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Ord 06-98 DA SummerGlen
ORDINANCE NO. 6 - 98 AN ORDINANCE OF THE CITY OF DUBLIN APPROVING THE DEVELOPMENT AGREEMENT FOR PA 97-036, SUMMER GLEN THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The proposed Summer Glen project (PA 97-036) 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 Low, Medium and Medium-High Density Residential. B. A Program Environmental Impact Report ("EIW') 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 have filed an application requesting approval of a development agreement for the Summer Glen 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 April 14, 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 8.56.080 of the Dublin Municipal Code. H. . A public hearing on the proposed Development Agreement was held before the City Council on April 21, 1998, and May 5, 1998, for which public notice~was given as provided bylaw. I. At that public hearing on April 21, 1998, the City Council waived reading and introduced the Ordinance approving the Summer Glen Development Agreement. J. The City Council has considered the recommendation of the Planning Commission (Planning Commission Resolution 98- ), 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 Summer Glen 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 Amendment, (d) the Specific Plan, (e) the EIR, (f) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City's General 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 designations for the site are Low,. Medium, and Medium-High Density Residential and the proposed project is a single family dwelling project consistent with those land use designations, (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, reimbursement for oversizing in~astructure 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 zoning districts in which the real property is located in that the project approvals include a Planned Development Rezoning adopted specifically for the Summer Glen project. 3. The Development Agreement is in conformity with public convem'ence, general welfare and good land use policies in that the Summer Glen 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. 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 developmem 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. APPROVAL 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 Devebpment 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 t~om and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 5th day of May, 1998, bythe following votes: AYES: NOES: None ABSENT: Councilmember Howard ABSTAIN: None Councilmembers Barnes, Burton, Lockhart and Mayor Houston K2/G/5-5-98/ordsmrgl. doc GSPA97-036klaord City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND THE SURPLUS PROPERTY AUTHORITY OF THE COUNTY OF ALAMEDA FOR THE SUMMERGLEN PROJECT EXHIBIT 2, TABLE OF CONTENTS o o Description of Property ......................................... 2 Interest of Developer ............................................ 3 Relationship of City.and Developer ................................. 3 Effective Date and Term ......................................... 3 4.1 Effective Date ............................................ 3 4.2 Term ................................................... 3 Use of the Property ............................................. 3 5.1 Pd.'ght to Develop ......................................... 3 5.2 Permitted Uses ........................................... 3 5.3 Additional Conditions ..................................... 4 Applicable Rules, Regulations and Official Policies .................... 5 6.1 Rules re Permitted Uses .................................... 6.2 Rules re Design and Construction ' 5 6.3 Uniform Codes Applicable .................................. 5 Subsequently Enacted Rules and Regulations ......................... 5 7.1 New Rules and Regulations ................................. 5 7.2 Approval of Application ..................................... 6 7.3 Moratorium Not Applicable ............. '.' ................... 6 Subsequently Enacted or. Revised Fees, Assessments.and Taxes ........... 6 8.1 8.2 8.3 8.4[ 8.5 Fees, Exa..ctions, Dedications ................................ 6 Revised Application Fees ................................... 6 New Taxes .............................................. 7 Assessments ............................................. 7 Vote on FUture Assessments and Fee.s ......................... 7 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 for SummerGlen Project Table of Contents - Page i of iii March 26, 1998 10. 11. 9.3 9.4 9.5 Insubstantial Amendments .................................. 7 Amendment of Project Approvals ............................. 8 Cancellation by Mutual Consent ............................. 8 Term of Project Approvals ....................................... 8 Annual Review ................................................ 8 1 1.1 Review Date ............................................. 8 11.2 Initiation of Review ........................................ 9 1 1.3 Staff Reports ............................................. 9 11.4 Costs .................................................. 9 12. 13. 14. 15. 16. 17. 18. 19. Default ...................................................... 9 12.1 Other Remedies Available .................................. 9 12.2 Notice and, Cure .......................................... 9 12.3 No Damages Against CITY ................................. 9 Estoppel Certificate ........................................... I0 Mortgagee Protection; Certain Rights of Cure ....................... 10 14.1 Mortgagee Protection ..................................... 10 14.2 Mort~aeee Not Obligated-. ................................. I0 14.3 Notice of Default to Mortgagee and Extension of Right to Cure .... 11 Severabili,ty .................................................. 11 Attorneys' Fees and Costs ... ' 11 Transfers and Assignmm.!ts. ...................................... 11 17.1 17.2 17.3 17.4 17.5 Right to Assi~tm .......................................... I 1 Release Upon Transfer .................................... 12 Developer'.s Right to Retain Specified Rights. or Obligations ....... 12 Permitted Transfer, Purchase or AssiLmment. ................... 12 Termination of Agreement Upon Sale of Individual Lots to. Public... 13 Agreement Runs with the Land .................................. 13 Bankruptcy ................................................... 13 Dublin/Alameda Development Agreement for SummerGlen Project Table of Contents - Page ii of iii March 26, 1998 20. 21. 22. 23. 24. 25. 26. 27. Indemnifica~;ion .............................................. 13 Insurance .................................................... 14 21.1 Public Liability and Property Damage Insurance ................ 14 21.2 ,Workers Compensation Insurance ........................... 14 21.3 Evidence of Insurance .................................... 14 Sewer and Water ............................................. 15 Notices ..................................................... 15 Agreement is Entire Understanding · 15 Exhibits .................................................... 16 Counterparts. ................................................ 16 Recordati.on ................................................. 16 Dublin/Alameda Development Agreement for SummerGlen Project Table of Contents - Page iii of iii March 26, 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 8.56. RECITALS A. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. The City Council adopted the Eastern Dublin Specific Plan by Resolution lqo. 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 65.51 acres of land, located in the City of D, tblin, County of Almneda, State of California, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which re;d property is hereafter called the "Property"; and E. DEVELOPER proposes the developmenvof the Property with 347 single family detached homes (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, including a PD District rezoning (Ordinance No. 1-98) general provisions for the PD District rezoning including the Land Use and Development Plan (Res. No. 9- 98), tentative tract map (Planning Commission Resolution No. 97-29), and site development review (Planning Commission Resolution No. 97-29) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and Dublin/Alameda Development Agreement for SummerGlen Project Page 1 of 17 March 26, 1998 G. Development of the Property by DEVELOPER may be subject to certain future discretionary approvals including site devdopment review, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective; and H. CITY desires the timely, efficient, orderly and proper development of said Project; and I. The City Council has found that, among other things, this Development Agreement is consistent with its General Plax and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and J. CITY and DEVELOPER have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein; and K. 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 L. On /k~q ¥ ~, 1998, the City Council of the City of Dublin adopted Ordinance No. O -98 approving this Development Agreement. The ordinance took effect on ,,-]-~//k/~ z/ , 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"). Dublin/Alameda Development Agreement for SummerGlen Project Page 2 of 17 March 26, 1998 o Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property in that it owns the Property in fee simple. 3. Relationship of City and De.velOper2 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 parmers. 4. Effectiye Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by City. 4.2 Term. The term of this Development Agreement shall commence on the effective date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by .circumstances set forth in this Agreement. 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 Agn-eement, the Project Approvals (as and when issued), and any amendments to .any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by CITY) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. Dublin/Alameda Development Agreement for SummerGlen Project Page 3 of 17 March 26, 1998 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1 Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect 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, Tinning. 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. See Exhibit B 5.3.4 Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5 Fees, Dedications. fees or dedication of property. See Exhibit B Terms relating to payment of 5.3.6 Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B Dublin/Almneda Development Agreement for SummerGlen Proiect Page 4 of 17 March 26, 1998 5.3.7 Miscellaneous. Miscellaneous terms. See Exhibit B 6. Applicable Rules. Regulations a~ad Official Policies. 6.1 P, ules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the pemfitted 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, roles, regulations and offficial 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 Pro}ect Approval. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public ilnprovements 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 Dublin/Alameda Development Agreement for SummerGlen Project Page 5 of 17 March 26, 1998 havc gencral 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 expressly set forth herein. 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of CITY, by initiative, referendum, or otherwise, that imposes a building moratorium which affects the Project on all or any part of the Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 8. .Subsequently Enacted or Revised Fees. Assessments and Taxes. 8.1 Fees, Exactions,..Dedications. CITY and DEVELOPER agree that the fees payable and exactions required in connection with the development of the Project 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. 1-98, Resolution No. 9-98, the tentative tract 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 construction of public improvements, in connection with any subsequent discretionary approval for the Property, except as set forth in Ordinance No. 1-98, Resolution No. 9-98, the tentative tract 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 Proiect 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 Dublin/Alameda Development Agreement for SummerGlen Project Page 6 of 17 March 26, 1998 agreeing, DEVELOPER does not waive its rights to challenge the legality of any such application, processing and/or inspection fees. 8.3 New TaXes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. By so agreeing. DEVELOPER does not waive its rights to challenge the legality of any such taxes. 8.4 Assessments. Nothing herein shall be construed to relieve the Property from assessments levied against it by City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5 Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's ballot as affirmatively voting in favor of such assessment, fee or charge. 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amenchnent or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56. 9.2 Amendment. by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Chapter 8.5 6. Dublin/Alameda Development Agreement for SummerGlen Project Page 7 of 17 March 26, 1998 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 "significant" reservation or dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (lc) the maximum height or size of proposed buildings; or (g) monetary contributions by DEVELOPER as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. CITY's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4 Amendment of Project Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximuln height or size of proposed buildings; (f) monetary contributions by the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the alnendment of the Project Approval. Any other alnendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by CITY. 10. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the tentative map described in Recital 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. Dublin/Alameda Development Agreement for SummerGlen Project Page 8 of 17 March 26, 1998 1 1. Annual Review. I 1.1 Review Date. The annum review date for this Agreement shall be August 15, 1999 and each August 15 thereafter. 11.2 Initiation of Review. The CITTs 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' x~a4tten notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Commmxity Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CITY in connection with the annual review shall be paid by DEVELOPER in accordance with the City's 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 periodl 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 Dublin/Alameda Development Agreement for SummerGlen Project Page 9 of 17 March 26, 1998 (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damages Against CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Either party may, at any time, and from time to time, request wa-itten notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall be authorized to execute any certificate requested by DEVELOPER. Should the party receiving the request not execute and return sud~ 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 pm*ty may rely on such deemed certification. 14. Mortgagee Protection; Certain Rights of Cure. 14.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Not~vithstanding 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. Dublin/Alameda Development Agreement for SummerGlen Project Page 10 of 17 March 26, 1998 14.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction Of improvements., or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication~ improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to Mortgagee and Extension of Right to Cure. If CITY receives notice from a Mmxgagee 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 cormnence to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee. 15. S everability. 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 attorneyst fees expended by CITY in defense of any such action or other Dublin/Alameda Development Agreement for SummerGlen Project Page 11 of 17 March 26, 1998 proceeding. 17. Transfers and Assignments. 17.1 Right 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 the term of this Agreement, provided that no transfer, sale or assignment of DEVELOPER's rigb cs, interests and obligations hereunder shall occur without the prior written notice to CITY and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. The City Manager shall consider and decide the matter within 10 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 assignment of all of DEVELOPER's rights, interests and obligations hereunder pursuant to subparagraph 17.1 of this Agreement, DEVELOPER shall be released from the obligations under this Agreement, with respect to the Property transferred, sold, or assigned, arising subsequent to the date of City Manager approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or assignee approved by the Ciw Manager expressly assumes all of the rights, interests and obligations of DEVELOPER under this Agreement, DEVELOPER shall be released with respect to all such rights, interests and assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval. 17.3 Developer's Right to Retain Specified Rights or Obligations. Notwithstanding subparagraphs 17.1 and 17.2 and paragraph 18, DEVELOPER may withhold 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 DEVELOPER with respect to such retained rights, interests and/or obligations. Dublin/Alameda Development Agreement for SummerGlen Project Page 12 of 17 March 26, 1998 17.4 Permitted Transfer, Purchase or Assitmment. 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. 17.5 Termination of Agreement Upon Sale of Individual Lots to Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and individually (and not in "bulk") leased (for a period of longer than one year) or sold to the purchaser or user thereof and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. 18. Agreement Runs with the Land All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, 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 sm-citude 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. Dubli~VAlameda Development Agreement for SummerGlen Project Page 13 of 17 March 26, 1998 19. Bankruptcy. banM-uptcy. The obligations of this Aga'eement shall not be dischargeable in 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the DEVELOPER, or any actions or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation with respect to negligence or wrongful conduct of CITY, its contractors,, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). 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. 21.2 Workers Compensation Insurance. During the tenn of this Agn'eement DEVELOPER shall maintain Worker's Compensation insurance for all persons employed by DEVELOPER for work at the Project site. DEVELOPER shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain Dublin/Alameda Development Agreement for SummerGlen Project Page 14 of 17 March 26, 1998 any such insurance. 21.3 Evidence .,of Insurance. Prior .to City Council approv~ 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 Pro}ect. 22. Sewer and Water. DEVELOPER acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of CITY. 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin P.O. Box 2340 Dublin, CA 94568 Notices required to be given to DEVELOPER shall be addressed as follows: and Patridc Cashman Project Director Surplus Property Authority of Alameda County 225 W. Winton Avenue, Room 151 Hayward, CA 94544 Adolph Martinelli Director of Planning County of Alameda 399 Elmhurst Street Hayward, CA 94544 Dublin/Alameda Development Agreement for SummerGlen Project Page 15 of 17 March 26, 1998 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. Agreement 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 Exhibit C Off Site Improvements 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. Dublin/Alameda Development Agreement for SummerGlen Project Page 16 of 17 March 26, 1998 CITY OF DUBLIN: By: Mayor ATTEST: Date: By: City Clerk APPROVED AS TO FORM: Date: City Attorney SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY: Adolph Martinelli Its Manager Date: APPROVED AS TO FORM: Attorney for Surplus Property Authority of the County of Alameda (NOTARIZATION ATTACHED) .. EHS:rja J:\WPDkMNRSWM 14\106kKGREEkSUMMERDA. CLN Dublin/Alameda Development Agreement for SununerGlen Project Page 17 of 17 March 26, 1998 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMEI~T State of On before personally appearedDale ~~ ~. ~_ ~ ~ _~N and Till,ol Ollicor (e.g., "Jane Doe. Nola~ PubliCT~ ' ~-', Name(s) ol Signer(s) ~personally known to me - OR -g proved to me on the basis of satisfactow evidence to be the person~ whose name~ is/~subscribed to the within instrument and acknowledged to me that he~/~ executed the same in his/~ir authorized capacity~, and that by his/~/~ signature~on the instrument the person~, or the entity upon behalf of which the person~ acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this torm to another document. Description of Attac had Docu men t ~~--,. ¢)~,/l¢/I,/~.. /,~~~,) ~f---¢' // Title or Type of Document:~)~--.V/¢! Z)~.,~..~'JV? ..... Document Date: Number of Pages: Signer(s) Other Than Named Above:/~ ~ - Capacity(les) Claimed by Signer(s) Signer's Name: El, Individual [] Corporate Officer Title(s): [] Partner-- [] Limited [] General [] Attorney-in-Fact [] Trustee [] Guardian or Conservator ~ [] Other: Top of thumb here Signer Is Representing: Sig~%.Name: .. [] I ndividu"a~. [] Corporate",~fficer T~tle(s): %. [] Partner--Fi L~'i~ted [] General [] Attorney-in'Fact ~ Fi Trustee ~ [] Guardian or Conservat~ ~ Fi Other' %...% Top O! thumb here Signer Is Representing: ~ © 1995 National Notary Association · 8236 Remmet Ave., P.O. Box 7184 · Canoga Park, CA 91309-7184 Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 Engineers o ~Surve¥ors · Planners June 12, 1997 BKF Job. No. 940158-14 PROPERTY DESCRIPTION FOR PARCEL liB SA NTA PdTA PROPERTY, DUBLIN All that certain real property situate in the City of Dublin, Comity of Alameda, State of California, described as follows: BEING a portion of the Remainder Parcel as said Parcel is shown on that certain map entitled "TRACT 6822, CALIFORNIA CREEKSIDE", filed November 13, 1996, in Book 227 of Maps at Pages 41 tkrough 56, inclusive, in the Office of the Recorder of Almneda Comity, State of California, said portion being more particularly described as follows: COMMENCING at the most northwesterly corner of Central Parkway (106 foot wide right of way) as shown on sheet 7 of said Tract Map; THENCE from said POINT OF COMMENCEMENT easterly along the northerly right of way line of said Central Parkway as shown on said map South 88°48'09" East 85.00 feet; THENCE leaving said northerly fight of way line of Central Parkway North 01 °11'51" East 726.00 feet to the POINT OF BEGINrNIN G; THENCE North 01°11'51" East 30.00 feet; THENCE North 88°48'09'' West 30.00 feet; THENCE along a curve to the right having a radius of 450.00 feet through a central angle of 46°54'34", an arc distance of 368.43 feet to a point of reverse curvature; THENCE along said reverse curve having a radius of 450.00 feet tN'ough a central angle of 46°14'07'', an arc distance of 363.13 feet; THENCE North 88°07'41" West 99.09 feet to the easterly right of way line.of Hacienda Drive (right of way width varies) as shown on that certain map entitled "PARCEL MAP 7042" filed March 31, 1997, in Book 229 of Parcel Maps at Pages 50 through 54, inclusive, Alameda Comity Records; THENCE northerly along said easterly right of way line of Hacienda Drive the following tkree (3) courses: 1) North 01 °11'51" East 353.94 feet; 2) South 88°48'09" East 5.00 feet; 3) North 01 °11'51" East 377.39 feet; THENCE leavh~g said easterly right of way line of Hacienda Drive North 46°29'08" East 36.92 feet to a point on a line that is parallel with m~d distm~t 77.00 feet southerly, measured at right m~gles, from the monmnent line of Gleason Drive (formerly 'known as 7th Street) as said monmnent line is shown and monumented on the um'ecorded plans entitled "Almneda County Public Works Project #9078U; Santa Rita, Water & Sanitary Sewer Extensions, Gleason Drive m~d Barnet Blvd." by G.T. Kuntz dated April 15, 1994; THENCE along said parallel line the following five (5) courses: 1) South 88o13'36'' East 1487.76 feet; 2) along a cun, e to the right having a radius of 547.00 feet through a central .m~gle of 33°16'45", an arc distance of 317.71 feet; 3) South 54°56'51" East 395.53 feet; 4) along a curve to the left having a radius of 653.00 feet through a central angle of 33 °49'39% EXHIBIT "A" Page 1 of 2 Jm~e 12, 19~7 BKF Project No. 940158-14 Property Description for Pm-cel 11B m~ arc distance of 385.53 feet; 5) South 88o46'30'. East 43.77 feet; THENCE leaving said parallel line South 36°01'10" West 164.93 feet; THENCE 'South 1 l°43'18" West 212.55 feet; THENCE South 25°01'27" West 75.47 feet; THENCE South 18°20'13" West 69.80 feet; THENCE South 45002'23'' West 94.12 feet; THENCE South 26°33'21" West 161.75 feet; THENCE South 09°15'45'' West 188.87 feet;. THENCE South 00o15'23'' East 275.53 feet; THENCE South 03o54'53'. East 205.06 feet to said northerly right of way line of Central Parkway; THENCE along said northerly right of way line North 88°48'09" West 853.07 feet to a point which bears South 88048'09" East 685.00 feet from said Point of Con~unencement; THENCE leaving said northerly right of way line of Central Parkway North 01 °11'51" East 726.00 feet; THENCE North 88o48'09" West 600.00 feet to the POINT OF BEGINNING. Containing an area of 65.510 acres, more or less. A plat showing fl~e above described parcel is attached hereto m~d made a part hereof as Exhibit A1 This property description has been prepared by me, or ua~der my direction, in conformm~ce with the Professional Lm~d Surveyors Act m~d shall not be utilized in any conveym~ce which violates the Subdivision Map Act of the State of California or local ordinances. This description was prepared fi'om record data for Brian Km~gas Foulk. Paul Kittredge, PLg/No. 5790 License Expires: 06/30/00 k:~urvcy\940151~.5[}\legal$\pcl- I I b.lgl EXHIBIT "A" Page 2 of 2 1' : 400' ?ARCEL ,oo GRAPHIC SCALE 2OO 0 FUTURE RIGHT OF STREET DEDICAIION 'PER P.M. 7042 S 88'46'30" E 33'49'39" 653.00' 385.53' SI 3.18., S 45'02'23" 94.12' PARCEL 1 lA 5.: 35'16'45" R = 547.00' 65.510 ACRES :::b L = 317.71' N 01'11'51" E 726.00' N 01'11'51" E ~co~° 30.00' -- z N 88'48'09" W % 30.00' 25'01'27" w ( IN FEET ) 75.47' 18'20'13" W ........... 1 inch = 400 fL 69.8o' -FASSAJARACRr_~}<,""'- S00'I 5'23"E 275.5.3' 188.87' S 09-i5,45,, W 503'54'53']E 0 STRE~:T DEDICATION PER T.M. 6822 N 01'11'51" E 726.00' UJ . A = 46'54'34" POINT OF i~,~ R = 450.00' BEGINNING 7~ L = 368.43' :- POINT OF co COMMENCEMENT A = 46'14'07' R : 450.00' N 46'29'08" E L : 363.15' 56.92' N ,88'07'41" W 377.3g' 353.94' 47' 50' 57' 57'HACIENDA'gwDRIVE-62, S 88'48'09" E PARCr_L MAP NO. 7O42 / REMAINDER PARCEL 229 P.M. 50 TRA CT MA P NO. 6822 227 MAPS 4 S 88'48'09" E 85.00' HIBERNIA DRIVE PARCEL MAF NO. 7125 (PENDING) EXHIBIT A1 £n9lnelr'J · .Surveyor~ ,,, Planner= P737 North M~in Street Suite 200 W~Lnut Creek, CA 94596 510/937-6808 510/937-6860 CFAX) Subject PLAT TO ACCOMPANY PROPERTY DESCRIPTION Job No. 940158-14 By MLM Dole 06/12/97Chkd. 'PAK. SHEET 1 OF 1 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Su. bparagraph 5.3.1 -- Subsequent Discretionary. Approvals None. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Sequencin, g Program The Infrastructure Sequencing Program for the Project is set fmxh below. Offsite improvements are depicted in Exhibit C. (i) Roads: Unless otherwise specified, the project-spedfic roadway improvements (and offers of dedication) identified in this Aga'eement and in the Traffic Study for the SummerGlen project dat(:d November 19, 1997], prepared for the City of Dublin by TJICM Transportation Consultants, which are described below, shall be completed by DEVELOPER to the satisfaction of the Public Works Director at the times specified below: A. Improvements to be Constructed Prior to Certificate of Occupancy. 1. Tassajara Road (I-580 to North of Dublin Boulevard) Prior to issuance of a Ce~xificate of Occupancy for the first building in Phase II, Tassa}ara Road shall be widened 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. Dublin/Alameda Development Agreement for Summer Glen Project - Exhibit B Page 1 of 14 March 31, 1998 2, Gleason Drive From Hacien. da Drive to Tassajara Creek Prior to issuance of a Certificate of Occupancy for the first . building in Phase II, a portion of the ultimate southern half of Gleason Drive shall be constructed fi-om Hacienda Drive to Tassajara Creek consisting generally of two 12- foot travel lanes, one 8-foot emergency parking/bike lane, and a 12-foot wide lmLdscaped parkway area including a minimum of a 5-foot wide sidewalk. The improvement shall include transitions from the easterly property line to existing Gleason Drive per a design approved by tile Director of Public Works. The north side of Gleason Drive shall be overlaid with 2" of asphalt. B...I. mprovemmts to be Constructed Prior to Building Permit 1. Traffic Signals at the Project's Entrance (Hacienda Drive and "S" Street DEVELOPER will pay CITY $45,000 at the time of issuance of tile first building permit to fund one quarter of 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 $45,000, DEVELOPER shall pay the difference to CITY within 30 days of demand therefore. If the total cost of the signal is less than $45,000, CITY shall refund the difference to DEVELOPER within 30 days' of acceptance of the signal by the City. The provisions of this paragraph shall survive termination of this Agreement. DEVELOPER'S obligation under this paragraph shall terminate if and when the full cost of the traffic signal is provided for mxd guaranteed by DEVELOPER or others. C. hnprovements Needed at Time of Development of Other Proiects 1. 1-580 at Santa Rita Road/Tassajara Road Eas,tbound Off Ramp The Public Worlcs Director shall determine when the eastbound off-ramp from 1-580 at the Santa Rita/Tassajara Road exit shall be widened Dublin/Alameda Development Agreement for Summer Glen Project - Exhibit B Page 2 of 14 March 31, 1998 or restriped to provide one exclusive through lane and two left-turn lanes (with the existing free ~Sght-turn lane remaining). In conjunction with this improvement, the traffic signal shopld 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 othe~wvise constructed by others and provided consent from Caltrans and the City of Pleasanton, if necessary, has been obtained, DEVELOPER shall design and construct these ilnprovements 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 ~ ompleted immediately prior to the point where Level of SmMce E occurs. 2. Dublin Boulevard Wes' of the Project 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 8' shoulder. DEVELOPER shall construct a minimmn of 5 foot wide pedestrian path on the north side of Dublin Boulevard from Hacienda Drive to the SP right-of-way. 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. o Traffic Signal -- Tassajara Road at Gleason Drive _ 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 Dublin/Alameda Development Agreement for Summer Glen Project - Exhibit B Page 3 of 14 March 31, 1998 signal. D. Miscellaneous The obligv.tions of subsection C (1), (2) and (3) above shall be of no force or effect until DEVELOPER obtains the first building permit for the Project. Once effective, sud~ obligatio ~s shall survive 't~rmination of this Agreement. City shall provide a credit to DEVELOPER for the cost of the improvements specified in subparagraph (C)(1), (2) and (3) above in the manner, at the times and subject to the conditions provided in Subparagraph 5.3.6(a), (b) and (c). Within sixty (60) days of the Effective Date, DEVELOPER shall provide CITY with security for the costs of design and construction of the improvements described in subparagraph C(I) above in an amount satisfactory to the Public WorLs Director. The security shall consist of a document, satisfactory to the City Attorney, pledging DEVELOPER'S existing credits against payment of the traffic impact fees as security. The security required by the preceding sentences is not a substitute for the Improvement Agreement and bonds required by Subparagraph 5.3.2, subsection (b) (ii) and (iii) below. The CITY may impose a condition on future projects which benefit from the improvements described in subparagraph C (1) 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 .d. edications, to the satisfaction of the CITY's Public Works Director. (ii) Sewer All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with the tentative subdivision map and DSRSD requirements. Dublin/Almneda Development Agreement for Summer Glen Project - Exhibit B Page 4 of 14 March 31, 1998 (iii) Water Am all weather roadway and an approved hydran_t and water supply system shall be available and in service at the site in accordance with the tentative subdivision map to the satisfaction and requirements of the CITY's fire department. All potable water system components to serve the proiect site (or any recorded phase of the Project) shall be completed in accordance with the tentative subdivision map and DSRSD requirements. Recycled water lines shall be installed in accordance with the tentative subdivision map. (iv) Storm Drainage Prior to issuance of the first Certificate of Occupancy for any building which is part of the Project, the storm drainage systems off site, as well as on site drainage systems to the areas to be occupied, shall be improved to the satisfaction and requirements of the Dublin Public Works Department applying CITTs and Zone 7 (Alaneda County Hood 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 do~vnstream facilities and properties from erosion and unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan. (v) .Other Utilities (e.g. gas. electricity, cable' televisions, telephone) Construction shall be complete by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase 0f occupancy. Subsection b. Miscellaneous (i) Completion May be Deferred. Notwithstanding the foregoing, CITTs 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 Dublii~/Alameda Development Agreemer~t for Summer Glen Project - Exhibit B Page 5 of 14 March 31, 1998 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 hnprovements described in Subparagraph 5.3.2(a) above, DEVELOPER shall submit plans and specifications to CITTs 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 tile 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 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 Propmxy 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 execdtion of the Improvement Agreement, DEVELOPER (or its optionee, with the approval of tile 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)(i)(A) and (B) above will be constructed prior to the times specified above. The performm~ce 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 CITTs City Manager. .Dublin/Alameda Development Agreement for Summer Glen Project - Exhibit B Page 6 of 14 March 31, 1998 (iv) Right to Construct Additional Road Improvements .............. W_i_th the. prior wr~.'.tten conse_nt of CITY's Public Wo..rks Director, DEVELOPER may construct roadway improvements which are not described in this Exhibit B if such improvements are described in the resolution establishing the Eastern Dublin Traffic Impact Fee and if such. improvements are constructed in their ultimate location. DEVELOPER shall be required to enter into an Improvement Agreement and provide bonds for such improvements, as provided in Subsection (b)(ii) and (iii) above, prior to construction. CITY shall provide a credit to DEVELOPER for the cost of such improvements in the manner and subject to the conditions provided in Subparagraph 5.3.6, Subsections (a), (b) and (c). Subparagraph 5.3.3 -- Phasing. Timing DEVELOPER intends to construct the Project in phases. Each succeeding phase will be constructed to function in harmony with the previous phase(s). With tile exception of the road improvements described in Subparagraph 5.3.2(a) (i) this Agreement contains no requirements that DEVELOPER must initiate or complete development of 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 and the Project Approvals. Subparagraph 5.3.~, -- Financing Plan DEVELOPER will install all street improvements necessary for the Project at its own cost (subject to credits for certain improvements as provided in Subparagraph 5.3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project will be made available by tile Dublin San Ramon Services District. DEVELOPER has entered into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such smwices to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a) (ii) .and (iii) above. Dublin/Alameda Development Agreement for Summer Glen Project - Exhibit B Page 7 of 14 March 3 I, 1998 Subparagraph 5.3.5 -- Fees~ Dedications Subsection a. Traffic Impact Fees. DEVELOPER shall pay all traffic impact fees applicable to the Project which are in effect at the time of issuance of any building permit for the Project. Such fees include the Traffic Impact Fee for Eastern Dublin established by Resolution No. 41-96, including any future amendments to such fee. DEVELOPER and CITY aclmowledge 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 between DEVELOPER and CITY in 199 I. 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 3" 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 (1/2) of the "Section 1" 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. 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, dais 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 Dublin/Alameda Development Agreement for Summer Glen Proiect - Exhibit B Page 8 of 14 March 31, 1998 04/09/98 14:46 To:Dennis Csrrington From:Elizabeth H. Silver (51B)351-44BI Page aam-eement, as provided, in. Resolution No. 11-96, by December 30, 19.98, DEVELOPER agrees that CITY may use the funds collected pursuant to the preceding pamgn~ph, together with any similar Eastern Dubhn 1-580 Interchange Fee fimds collected pm~uant to other development agn'eements 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 £mth in City of Dublin Resolution No. 32-96, adopted by the City Council on March 26, 1996, or in the amounts and at tile times set fmxlL in any resolution revising the amount of the Public Facilities Fee. Notwithstanding the preceding sentence, the amount of tile Public Facilities Fee shall be reduced by the "Community Parks, Land" and "Neighborhood Parks, Land" component and City shall reduce the credit of 9.07 acres to which DEVELOPER is entitled under tile "Development A~eement Between tl~e City of Dublin and the SmTplus PropmTy Authority of the County of Alameda for the Villas at Santa Rita Project" (recorded Oct. 16, I997) by 5.55 acres, which will leave a balance of 3.52 am'es (i.e.; the dedication by the DE.\qi. LOPER of such 5.55 acres shall frilly satisfy the "Community Parks, Land" and "Neighborhood Parks, Land" component of the Public Facilities Fee). In the event that CITY is requh'ed to acquire any land in Eastern Dublin owned by DEVELOPER for park proposes by a_~eement or condemnation, DEVELOPER a~m'ees that it will not claim that the PS:oiS'm~y to be acquired has a value ga'eater than''~:: the land values used by CITY in establishing the amount of its then-curt-eh, Public Facilities Fee. CITY agn-ees that the land values used by CITY in establishing the Public Facilities Fee will be reappraised in a regular basis, as needed, but in no event less than eyre7 five ),ears, begim%ng lanua~y 1, 1995. This paragn-aph shall be applicable to all land owned by DEVELOPER in Eastena Dublin and shall sm-tire tmTnination of this Agreement. Subsection d. Noise Mitigation.Fee. DEVELOPER shall pa), a Noise Mitigation Fee in the amounts and at the times set fmzh in City of Dublin Resolution No. 33-96, adopted by the City Council on March 26, 1996, and any amendments thereto. Dublin/Alameda Development A~eement for Summer Glen Project - Exhibit B Page 9 of 14 March 31, 1998 Subsection e. School.. Impact Fees and Fire Impact Fees. School impact fees shall be paid by DEVELOPER in accordance with Govermnent 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 or 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 improv, ements 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 Proiect. By so agreeing, DEVELOPER does not waive its rights to challenge the legality of any such fee. 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 with Resolution No. 16- 98. Subsection i. Dedications DEVELOPER agrees to dedicate the following property required for ro.adway improvements to CITY in fee simple and both the land and groundwater shall be free of hazardous substances: 1. Gleas0n Drive in front of the Property (104 feet in width); 2. Hibernia Drive from "S" Street to Central Parkway; and 3. Any additional right of way necessary to construct the intersection improvements and transitions listed in Subparagraph 5.3.2(a)(i)(A)(1), (2) and (3) Dublin/Alameda Development Agreement for Summer Glen Projec} - Exhibit B Page I 0 of 14 Mardx 31, 1998 above. Dublin/Alameda Development Agreement for Summer Glen Project - Exhibit B Page 11 of 14 March 31, 1998 Subparagraph 5.3.6 --.. Credit Subsection a... Traffic Impact Fee Improvements Credit CITY shall provide a credit to DEVELOPER for the following improvements if such improvements are described in the resolution establishing the Eastern Dublin Traffic Impact Fee and if such'improvements are constructed by the Developer in their ultimate location pursuant this Agreement: I) Gleason Drive from Hacienda Drive to Tassajara Creek (Subparagraph 5.3.2 (a) (i) (A) (2) above). The amount of the credit to be given shall be determined by CITTS Public Works Director at the time of the Improvement Agreement referred to in Subparagraph 5.3.2 (b)(ii) using the costs of construction used by CITY in calculating and establishing the Traffic Impact Fee. The amount of the credit, once established, shall not be increased for inflation nor shall interest accrue on the anxount of the credit. The credit shall be applied against the "Section 1" portion of the traffic impact fees required to be paid pursuant to Subsection (a) of Subparagraph 5.3.5. The credit shall not be applied against the "Section 2" or "Section 3" portion of the Traffic Impact Fee for Eastern Dublin. Subsection b. Traffic Impact Fee Right-of-Way Dedications Credit CITY shall provide a credit to DEVELOPER for the following TIF area fight-of-way to be dedicated by DEVELOPER to CITY which is required for roadway improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee: 1) Gleason Drive in front of the Property The amount of the credit to be given shall be determined by CITTs Public Worlcs Director at the time of dedication of the right-of-way using the right-of-way valueS used by CITY in calculating and establishing the Traffic Impact Fee. The amotmt of the credit, once established, Shall not be increased for inflation nor shall interest accrue on the amount of the credit. Dublin/Alameda Development Agreement for Summer Glen Project - Exhibit B Page 12 of 14 March 31, 1998 The credit shall be applied against the "Section 1" portion of the traffic impact fees required to be paid pursuant to Subsection (a) of Subparagraph 5.3.5. The credit shall not be applied against the "Section 2" or "Section 3" portion of the Traffic Impact Fee for Eastern Dublin. Subsection c. Use of Excess Credits In the event that credits referred to in Subsections (a) and (b) of this Subparagraph 5.3.6 are in excess of the amount of credits which can be applied against the traffic impact fee payable pursuant to Subsection (a) of Subparagraph 5.3.5 (i.e., one-half of the "Section 1" portion of the Traffic Impact Fee for Eastern Dublin), DEVELOPER shall be entitled to "bank" such credits (referred to as "Excess Credits") and may use them as provided herein. The Excess Credits shall not bear interest, nor shall the amount thereof be increased for inflation. The Excess Credits may only be used for future projects on DEVELOPER'S "Santa Rita" property and may only be applied against the "Section 1" portion of the said Traffic Impact Fee. Subs. ect~on d. 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: Traffic Impact Fee Section 1 $1,015,810 Section 2 $ 304,740 Section .3.. $ 130,600 Total: $ 1,451,150 Credit for Construction of Improvements and Dedication of Right-of-Way TIF Credits for Construction (Exhibit B, ¶5.3.6(a)) $ 202,.870 Right-of-Way credit (Exhibit B, ¶5.3.6(b)) $400,890 Total: $603,760 Dublin/Alameda Development Agreement for Sunm~er Glen Project - Exhibit B Page 13 of 14 March 3 i, 1998 Payment of Traffic Impact Fees ....... Section 1 $507,905 paid by use of prior credits C 1991 credits" and/or "Prior Agreement Credits'') $507,905 paid by use of new credit for right-of- way dedicated and road improvements constructed as part of project Section 2 $304,740 cash Section 3. $130,600 cash "Excess Credits" if any (Exlxibit B, ¶5.3.6 (c)) $95,855 Subparagraph.5.3.7.-~ Miscellaneous Subsection. a, Landscaping Maintenance Along S.treets 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 su'eet and creek landscaping. J :\WPDMMNRSWM 14\106~AG REEkEX_B.331 EHS:rja Dublh~/Alameda Development Agreement for Summer Glen Project - Exhibit B Page 14 of 14 March 31, 1998 OL~A~OH DII. Vohlclo ^ec~8~ Only goncy Vohl~le only EXHIBIT C .'! GLEASON DRIVE - HACIENDA DRIVE TO .TASSAJARA CREEl( SECTION A- A PllOJECI - I SUt,lhtEll (;LEHJ , DEVEI.OPI,tEN'[ t 'IRACi I I IEAN[ I P'L 2[3' EAST BOUHD ' 'IRAVEL LAilE '- '"'[11~" PAI~KIHO LANE CENTRAL' PARKWAY (100') .. HIBERNIA DRIVE TO ,TASSAJARA CREEK' SECTION B-B