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HomeMy WebLinkAboutItem 6.2 Opus Dev Agmt ~ ::. CITY CLERK File # D~[Q]rol-~~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: March 18,1997 SUBJECT: 1) 2) 3) RECOMMENDATION~. . 1) 2) 3) 4) EXHIBIT ATTACHED: FINANCIAL STATEMENT: PUBLIC HEARING: PA 96-020 Opus Development Agreement (Report Prepared By: Jeri Ram, Associate Planner) Ordinance Approving Development Agreement Page 12 of Development Agreement marked to show changes Development Agreement Open continued public hearing Receive staffpresentationand.public testimony Close public hearing and deliberate Waive second reading and adopt Ordinance approving Development Agreement Approval of this project would provide for the construction of public improvements and payment of certain City required impact fees. BACKGROUND: ::-'e Opus Development Agreement is part of the Opus Business Park Project that was before the Planning Commission and City Council in the fall of 1996. The project has included a General Plan Amendment, Specific Plan Amendment, Rezone to a Planned Development, and Tentative Parcel Map. On October 15, 1996, the City Council approved a Mitigated Negative Declaration for the Project. On January 7, 1997, the City Council approved the Planned Development Rezone. A Tentative Parcel Map was approved by the Community Development Director on January 30, 1997. The Map separates the Opus Project from the remainder of the County Santa Rita properties. Staff is now working with the Developer, Opus Southwest, on draft site plans for a Site Development Review application that is anticipated to be filed in the near future. Consistency with Approved Mitigated Negative Declaration: This project is within the scope of the Eastern Dublin Specific Plan and General Plan Amendment, for which a Program EIR was previously certified (SCH No. 91103064). A Mitigated Negative Declaration has been prepared for this project, which together with the Program EIR, adequately describes this project for the purposes of CEQA. ::.~~------------------------------~------------------------------~------------------------------------------------------------------------------- . COPIES TO: Alameda County Surplus Property Internal Distribution ITEMNO.~2 Planning Commission Public Hearing: A public hearing was held on this item before the Planning Commission on February II, 1997. The Planning Commission unanimously recommended approval of the Development Agreement to the City Council. ._ City COllncil Public Hearing: At the March 4, 1997, public hearing, the City Council responded to a request by Alameda County Surplus Property Authority to revise Section 17 of the Development Agreement related to Transfers and Assignments. The County requested that a faster method of approving the transfers be considered. The City Council agreed to allow the City Manager to approve the Assignments or Transfers within a 10 day time period. The Agreement before the City Council tonight includes those changes ( Exhibit 2 is a redlined page 12 of the Development Agreement that shows where the changes were made to the Agreement). Following the testimony by the County and deliberation on the Agreement by the City Council, the Ordinance was introduced approving the Development Agreement and the public hearing was continued to March 18, 1997, for a second reading. ANAL YSIS: The City Attorney drafted the proposed Development Agreement (Exhibit 3) with input from City staff, Alameda County Surplus Property Staff and their attorneys. The Development Agreement sets forth the agreements between the parties in relation to many items, including, but not limited to, infrastructure construction and phasing, and the payment of various required impact fees. -. The Development Agreement becomes effective for a term often years from the date it is recorded. The Development Agreement runs with the land and the rights thereunder can be assigned. The main points of the Development Agreement can be found in Exhibit B of the Development Agreement. Conclusion: The Development Agreement furthers the goals of the General Plan and Eastern Dublin Specific Plan by requiring new development to fund the costs of its infrastructure and service. The City of Dublin and Alameda County Surplus Property Authority have agreed on the sequencing of infrastructure construction, the payment of impact fees as well as other items required by the Eastern Dublin Specific Plan. RECOMMENDATION: Staff recommends that the City Council open the continued public hearing, deliberate, waive second reading} adopt the Ordinance approving the Development Agreement (Exhibit 3). G:IP A96-020\ccsrda2 :.. 2 . . . I ORDINANCE NO. AN ORDINANCE OF THE CITY OF DUBLIN APPROVING THE DEVELOPMENT AGREEMENT FOR P A 96-020, OPUS BUSINESS PARK PROJECT THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section I . RECITALS A. The proposed Opus Business Park Project (P A96-020) 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 "IND/CO". B. A Program Environmental Impact Report ("EIR") was prepared for the Specific Plan and the Eastern Dublin General Plan Amendment and certified by the City Council by Resolution No. 51-93. C. Implementing actions of the Specific Plan, including Chapter 1 I 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 Opus Business Park 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 I. F. A public hearing on the Proposed Development Agreement was held before the Planning commission on February 11, 1997, for which public notice was given as provided by law. G. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreement, which recommendation includes the Planning Commission's determinations with respect to the matters set forth in Section 8.12.080 of the Dublin Municipal Code. H. A public hearing on the proposed Development Agreement was held before the City Council on March 4, 1997, for which public notice was given as provided by law. 1 [;-':\:"[.'H1 _1''''0- '. .;;,~ if ~ "1 ',i~ w" 1fJ:.\.. . ~~ ...,.!' ;)\ j I 1- - Iii ~~;..:...;o... _' - \ J. The City Council has considered the recommendation of the Planning Commission (Planning Commission Resolution 97-06), 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, the City prepared a Mitigated negative Declaration for the Opus Business Park Project, including the Development Agreement, and the City Council has adopted a Resolution approving the Mitigated negative Declaration. The Mitigated Negative Declaration included a Matrix showing how the project complies with the Specific Plan's programs and the mitigation measures contained in the ErR 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 Mitigated Negative Declaration (g) 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 designation for the site is Industrial/Campus Office (IND/CO) and the proposed project is a business park consistent with that land use, (b) the project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to provision of infrastructUre and public services, and (c) the Development Agreement includes provisions relating to financing, construction and maintenance of public facilities, reimbursement for oversizing infrastructure and similar provisions set forth in the Specific Plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located in that the project approvals include a Planned Development Rezoning adopted specifically for the Opus Business Park Project. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies in that the Opus Business Park Project will implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for industrial and office uses at this location. d. 2 . '. ... . . ..- 4. The Development Agreement will not be detrimental to the health, safety and general welfare in that the project will proceed in accordance with the Mitigation Monitoring program for the project prepared by Staff and will comply with all programs and policies of the Specific Plan. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan and with the Specific Plan. Section 3. APPROVAL The City Council hereby approves the Development Agreement (Attaclunent 1) and authorizes the Mayor to sign it. Section 4. RECORDATION Within ten (10) days after the Development Agreement is executed by the Mayor, the City Clerk shall submit the Agreement to the County Recorder for recordation. Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this_ th day of March, 1997, by the following votes: AYES: NOES: ABSENT: ABSTAIN: MAYOR ATTEST: CITY CLERK G:IP A96-020\DAORD 3 3 prior written notice to CITY and approval by the City Council~, which approval shall not be unreasonably withheld or delayed. The City Council~~ shall consider and decide the matter within 3~O days after DEVELOPER's notice. 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 ~~~~l=~ transferred, sold, or assigned, arising subsequent to the date of City . :,. ..:..~g!i! approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or assignee approved by the City Council~ 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 Council~ approval. 17.3 Developer's Right to Retain Specified Rights or Obligations. Notwithstanding subparagraphs 17.1 and 17.2 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 through 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. 17.4 Permitted Transfer. Purchase or Assignment. 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 Councilm:ti~~ 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. Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 12 of 17 February 3, 1997 1./ [-;-'7' n "" 1<:' fC' =-11 ~m. ~'" E;~ r\:' ~:ti'"n' :"'i~;j -.;., \;~ ~ t~ b";' '- n~.i, ,. 'J;" Ifrii; E- ..,~, t- ~ ~,. "t~ ~~~~ ~ 2 :.. .-.. .' :... .e- . - . - ~ . . . . . . . . -. ~ . ".-, . - . - - - . . .. . .; .- Recording Requested by: 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 BETVVEEN THE CITY OF DUBLIN AND THE SURPLUS PROPERTY AUTHORITY OFTHECOUNTYOF~EDA FOR THE SANTA RITA BUSINESS CENTER PROJECT s --7"\ r:. r.-: f._~.,..~!....::..:.~ r-'~~~."'" 3 I~..-... \.:- i..:i ,-: :.-_....." l~ ~;,: ]11..;.._.....,.., q~ r.~~: (.,. :.: ::~~: ~~. ~-~ ~ wr 'P' l. ,....--"" I;' ~ ~;lt ili~tJ;~ ~ TABLE OF CONTENTS . 1. Description of Property. ........................................ 2 2. Interest of Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3. Relationship of City and Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. Effective Date and Term. ........................................ 3 4.1 Effective Date. ........................................... 3 4.2 Term.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5. Use of the Property. ............................................ 3 5.1 Right to Develop ......................................... 3 5.2 Permitted Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5.3 Additional Conditions ..................................... 3 6. Applicable Rules. Regulations and Official Policies .................... 5 6.1 Rules re Permitted Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6.2 Rules re Design and Construction ............................ 5 6.3 Uniform Codes Applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 .... 7. Subsequently Enacted Rules and RegJIlations . . . . . . . . . . . . . . . . . . . . . . . . . 5 7.1 New Rules and RegJIlations ................................. 5 7.2 Approval of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 7.3 Moratorium Not Applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 8. Subsequently Enacted or Revised Fees. Assessments and Taxes. . . . . . . . . . . 6 8.1 Fees. Exactions. Dedications ................................ 6 8.2 Revised Application Fees ................................... 6 8.3 New Taxes .............................................. 7 8.4 Assessments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8.5 Vote on Future Assessments and Fees ......................... 7 9. Amendment or Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 9.1 Modification Because of Conflict with State or Federal Laws ....... 7 9.2 Amendment by Mutual Consent ............................. 7 Dublin/Alameda Development Agreement for Santa Rita Business Center Project Table of Contents - Page i of iii February 3, 1997 :;. b . . . 9.3 Insubstantial Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 9.4 Amendment of Project Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.5 Cancellation by Mutual Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 10. Term of Project Approvals ....................................... 8 II. A.rlnual Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.1 Review Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.2 Initiation of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11.3 Staff Reports ............................................ 9 11.4 Costs .................................................. 9 12. Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.1 Other Remedies Available .................................. 9 12.2 Notice and Cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.3 No Damages Against CITY ................................. 9 13. Estoppel Certifi ca te ........................................... 10 14. Mortgagee Protection: Certain Rir;hts of Cure ....................... 10 14.1 Mortgagee Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .'. . . . 10 14.2 Mortgagee Not Oblieated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 14.3 Notice of Default to Mortgagee and Extension of Right to Cure . . . . II 15. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 16. Attorneys' Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 17. Transfers and Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 17.1 Right to Assign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 17.2 Release Upon Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 17.3 Developer's Right to Retain Specified Rights or Obligations ....... 12 17.4 Permitted Transfer. Purchase or Assignment ................... 12 18. Agreement Runs with the Land .................................. 13 19. Bankn1ptcy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 20. Indemnification.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Dublin/Alameda Development Agreement for Santa Rita Business Center Project Table of Contents - Page ii of iii February 3, 1997 r; 21. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.1 Public Liability and Property Damage Insurance . . . . . . . . . . . . . . . . 21.2 Workers Compensation Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.3 Evidence of Insurance .................................... 22. Sewer and Water ............................................. 23. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24. Agreement is Entire Understanding ............................... 25. Exl1ibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 26. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 27. Recordation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Dublin/Alameda Development Agreement for Santa Rita Business Center Project Table of Contents" Page iii of Hi February 3, 1997 ~ 14 . 14 14 14 14 14 15 ,.;. '-, - , .' ".: . . . THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this _ day of April, 1997, 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 SS 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.12. RECITALS A. California Government Code SS 65864 et seq. and Chapter 8.12 of the Dublin Municipal Code (hereafter "Chapter 8.12") authorize the CITY to enter into an Agreement for the development of real property with any person having a ,legal or equitable interest in such property in order to establish certain development rights in such property; and B. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and C. The Eastern Dublin Specific Plan requires DEVELOPER to enter into a development agreement; and D. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 25 acres of land, located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property"; and E. DEVELOPER proposes the development of the Property with a 400,000 square foot office/industrial park (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. 2-97), Land Use and Development Plan (Res. No. 3-97), tentative parcel map (Res. of Comm. Dev. Dir. No. 2-97), and site development review (collectively, together with any approvals or pennits now or hereafter issued with respect to the Project, the "Project Approvals"); and G. Development of the Property by DEVELOPER may be subject to Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 1 of 17 March 6, 1997 '1 certain future discretionary approvals including site development review, which, if granted, shall automatically become part of the Project Approvals as each such e approval becomes effective; and H. CITY desires the timely, effident, orderly and proper development of said Project; and 1. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.12; and J. CITY and DEVELOPER have reached agreement and desire to eA'Press herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein; and K. Pursuant to the California Environmental Quality Act (CEQA) the City prepared a Mitigated Negative Declaration for the Project and found that the Mitigated Negative Declaration was adequate for this Agreement; and 1. On [ date], the City Council of the City of Dublin adopted Ordinance No. _ approving this Development Agreement. The ordinance took effect on [date]. :. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPER agree as follows: AGREEMENT 1. Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property in that it owns the Property in fee simple. Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 2 of 17 March 6. 1997 :-e It . . . 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by CITY and DEVELOPER and that the DEVELOPER is not an agent of CITY. The CITY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY and DEVELOPER joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is recorded in the Office of the Alameda County Recorder. 4.2 Term. The term of this Development Agreement shall commence on the effective date and extend ten (10) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Property. 5.1 Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisio.ns 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. 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 3 of 17 March 6, 1997 II 5.3.1 Subsequent Discretionary Approvals. .._ ... Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin.) Not Applicable 5.3.2 Mitigation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmental impacts of the Project or otherwise relating to development of the Project. See Exhibit B 5.3.3 Phasing. Timing. Provisions that the Project be constructed in specified phases, that construction shall 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. Terms relating to payment of fees or dedication of property. See Exhibit B 5.3.6 Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B 5.3.7 Miscellaneous. Miscellaneous terms. See Exhibit B Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 4 of 1 7 March 6, 1997 .. II).. . . . 6. Applicable Rules. RegJIlations and Official Policies. 6.1 Rules re Permitted Uses. 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 proposed buildings shall be those in force and effect on the effective date of this Agreement. 6.2 Rules re DesiVl and Construction. Unless otherwise e.>..-pressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable 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 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, 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. Subsequently Enacted Rules and Regulations. 7.1 New Rules and Re[Ulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 5 of 1 7 March 6, 1997 l~ 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 e:>..-pressly set forth herein. 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of CITY, by initiative, referendum, or otherwise, that imposes a building moratorium which affects the Project on all or any part of the Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code S 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. 2-97, Resolution No. 3-97 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. 2-97, Resolution No. 3-97 and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. By so agreeing, DEVELOPER does not waive its rights to challenge the legality of any such application, processing and/or inspection fees. , ~ Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 6 of 17 March 6, 1997 '. ,:::e.. :_.~_.::. '"0' ..: ~.. . .' , . " .:':: .- - , . , , , . . - , - . . .. .. .. ".-. -:: "." ". - - ". ,,: ~'. ~t~: .' .: .- 8.3 New Taxes. Any subsequently enacted dty-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 XlIID 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 amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.12. 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Dublin Ordinance No. 8-91. 9.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "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; (f) the maximum height or size of proposed Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 7 of 17 March 6. 1997 /'3 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. CITIs 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 ofland; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) 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 amendment of the Project Approval. Any other amendment 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 pan only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.12. 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. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be March IS, 1998 and each March IS thereafter. 11.2 Initiation of Review. The CITYs Community Development Director shall initiate the annual review, as required under Section 8.12.140 of Chapter 8.12, by giving to DEVELOPER thirty (30) days' Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 8 of 17 March 6, 1997 ::. I~ .- . . e. written notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least three (3) days prior to any annual review. 11.4 CQ.ill.. 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, eA-pressly induding the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damages Against CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 9 of 17 March 6, 1997 17 13. Estoppel Certificate. Either party may, at any time, and from time to time, request '\vritten notice from the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (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) 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 such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mortgagee Protection: Certain 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"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obligated. 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. Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 10 of 17 March 6, 1997 If ~. . .... ... ," . 0"' -:. . '. ~'.' .. . .-:.- -- - - - - . - -- ..' - ," - . . . . .-, . "-. .-. . .--..-,. '. ....... 14.3. Notic~ of Default to Mortgagee and Extension of Right to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereunder and specifying the address for service thereof, then CITY shall deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that DEVELOPER has committed an event of defauIt.Each Mortgagee shall have the right dm1ng 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 CITIs notice. CITY, through its City Manager, may extend the thirty-day cure period providedin paragraph 12.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee. 15. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attornevs' 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 Proj ect Approvals, the parties shall, coopera te in defending such action. DEVELOPER shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse CITY for all reasonable court costs and attorneys' fees expended by CITY in defense of any such action or other proceeding. 17. Transfers and Assignments. '17.1 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 rights, interests and obligations hereunder shall occur without the Dublin/Alameda Development Agreement for Santa Rita Business Center Project . Page 11 of 17 March 6, 1997 1'1 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 af:ter DEVELOPER's notice. .. 17.2 Release Upon Transfer. Upon the transfer, sale,' or, assignment of all of DEVELOPER's rights, interests and obligatioIls h~rell!':~eJ:,' , - pursuanttb-stibparagraph 17.1 of this Agreement,T)EvELOPER shall be released from the obligations under this Agreement, with respect to the Property ,transferred, sold, or assigned, arising subsequent to the ~ate .of City Manager approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or . assignee approved by the City Manager eA'Pressly 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 ~ocuments, 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 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 .tlien" 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. 17.4 Permitted Transfer. Purchase or Assignment. 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. " Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 12 of 1 7 March 6, 1997 ... .." . :.:..:::.:.:.:~ : '-.'. 9-0 . . . 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, represeritatives, 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. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, 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). Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 13 of 17 March 6, 1997 ~/ 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 term of this Agreement DEVELOPER shall maintain Worker's Compensation insurance for all persons employed by DEVELOPER for work at the Project site. DEVELOPER shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to City Council approval of this 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 and each contractor and subcontractor perfonning work on the Project. 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 and delivered in person or sent by certified mail, postage prepaid. Notices Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 14 of 17 March 6, 1997 ~,.. . '.'- .-, .. :. . .' . required to be given to CITY shall be addressed as follows: City Manager City of Dublin P.O. Box 2340 Dublin, CA 94568 Notices required to be given to DEVELOPER shall be addressed as follows: Patrick Cashman Project Director Surplus Property Authority of Alameda County 225 W. Winton Avenue, Room 151 Hayward, CA. 94544 and Adolph Martinelli Director of Planning County of Alameda 399 Elmhurst Street Hayward, CA. 94544 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the eA-piration of 48 hours after being deposited in the United States Mail. 24. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 15 of 17 March 6. 1997 ~?; 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 VVITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN: By: Mayor Date: APPROVED AS TO FORM: ATTEST: City Attorney City Clerk ~L{ Dublin/Alameda Development Agreement for Santa Rita Business Center Project Page 16 of 17 March 6, 1997 . .~. ,: "-.'- - . - , . - . . , - . .. e: Surplus Property Authority of Alameda County: e. , Date: Adolph Martinelli Its Manager APPROVED AS TO FORM: Attorney for Surplus Property Authority of the County of Alameda EHS:rja J :\WPD\MNRSW\114\AGREE\86\OPUSAGR.306 (NOTARIZATION ATTACHED) Dublin/Alameda Development Agreement for Santa Rita Business Center Project J..5 Page 17 of 17 March 6, 1997 Brian Kangas Foulk Engineers · Surveyors · Planners . BKF Project No. 940158-14 February 4, 1997 PROPOSED PARCEL ONE PARCEL MAP 7042 All that real property situate in the City of Dublin, County of Alameda, State of California, being a portion of Parcel I as said parcel is described in the Quitclaim Deed recorded July 1 I, 1969, in Reel 2439 at Image 213, Official Records of Alameda County, and described as follows; COMMENCING at a found monument box 'V.~th brass disk stamped "Ala. Co. RS 385 27 1969" as said monument is shown on that certain map entitled "P AReEL MAP 6879" filed on November 4, 1996 in Book 225 of Parcel Maps at Pages 67 through 75, inclusive, Alameda County Records; THENCE southerly along the monument line of Arnold Road (formerly known as Oxsen Road and SebiUe Road) as said monument line is shown on said map South 01023' 35" West 364.83 feet; '. THENCE leaving said monument line of Arnold Road South 880 36' 25" East 80.00 feet to a point on a line that is parallel with and distant 80.00 feet easterly, measured at right angles, from said monument line to the TRUE POINT OF BEGINNING of this description; THENCE northerly along said parallel line North 01023' 35" East 731.83 feet; THENCE leaving said parallel line North 460 35' 00" East 39.73 feet to a point on a line that is parallel with and distant 75.00 feet southerly, measured at right angles, from the monument line of Gleason Road (formerly known as 7th Street) as said monument line is shown on that certain "RECORD OF SURVEY" filed on November 19, 1992, in Book 16 of Records of Survey at Page 22, Alameda County Records; TIffiNCE easterly along said parallel line South 880 13' 36" East 1099.71 feet; THENCE leaving said parallel line South 01046' 24" West 9.00 feet to a point on a line that is parallel with and distant 84.00 feet southerly, measured at right angles, from said monument line of Gleason Road; Exhibit "A" Page 1 of2 ~. -- d-~ .- BKF Job No. 940158-14 February 4, 1997 PROPOSED PARCEL ONE THENCE easterly along said parallel line South 880 13' 36" East 260.00 feet; THENCE leaving said parallel line South 430 30' 52" East 39.40 feet to a point on a line that is parallel with and distant 51.00 feet westerly, measured at right angles, from the northerly prolongation of the monument line of Hacienda Drive as said monwnent line is shown on that certain - map entitled "RECORD OF SURVEY NO. 1299" filed on June 2,1995, in Book 19 of Records of Survey at Pages 55 through 58, inclusive, Alameda County Records; THENCE southerly along said parallel line South 010 II' 51" West 723.32 feet to a point on a line that is parallel with and distant 835.00 feet southerly, measured at right angles, from said monument line of Gleason Road; THENCE westerly along said parallel line North 880 13' 36" West 1418.12 feet to the TRUE POINT OF BEGINNING. e. Containing an area of 1,073,412 square feet or 24.642 acres, more or less. This description was prepared by the undersigned in conformance .with the Land Surveyor's Act and shall not be used in any conveyance which may violate the Subdivision Map Act of the State of California or local ordinances. By: fJ~1JL?:tfff,S2 Paul Kittredge,P.L.S; .5790 License Expires: 06/30/00 Dated: 2.-/11 /1]7 k:\survey\940 158.50\Jegals\parcel1.mlm .., Exhibit "A" Page 2 of2 ~1 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparagraph 5.3. I -- Subsequent Discretionary Approvals Not applicable. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Sequencing Program The Infrastructure Sequendng Program for the Project is set forth below. Off site improvements are depicted in Exhibit C. (i) Roads A. Improvements to be Constructed Prior to Certificate of -Occupancy Prior to issuance of the first Certificate of Occupancy for any building which is part of the Project, the project-specific roadway improvements (and offers of dedication) identified in this Agreement and in the Traffic Study for the Santa Rita Business Center, dated September 9, 1996 prepared for the City of Dublin by TJKM Transportation Consultants, which are described below shall be completed by DEVELOPER to the satisfaction of the Public Works Director. 1. Hacienda Drive Between Gleason Drive and the North Section of Dublin Boulevard Hadenda Drive shall be eA1:ended from Dublin Boulevard to Gleason Drive. The roadway segment shall consist of one southbonnd and one northbound 12-foot lane with an 8-foot emergency parkinglbike lane on each side. The northbonnd and southbound lanes shall be separated with a median. This work shall accommodate future v.ridening. In addition, right-turn and left-turn lanes Exhibit B Opus Development Agreement Page I of 15 February 3, 1997 J,f '. . .'- :. . ... ..- ,.' -.e.- , ,- :-.;.,_. :. . t-. . . ". . , , .: ~ . . '. .-- ".. ." ". . '. - ~ . are required. The locations will be determined by the Public Vv orks Director. .!\long the Project frontage a 6-foot concrete sidewalk in a 12-foot landscaped parkway area shall be constructed at its ultimate location. Adequate pedestrian access shall be provided between the Project and Central Parkway EA'tension. 2. Gleason Drive Between Western and Eastern Edges of Project Gleason Drive is currently a 2-lane roadway lying along the northern boundary of the Property. A portion of the ultimate southern half of the street shall be constructed along the Project boundary, consisting generally of one 12-foot travel lane, one 8-foot emergency parkinglbike lane, and a 12-foot .wide landscaped parkway area including a 6-foot wide sidewalk. A left-tum pocket may be constructed for westbound traffic "i\'ith the approval of the Public \^l arks Director. The location of the left-turn pocket shall be approximately equidistant from Hacienda Drive and Arnold Road. 3. Arnold Road Between Gleason Drive and Southerly Property Line Arnold Road shall be relocated parallel and directly to the east of the existing Arnold Road along the Project frontage. It shall be constructed to a 44-foot roadway with curb and gutter. The existing roadway shall be removed and converted to a drainage channel. DEVELOPER shall dedicate a 11 a-foot right-of-way to the City, to include 30 feet within Camp Parks for a road and drainage easement. The roadway and drainage channel improvements shall be transitioned to match the existing facilities. Along the Project frontage a 6-foot concrete sidewalk in a 12-foot landscaped parkway area shall be constructed at its ultimate location. Exhibit B Opus Development Agreement Page 2 of 15 February 3, 1997 ;..9 4. Intersection Improvements a) Hacienda Drive at Gleason Drive: .-. Northbound Hacienda south of Gleason Drive shall be vlidened to one 12-foot right-turn and one 12-foot left-turn lane and one 5 foot bike lane. Eastbound Gleason Boulevard west of Hacienda Drive shall be 'widened to one 12 foot through lane, one 12-foot right-turn lane and one 5 foot bike lane. b) Hacienda Drive at Dublin Boulevard (Central Parkwav Extension): Southbound. Hacienda Drive north of the Central Park\vay E),:tension shall be widened to one 12-foot right-turn lane, one 12- foot through lane, and (at the option of DEVELOPER and with consent of CIITs Public Works Director) one 12-foot left-turn lane. In addition, a 5-foot bike lane shall be provided. Northbound Hacienda Drive south of the Central Parkway EA'tension shall be widened to one 12-foot northbonnd left-turn lane, one 12-foot northbound through lane, and one 8-foot northbound emergency parking laneJbike lane. ... . ." Eastbound Central Parkway EA'tension west of Hacienda Drive shall be widened to one 17-foot eastbound right-turn lane, one 12- foot eastboun9.left-turn lane, and (at the option of DEVELOPER with consent of . CITY's Public Vv arks Director) one 12- foot futme eastbound through lane. c) Hacienda Drive at Dublin Boulevard: Southbound Hacienda Drive north of Dublin Boulevard shall be widened to one 10-foot left-turn lane, one futme 10-foot left turn lane (at the option of DEVELOPER and 'with consent of crnns Public Works Director), two 12-foot through lanes, and an 8-foot emergency parkinglbike lane. Exhibit B Opus Development Agreement .'- . :, -,. . 3D Page 3 of 15 February 3, 1997 t;" !".- . .' d) Transitions . DEVELOPER shall be responsible for transitioning existing improvements to match improvements required by this Agreement including dedications, to the satisfaction of the CIITs Public Vv orks Director. B. Traffic Signals at the Projects Entrances Traffic signals are not currently warranted at the Project entrances along the southerly Property boundary and both Arnold Road and Hacienda Drive on the parcel map; however, such signals may be 'ii\Tarranted in the future. Prior to issuance of the first building permit for the Project, DEVELOPER shall dedicate additional rights-of-way or easements to CITY to accommodate future signals at the main Project entrances along the southerly Property boundary and both Arnold Road and Hacienda Drive. . "Vhen traffic signal warrants require a traffic signal at the southerly Property boundary and Arnold Road ("Arnold Signal") and/or at the southerly Property boundary and Hacienda Drive ("Hacienda Signal"), DEVELOPER agrees that it, and its successors in interest to both the Property and DEVELOPER's property surrounding the Property, will contribute to cm one-half of the cost of the Arnold Signal and one-quarter of the cost of the Hacienda Signal and will not protest or contest we inclusion of the Project's share of such signals as a condition of approval of a project for adjacent property which also contributes to the need for such signals. This paragraph shall survive termination of this Development Agreement. C. Improvements Needed at Time of Development of Other Projects 1. Tassajara Road/Gleason Drive The Public Works Director shall determine when a traffic signal at Tassajara and Gleason Drive is required. Vvithin one year of written notification from the Public Works Director, DEVELOPER shall design and install the signal to the satisfaction of the Public Works Director. To the e.A'tent practical . the notice shall be timed so that the work shall be completed immediately prior to Exhibit B Opus Development Agreement Page 4 of 15 February 3. 1997 31 the need for the signal, based on traffic signal warrants. 2. Dublin Boulevard. benveen Hacienda Drive and BART Station The Public \V orks Director shall determine when a 4-lane road is required between Hacienda and the BART Station. Vlithin one year of written notification from the Public Works Director, and provided that the Surplus Property Authority of Alameda County has obtained title to the required right-of- way, the DEVELOPER shall design and construct the 4-lane road to the satisfaction of the Public 'Vorles Director. To the extent practical, the notice shall be timed so that the work shall be completed irrunediately prior to the need for the improvements, based on Average Daily Traffic (ADT) warrants. D. Miscellaneous The obligation of subsection C (l) to (2) above shall be of no force or effect until DEVELOPER pulls the first building permit for the Project. . Once effective, such obligation shall survive termination of this Agreement. Prior to issuance of the first building pemut for the Project, DEVELOPER shall provide CITY .with security for the costs of design and construction of the improvements described in subparagraph C (1) and (2) above in an amount satisfactory to the Public Works 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(l) and (2) to contribute such future project's share of the cost of the improvement, provided the improvements are not constructed by DEVELOPER prior to the approval of such future projects. (ii) Sewer The Dublin San Ramon Services District has prepared a report ("Eastern Dublin Facilities Plan Final Report" dated December, 1993, prepared by G. Exhibit B Opus Development Agreement Page 5 of 15 February 3, 1997 3)- ._-c--~... .. . .' ... .:.': - . . -.-. - . .". i~: , I .. . .' ........ S. Dodson &Associates [the "DSRSD Report"]) which determines the sizes and approximate locations of pipelines to provide potable ,\'ater facilities, wastewater collection facilities and recycled water facilities within the Eastern Dublin area at ultimate build-out. All references hereinafter to the DSRSD Report shall be to the report as it is 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 issuance of the first building pem1it for the Project, all sanitary sewer improvements to serve all building sites in the Project (or any recorded phase of me Project) shall be complete to the satisfaction and requirements of the Dublin San RaInon Services District. (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 or its successor. Prior to issuance of the first building permit for the Project, all potable water system components to serve all building sites in the Project (or any recorded phase of the Project) shall be complete and in vmrking order to the satisfaction and requirements of the Dublin San Ramon Services District. Prior to occupancy of any portion of the Project, recycled water lines shall be installed on site and within adjacent roadways to me satisfaction and requirements of me Dublin San Ramon Services District consistent with the DSRSD policy for recycled water and all recycled water connection fees shall be paid. (iv) Storm Drainage The City has a master drainage plan (the "Drainage Plan") which shall be used as a guideline to determine drainage facility requirements. 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 ocrupied shall be complete to the satisfaction . and requirements of the Dublin Public Works Department applying CITY's and Zone . A_.'. Exhibit B Opus Development Agreement Page 6 of 15 February 3, 1997 5..3 7 (Alameda COlUlty Flood Con~ol and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the pennit 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'wnstr~arn facilities and properties from erosion and lUldean storm water consistent "\-\rith the Drainage Plan. (v) Other Utilities (e.g. gas, electricity) Construction shall be complete prior to issuance of the first Cenificate of Occupancy for any building which is part of the Project. Subsection b. Miscellaneous (i) Completion May be Deferred. Notwithstanding the foregoing, CITIs Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow DEVELOPER to defer completion of discrete portions of any of the above public improvements lUltil after final inspection of the first building permit for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. (ii) Improvement Agreement Prior to constructing the Improvements described in Subparagraph 5.3.2(a)(i) and (iv) above (roads and storm drainage), DEVELOPER shall submit plans and specifications to CfITs Public Works Director for review and approval and shall enter into an Improvement Agreement with CITI for construction and dedication of the public facilities. All such improvements shall be constructed in accordance with City's standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements, and to the satisfaction of the Public Works Department. (iii) Bonds Prior to execution of the Improvement Agreement, DEVELOPER shall provide a performance bond and labor and materials bond or other adequate 3'1 Exhibit B Opus Development Agreem~nt Page 7 of 15 February 3, 1997 -..::--. .. ......: . . .. - . .. - . . . " +. -, -' .... . .-. . . .>- . . .', .- . -. ...-. ". .. .' . . . . . . -:: . . ' - .- . ," , . . .-. ' . .. . ~. - . ~. . -.--'. -.-: .. .. >1- . .. :. ".- -:. . .' .-:; . " . . '7~ _.-.~- .;:-i:~ ':,'.~ security to insure that the Improvements described in Subparagraph 5.3.2(a)(i) and (iv) above will be constructed prior to issuance of the first Certificate of Occupancy for any building which is part of the Project. The performance bond or other security shall be in an amount equal to 100% of the engineer's estimate of the cost to construct the improvements (including design, engineering, administration, and inspection) and the labor and materials bond shall be in an amount equal to 50% of the engineer's estimate. The bonds shall be 'written by a surety licensed to conduct business in the State of California and approved by CITYs City Manager. (iv) Right to Construct Additional Road Improvements With the prior written consent of CITYs Public Vvorks Director, DEVELOPER may construct roadway improvements "\lvhich 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. If the DEVELOPER proposes to eA""tend Arnold Road to Dublin Boulevard, the intersection of Dublin Boulevard and Arnold Road shall be widened to accommodate right and left turn lanes from Dublin Boulevard to Arnold Drive. DEVELOPER shall be required to enter into an Improvement Agreement and 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 This Agreement contains no requirements that DEVELOPER must initiate or complete development of the Project or any phase of the Project within any period of time set by CITY. It is the intention of this provision that DEVELOPER be able to develop the Property in accordance vvith its OVVIl time schedules. The conditions contained in this Exhibit B shall become applicable at the time set forth herein once DEVELOPER initiates the Project. Subparagraph 5.3.4 ~- Financing Plan Except as provided in Subparagraph 5.3.2(b)(i) (Completion May Be Deferred), DEVELOPER will provide all infrastructure described in Subparagraph 5.3.2(a)(i)(A) prior to issuance of the first Certificate of Occupancy for the Project. Exhibit B Opus Development Agreement Page 8 of 15 February 3, 1997 DEVELOPER intends to install all road improvements necessary for the Project at its own cost (subject to credit for any Traffic Impact Fees as provided in ... ._ ;~_ Subparagraph 5.3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled Vi'ater services to the Project will be made available by the Dublin San Ramon Services District. DEVELOPER has entered into an "Area \"Vide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of eA"te~ding such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Subparagraph 5.3.5 -- Fees, Dedications 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. In applying the provisions of Resolution No. 41-96, establishing the Traffic Impact Fee for Eastern Dublin, and any amendments thereto, to the Project the amount of the traffic impact fee shall be based on the actual use of each builqing for which a building pemut is requested. If such use is not known at the time of issuance of the building permit, the amount of such fees shall be based on "industrial" and shall be adjusted (by increase or decrease) at time of Certificate of Occupancy if the actual use is knOWIl. '-:. DEVELOPER and CITY acknowledge that DEVELOPER is entitled to certain credits (" 1991 Credits") against payment of the Traffic Impact Fee for Eastern Dublin by separate agreements previously entered into between DEVELOPER and eln in 1991. DEVELOPER agrees that, notwithstanding its entitlement to such 1991 Credits, it will not apply its 1991 Credits against payment of the "Section 2" and "Section 3" portion of the Traffic Impact Fee for Eastern Dublin but will, rather, pay such fees in cash. DEVELOPER further agrees that it will use the 1991 Credits against one-half (Ih) of the "Section I" portion of the Traffic Impact Fee for Eastern Dublin. CITY shall determine which of the 1991 Credits shall be used pursuant to this paragraph. Exhibit B Opus Development Agreement Page 9 of 15 February 3, 1997 ;'-:.' -,. -'. 310 . .:- .. . ....- e--: .0"' . . .- - ~'. r. ;7 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 if such Fee is effective at the time of issuance of any building permits for the Project. DEVELOPER shall be released from its obligation, as set forth in the preceding sentence, if a lawsuit is filed challenging the Project approvals, this 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 applying the provisions of Resolution No. 11-96, establishing the Eastern Dublin 1-580 Interchange Fee, and any amendments thereto to the Project, the amount of the traffic impact fee shall be based on the actual use of each building for vi'hich a building pennit is requested. If such use is not known at the time of issuance of the building permit, the amount of such fees shall be based on "industrial" and shall be adjusted (by increase or decrease) at time of Certificate of Occupancy if the actual use is kno'wn. Subsection c. Public Facilities Fees. DEVELOPER shall pay a Public Facilities Fee in the amounts and at the times set forth in City of Dublin Resolution No. 32-96, adopted by the City Council on March 26, 1996, or in the amounts and at the times set fonh in any resolution revising the amount of the Public Facilities Fee. In applying the provisions of Resolution No. 32-96, establishing the Public Facilities Fee, and any amendments thereto to the Project, the amount of the Public Facilities Fee shall be based on the actual use of each building for which a building permit is requested. If such use is not known at the time of issuance of the building permit, the amount of such fees shall be based on an "industrial" use and shall be adjusted (by increase or decrease) at time of Certificate of Occupancy. Subsection d. Noise Mitigation Fee. DEVELOPER shall pay a Noise Mitigation Fee in the amounts and at the times set forth in City of Dublin Resolution No. 33-96, adopted by the City Council on March 26, 1996. Exhibit B Opus Development Agreement Page 10 of 15 February 3, 1997 1'1,. .. t~ Subsection e. School Impact Fees and Fire Impact Fees. School impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080. .:, Any fire capital impact fees shall be paid by DEVELOPER in accordance with applicable requirements of the Dougherty Regional Fire Authority (DRFA) if the fee is imposed prior to July 1, 1997, or in accordance with applicable requirements of the CITY if the fee is imposed on July 1, 1997 or following. Such fees shall be deemed to be "imposed" .when the tentative map is approved. "Applicable requirements" include both the amount of the fee and the timing of payment of the fee, provided however that if the amount of the fee would be more under the applicable requirements of CITY then DEVELOPER shall pay the fee based on CITY's requirements even if the fee is imposed by DRFA prior to July 1, 1997. Subsection f. Regional Transportation Impact Fee. In the event that the Tri-Valley Transportation Conncil recommends and the City Council adopts a Regional Transportation Impact Fee to pay for regional transportation improvements in the Tri-Valley area, DEVELOPER virill pay any such fee in effect at the time of issuance of any building pemuts for the Project. By so agreeing, DEVELOPER does not waive its rights to challenge the legality of any such fee. ::e ... .." .... . Subsection g. Specific Plan Implementation Fee Prior to approval of its parcel map, DEVELOPER shall pay a "Specific Plan Implementation Fee". The amount of the fee shall be the Project's pro rata share on an acreage basis of CIITs then current costs for implementation of the Specific Plan and the mitigation measures of the final Environmental Impact Report for the Specific Plan. .'- :,.. Subsection h. Dedications .:. .. DEVELOPER agrees to dedicate the following property required for roadway improvements to CITY in fee simple and both the land and groundwater shall be free of hazardous substances: .... 1. Four lanes, median and landscaped parkway of Hacienda Drive from .-e, - - , - . .. . - - 3tJ" Exhibit B Opus Development Agreement Page 11 of 15 February 3, 1997 ........ - . . ,- ...~ ,- IE- .. . . .". .. . 31 Dublin Boulevard to Gleason Drive. 2. Four lanes, median and landscaped park.""'\vay of Gleason Drive from Arnold Road to Hacienda Drive. 3. Four lanes, median and landscaped parkway of Arnold Road from Gleason Drive to the southerly property line of the Property. 4. Any additional right of way necessary to construct the intersection improvements and transitions listed in Subparagraph 5.3 .2a(i) (A)( 4) above. Subparagraph 5.3.6 -- Reimbursement/Credit Subsection a. Traffic Impact Fees/Credit CITY shall provide a credit to DEVELOPER for the improvements described in Subparagraph 5.3.2, subsection (a)(i)(C)(l)-(2) (Tassajara Road/Gleason Drive; Dublin Boulevard between Hacienda Drive and BART Station) and 12 feet of roadway improvements along Arnold Road described in Subparagraph 5.3.2, Subsection (a)(i)(A)(3), 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. The amount of the credit to be given shall be deternuned by CIITS Public Vvorks Director at the time of payment of the Eastern Dublin Traffic Impact Fee 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 amoW1t of the credit. The credit shall be applied against the "Section I" portion of the traffic impact fees required to be paid pursuant to Subsection (a) of Subparagraph 5.3.5. Subsection b. Right-of-Way Dedications/Credits CITY shall provide a credit to DEVELOPER for the following TIF area right- 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: Exhibit B Opus Development Agreement Page 12 of 15 February 3, 1997 t./D .' L Tv,ro lanes, median and parkways of Hacienda Drive from Dublin Boulevard to Gleason Drive (112 feet maximum total). :. 2. Two lanes, median and park.'\vays of Gleason Drive from Arnold Road to Hacienda Drive (102 feet total). 3. Two lanes, median, parkv...'ays and drainage channel of Arnold Road from Gleason Drive to the southerly property line of the Property (80 foot street right-of-way and DEVELOPER'S easement interest in 30 feet of additional right-of-way adjacent to Anny lands). The amount of the credit to be given shall be determined by CIITs Public ',Vorks Director at the time of payment of the Eastern Dublin Traffic Impact Fee using the right-of-way values used by CITY in calculating and establishing the Traffic Impact Fee. The amount of the credit, once established, shall not be increased for inflation nor shall interest acaue on the amount of the credit. The credit shall be applied against the "Section I" portion of the traffic impact fees required to be paid pursuant to Subsection (a) of Subparagraph 5.3.5. :....:::- . . . - . ".'.-. .," Subsection c. Use of Excess Credits In the event that credits referred to in Subsections (a) and (b) of this Subparagraph 5.3.6 (TIF Credit for Tassajara Road/Gleason, Dublin Boulevard between Hacienda Drive and BART station, and 12 feet of improvements along Arnold Road; and credit for right-of-way) are in excess of the amount of credits which can be applied against the traffic impact fee payable pursuant to Subsection (a) of Subparagraph 5.3.5 (Le., one-half of the "Section I" portion of the Traffic Impact 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. Subsection 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: - '." -e. o - . - '" Exhibit B Opus Development Agreement Page 13 of 15 February 3, 1997 .:.' f: . e. "+. -. .-". .-,.. '.' -. . Traffic Impact Fee Section 1 Section 2 Section 3 $1,500,000 $ 450,000 $ 192,850 Total: $ 2,142,850 Credit for Construction of Improvements and Dedication of Right-of-Way TIF Credits for Construction (Exhibit B, ~5.3.6(a)) $ 100,000 Right-of-Way credit (Exhibit B, ~5.3.6(b)) $1,300,000 Total: $1,400,000 Payment of Traffic Impact Fees Section 1 $750,000 paid by use of prior credit from Roadway Agreement (" 1991 credits") $750,000 paid by use of new credit for right-of-way dedicated and road improvements construction as part of project Section 2 $450,000 cash Section 3 $192,850 cash "Excess Credits" if any (Exhibit B, ~5.3.6 (c)) $650,000 ~I Exhibit B Opus Development Agreement Page 14 of 15 February 3, 1997 _ . . 4 '''''''-''-'- Subparagraph 5.3.7 -- Miscellaneous Subsection a. Landscaping Maintenance Along Streets and Creek CITY has fOffi1ed a landscape maintenance district known as the "Landscape :Maintenance Assessment District No. 97-1 (Santa Rita 1\rea) " 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 screet and creek landscaping. 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