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HomeMy WebLinkAbout6.1 SantaRitaCommerclCtrAgmt .. . . ~1jl" CITY CLERK File # [Q]~~~-[f]~ ..,;.." .. .~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: June 3, 1997 SUBJECT: PUBLIC HEARING Annual Review of Development Agreement Santa Rita Commercial Center . r--i.- (Report Prepared by Jeri Ram, Associate Planner~ 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. RECOMMENDATION: ~l) Open Public Hearing { J't 2) Receive Staff Presentation and Public Testimony \ 3) Close Public Hearing 4) Deliberate 5) Make motion that developers have complied in good faith with the terms and provisions of the Development Agreement and conclude the Annual Review EXlllBITS A TT ACHED: FINANCIAL STATEMENT: The fiscal impacts of this project were addressed as part of a fiscal analysis performed for the approved project. The City Council reviewed the fiscal analysis as part of the PD Rezone and Development Agreement applications in January of 1995. In summary, the fiscal analysis concluded that this project is consistent with the fiscal policies in relation to provision of infrastructure and public services of the City's General Plan and the EDSP and General Plan Amendment. BACKGROUND: On January 23, 1995, the City Council approved a Mitigated Negative Declaration for the Project. On January 31, 1995, the City Council approved the P.D. Rezone and Development Agreement. (The Development Agreement was entered into between the Alameda Surplus Property Authority, Homart Development Co., and the City of Dublin , see Attachment 1). On May 17, 1995, the Planning Director approved a tentative parcel map. On August 22, 1995, the City Council approved the Site Development Review for the project. On March 26, 1996, the City Council approved a modification to the original site plan for the project. On March 11, 1997, the Community Development Director approved an ------ ----------------------- COPIES TO: Alameda County Opus Southwest AutoNation In House Distribution 6~ t ITEM NO. .'t~'''':d . additional Tentative Parcel Map on the project. On February 11, 1997, the Planning Commission . approved a Conditional Use Permit for the AutoNation Project. On March 4, 1997, the City Coc.:'1vil approved a Site Development Review application for the AutoNation Project. ';' S~is presently processing a phas~d Site Development Review appl.ication for ~3 acres of the Cente~ th..... WIll mclude a theatre and commercIal development. The theatre portIOn of the SIte Development RevIe~"- is scheduled for City Council review on June 17, 1997. ANNUAL REVIEW: 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. The development provided for by the Agreement has not yet commenced. All the items required by the Agreement will be implemented when development occurs. There has been no indication from either Alameda County, Opus Southwest, or AutoNation of any problems regarding future compliance with the Agreement. Therefore, staff recommends that the City Council conduct a public hearing, deliberate, and 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:\PA97003\dasr .":::-. . . .-. -;/..- .~ e-..;. . ,". "- '.\ " -., ..:...... - e:- '.::.".>:." ~ I ...... -- ,.-.. -: ..: v ~ 1 ./ -: J r ,- . " ,of 2 -'.:'~ ':. ' j' r. 1995 ..._~, r" -: '!-o-: ,_. ,- . Recording Requested by: I Recorded in Official Records, Alameda County , Patrick O'Connell, Clerk-Recorder IIlmllllll~llmB 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 DEv~LOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND HOM.ZffiT DEVELOPMENT CO. AND SURPLUS PROPERTY AUTHORITY OF THE COUNTY. OF ~3DA FOR THE TRI-VALLEY CROSSINGS PROJECT/SANTA RITA COMMERCIAL CENTER EXHIBIT February 6, 1~~5 11~\agree\devlp52;agr RECITALS AGREEMENT 95075863 .' INDEX '" 1 2 2 3 3 3 3 3 4 4 4 e--, ..- . - " 4 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 S. Use of the Property 5.1 Right to Develop 5.2 Permitted Uses 5.3 Additional Conditions 5.3.1 5.3.2 5.3.3 5.3.4 5.3.5 :L Conditions, terms, restrictions, and requirements for subsequent discretionary actions. . . . . . 4 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. 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 Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. . . . . . . 5 e, Terms relating to subsequent reimbursement over time for financing of necessary public .~ e:,:. .,., -. 9 5 0 7 5 8 6 3 facilities. . . .. . .. . .. 5.3.6 Terms relating to payment of fees. 5.3.7. Miscellaneous terms. '" 5.4 Subsequent Approvals. . . 6 . ~ 1 . b1 1 R l' d 0 ~ oF' . 1 ._pp ~ca _e Ru~es, egu_at~ons an I_~c~a- Policies. ........... 6.1 Rules re Permitted Uses. 6.2 Rules re Design and Construction 6.3 Uniform Codes Applicable 7. Subsequently Enacted Rules and Regulations. 7.1 New Rules and Regulations 7.2 Moratorium Not Applicable. 8 . Subsequently Enacted or Revised Fees, Assessments and Taxes. . 8.1 New Fees 8.2 Construction of Off-Site Traffic Improvements . . .. ." . . . . . 8.3 Revisea Application Fees 9. 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 14.2 Mortgagee Not Obligated .. 9 9 9 10 10 10 10 10 11 11 11 11 ."'- ,. :., 11 -::-.~'.-:' 12 12 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. . . . 14.3 Notice of Default to Mortgagee. 1 .. -=>. Severability. 16. Attorneys' Fees and Costs. 17. Transfers and Assignments. 17.1 Right to Assign Project as Whole or Either Phase . . . . . . . .. ..... 12 17.2 Release Upon Transfer. 12 17.3 Sale of a Portion of Either Phase 13 18. Agreement Runs with the Land. 13 19. Bankruptcy. 13 ... 20. Indemnification. 13 21. Insurance. 14 21.1 Public Liability and Property Damage Insurance. ......... 14 21.2 Workers Compensation Insurance. . . 14 .:'-'. 21.3 Evidence of Insurance. 15 'I .- .,...-. . . ~ ~ - . - . . . &. . ~ ..' .-:~, ~ . --. - -0" ..& ...... ..... '5 ~ 22. Sewer and Water 23. Notices. . . 24. Agreement is Entire Understanding. . '" 25. Meaning of "DEVELOPER and/or COUNTY" 26. Status. 27. Exhibits 28. Time of the Essence. 29. Recordation ........... 30. Counterparts EXHIBIT A EXHIBIT B 95075863 15 15 16 16 16 17 17 17 17 21 22 9 5 0 7 5 ~ 5.3 .' 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 IlCITYIl), the SURPLUS PROPERTY AUTHORITY of the County of Alameda, a~ublic corporation (hereafter IlCODNTYIl), 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 ~s 65864 et sea. and Chapter 8.12 of the Dublin Municipal Code (hereafter "Chapter 8.12") authorize the CITY to enter into a binding agreement for the development of real property with a~y 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 e: C. The Eastern Dublin Specific Plan requires DEVELOPER to enter into a development agreement; and D. DEVELOPER and COUNTY desire to develop 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-l 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 .-, t, February (;. 19 ~ 5 ~~4\agree\devlp52.agr .-' ~ :. ~ ..., , . Ow':_::_ ~:.'. . ~. .' w ~..- . '. . .;. 7 95075863 (' 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 COUNTYi 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 "Project Approvalsll)i and I. CITY desires the timely, efficient, orderly and proper development of said Project in accordance with this-agreementi 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_l2i and L. CITY,C;OUNTY. 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 hereini and M. On January 3l, 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,' 1995. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY, COUNTY and DEVELOPER agree as follows: February 6, H~5 224\agree\devlp52.asr 950 7 5.8,6 3_, ... AGREEMENT 1. Description of Property. 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 Developer. 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. Relationship of City, Countv and Develooer. .- .. ",. ., 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 or 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 DEVELOPER 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) when COUNTY has completed its obligations under this ., ',- :f.::'" ~ February (;, B 9 5 ~14\agree\devlp52.agr 95075863 .:':.; 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 Prooertv. 5.1 Riaht 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. ~ .. '. ..~ "_A.- 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached here~o and incorporated herein by reference. e.. - 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 specified phases, that construction shall commence within a specified time, and that the Project or any phase thereof be completed within a specified time. -.....- .... - f February 6, 1~95 114\agree\devlp52.agr 4 950758D3. .'., 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 ADnrovals. 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. AnDlicable 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 .:- '. .. " ..... . , ..... ID February 6. 19 ~ 5 114\agree\devl~52.a r .:~' .,. ..:-. .~ ~-.-.' --~ - . -- _.. - . ~. -'..' "- ~~~~:: II 95075863 proposed buildings shall be those in force and effect on the ~ffective 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 design, 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 at the time of the, applicable permit approval. ' . 6.3 Uniform Codes ADDlicable. 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 Reoulations. ,7.l New Rules and Reaulations. During the te~ ,_ of this Agreement, the CITY may apply new or modified -ordinances, resolutiQns, 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 proj ect Approvals. 7.2 Moratorium Not ADDlicable. Notwithstanding anything'to the contrary contained herein, in the event an ordinance, resolution or other measure is ~nacted, 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 ,ordinaDce, 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. February 6, 1~95 114\agree\devlp52.agr .-. ,--,;. 9507 5 8,.6'3 e: 8. Subseauentlv Enacted or Revised Fees. Assessments and Taxes. 8.1 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 or in 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 improve~ents, shall be required of DEVELOPER and/or COUNTY at any phase of development of the Project. .'- . -. -'~..:* . " 8.3 Revised AnDlication Fees. Any existin~ application, processing and inspection fees that are revised during the term of th~s 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. , 8.4 New Taxes. Except as set forth below, 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. No excise tax on the privilege of developing property shall apply to the Project. 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. .' /).. February 0, ~9~5 21~\agree\devlp52.agr 95075863 .-' . . ~ . 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. In tne 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. - e." ~. ..~' .. ~~ ., 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 here~o. 9.4 Amendments of Proiect Approvals. - 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. .:' , .. .r.O Except as otherwise permitted herein, this Agreement may be cancelled in whole or in part only by the I'? Februa-~ 6, 1~~5 114\agree\devlp52.agr 8 95075863 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 du~, 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 Approvals. 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 ~n Exhibit B. 11. Annual Review. a~- . - ~ . . . -, .-... ".:--.., .' 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 8.12.140 of Chapter 8.12 of the Dublin Municipal 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 Reports. 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 . "'.". .. IY Februa--y 6, ~~95 ll4\agree\devlp52.agr 95075863 .~,: and/or COUNTY 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 any party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured:within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 13. 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 requesi{ngsuch party to certify in writing that, to the knowledge of. the certifying party, (a) this'Agreernent is in full force and effect and a binding obligation of the parties I. :, (b), this Agreement has not been amended or modified eithe~ orally or in writing, or if so amended, identifying the amendments, and (c) the requesting party or the party about which information is requested 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 estoppel certificate shall not be deemed a default. /5 February &, 1995 114\agree\devlp52.agr 10 95075BE3. .;.-: 14. Mortaaoee Protection; Certain Riahts of Cure. !': l,'. 14.1 Mortoaqee 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"). Notwi thstanding 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. 14.2 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 completioni 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 ~r authorized by the Project Approvals or by this Agreement. . ,-,.. ... - ...... , .::" : ~ ,14.3 Notice of Default to Mortoaqee. If CITY receives notice from a Mortgagee requesting a copy of any, noti~e 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. 15'. Severabili tv. 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. Attornevs' Fees and Costs. If CITY, COUNTY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and .' If- Februa-~ 6, 1~95 114\agree\devlp52.agr 95075863 .r..,. 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 validify 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 Rioht to Assian proiect as Whole or Either Phase. .,.-" . - :.". ~ .- - -..... ':. ~ ". ~.. . j . ~..-:.....'o 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 CO~ryY 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 UDon 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 resp~ct 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 and/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 . ..... . _ r. ~ . ..W'._ 17 February 6. 1995 114\agree\devlp52.agr 12 95075863 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. Aoreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. BankruDtcy. 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 IF" February 6. ~~95 114\agree\devlp52_agr 13 ." ~ ~~:~::~: . .. " ..,., , """--..:',". ....ow_ 95075863 .." ,', 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 the 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, the 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. e< . ,.:-... +:- : : ~~~-:= Public Liabilitv and Prooertv Damaae Insu'r"ance. 21.1 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 Comoensation Insurance. - "". .. During the term of this Agreement DEVELOPER and/or COUNTY~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. D~VELOPER 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 Ev;dence of Insurance. .' Prior to City Council approval of this Agreement, DEVELOPER shall furnish CITY satisfactory - . . ~ ~ ..... .-.- Ir February 6, B95 ~14\agree\devlp52.agr O~!'75"'r:.3 .JJu dc' .',-, ., evidence of the insurance required in Sections 21.1 and 21.2 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 coverag~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 .:~ d,).,-' Notices required to be_ given to DEVELOPER shall be addressed as follows: Homart Development 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 l221 Oak Street,Room 555 Oakland, CA 94612 . :':.~:<. . ~o Februa:ry 6, ~~~5 ~~4\agree\devlp52_agr 95075863 ..,.,.. "..:' 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 States Mail. 24. Acrreement is Entire Understandinq. This Agreement is executed in three duplicate originals, each of whi~h is deemed to be an original. tt., '. . 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 .acknowledges that it has relied on its own judgment in entering into this Agreement. 25. Meaninq of "DEVELOPER and/or COUNTY". DEVELOPER arid 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 l 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 any obligation to be performed by DEVELOPER and/or COUNTY under this Agreement. CITY shall respond to such a request within thirty (30) days following the receipt thereof. .'" , ":'--' ~ ;: . . ..-.+ )./ Februa--y 6, 1~95 114\agree\devlp52.agr l6 gr-07r: :J 'v863 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-1 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 1, which shall occur within ten days after CITY executes this Agreement. 30. Counteroarts. This Agreement may be executed in three separate counterparts, 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 6, 1995 ~1~\agree\devlp52_agr .:' .-- ~ . ':~~+: :".. .' . --.-0." .. ." . ~"~ rr..... . , . .- . . - :~:~. ;z~ ..., jS075863 HOMART DEVELOPMENT CO. a Delaware Corporation ~ By: ame: W.......,AL-<) L-~.0 'UltS: ~;-Jb V,er... ~l..rC,jr- (NOTARIZATION ATTACHED) February 6, :1995 :1:14\agree\devlp52.agr l8 ""r __.- 95075863 /-fil:noI7 State of ~~~ornla ) .....--G.:o ,L- ) s s . County of~~II;~ua ) On ::ge-0\.-t.u:vt"-.i d,~, jC1'1':j:Jefore me, a Notary personally appeared ~Ja/ L. C~_/j," Public, personally known to me {c= p~ovcc ~o me on ~be-basL&-0i -.s;:.;:::r.; c::fr;:tc..1:~eY..i.d~nrp~ to be the person m' whose name ~ is~ subscribed to the within instrument and acknowledged to me that hefsh~~executed the same in his/he*/t~~~ authorized capacityH-e-s+, and that by hisfhe.l./L:H::.ir- signature~ on the instrument the personfs+, or the entity upon behalf of which the personrs-} acted, executed the ins-=.rument. WITNESS my hand and official seal. 0At~,-KZJaod-1 NOTARY PDBLI C "OFFICIAL SEAL" THERESA R. ZUKOWSKI > NOTARY PUBLIC, STATE Of IlL!N01S ~ MY COMM!SSION EXPIRES 1(/ i9B J..'i February 6, ~995 1~~\a~~ee\devlF52.agr . ,,',-- , , . ""',~~;;J'; . ~. . :.~..-, .' .... ..'. . . . ~ . --. -~ 95075863 .';. 0"0" 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 personysJ whose namey{) is/are subscribed to the within instrument and acknowledged /' to me that he/~~y executed the same in his~~ authorized capacity~), and that by his~/~r signature~ on the instrument the personjs1, or the entity ." , ;,<;".-:", upon behalf of which the personjs1 acted, executed the inst:::ument. WIT~~SS my hand and official seal. c1{aud[C-L NOT~, UL.l.C .... ... .' ~. - - . , ,'0. ;..~ February 6, 1995 1l4\agi'ee\devlp52.agr ::~. -..< ..... ~? ~5075863 SURPLUS PROPERTY AUTHORlTY OF THE COUNTY OF ALAMEDA By: --'It ..JjJ ~ President Gail Steele APPROVED AS TO FORM: I hereby certify un~er penalty of perjury that the President of the SurpI us Property Authority of the County of Alameda was duly authorized to execute this document: COll Counsel LORJ:NZO _ CHAMBL.lsr A TTEST: WILLIAM MEHRWEIN, Clerk, Board of Supervisors, County of Alameda, State oi California. /i . I ., / )' 1') By: j;,:!P2---:..v_.-Y / )~ Deputy {I [SEAL] 20 February 6, 1995 e~ e: " . . Attest: oa45(U-L Ci t~Cl~rk ~ . - . :J.' (9 5 0 7 5 8 5 3 ::~y ~_1'~ Mayo '" APPROVED AS TO FORM: 1~/~ ~ ~ 1v-- C1ty Attorney February 6, 1995 114\agree\devlp52.agr 19 .--.-- ". .~~. .'. ." . ~. . . -.... /~ ...... . .....' ~: ::.:...:: ....:... ("'01 ~ ...... 0 ] .. u eo = :: ,&~ - -.- .', t':.,'. == " '" .... ...J i " .. % " U .,~: I, ..:, . .' -. \c;.! /"" . .. ~ -" '. . S98gLOS EXHIBIT A-I Page 2 9 5 0 7 5 8' 6' 3 , , ~ 17'\ ~ v1 CIN1TY :tvfAP (N.T.S.) ." ) ~ ?MXS ,ODDI ~', ! DOc] ~"Z PPQ, 1\ ~~~~" r s:- . DC'"'''- - I ,-"'.. ' '"" :~ - - _u - J (':__ - ,,:-- - . Subiect Prooerty ~ 3. ~ - )\ : I.: 1= ,~/ ,< e~1 1= : I: P' , I ;~ll ...::- / C'_9..JN 3t. YlJ . il T~~~~A l~n f,i;oiE J.b,l ~, ._~ -i- :i;"-- ",..7. "7' ;;cg", C\/E.~~JC.""" -"~J ;fP: i el \ .. I. .,,;;. . ....' ~..... ... . .". ". ..' . ;{, 95075363 .' EXHIBIT A-2 Legal Description of the Property '" . .-:7". .. ~l) February 6, 29~5 21~\agree\devlp52.agr 95075863 ."'~ EXHIBIT 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. suboaraqraoh 5.3.2: Subsection a. Infrastructure Secruencino Prooram The Infrastructure Sequencing Program for the Project is set forth below. As used herein, lIoccupancyll shall mean the receipt from CITY of a IICertificate of Occupancy for Eastern Dublin Developmentll which shall be issued by CITY when the building is ready to be opened to the public. (i) Roads: .,.: ~:.._~~:~ :. A_". ~ .... . & -..7. A. Phase 1 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 1994 prepared for Homart Community Centers by Barton-Aschman Associates, Inc. (hereafter IIproject Specific Traffic Report") shall be completed by DEVELOPER and/or COUNTY. Certain additional improvements (hereafter "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 IlFull Improvementsll. 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 required. Full Improvements include median (minimum 14 foot width, maximum 24 feet if two left- turn pockets required), two 12 foot southbound travel lanes, .... ... ....., &. . .:.' -~. -; ~I February 6, l~95 ~~4\agree\devlp52_agr 95Q75853 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-burn 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 req~ired, 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: Total offer of dedication of a m~n~mum 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 recruired. Full ImDrovements 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 (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 12 foot eastbound travel lane with an 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 ';r February &, ~~~5 ll~\agree\devl 52.a r .,..., '. -. , ., .~, (:~\ .' . . .~: ".'.W .':~: ...." ~. ~ ., - . . .~. j:!> 95075863 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 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. 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 14 foot width, maximum 24 feet if two left- turn pockets required), two 12 foot westbound travel lanes, three 12 foot ~astbound 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 (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 wnen right-turn lanes are required), and left-turn pockets as required by Duplin's p'ublic 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 entrance (12 foot lane with 5 foot bike lane in place of 8 February 6, H95 114\agree\devlp52.agr .~:'.. ;~ 26 95075863 ~1 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 l2 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. C. General Drawino Denictina 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 descriptions of th~ Project Specific Improvements and Oversized 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. The foregoing 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 CITY's Public Works Director shall be provided to CITY by DEVELOPER and/or COUNTY to secure such obligation. . Maintenance CITY will maintain the Project-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 0, 1~~5 114\agree\devlp52.asr .~ ~ . ":',....":w"::. . ... " , e:: , : ;.::>-. '. .. ~ ...... - .,: . - . ~. . .:: :'.. + . .."-. -:..... ." ~~ 95075863 (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 'combustible 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. February 6, 1~95 ~14\agree\devlp52.agr 95075863 . , (iv) Storm Drainaoe .' -- , ' COUNTY has retained a consultant (Brian Kangas Fo61k) 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 CITY's and Zone 7 (Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements and shall be consistent with the Drainage Plan. The site shall also be protected from storm flow from off site and shall have erosion control measures in place to protect downstream facilities and properties from erosion and unclean storm water consistent with the Drainage Plan. (v) Other Utilities (e.cr. oas, electricity) .,": . :":: . . Prior to occupancy. Subsection b. Miscellaneous - (i) ComDlet;on 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 improvements until after occupancy if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. (ii) ImDrovement Aqreement 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 .: :.. . '. . .- 3" February 6. 1~~5 114\agree\devlp52.agr 95075863 .":" 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 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. Section 3. Subnaracrranh 5.3.3: ." ::.~..?:~., .~. .' .. .'~ . DEVELOPER and COUNTY intend to construct the Project in two phases. Phase 1 will consist of an appro~imately 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 provision that DEVELOPER and/or COUNTY be able to develop the Property in accordance with their own time schedules. Section 4'. Subnaracrranh 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 Oversized 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 .-.... February 6. H 9 5 114\agree\devlp52.agr 9507.5663 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. Suboaraqraoh 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 that time. Section 6. Subnaraaraoh 5.3.6: Subsection ao Traffic Imoact 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 // pald by COUNTY. This amount is based on the City's Traffic Impact Fee for Eastern Dublin (Resolution No. 1-95, adopted by the Council on January 9, 1995) on a maximum building ( tf February 6, ~~95 , , .---=-=-. . ".' - ~ . . . ~.". ..". e"o' , ,:::\ . -:::: .;: ... .... .: ..-._"'. &"':..... e" . ~ - ~ - e. !;.':.:~~, ~f. -""'-;' r." .' , ' (. .~ .::-: +.:~ . .' .' ~ - ~ ~ .. ~'1 :> 95075853 square footage for the, Project of 8~_~_QOO 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 1 Fee: '" $3,665,002 Section 2 Fee: $ 969,111 Section 3 Fee: $ 528,606 Total: $5,162,719 The total Traffic Impact Fee (IlTIFII) of $5,162,719 shall be reduced, however, by the Net Credit for Oversized Improvements provided in Subparagraph 5.3.5 for a net TIF due of $1,397,450 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 such..building by multiplying the square footage of the building by $6.4533987 which equals the total TIF of $5,162,7l9 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 l t10,OOO sq.ft.) TIF $ 64,534 Remaining Credit $3,700,736 Building 2 (15,OOU sq.ft.) TIF $ 96,80l 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.. l-95, as adopted January 9, 1995, 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 multiplying the square footage of, the building bY~~~4~7~WhiCh equals the total TIF of $5,162,7l9 divided- y the maximum Project square footage of 800,000 square feet to arrive at the TIF for such building. February 6, ~9~5 l14\agree\devlp52.agr 95075863 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 ~greement 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 TIP 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 Soecific Plan. Should the COUNTY elect this option, the TIF funds shall be used by CITY to repay BART the-II short term loan" owed by CITY to BART and guaranteed by COUN'J'Y. The TIF for the Project may be increased by the CITY to reflect increases to the Eastern Dublin TIP 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 Freeway 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 Hopyard, 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 prior 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. l-95 or any other aspect of the development of the Property. The obligation set forth in this subsection (b) is not tit? February O. 19~5 .:'~' .~ '..;:,'.7>- . ;......., n.. -. ., .. . ~ ~ .' .' .::~.~_::~:. . . ~ . . . -..." .:,.:, ." 'r~:~~ ,'.,-:,." .. .: .'. ~. ~~ ... - '. 1./1 --~~-- .- , .., 95075863 applicable to DEVELOPER and shall not be released pursuant to Paragraph 17.2. Subsection c. Reaional TransDortation Mitiqation. In addition ~o paYment of the above Traffic Impact Fee, COUNTY shall enter into a binding commitment to convey 15 (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-of-way deemed necessary by CITY for access to the BART station from Dublin Boulevard. COUNT~'s obligation in this subsection (c) shall not be released pursuant to Paragraph 17.2 Subsection d. Public Facilities Fees. . CITY has retained a consultant who prepared a draft report (November 11, 1994 Memorandum to Richard Ambrose from Recht Hausrath & Associates, hereafter the IIDraft Studyll) 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 IIpublic facilitiesll). It concludes that the amount of the Public Facilities Fee for retail development is $290 per 2,000 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 IIFeell) in the amount of $362.50 per 1,000 Square Feet of Building. The fee of $362.50 represents $290 per 2,000 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 within the Eastern Dublin area. When CITY approves' 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 Februa-ry 6, 19~5 11~\agree\devlp52.agr 95075863' ' .,,:,""-: , .. . ...., . ..: .: 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 pa~able, 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 Mitiqation Fee. .., .'~:t:D 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 Impact Fees and Fire Impact Fees. Any school impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080. .'~' . . .. -. ~ . ~ ~. & . ...- . '.. y;. February b, ~~~5 .~::, e, o ..~ ~'. ~~_:~:.;:' .~. .. - ' ... ., .... " ' .-. ~ _.:. "-" .:~::.~~~ ,~ 95075863 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 other projects constructed on COUNTY's remaining lands within the Eastern Dublin Specific Plan. Section 7. SubDaraoraDh 5.3.7: Subsection a. Creek ImDrovements. 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 Impact Report for the Eastern Dublin General plan Amendment and Specific Plan which relate to improvements of Tassajara Creek. Such provisions include but are not limited to Specific Plan Action Programs SC, 6A, 6B, Mitigation Measures 3.3\l6.0, 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 release? pursuant to Paragraph l7.2. Subsection b. Contractor Sub-Permits. 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 comDensation for the fair market value of the land so dedicated and Drovided that the site is mutually agreeable t//fJ February 6, ~~~5 ~14\agree\cevlp52.agr '-1'1 9 5 0 7 5 8 6-3 . . to COUNTY and CITY. COu~Y's obligation in this subsection (c) shall not be released pursuant to Paragraph 17.2. Subsection d. Future Sewer, Water, Recycled Water and Storm Drainacre 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, ~9~5 114\agree\devlp52.a .'.-' '--."+' .:~ . '....-. .":...;,.. .. ". e: -.-::'.