems that serve the Project, as well as on site drainage systems to the areas to be occupied, shall be improved to the satisfaction and requirements of the Dublin Public Works Department applying CITYs 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 Dublin!'Alameda Development Agreement for Jefferson at Dublin Project. Exhibit Bc Page 4 of 11 May 12, 1998 . . . . from off site and shall have erosion control measures in place to protect downstream facilities and properties from erosion and unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan. (v) Other Utilities (e.g. gas. electricity. cable television. telephone) Construction of off-site utilities that serve the Project and on site utilities to the area to be occupied (e.g. gas, electricity, cable television, telephone) shall be complete prior to issuance of the first Certificate of Occupancy for each individual building in the Project. Subsection b. Miscellaneous (i) Completion May be Deferred. Notwithstanding the foregoing, CIT'fs 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 to defer completion of discrete portions of any of the above public improvements until after final inspection of the first building permit for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. ' (ii) Improvement Agreement Prior to constructing the Improvements described in Subparagraph 5.3.2(a) above, DEVELOPER shall submit plans and specifications to CITIs Public Works Director for review and approval and shall enter into an improvement agreement with CITY for construction and dedication of the public facilities. All such improvements shall be constructed in accordance with City's standards and policies which are in force and effect at the time of issuance of the permit for, the proposed improvements. In the event that CITY enters into an Improvement Agreement with an optionee -of DEVELOPER and accepts bonds from a surety who is obligated . to such optionee and the option to purchase the Property is not exercised, DEVELOPER shall remain obligated to construct the improvements which were the Dublin/Alameda Development Agreement for Jefferson at Dublin Project - Exhibit B Page 5 oflI May 12, 1998 subject of the Improvement Agreement. DEVELOPER agrees that in that event it .--- will not be entitled to a building permit for any building(s) on the Property until the improvements are constructed or DEVELOPER enters into an Improvement Agreement with CITY secured by bonds, as specified in (iii) below. This paragraph shall survive termination of the Agreement. (iii) Bonds Prior to execution of the Improvement Agreement, DEVELOPER (or its optionee, with the approval of the Public Works Director) shall provide a cash monument bond, a performance bond and labor and materials bond or other adequate security to insure that the Improvements described in Subparagraph 5.3.2(a) will be constructed at the times required by this Development Agreement. The performance bond or other security shall be in an amount equal to 100% of the engineer's estimate of the cost to construct the improvements (including design, engineering, administration, and inspection) and the labor and materials bond shall be in an amount equal to 50% of the engineer's estimate. The bonds shall be written by a surety licensed to conduct business in the State of California and approved by CIITs City Manager. (iv) Utilities in Public Right-of-Way . All sewer, water storm drainage and other utility improvements which are located within any public street shall be installed prior to paving the public street. Subparagraph 5.3.3 -- Phasing. Timing With the exception of the road improvements described in Subparagraph 5.3.2(a) this Agreement contains no requirements that DEVELOPER must initiate or complete development of any phase within any period of time set by CITY. It is the intention of this provision that DEVELOPER be able to develop the Property in accordance with its own time schedules. Subparagraph 5.3.4 -- Financing Plan DEVELOPER will install all road improvements necessary for the Project at its own cost (subject to credits for certain improvements as provided in Subparagraph 5.3.6 below). Dublin/Alameda Development Agreement for Jefferson at Dublin Project * Exhibit B Page 6 of 11 May 12, 1998 . .': . . 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. DEVELOPER has entered into an '~ea Wide Fadlities Agreement" with the Dublin San Ramon Services District to pay for the cos~ ::;f extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Subparagraph 5.3.5 ~~ Fees. Dedications DEVELOPER shall pay all impact fees in effect at the time of issuance of building permits, including those fees listed below. Subsection a. Traffic Impact Fees. DEVELOPER shall pay all traffic impact fees applicable to the Project which are in effect at the time of issuance of any building permit for the Project. Such fees include the Traffic Impact Fee for Eastern Dublin established by Resolution No. 41-96, including any subsequent resolution which revises such fee. DEVELOPER and CITY acknowledge that DEVELOPER is entitled to certain credits ("1991 Credits") against payment of the Traffic Impact Fee for Eastern Dublin by separate agreements previously entered into oetween DEVELOPER and CITY in 1991. DEVELOPER is also entitled to certain other credits ("Prior Agreement Credits") against payment of the Traffic Impact Fee for Eastern Dublin by other development agreements entered into between DEVELOPER and CITY. DEVELOPER agrees that, notwithstanding its entitlement to such 1991 Credits, its 1991 Credits cannot be applied against payment of the "Section 2" and "Section 3" portion of the Traffic Impact Fee for Eastern Dublin. DEVELOPER (and its assignee) will, rather, pay the "Section 2" and "Section 311 portion of the fee in cash. DEVELOPER further agrees that it (and its assignee) will use the 1991 Credits and/or Prior Agreement Credits against one-half (lh) of the "Section I" portion of the Traffic Impact Fee for Eastern Dublin. CITY shall determine which of the 1991 Credits and/or Prior Agreement Credits shall be used pursuant to this paragraph. /- Dublin/Alameda Development Agreement for Jefferson at Dublin Project - Exhibit B Page 7 of II May I2, I998 ( Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway 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 revises such Fee. DEVELOPER 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 City's compliance with CEQA for the Project, the Eastern Dublin Traffic Impact Fee or any other aspect of the development of the Property. In the event that the Eastern Dublin 1-580 Interchange Fee does not become effective because CITY and the City of Pleasanton do not enter into an agreement, as provided in Resolution No. 11-96, by December 30, 1998, DEVELOPER agrees that CITY may use the funds collected pursuant to the preceding paragraph, together with any similar Eastern Dublin 1-580 Interchange Fee funds collected pursuant to other development agreements between DEVELOPER and CITY, for any interchange improvements on 1-580. 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, including any subsequent : resolution which revises such fee. Notwithstanding the preceding sentence, the amount of the Public Facilities Fee shall be reduced by the "Community Parks, Land" and "Neighborhood Parks, Land" component of the Public Facilities Fee. The amount of the "Community Parks, Land" and "Neighborhood Parks, Land" dedication for the Project is 3.68 acres. DEVELOPER shall satisfy such obligation in two ways. First, by using DEVELOPER's existing credit of 3.52 acres to which DEVELOPER is entitled under the "Development Agreement Between the City of Dublin and the Surplus Property Authority of the County of Alameda for the SununerGlen Project" (recorded June _, 1998). Second, DEVELOPER shall dedicate to CITY in fee simple 3.00 acres of land for the City Park located east of Tassajara Creek. The eXact location of the land to be dedicated shall be determined by CITY. The land to be dedicated and underlying groundwater shall be free of hazardous substances. The dedication of .16 Dublin/Alameda Development Agreement for Jefferson at Dublin Project - Exhibit B Page 8 of 11 May 12, 1998 . . . . of the total 3.00 acres by DEVELOPER shall satisfy DEVELOPER's obligation under Dublin Municipal Code Chapter 9.28 (CITY's "Quimby Act Ordinance") for community park land and neighborhood park land for the Project and shall be a credit against the portion of the Public Facilities Fee for the Project for "Community Parks, Land" and "Neighborhood Parks, Land." The dedication of 2.84 of the total 3.00 acres by DEVELOPER may be used by DEVELOPER as a credit against its obligation under Dublin Municipal Code Chapter 9.28 for community park land and neighborhood park land and the portion of the Public Facilities Fees for ..Community Parks, Land" and "Neighborhood Parks, Land" for future projects on its remaining Santa Rita property. Subsection d. Noise Mitigation Fee. DEVELOPER shall pay a Noise Mitigation Fee in the amounts and at the times set forth in City of Dublin Resolution No. 33-96, including any subsequent resolution which revises such fee. Subsection e. School Impact Fees. School impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080. Subsection f. Fire Impact Fees. DEVELOPER shall pay a fire facilities fee in the amounts and at the times set forth in City of Dublin Resolution No. 37-97 including any subsequent resolution which revises such fee. Subsection g. 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 transportation improvements in the Tri-Valley area, DEVELOPER will pay any such fee in effect at the time of issuance of any building permit or permits for the Project. By so agreeing, DEVELOPER does not waive its rights to challenge the legality of any such fee. Dublin/Alameda Development Agreement for Jefferson at Dublin Project - Exhibit B Page 9 of II May 12, 1998 1- Subsection h. Specific Plan Implementation Fee . Prior to issuance of the first building permit for the Project, DEVELOPER shall pay a "Specific Plan Implementation Fee" in accordance vlith Resolution No. 16-98. Subsection i. Dedications DEVELOPER agrees to dedicate the following property required for roadway improvements to CITY in fee simple and both the land and groundwater shall be free of hazardous substances: I. The land required to be dedicated by SDR Resolution No. 98-04. 2. A maximum of 68' for Hibernia Drive between S Street and Central Parkway, to accommodate a right hand turn lane from Central Parkway northbound on Hibernia Drive as determined by the Public Works Director. 3. Any additional right of way necessary to construct the intersection improvements and transitions required by the Site Development Review Resolution and this Agreement. . Subparagraph 5.3.6 ~~ Credit Subsection a. Illustrative Example The following is an example for purposes of illustration only and not using actual numbers of how the payment of the Traffic Impact Fee would be accomplished in cash and through the use of credits to which DEVELOPER is entitled under other agreements. Traffic Impact Fee Section 1 Section 2 Section 3 $549,300 $164,790 $ 70,630 Total: $ 784,720 Payment of Traffic Impact Fees . Dublin/Alameda Development Agreement for Jefferson at Dublin Project - Exhibit B Page IO of 11 May 12, I998 .\ . . Section I $274,650 paid by use of "1991 credits" and/or Prior Agreement Credits $274,650 paid by cash Section 2 $164,790 cash Section 3 $70,630 cash 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. /. 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