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HomeMy WebLinkAbout6.2 Sybase PD Rezone DACITY CLERK AGENDA STATEMENT 0600-60 & 0420-30 CITY COUNCIL MEETING DATE: June 20, 2000 SUBJECT: ATTACHMENTS: PUBLIC HEARING PA 99-062 Sybase Corporation. Planned Development (PD)/Development Plan Rezone (Second Reading), and Development Agreement Ordinance (Second Reading). Prepared by Eddie Peabody, Jr., Community Development Director 1. Planned Development (PD) Rezone Ordinance/Development Plan. 2. Development Agreement Ordinance. RECOMMENDATION: 1. 2. 3. Open Public Hearing. Receive Staff presentation and receive public testimony. Question Staff and the public Close Public Hearing and deliberate. Adopt Ordinance (Attachment 1), approving the Planned Development Rezone. Adopt Ordinance (Attachment 2), approving a Development Agreement. FINANCIAL STATEMENT: No financial impact anticipated. DESCRIPTION: An Ordinance rezoning the Sybase site at the northwest comer of Hacienda Drive and Dublin Boulevard to the Planned Development- Campus Office zoning district. The rezoning also includes a Development Plan establishing regulations to guide the development of the Sybase Corporate Headquarters facility. A second ordinance approves a Development Agreement for the project. BACKGROUND: The City Council approved an Amendment to the Eastern Dublin Specific Plan/General Plan for the Sybase project on June 6, 2000. The Planned Development (PD) rezoning Ordinance and the Development Agreement Ordinance were both introduced and the first reading held at the same meeting. The underlying project involves the development of a corporate center headquarters complex for the Sybase Corporation, a major high technology firm currently based in Emeryville. The complex would include two six-story buildings totaling 420,000 square feet. Planning Commission Action: On May 9, 2000, the Plamfing Commission reviewed the Staff Report for the proposed project and recommended City Council approval of the Eastern Dublin Specific Plan/General Plan, Planned Development (PD) Rezone/Development Plan and Development Agreement. The Planning Commission approved a Site Development Review (SDR) permit and Tentative Parcel Map for the project. COPIES TO: Applicant Alameda County Surplus Property Authority In House Distribution ITEM NO. ~ City Council Action: At the Public Hearing of June 6, 2000, the City Council heard a presentation from Staff and the applicant, took public testimony, approved the requested Eastern Dublin Specific Plan/General Plan Amendment, introduced and waived the first reading of Ordinances approving a Planned Development (PD) Rezone/Development Plan, and adopting a Development Agreement. The Development Agreement includes the property owner, Alameda County Surplus Property Authority, and the developer of the Sybase project, Wilcox Development Services, Inc. ANALYSIS: As required by the City of Dublin Municipal Code, second readings of both proposed Ordinances are necessary prior to final adoption of the Planned Development zoning and the Development Agreement. Ordinances will become effective 30 days after the second readings. RECOMMENDATION: Staff recommends that the City Council open the Public Hearing, take testimony from Staff and the public, deliberate, waive the second reading and adopt Ordinance approving a Planned Development (PD) Rezone/Development Plan, and a Development Agreement for the Sybase Corporate Headquarters Facility PA 99-062. g:pa99-062\ccstaff2.doc ORDINANCE NO. - O0 AN ORDINANCE OF THE CITY OF DUBLIN AMENDING THE ZONING MAP TO REZONE PROPERTY LOCATED AT THE NORTHWEST CORNER OF HACIENDA DRIVE AND DUBLIN BOULEVARD (APN 986-0014- 006) TO A PLANNED DEVELOPMENT ZONING DISTRICT AND ADOPTING A DEVELOPMENT PLAN FOR PA 99-062 WHEREAS, the Alameda County Surplus Property Authority (Property Owner) has requested approval of a Specific Plan/General Plan Amendment to change a portion of the land use designation for Site 15 from "High Density Residential" to "Campus Office," a Planned Development Rezone/Development Plan and Site Development Review to allow the construction of two six-story office buildingS containing a total of 420,00 square feet surface parking and retailed improvements on 14.5 acres of land currently at the northwest comer of Dublin Boulevard and Hacienda Drive (APN 986-0014-006) within the Eastern Dublin Specific Plan/General Plan; and WHEREAS, the Applicant has submitted a complete application for a Planned Development Rezone, including a Development Plan as required by Chapter 8.32 of Title 8 of the Dublin Municipal Code which meets the requirements of said Chapter; and WHEREAS, the site will be rezoned from Planned Development for "High Density Residential" to Planned Development for "Campus Office"; and WHEREAS, pursuant to the Califomia Environmental Quality Act (CEQA) and implementing Guidelines, an Initial Study has been prepared to assess the impacts of the proposed project. Based on the Initial Study, a Mitigated Negative Declaration has been prepared and recommended for adoption to the City Council. The Initial Study is on file in the Dublin Planning Department. The project, with mitigation measures incorporated into the project, will not have a significant effect on the environment; and WHEREAS, the Planning Commission did hold a properly noticed public heating on said applications on May 9, 2000, and did adopt Resolutions recommending that the City Council approve the Mitigated Negative Declaration, related Eastern Dublin Specific Plan/General Plan Amendment and Planned Development Rezoning and Development Plan for PA 99-062; and ~ WHEREAS, a properly noticed public hearing was held by the City Council on June 6, 2000; and WHEREAS, a Staff Report was submitted recommending that the City Council approve the application; and WHEREAS, on June 6, 2000 the City Council adopted a Negative Declaration and approved a Specific Plan/General Plan Amendment for the project; and WHEREAS, on June 20, 2000 the City Council approved an Eastern Dublin Specific Plan/General Plan Amendment for the project. WHEREAS, pursuant to Section 8.32.070 and 8.120.050 of the Dublin Municipal Code, the City Council makes the following findings: mo The Planned Development Rezone Stage 1 & 2 are consistent with the general provisions, intent and purpose of the General Plan (as amended), in that the project would result in development with the land uses allowed by said designation and will contribute towards implementation of the General Plan; and ATTACHMENTI The Planned Development Rezone Stage 1 & 2 is consistent with the general provisions and purpose of the PD Zoning District of the Zoning ordinance. The Planned Development Rezone will be appropriate for the subject property in terms of setting forth the purpose, applicable provisions of the Dublin Zoning Ordinance, range of permitted and conditional uses and Development Standards, which will be compatible with existing High Density and Campus Office land use designations. In the immediate vicinity; and Co The Planned Development Rezone Stage 1 & 2 is consistent with the general provisions, intent and purpose of the PD Zoning District of the Zoning Ordinance in that it contains all information required by Section 8.32 of the Zoning Ordinance and accomplishes the objectives of Section 8.32.010, A through H, of the Zoning Ordinance; and Do The Planned Development Rezone Stage 1 & 2 will not have a substantial adverse effect on health, safety or be substantially detrimental to the public welfare or be injurious to property or public improvement, as all applicable regulations will be met; and Eo The Planned Development Rezone Stage 1 & 2 will not overburden public services or facilities as all agencies must commit to the availability of public services prior to the issuance of any building permit, as required by City laws and regulations; and Fo The Planned Development Stage 1 & 2 will be consistent with the policies of Eastern Dublin Specific Plan/General Plan; and The Planned Development Stage 1 & 2 will create an attractive, efficient and safe environment through development standards contained in the Development Plan; and Ho The Planned Development Stage 1 & 2 will benefit the public necessity, convenience and general welfare; and The Planned Development Rezone Stage 1 & 2 will be compatible with and enhance the general development of the area because it will be developed pursuant to a comprehensive Development Plan. WHEREAS, the City Council did hear and use their independent judgment and considered the Mitigated Negative Declaration, all said reports, recommendations and testimony hereinabove set forth. NOW, THEREFORE, the Dublin City Council does ordain as follows: Section 1: Pursuant to Chapter 8.32, Title 8 of the City of Dublin Municipal Code the City of Dublin Zoning Map is amended to rezone the following property (" the Property") to a Planned Development Zoning District: Approximately 14.5 acres of land generally located at the northwest comer of Hacienda Drive and Dublin Boulevard; more specifically described as Assessor's ParCel Numbers: 986-0014- 006. 2 A map of the rezoning area is shown below: · VICINITY MAP SECTION 2. GLEASON DRIVE CENTRAL PARKWAY SITE/ 580 DUBLIN BOULEVARD FREEWAY The regulations of the use, development, improvement, and maintenance of the Property are set forth in the Stage I and 2 Development Plans (Exhibits A1 and A-2, hereto) which are hereby approved. Any amendments to the Stage 1 and 2 Development Plans shall be in accordance with section 8.32.080 of the Dublin Municipal Code or its successors. SECTION 3. Except as provided in the Stage 1 and 2 Development Plans, the use, development, improvement and maintenance of the Property shall be governed by the provisions of the Dublin Zoning Ordinance. SECTION 4. This Ordinance shall take effect and be enforced thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause this 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. 3 PASSED AND ADOPTED BY the City Council of the City of Dublin, on this ) day of 2000, by the following votes: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mayor City Clerk Approved as to form: City Attorney 4 DEVELOPMENT PLAN This is a Development Plan pursuant to Chapter 8.32 of the Dublin Zoning Ordinance for the Sybase Corporate Headquarters project, located on the northwest corner of Dublin Boulevard and Hacienda Drive; (APN 986-0014-006). This Development Plan meets all of the requirements for Stage I and Stage 2 review of the project. This Development Plan is also represented by the Site, Landscape, Architectural (floor and elevations) Plans and Tentative Parcel Map, sheets dated received March 17, 2000, labeled Exhibit A-2 to the Ordinance approving this Development Plan (City Council Ordinance No. 00 - ), and on file in the Planning Department. The Planned Development District allows the flexibility needed to encourage innovative development while ensuring that the goals, policies, and action programs of the General Plan, Downtown Dublin Specific Plan, and provisions of Section 8.32 of the Zoning Ordinance are satisfied. Permitted Use. The following uses are permitted within this PD-Planned Development District. mo B. C. D. Corporate, professional, technical and administrative offices. Research and Development laboratories and offices. Storage and sale of material produced on the site, limited to 25% of floor area. Accessory and incidental amenity uses to offices, including but not limited to employee cafeterias, employee fitness centers, day care centers, employee training facilities. Temporary construction trailers and ancillary construction facilities Conditional Uses. The following uses are conditionally permitted within this PD- Planned Development District. Eo Light manufacturing and processing that produces no noxious odors, hazardous materials or excessive noise. Broadcasting stations or studios, excluding sending and receiving towers. Celltilar and wireless communication facilities, minor. Community, religious and charitable institutional facilities (excluding business offices). In-patient and out-patient health facilities, licensed by the State Department of Health Services. Public facilities and uses (excluding offices). Retail commercial establishments to serve site users. Eating and drinking establishments (excluding employee-serving facilities). Dublin Zoning Ordinance-Applicable Requirements: Except as specifically modified by the provisions of this PD District Rezone/Development Plan, all applicable general requirements and procedures of the Dublin Zoning Ordinance shall be applied to the land uses designated in this PD District Rezone. Site Plan & Architecture: See attached site and elevation plans contained in Exhibit A- 2, Development Plan. This Development Plan applies to an approximately 14.5 acre site shown on this plan on the northwe~f~)rner of Hacienda Drive and Dublin Boulevard in the Eastern Dublin Specific Plan area. Any modifications to the project shall be substantially consistent with these plans and of equal or superior materials and design quality. EXHIBIT A-1 Density: The maximum square footage of the proposed development under this Development Plan (as shown on the site plan) is as follows: 14.5 acres, 420,000 square feet total building area in two buildings of approximately 210,000 square feet each. Phasing Plan. The project will be constructed in one phase. Landscaping Plan. Refer to attached landscaping plan included in Exhibit A-2, Development Plan; Sheets SL 1-3. Development Standards Lot Size: One acre. Front, Rear, and Side Yard Setbacks: Along Dublin Blvd.: 30 feet Along Hacienda Drive: 25 feet Along Central Pkwy: 30 feet Between buildings: 40 feet (bridges may be constructed between buildings) Building Height: Six stories or 100 feet. Floor Area Ratio: The FAR within this district shall not exceed 0.67. Landscaping and Open Space requirements: A minimum of 20% of the gross site area shall be provided in !andscaped/hardscaped open space. Open space shall include landscaping in entries, plazas/courtyards, parking areas, front and side yard setbacks and other similar areas, wherein 8% shall be in parking areas. b. Landscaped planter strips shall be: (1) At least 20 feet wide between parking lots and the curb line along a public right-of-way. This may be reduced for turn lanes, bus mm outs and similar encroachments. (2) At least 10 feet wide along interior property lines. (3) At least 10 feet wide between parking areas and building walls, loading and unloading areas and truck parking areas. (4) Landscaping planter strips between parking areas and property lines adjacent to a public right-of-way shall include a berm at lease three feet in height or with a slope not to exceed a ratio of 2:l to substantially screen the view of parked vehicles from the street. The berm shall be designed and located to allow for adequate visibility for motorists exiting the site. Alternatively, parked vehicles may be screened from adjoining streets with low-growing evergreen hedges. G :\pa99010\devplan 10. (5) At entries, sidewalks shall be incorporated into the landscaped planter strip. A minimum of 4 feet clear width shall be maintained for all sidewalks. (6) Where a landscaped planter strip is adjacent to building window walls or pedestrian rights-of-way, landscaping shall be provided that screens views of automobiles. In this location, the use of a berm is desirable Co A minimum of one parking lot tree shall be planted for an average of every four parking spaces. Trees shall be distributed throughout the parking areas, shall be of a variety that offers a substantial shade canopy when mature and shall be a minimum 15-gallon size when planted. Tree planters shall have a standard 6-inch curb on all sides and shall have good surface drainage. Trees shall be planted as part of the construction phase of the parking lot. Diagonal tree well squares used between rows of parking shall measure a minimum of 4.5 feet by 4.5 feet for each outside edge, or 6 feet on both diagonals. d. Parking areas shall contain landscaped islands with a minimum dimension of 5 feet by 5 feet, excluding curb. e. Compliance with related Planning Approvals: The Applicant/Developer shall comply with all the related Site Development Review conditions of approval for PA 99-062. Signs: Compliance with Master Sign Plan, as approved by City of Dublin Community Development Director Lighting: Compliance with Master Lighting Plan, as approved by City of Dublin Community Development Director and Police Services G:\pa99010\devplan SYBASE CORPORATE HEADOUARTERS, DUBLIN, CALIFORNIA VICINITY MAP OL.I- ^S01,1 [)RIVE CEH1RAL PARKWAY I ~ DTF --~ 580 O~EEWAY __.___, SHEET INDEX .- S;I£EI' I NO_._I' SHEET TITLE CiVil. ORAWIIIGS SURV[Y ~NRSCAPE DRAWINGS RECEIVED DUBLIN PLANNING ',~.~ ,.0. ~'~ ,., PROJECT DIRECTORY DEVELOPER WILCOX DEVELOPMENT SERVICES, INC. 5420 L~J FREEWAY. SUI/~ 740 DALLAS. TX 75240 TERRY LOWRE¥, TEL. g72.770,2100 TENANT SYBASE 8475 CI-~=&9]3E AVENUE EMERWILLE, CA 946(38 HOPE SPADORA, TEL 510.922.4018 ARCHITECT RMW ARCHITECTURE + DESIGN 160 PINE STREET 8AN FRANCISCO. CA 941tl DAVID McADAk~. '[EL 4t5.781.gB00 CIVIL ENGINEER KIER AND WRIGHT LANDSCAPE ARCHITECT THE 8WA GROUP STRUCTURAL ENGINEER .MIDDLEBROOK + LOUfE ELEVATOR CONSULTANT EDGE'Fr WILLIAM8 TRANSPORTATiON IO2 E. 8UTHEDALE, SUITE 1 MILL VALLEY, CA 94941 E~,)(HI~..IT A-.)- WILCOX DEVELOPHEN' SERVICES, INC. RMW SYBASE HEADOUARTERS DUBLIN, CA COVER SHEET A 0.0 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DUBLIN ~ APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN, WILCOX DEVELOPMENT SERVICES (PA 99-062), and ALAMEDA COUNTY SURPLUS PROPERTY AUTHORITY FOR THE SYBASE CORPORATE HEADQUARTERS FACILITY PROJECT THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1: RECITALS A. The proposed Sybase Corporate Headquarters project (PA 99-062) is located within the boundaries of the Eastem Dublin Specific Plan ("Specific Plan") in an area which is designated on the General Plan Land Use Element and the Eastern Dublin Specific Plan Land Use Map as High Density Residential. An application has been filed to change the eastern 19-acres of Site 15 of the Santa Rita Properties to "Campus Office" (CO). B. This project is within the scope of the Eastern Dublin Specific Plan and General Plan, for which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration has been prepared for the Sybase Specific Plan/General Plan Amendment. That Mitigated Negative Declaration together with the Program EIR adequately describes the total project for the purposes of CEQA. The analysis indicated that no new effects could occur and no new mitigation measures are required for the Sybase Headquarters project that were not addressed in the FEIR or Mitigated Negative Declaration. Further, that analysis found that the project is in conformity with the Eastern Dublin Specific Plan/General Plan. C. Implementing actions of the Specific Plan, including Chapter 11 thereof, require that all projects within the Specific Plan area enter into development agreements with the City. D. Wilcox Development Services has filed an application requesting approval of a development agreement for the Sybase Corporate Headquarters project. E. A Development Agreement between the City of Dublin, Wilcox Development Services and the Alameda County Surplus Property Authority has been presented to the City Council, a copy of which is attached to the staff report as Attachment 5. F. A public hearing on the proposed Development Agreement was held before the Planning Commission on May 9, 2000, for which public notice was given as provided by law. Go Agreement. The Planning Commission has made its recommendation for approval of the Development ¢ H. A public hearing on the proposed Development Agreement was held before the City Council on June 6, 2000, for which public notice was given as provided by law. J. The City Council has considered the recommendation of the Planning Commission at the June 6, 2000 meeting, 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. ATTAOHMENToR. 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 Eastem Dublin Specific Plan Amendment, (d) the Eastem Dublin Specific Plan, (e) the EIR, (f) the Agenda Statement, and on the basis of specific conclusions set forth below, the City Council finds and determines that: 1. The Development Agreement is consistent with the objectives, policies, general plan uses and programs specified and contained in the City's General Plan, as amended by the Eastem Dublin General Plan Amendment, and in the Specific Plan in that (a) the General Plan and Specific Plan land use for the site is currently High Density Residential, but a request has been submitted to the City of Dublin to change the land use designation to Campus Office (CO) to allow development of the Sybase Corporate Headquarters Facility complex. The proposed project is consistent with the amended land use designation of Campus Office, (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 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 project approvals include an Amendment to the Eastern Dublin Specific Plan/General Plan, a Planned Development Rezoning/Stage 1 & 2 Development Plan, Site Development Review, and Parcel Map adopted specifically for the Sybase project. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies in that the Sybase project will implement land use guidelines set forth in the Specific Plan and General Plan. 4. The Development Agreement will not be detrimental to the health, safety and general welfare in that the project will proceed in accordance with all the program and policies of the Eastern Dublin Specific Plan. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan and Specific Plan, as amended. Section 3: APPROVAL The City Council hereby approved the Development Agreement (Attachment 5 to the Staff Report) 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. City of Dublin When Recorded Mail To: City Clerk City o£ Dublin 100 Civic Plaza Dublin, CA 94568 Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND WSD - DUBLIN, LLC AND THE SURPLUS PROPERTY AUTHORITY OF THE COUNTY OF ALAMEDA FOR THE SYBASE PROJECT TABLE OFCONTENTS 2. 3. 4. o o ° Description of Property_ ................................................... 2 Interest of Developer ...................................................... 2 Relationship of CITY, COUNTY and DEVELOPER ............................ 2 Effective Date and Term ................................................... 3 4.1 Effective Date ..................................................... 3 4.2 Term ............................................................ 3 4.3 Termination Upon Issuance of Certificate of Occupancy ............. 3 Use of the Property ....................................................... 3 5.1 Right to Develop .................................................. 3 5.2 Permitted Uses ...................................................... 3 5.3 Additional Conditions .............................................. 3 Applicable Rules, Regulations and Official Policies ............................. 4 6.1 Rules re Permitted Uses ............................................. 4 6.2 Rules re Design and Construction ..................................... 4 6.3 Uniform Codes Applicable .......................................... 5 Subsequently Enacted Rules and Regulations .................................. 5 7.1 New Rules and Regulations .......................................... 5 7.2 Approval of Application ............................................ 5 7.3 Moratorium Not Applicable .......................................... 5 Subsequently Enacted or Revised Fees, Assessments and Taxes ................... 5 8.1 8.2 8.3 8.4 8.5 Fees, Exactions, Dedications ......................................... 5 Revised Application Fees ........................................... 6 New Taxes ....................................................... 6 Assessments .................... : ................................. 6 Vote on Future Assessments and Fees .................................. 6 Amendment or Cancellation 9.1 9.2 9.3 9.4 9.5 Modification Because of Conflict with State or Federal Laws ............... 6 Amendment by Mutual Consent ...................................... 6 Insubstantial Amendments ............................................ 6 Amendment of Project Approvals ..................................... 7 Cancellation by Mutual Consent ...................................... 7 Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Table of Contents - Page i of iii May 15, 2000 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. Term of Project Approvals ........ ;.. ....................................... 7 Annual Review .......................................................... 7 11.1 Review Date ...................................................... 7 11.2 Initiation of Review ................................................ 7 11.3 Staff Reports ..................................................... 8 11.4 Costs ............................................................ 8 Default ................................................................ 8 12.1 Other Remedies Available ........................................... 8 12.2 Notice and Cure ................................................... 8 12.3 No Damages Against CITY .......................................... 8 Estoppel Certificate ...................................................... 8 Mortgagee Protection; Certain Rights of Cure ................................. 9 14.1 Mortgagee Protection ................. .,.:,~,.. ........................... 9 14.2 Mortgagee Not Obligated ................................ - ........... 9 14.3 Notice of Default to Mortgagee and Extension of Right to Cure ............. 9 Severability ............................................................ 9 Attorneys' Fees and Costs ................................................. 9 Transfers and Assignments ............................................... 10 17.1 DEVELOPER's Right to Assign ..................................... 10 17.2 Release Upon Transfer ............................................. 10 17.3 Developer's Right to Retain Specified Rights or Obligations ............... 10 Agreement Runs with the Land ............................................ 11 Bankruptcy ............................................................ 11 Indemnification ........................................................ 11 Insurance ............................................................. 12 21.1 Public Liability and Property Damage Insurance ........................ 12 21.2 Workers Compensation Insurance .................................... 12 21.3 Evidence of Insurance ............................................. 12 Sewer and Water ....................... . ................................ 12 Notices ............................................................... 13 Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Table of Contents - Page ii of iii May 15, 2000 25. 26. 27. 28. Agreement is Entire Understanding ......................................... 14 Exhibits .............................................................. 14 Counterparts ........................................................... 14 Recordation ........................................................... 14 Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Table of Contents - Page iii of iii May 15, 2000 THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this __ day of__., 2000, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "CITY"), WDS - Dublin, LLC, a limited liability company (hereafter "DEVELOPER") and the Surplus Property Authority of Alameda County, a public corporation (hereafter "COUNTY") pursuant to the authority of § § 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such pr°perty; 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 14.5 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 acquired, or will acquire, its interest in the prOperty from COUNTY pursuant to a purchase and sale agreement which allocates rights and obligations as between COUNTY and DEVELOPER. COUNTY is a party to this Agreement because COUNTY will dedicate certain land, construct certain improvements and receive certain credits; F. DEVELOPER proposes the development of the Property for a corporate center, including two office buildings (the "Project"); and G. 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 general plan amendment (Resolution No. ), a Specific Plan Amendment (Resolution No. ), PD District rezoning (including Stage 1 and 2 Development Plan) (Ordinance No. __), parcel map (Planning Commission Resolution No. 00-23) and Site Development Review (Resolution No. 00-23), (collectively, together with any approvals or permits now or hereafter issued with respect to the Prqiect, 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 Dublin/WSD-Dublin LLC/ Surplus Authority Development Agreement- Sybase Project Page ! of15 May 15, 2000 Approvals as each such approval becomes effective; and Project; and CITY desires the timely, efficient, orderly and proper development of said J. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and 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 Fir/al Environmental. Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan which was certified by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993, and August 22, 1994 (the "EIR") and found that the Mitigated Negative Declaration prepared for the Project is adequate for this Agreement; and No, M. On ,2000, the City Council of the City of Dublin adopted Ordinance __ approving this Development Agreement. The ordinance took effect on __, 2000. 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. 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 Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 2 of 15 May 15, 2000 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. 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, 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. Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 3 of 15 May 15, 2000 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. or dedication of property. See Exhibit B Terms relating to payment of fees 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, Regulations 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, goveming~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. Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 4 of 15 May 15, 2000 6.3 Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Regulations. 7.1 New Rules and Regulations. During the term of this Agreement, the CITY may apply new or modified ordinances, resolutions, rules, regulations and official policies of the CITY to the Property which were not in force and effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement and the Project Approvals if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinanceS, resolutions, rules, regulations or official policies have general applicability. 7.2 Approval of Application. Nothing in this Agreement shall prevent the CITY from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements 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). Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 5 of 15 May 15, 2000 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. By so agreeing, DEVELOPER does not waive its rights to challenge the legality of any such application, processing and/or inspection fees. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. By so agreeing. DEVELOPER does not waive its rights to challenge the legality of any such taxes. 8.4 Assessments. Nothing herein shall be construed to relieve the Property from as~sessments 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 consent 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 Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 6 of 15 May 15, 2000 proposed buildings; or (g) monetary contributions by DEVELOPER as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. CITY's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4 Amendment of Proiect 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 Approval_s, 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. I 0. Term 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 15,2001 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 thirty (30) days' written notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 7 of 15 May 15, 2000 Condition 57 [I-580 Eastbound Offramp at Santa RitaJTassajara 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 offramp at Santa RitaJTassajara Road exit (one exclusive through lane and 2 left-mm lanes; modification to signal to provide protected left- turn 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; Condition 59 [Additional Left-Turn Lane at Westbound Approach on Pimlico Drive.] 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 westbound approach to 1-580 on Pimlico Drive (second left-tm lane) 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 satisfaction and requirements of the CITY's fire department. All potable water system components to serve the project site (or any recorded phase of the Project) shall be completed in accordance with the tentative subdivision map and DSRSD requirements. Recycled water lines shall be installed in accordance with the tentative subdivision map. Dublifi/WSD-Dublin LLC./Surplus Authority Development Agreement - Sybase Project - Exhibit B Page 2 of 6 May 5, 2000 EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Suboaragraph 5.3.1 -- Subsequent Discretionary_ Approvals None. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a. Infrastructure Sequencing Program The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) described below and those identified in Resolution No.00-23 of the Planning Commission Approving the Parcel Map shall be completed by DEVELOPER to the satisfaction of the Public Works Director at the times and in the manner specified in Resolution No. 00-23 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. 57, 59 and 66 of Resolution No. 00-23 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" ("The Deferred Conditions") shall be of no force or effect until DEVELOPER records a final map or building permit (whichever comes first) for the Project. Once effective, such obligations shall survive termination of this Agreement. 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 66 [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 payment to be made within 30 days of written notice from the Public Works Director to be given following bid opening; Dublin/WSD-Dublin LLC./Surplus Authority Development Agreement ~ Sybase Project - Exhibit B Page t of 6 May 5, 2000 Attest: By: City Clerk Approved as to Form: Date: City Attorney SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY: Adolph Martinelli Its Manager Date: Approved as to Form: Attorney for Surplus Property Authority of the County of Alameda WDS - Dublin, LLC, a California limited liability company Todd K. Ashbrook Senior Vice President J :\WPD\MNRSW~ 114\ 149\Agree\sybase_dev-agr_504.wpd Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 15 of 15 May 15, 2000 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. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 26. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as thoilgh 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. 28. Recordation. CITY shall record a copy of this Agreement within ten days following execution by all parties. 1N WITNESS 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: Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 14 of 15 May 15, 2000 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: and Patrick Cashman Project Director Surplus Property Authority of Alameda County 225 W. Winton Avenue, Room 151 Hayward, CA 94544 Adolph Martinelli Director of Planning County of Alameda 399 Elmhurst Street Hayward, CA 94544 Notice required to be given to DEVELOPER shall be addressed as follows: WDS - Dublin, LLC c/o Wilcox Development Services 14001 Dallas Parkway, Suite 1111 Dallas, TX 75240 Attn: Todd K. Ashbrook, Sr. Vice President with a copy to: McCutchen, Doyle, Brown & Enersen 1333 N. California Boulevard, Suite 210 Walnut Creek, CA 94596 Attention: Michael L. Greene 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 Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 13 of 15 May 15, 2000 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 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 COUNTY, will appear in such action and will not unreasonably withhold approval of a settlement otherwise acceptable to COUNTY. 21. Insurance. 21.1 Public Liability and Property Damage 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. 21.2 Workers Compensation Insurance. At all times that DEVELOPER is constructing any improvements that will become public improvements, 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 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 carrier is required to give the CITY at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER 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. Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 12 of 15 May 15, 2000 Alameda County Recorder prior to the sale, transfer or assignment of the Property. DEVELOPER's purchaser, transferee or assignee shall then have no interest or obligations for such rights, interests and obligations and this Agreement shall remain applicable to DEVELOPER with respect to such retained rights, interests and/or obligations. 18. A~reement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. 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). 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 Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 11 of 15 May 15, 2000 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 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 prior written notice to CITY and approval by the City Manager, which a~proval 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. The City Manager's approval shall be for the purposes of: a) providing notice to CITY; b) assuring 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) Sybase Inc.; 2) any entity which is an affiliate or subsidiary of DEVELOPER; 3) any Mortgagee; or 4) any transferee of a Mortgagee. 17.2 Release Upon Transfer. Upon the transfer, sale, or assignment of all of DEVELOPER's rights, 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 Property transferred, sold, or assigned, arising subsequent to the date of City Manager approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or assignee approved by the City Manager expressly assumes all of the rights, interests and obligations of DEVELOPER under this Agreement, DEVELOPER shall be released with respect to all such rights, interests and assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval. 17.3 Developer's Right to Retain Specified Rights or Obligations. Notwithstanding sections 17.1 and 17.2 and section 18, DEVELOPER may withhold from a sale, transfer or assignment of this Agreement certain rights, interests and/or obligations which DEVELOPER shall retain, provided that DEVELOPER specifies such rights, interests and/or obligations in a written document to be appended to this Agreement and recorded with the Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 10 of 15 May 15, 2000 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, dddication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to Mortgagee and Extension of Right to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of default given DEVELOPER hereunder and specifying the address for service thereof, then CITY shall deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that DEVELOPER has committed an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY, through ira City Manager, may extend the thirty-day cure period provided in section 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. Attorneys' Fees' and Costs. If CITY, COUNTY 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 Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 9 of 15 May 15,' 2000 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CITY in connection with the annual review shall be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by any party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. An event of default by COUNTY or DEVELOPER shall not be deemed a default by the other party. 12.3 No Damages Against CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Any party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall be 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 statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. Dublin/WSD-Dublin LLC/Surplus Authority Development Agreement - Sybase Project Page 8 of 15 May 15, 2000 (iv) Storm Drainaee 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 in place to protect downstream facilities and properties from erosion and .unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan. (v) Other Utilities (e.g. gas, electricity, cable televisions, telephone) Construction of othe~ utilities shall be _complete by phased prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. 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 -- Phasing, Timing 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. Dublin/WSD-Dublin LLC./Surplus Authority Development Agreement - Sybase Project - Exhibit B Page 3 of 6 May 5, 2000 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. 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 furore amendments to such fee. DEVELOPER, COUNTY and CITY acknowledge that COUNTY is entitled to certain credits C 199'1 Credits") against payment of the Traffic Impact Fee for Eastern Dublin by separate agreements previously entered into between COUNTY_ and CITY in 1991 (as such agreements have been amended). COUNTY is also entitled ~ 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 199t Credits, its 1991 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 (½) 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 1991 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 p.ay 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 Eastern 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. Dublin/WSD-Dublin LLC./Surplus Authority Development Agreement - Sybase Project - Exhibit B Page 4 of 6 May 5, 2000 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. 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. 37-97 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 Dublin/WSD-Dublin LLC./Surplus Authority Development Agreement - Sybase Project - Exhibit B Page 5 of 6 May 5, 2000 establishing the Eastem Dublin Traffic Impact Fee. Ail aspects of credits shall be governed by CITY's Administrative Guidelines regarding credits (Resolution No. 23-99). 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. Landscaping Maintenance Along Streets and Creek CITY has formed a landscape maintenance district known as the "Landscape Maintenance Assessment District No. 97-1 (Santa Rita Area)" pursuant to a petiti.o_n 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. EHS:rja J:\WPD\MNRSWM 14\149XAgree\sybase ex-b 504.wpd Dublin/WSD-Dublin LLC./Surplus Authority Development Agreement - Sybase Project - Exhibit B Page 6 of 6 May 5, 2000