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HomeMy WebLinkAbout00-015 CommerceOneDA01-23-2001 AGENDA STATEMENT PLANNING COMMISSION MEETING DATE: January 23, 2001 SUBJECT: PUBLIC HEARING PA 00-015 Commerce One Development Agreement (Report Prepared by: Eddic Peabody, Jr., Community Development Director) ATTACHMENTS: Draft Resolution recommending that the City Council adopt an Ordinance approving a Development Agreement between Commerce One, Alameda County Surplus Property Authority and the City of Dublin with the Development Agreement attached as Exhibit A. RECOMMENDATION: 2. 3. 4. 5. 6. Hear Staff Presentation Open Public Hearing Hear Applicant's Presentation Question Staff, Applicant and the Public Close Public Hearing and Deliberate Adopt Resolution (Attachment 1) recommending City Council adopt an Ordinance approving a Development Agreement between Commerce One, Alameda County Surplus Property Authority and the City of Dublin PROJECT DESCRIPTION: An Ordinance approving a Development Agreement between Commerce One, Alameda County Surplus Property Authority and the City of Dublin is required by the Eastern Dublin Specific Plan. Items in the Development Agreement include, but are not limited to, the financing and timing of infrastructure; payment of traffic, noise and public facilities impact fees; overs[zing of roads and general provisions. BACKGROUND Commerce One is proposing an office building complex to be located on a 27.4 acre site located at the East/West Connector and Hacienda Drive, Interstate 580 and Arnold Road within the Eastern Dublin Specific Plan area. The Specific Plan was adopted by the City of Dublin in January of 1994, for the purpose of guiding future growth in the eastern portions of the City and established land use designations for approximately 3,300 acres of land east of the Camp Parks Military Reserve. The project site was given a land use designation of"Campus Office" in the Specific Plan. The property is located in an area previously know as the Santa Rita Property, a 600-acre property declared surplus by Alameda County. This area is currently being developed with a mix of retail, commercial, office and residential uses. ITEMNO. ~ t COPIES TO: The Applicant The Property Owner PA file The Planning Commission, on December 12, 2000 approved a Site Development Review Permit, and recommended City Council approve a Planned Development Rezone for the project. The City Council introduced a Planned Development Ordinance for their site on January 16, 2001. ANALYSIS One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into Development Agreements with developers in the plan area. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project for a specified period of time. Additionally, it is a mechanism for the City to obtain commitments from the developer that the City might not otherwise be able to obtain. The Development Agreement is one means the City has to assure that the Specific Plan goal, that new development fund the costs of infrastructure and service, is met. The proposed Development Agreement between Commerce One, Alameda County Surplus Property Authority and the City of Dublin is Exhibit A of Attachment 1 to this staff report. The Development Agreement is based on the standard Development Agreement developed by the City Attorney and adopted by the City Council for Eastern Dublin Projects. An additional three years (eight years total) has been agreed upon by the various parties. Commerce One wishes to have a longer time to complete the project under the terms of the Development Agreement. In general, the Agreements reflect what has been determined to be the infrastructure needs for the specific project. These needs are determined based on submittal of engineering studies and plans. City procedure requires that there be three public hearings on Development Agreements. The purpose for the hearing before the Planning Commission is to recommend approval of the Development Agreement to the City Council. The Agreement: The City Attorney drafted the proposed Development Agreement with input from City Staff, Commerce One and Alameda County Surplus Property Authority Staffand 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 of eight years fi'om 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 fonnd in Exhibit A of Attachment 1, Development Agreement and are highlighted below: Infrastructure Construction and Traffic Impact Fees: The City requires that Developers in Eastern Dublin pay traffic impact fees for certain City wide improvements to the circulation system. Additionally, fees are charged for certain circulation improvements specific to Eastern Dublin. The City determines the direct project impact through a traffic study that has been conducted for the development. The Developer is required to make certain improvements to the circulation system including improvements to Tassajara Road that are required as a result of their project. The Development Agreement also addresses the County's responsibility for funding their fair share of certain major circulation improvements required by the development of Eastern Dublin and the project. Refer to Exhibit B of the Development Agreement (Exhibit A of Attachment I). Other Fees and Funding Requirements: The Development Agreement also addresses the payment of the Public Facilities Fee, Noise Mitigation Fee, School Fees, Fire Impact Fees and the Tri-Valley Transportation Development Impact Fee as well 2 as a yearly comribution to the City for the extension of the Developmem Agreement to eight years. Public Facilities: The Development Agreement also addresses the dedication of approximately 4 acres of land to the City of Dublin for a future phase of Emerald Glen Park. Other Infrastructure Improvements: The Development Agreement also provides for the construction of certain other improvements to serve the project site such as off-site sewer, water, storm drainage and other utility services as required by the tentative parcel map approval. CONCLUSIONS Approval of this Development Agreement will implement provisions of the Eastern Dublin Specific Plan. The proposal is consistent with both the General Plan and the Specific Plan. RECOMMENDATION: Staffrecommends the Planning Commission open the Public Hearing, deliberate and Adopt Resolution (Attachment 1) recommending City Council adopt an Ordinance approving a Development Agreement between Commerce One, Alameda County Surplus Property Authority and the City of Dublin. GENERAL INFORMATION: PROPERTY OWNER: APPLICANT: LOCATION: EXISTING ZONING: GENERAL PLAN DESIGNATION: Alameda County Surplus Property Authority 224 West Winton Avenue, Room 151 Hayward, CA 94544 Brian Griggs Commerce One 4400 Rosewood Drive Pleasantun, CA 94566 The EasffWest Connector and Hacienda Drive, Interstate 580 and Arnold Road. Campus Office Campus Office 4 RESOLUTION NO. 00 - A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT A DEVELOPMENT AGREEMENT FOR PA 00-015 COMMERCE ONE HEADQUARTERS WHEREAS, the Alameda County Surplus property Authority, the property owner, and Commcree One, the applicant, have requested approval of a Development Agreement for the proposed Commerce One Headquarters facility on 27.4 acre site located at the East/West Connector and Hacienda Drive, Interstate 580 and Arnold Road within the Eastern Dublin Specific Plan area; and WHEREAS, a Development Agreement is required as an implementing measure of the Eastern Dublin Specific Plan; and WHEREAS, this project is within the scope of the Eastern Dublin Specific Plan and General Plan Amendment, for which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration has been prepared for the project because the project will not have environmental effects which were not examined in the Program EIR. No new effects will occur and therefore no revisions to the Program EIR are required. That Mitigated Negative Declaration together with the Program EIR adequately describes the total project for the purposes of CEQA; and WHEREAS, the text of the Draft Development Agreement is attached to this resolution as Exhibit A; and WHEREAS, the Planning Commission did hold a public hearing on said application on January 23, 2001; and WHEREAS, proper notice of said public hearing was given in all respects as required by law; and WHEREAS, the StaffReport was submitted recommending that the Planning Commission recommend that the City Council approve the Development Agreement; and WHEREAS, the Planning Commission did hear and use their independent judgment and considered the Mitigated Negative Declaration, all said reports, recommendations and testimony hereinabove set forth. NOW THEREFORE BE IT RESOLVED THAT THE Dublin Planning Commission does hereby m~lce the following findings and determinations regarding said proposed Developmem Agreement: ATTACHMENT 1 1. Said Agreement is consistent with the objectives, policies, general land uses and programs specified in the Eastern Dublin Specific Plan/General Plan in that, a) the Eastern Dublin Specific Plan/General Plan land use designation for the subject site is proposed to be Campus Office and that the Commerce One project is consistent with that designation; b) the project is consistent with the fiscal policies in relation to provision ofinfxastructure and public services of the City's Eastern Dublin Specific Plan/General Plan; c) the Agreement sets forth the rules the Developer and City will be governed by during the development process which is required by the Eastern Dublin Specific Plan; and the Mitigation Monitoring Program of the Eastern Dublin Specific Plan. 2. Said 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 Rezone and Site Development Review. 3. Said Agreement is in conformity with public convenience, general welfare and good land use practice in that the Commerce One project will implement land use guidelines set forth in the Eastern Dublin Specific Plan/General Plan, as proposed. 4. Said Agreement will not be detrimental to the health, safety and general welfare in that the development will proceed in accordance with the Agreement and any Conditions of Approval for the Project; and 5. Said Agreement will not adversely affect the orderly development of the property or the preservation of property values in that the development will be consistent with the City of Dublin Eastern Dublin Specific Plan/General Plan. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning Commission does hereby recommend that the City Council approve the Development Agreement between the Alameda County Surplus Property Authority, Commerce One and the City of Dublin for PA 00-015, Commerce One Corporate Headquarters facility. PASSED, APPROVED AND ADOPTED this 23~ day of January, 2001. AYES: NOES: ABSENT: Planning Commission Chairperson ATTEST: Community Development Director 2 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 COMMERCE ONE, INC AND THE SURPLUS PROPERTY AUTHORITY OF THE COUNTY OF ALAMEDA FOR THE COMMERCE ONE PROJECT RECEIVED JAN 1. DIJBL~N PLANNING_ EXHIBIT THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin On this th day of June, 2001, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "CITY"), Commerce One, Inc., a Delaware corporation) (hereafter "DEVELOPER") and the Surplus Property Authority of Alameda County, a public corporation (hereafter "COUNTY'3 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 suoh 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 27.44 acres of land, located in the City of Dublin, County of Alameda, State Of California, which is more particularly described in Exhibit A attaehed hereto and incorporated herein by this reference, and which real property is hereafter called the "Property"; and E. DEVELOPER acquired, or will acquire, its interest in the Property from COUNTY pursuant to a purchase and sale agreement which allocates dghts ~nd obligations as between COUNTY and DEVELOPER. COUNTY isa party to this Agreement because COUNTY will dedicate certain land and construct certain improvements that relate to the development of the Property; and F. DEVELOPER proposes the development of the Property for a corporate center, including fOur office buildings, and a commons building and a parking structure (the "Project"); and G. DEVELOPER has applied for, and CITY has appreved or is processing, various land use approvals in connection with the development of the Project, including PD District rezoning (including Stage 1 and 2 Development Plan) (Ordinance No. ), parcel map (Community Development Director Resolution No. __) and Site Development Review (Planning Commission Resolution No. 00- 70), (collectively, together with any approvals or permits now or hereafter issued with Development Agreement Between City of Dublin Page 1 of 17 And Commerce One, Inc. January 12, 2001 respect to the Project, the "Project Approvals"); and H. Development of the Property ,by DEVELOPER may be subject to certain future discretionary approvals, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective; and I. CITY desires the timely, efficient, ordedy and proper development of said Project; and J. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastem Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and K. CITY, COUNTY and DEVELOPER have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein; and L. 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 (SCH 91103064) which was certified by the Council by Resolution No. 51-93, the Addenda dated May 4, 1993, and August 22, 1994 and the Mitigated Negative Declaration for the Santa Rita Specific Plan Amendment (SCH 86082092); and M. On adopted Ordinance No. __ will take effect on ,2001, the City Council of the City of Dublin approving this Development Agreement. The ordinance ,2001. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY, COUNTY and DEVELOPER agree as follows: 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. Development Agreement Between City of Dublin Page 2 of 17 And Commerce One, Inc, January 12, 2001 3. Relationship of CITY; COUNTY and DEVELOPER. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by CITY, COUNTY and DEVELOPER and that neither the DEVELOPER nor COUNTY is an agent of CITY. The CITY, COUNTY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY, COUNTY and DEVELOPER joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date 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. 4.3 Termination Upon Issuance of Certificate of Occupancy. Upon issuance of the final certificate of Occupancy for the Project, this Development Agreement shall terminate with respect to DEVELOPER only. The agreement .shall continue in effect with respect to the COUNTY until terminated pursuant to Section 4.2. 4.4. Optional Extensions_. Prior to the termination of this Development Agreement, as provided in Section 4.2, DEVELOPER may extend the term of the Development Agreement. To do so, DEVELOPER shall give City written notice at least 90 days prior to the termination date of the Development Agreement. At the time DEVELOPER provides such notice, DEVELOPER shall make a confribution to CITY in the amount of One Hundred Thousand Dollars ($100,000), which monies will be used by CITY to reduce the existing Public Facilities Fee deficiency. Upon receipt of the notice and the contribution, the City Manager shall notify the DEVELOPER and the COUNTY that the term of the Development Agreement has been extended for a one- year period. The DEVELOPER may exercise its option to extend the Development Agreement no more than three times, for a maximum total term of the Development Agreement of eight years. The total contribution for the maximum extension of three years will be $300,000. 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 Development Agreement Between City of Dublin Page 3 of 17 And Commerce One, Inc. January 12, 2001 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. 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 and any permits required by regulatory agencies.) · 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 Phasing3, Timin.q. 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 soumes of funding. See Exhibit B 5.3.5 Fees, Dedications. Terms relating to payment of fees or dedication of property. See Exhibit B Development Agreement Between City of Dublin Page 4 of 17 And Commeme One, Inc. January 12, 2001 5.3.6 Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B 5.3.7 Miscellaneous. Miscellaneous terms. See Exhibit B 6. Applicable Rules, Re,qulations 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 Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construCtion standards and specifications applicable to the Project shall be those in force-and effect at the time of the applicable discretionary ProjeCt Approval. In the event of a conflict between such ordinances, resolutions, rules, regulations and official policies and the Project .Approvals, the Project Approvals shall prevail. 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 for the public improvement.~ 6.3 Uniform Codes Applicable. Unless expressly prov'ided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance w'~h 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 and the Project Approvals if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or Development Agreement Between City of Dublin Page 5 of 17 And Commeme One, Inc. January 12, 2001 official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2 Approval of Application. Nothing in this Agreement shall prevent the CITY from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements 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 Approvals 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 the Project Approvals 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 the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. By so agreeing, DEVELOPER does not waive its rights to challenge the legality of any such application, processing and/or inspection fees. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall Development ^gmement Between City of Dublin Page 6 of 17 And Commerce One, Inc. January 12, 2001 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 amendment 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 consej~t of the parties hereto and in accordance with the procedures of State law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding section 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in section 4.2; (b) the permitted uses of the · Property as provided in section 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 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". Development Agreement Between City of Dublin Page 7 of 17 And Commerce One, Inc, January 12, 2001 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 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 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. TerTn of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the parcel map described in Recital G above shall automatically be extended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be August 15, 2002 and each August 15 thereafter. 11.2 Initiation of Review. The CITY's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER twenty (20) days' written notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the headng 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. 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 and shall make every effort to fax copies five (5) days in advance. Development Agreement Between Cibj of Dublin Page 8 of 17 And Commeme One, Inc. January 12, 2001 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 !aw or in equity which are not otherwise provided for in this Agreement or in City's regulations goveming development agreements, expressly including, the remedy of specific performance of this Agreement. 12,2 Notice and Cure. Upon the occurrence of an event of default bY any party, the nondefaulting party shall s6rve written notice of such default upon the defaulting party; If the default is not cured by the defaulting party within twenty.(20)_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. An event of default by COUNTY or DEVELOPER shall not be deemed a default by the other party. 12.3 No Dama.qes A.clainst CITY. In no event shall damages be awarded against CITY upon an event of default or'upon termination of this Agreement. 13. Estoppel Certificate. Any party may, at any time, and fiom time to time, request ~ritten 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 or COUNTY. 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 stateme~nts in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. Development Agreement Between City of Dublin Page 9 of 17 And Commerce One, Inc, January 12, 2001 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 and appear in defending such action. DEVELOPER and COUNTY shall jointly bear their own costs of defense as a real party in interest in any such action, and DEVELOPER and COUNTY shall reimburse CITY on an equal basis for all reasonable court costs and attorneys' fees expended by CITY in defense of any such action or other proceeding unless the action is based on an obligation of either COUNTY or DEVELOPER in which case that party shall be wholly obligated to reimburse CITY. 17. Transfers and Assignments. 17.1 DEVELOPER's Right to Assign. All of DEVELOPER'S rights, interests and obligations hereunder may be transferred, sold or assigned in conjunction with the transfer, sale, or assignment 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 prior written notice to CITY and approvat by the City Manager, which approval shall not be unreasonably withheld or delayed. The City Manager shall consider and decide the matter within 10 working days after DEVELOPER's notice provided and receipt by City Manager of all necessary documents, certifications and other information required by City Manager to decide the matter. In considering the request, the City Manager shall base the decision upon the proposed assignee's reputation, experience, financial resources and access ~o credit and capability to successfully carry out the development of the Property completion. The City Manager's approval shall be for the purposes of: a) providing notice to CITY; b) assudng that all obligations of DEVELOPER are allocated as between DEVELOPER and the proposed purchaser, transferee .or assignee; and c) assuring CITY that the proposed purchaser, transferee or assignee is capable of performing the DEVELOPER's obligations hereunder not withheld by DEVELOPER pursuant to section 17.3. Notwithstanding the foregoing, provided notice is given as specified in Section 23, no CITY approval shall be required for any transfer, sale, or assignment of this Agreement to: 1) any entity which is an affiliate or subsidiary of DEVELOPER; 2) any Mortgagee; or 3) any transferee of a Mortgagee. 17.2 Release Upon Transfer. Upon the transfer, sale, or assignment of all of DEVELOPER's dghts, interests and obligations hereunder pursuant to section 17.1 of this Agreement, DEVELOPER shall be released from the obligations under this Agreement, with respect to the Proped7 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 City Manager expressly assumes all of the rights, interests and obligations of DEVELOPER under this Agreement,' DEVELOPER shall be released with respect to all Development Agreement Between City of Dublin Page 11 of 17 And Commerce One, Inc. January 12, 2001 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 Ri.qht to Retain Specified Rights or Obli.qations. Notwithstanding sections 17.1 and 17.2 and section 18, DEVELOPER may withhold from a sale, transfer or assignment of this Agreement cartain rights, interests and/or obligations which DEVELOPER shall retain, provided that DEVELOPER specifies such dghts, interests and/or obligations in a wdtten document to be appended to this Agreement and recorded with the Alameda County Recorder prior to the sale, transfer or assignmentofthe 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 dghts, interests and/or obligations.' 18. Agreement Runs with the Land. All of the provisions, ~ights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the .provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursqant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of Califomia. 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 o.f such properties or any portion th. ereof, 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 Development Agreement Between City of Dublin Page 12 of 17 And Commerce One, Inc. January 12, 2001 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). If CITY is named as a party to any legal action, CITY will cooperate with DEVELOPER, will appear in such action and will not unreasonably withhold approval of a settlement otherwise acceptable to DEVELOPER. If CITY is named as a party to any legal action, CITY will cooperate with DEVELOPER, will appear in such action and will not unreasonably withhold approval of a settlement otherwise acceptable to DEVELOPER. COUNTY 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 COUNTY, or any actions or inactions of COUNTY's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that COUNTY 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 beeq dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). If CITY is named as a party to any legal action, CITY will cooperate with COUNTY, will appear in such action and will not unreasonably withhold approval of a settlement otherwise accept.able to COUNTY. 21. Insurance. 21.1 Public Liability and Property Dama,qe Insurance. At all times that DEVELOPER is constructing any improvements that will become public improvements, 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. Development Agreement Between City of Dublin Page 13 of 17 And Commerce One, inc. January 12, 2001 21.2 Workers Compensation Insurance. At all times that DEVELOPER is constructing any improvements that will become public improvements, DEVELOPER shall maintain Workeds 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 commencement of construction of any improvements which will become public improvements, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carder is required to give the CITY at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER 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 COUNTY shall be addressed as follows: Patrick Cashman Project Director Surplus Prepe~J Authority of Alameda County 225 W. Winton Avenue, Room 151 Hayward, CA 94544 Development Agreement Bebveen City of Dublin Page 14 of 17 And Commeme One, Inc. January 12, 2001 Notice required to be given to DEVELOPER shall be addressed as follows: Commerce One, inc. 4440 Rosewood Drive Pleasanton, CA 94588 Attention: Peter Pen/ere, Senior Vice President With copy to: Commerce One 4440 Rosewood Drive Pleasanton, CA 94588 Attention: General Counsel 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. Recitals. The foregoing Recitals are true and correct and are made a part hereof. 25. of the parties. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement 26. 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 27. Counterparts. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. Development Agreement Between City of Dublin Page 15 of 17 And Commerce One, Inc. January 12, 2001 28. Recordation. CITY shall record a copy of this Agreement within ten days following execution by all parties. IN WITNESS INHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first ab. ove written. CITY OF DUBLIN: By: Mayor Attest: Date: By: Date: City Clerk Approved as to Form: City Attorney SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY: Adolph Martinelli Its Manager Date: Approved as to Form: Attomey. for Surplus Property Authority of the County of Alameda Development Agreement Between City of Dublin Page 16 of 17 And Commerce One, Inc. January 12, 2001 COMMERCE ONE, INC., a Delaware Corporation Peter Pervem Senior Vice President and Chief Financial Officer J:~wlx~Mnrs~114[098~AGREE~ommerce1_dev-agr_011201 .doc Developrcent Agreement Between City of Dublin Page 17 of 17 And Commerce One, Inc, January 12, 2001 Parcel on Parcel Map at EXHIBIT A Legal Description , recorded in Alameda County Records on Development Agreement Between City of Dublin And Commerce One, Inc. - Exhibit A January 12, 2001 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subl)aragraph 5.3.1 - Subsequent Discretionary Approvals None. Subparagraph 5.3.2 - Mitigation Conditions Subsection a. Infrastructure Sequencina Pro~ram The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) described below and those identified in Resolution No. 00-70of the Planning Commission Approving Site Development Review shall be completed by DEVELOPER to the satisfaction of the Public Works Director at the times and in the manner specified in Resolution No. 00-70 unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public Works Director. The obligations of Condition Nos. 76 and 83 of Resolution No. 00-70 and any other conditions of such resolution which are to be completed "as specified by the Director of Public Works" or "when determined necessary by the Public Works Director" ('q'he Deferred Conditions") shall be of no force or effect until DEVELOPER r~cords a final map or receives a building permit (Whichever comes first) for the Project. Once effective, such obligations shall survive termination of this Agreement as tothe COUNTY. COUNTY shall provide CITY with security for COUNTY's fair share as determined by CITY for the costs of design and construction of The Deferred Conditions as follows: · Condition 83 [Dublin Boulevard/Dougherty Road Intersection Improvement] A payment to CITY in cash in the amount of the deficiency, if any, between funds available to CiTY for CIP Project #9689 [Dougherty Road/Dublin Blvd. Intersection] and the cost of such project, such Development Agreement Between City of Dublin Page 1 of 6 And Commerce One, Inc. - Exhibit B January 12, 2001 payment to be made within 30 days of written notice from the Public Works Director to be given following, bid opening; Condition 76' [I-580 Eastbound Off=ramp at Santa Rita/Tassajara Road Exit. A payment to CITY in cash in the amount of the deficiency, if any, between funds available to CITY to construct the improvements at the eastbound off=ramp at Santa Rita/Tassajare Road exit (one exclusive through lane and 2 left-turn lanes; modification to signal to provide protected leff-tum phasing on east and west legs) and the cost of such project, such payment to be made within 30 days of written notice from the Public Works Director to be given following bid opening; (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. (iii) Water An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative subdivision map to the satisfactiorl and requirements of the CITY's fire department. All potable water system components to serve the project site (or any recorded phase of the Project) shall be completed in accordance with 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 CiTY's and Zone 7 (Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements and shall be consistent with the Drainage Plan. The site Shall also be protected from storm flow from off= site and shall have erosion control measures Development Agreement Between CIt7 of Dublin Page 2 of 6 And Commerce One, Inc. - Exhibit B January 12, 2001 in place to protect downstream facilities and properties from erosion and unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan. (v) Other Utilities (e.;l. ;las, electricity, cable televisions, telephone) Construction. of other utilities shall be complete by phase pdor to issuance of the first Certificate of Occupancy for any building within that specific phase of development. Subsection b. Miscellaneous (i) Completion May be Deferred. Notwithstanding the foregoing, CITY's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow DEVELOPER or COUNTY to defer completion of discrete portions of any of the public improvements required for the Project until after issuance of Certificate of Occupancy for the first building for the Project if the Public Works Director .determines that to do so would not jeopardize the public health, safety or welfare. Subparagraph 5.3.3 - Phasin;l, Timin;l With the 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 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 with its own time schedules and the Project Approvals. Subparagraph 5.3.4 -- 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 the Dublin San Ramon Services District. COUNTY has entered into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Development Agreement Between City of Dublin Page 3 of 6 And Commerce One, Inc. - Exhibit B January 12, 2001 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 in the amounts and at the times set forth in the implementing resolution. Such fees include the Traffic Impact Fee for Eastern Dublin established by Resolution No. 225-99, including any future amendments to such fee. DEVELOPER, COUNTY and CiTY acknowledge that COUNTY is entitled to certain credits ("1991 Credits") against payment of the' Traffic Impact Fee for Eastern Dublin by separate agreements previously entered into between COUNTY and CITY in 199'1 (as such agreements have been amended). COUNTY 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 COUNTY and CITY. COUNTY agrees that, notwithstanding its entitlement to such 1991 Credits, its 199'1 Credits cannot be applied against payment of the "Section 2" portion of the Traffic Impact Fee for Eastern Dublin for the Project. DEVELOPER (and its assignee) will, rather, pay the "Section 2" portion of the fee in cash. COUNTY further agrees that it (and its assignee) will use the 1991 Credits and/or Prior Agreement Credits against at least one-half (1/2) of the "Section 1" portion of the Traffic Impact Fee for Eastern Dublin for the Project provided that it has sufficient such credits. CITY shall determine which of the 199'1 Credits and/or Prior Agreement Credits shall be used pursuant to this paragraph. Notwithstanding anything herein to the contrary, DEVELOPER further agrees that it (and its assignee) will pay at least seven percent (7%) of the "Section 1" portion of the Traffic Impact Fee for Eastern Dublin in cash. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchanges. DEVELOPER shall pay a Eestem Dublin 1-580 Interchange Fee in the amounts and at the times set forth in City of Dublin Resolution No. 155~98, or in the amounts and at the times set forth in anY resolUtion revising the amount of the Eastern Dublin 1-580 Interchange Fee. 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. 195-99, or in the amounts and at the times set forth in any resolution revising the amount of the Public Facilities Fee. Development Agreement Between City of Dublin Page 4 of 6 And Commerce One, Inc, - Exhibit B January 12, 2001 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, or in the amounts and at the times set forth in any resolution revising the amount of the Noise Mitigation Fee. Subsection e. School Impact Fees. School impact fees shall be paid by DEVELOPER in accordance With Government Code section 53080 and the existing agreement between COUNTY and the Dublin Unified School District. 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. __ or in the amounts and at the times set forth in any resolution revising the amount of such fee. Subsection g. Tri-Valley Transportation Development Fee. DEVELOPER shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98, or in the amounts and at the times set forth in any resolution revising the amount of such fee. COUNTY agrees that its 1991 Credits and Prior Agreement Credits cannot be applied against payment of this fee. Subparagraph 5.3.6 -- Credit Subsection a. Traffic Impact Fee Improvements Credit CiTY shall provide a credit to COUNTY for the those improvements described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such improvements are constructed by the DEVELOPER in their ultimate location pursuant this Agreement, All aspects of credits shall be governed by CITY's Administrative Guidelines regarding credits (Resolution No. 23-99). Subsection b. Traffic Impact Fee Right-of-Way Dedications Credit CITY shall provide a credit to COUNTY for any TIF area right-of-way dedicated by COUNTY to CITY which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of credits shall be governed by CITY's Administrative Guidelines regarding credits (Resolution No. 23-99). Development Agreement Between City of Dublin Page 5 of 6 And Commerce One, Inc. - Exhibit B January 12, 2001 Subsection c. Use of Excess Credits In the event that credits referred to in Subsections (a) to (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, less 7% of the "Section 1" portion), COUNTY shall be entitled to "bank" such credits (referred to as "Excess Credits") and may use them as provided in CiTY's Administrative Guidelines for Credits and Reimbursements (Resolution No. 23-99). Subparagraph 5.3.7 -- Miscellaneous Subsection a. LandscaDina Maintenance Along Streets and Creek CITY has formed a landscape maintenance district known as the "Landscape Maintenance Assessment District No. 97-1 (Santa Rita Area)" pursuant to a petition from COUNTY, and imposed an assessment against the Property to pay for street and creek landscape maintenance. In addition, on September 24, 1996, COUNTY recorded a Declaration of Covenants, Conditions and Restrictions which covers the Property, whereby COUNTY, on behalf of itself and its successors (including DEVELOPER), has covenanted to pay a "Deed Assessment" to CITY for maintenance of street and creek landscaping. J:~WPD~INRS'~A114~098~AGREE\COMMERCE I_DEV..AGR_EXB_011201 .DOC Development Agreement Between City of Dublin Page 6 of 6 And Commerce One, Inc. - Exhibit B January 12, 2001