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Home My WebLink About6.2 AMB Prologis DAor 19 82 /ii � 111 DATE: TO: FROM: SUBJECT STAFF REPORT CITY COUNCIL April 1, 2014 Honorable Mayor and City Councilmembers CITY CLERK File #600 -60 Christopher L. Foss, Acting City Manager " Development Agreement Extension for the AMB /Prologis ixed -Use Office /Residential Project at 6700 Golden Gate Drive in Downtown Dublin Prepared by Kristi Bascom, Principal Planner EXECUTIVE SUMMARY: The Applicant, Prologis Inc., is requesting an extension to the existing Development Agreement that has vested the Site Development Review and Tentative Map entitlements since their original approval in 2004. The Development Agreement will expire on June 3, 2014 unless extended before that time. As provided in the Agreement, the Developer has submitted a formal request to extend the effective period of Development Agreement. Staff concurs with the request and recommends an extension of an additional eighteen (18) months. FINANCIAL IMPACT: None at this time. RECOMMENDATION: Staff recommends that the City Council conduct the public hearing, deliberate; waive the first reading and INTRODUCE an Ordinance Approving an Amendment to the Development Agreement between the City of Dublin and Prologis, Inc. to allow for an eighteen (18) month time extension, with conditions. Submitted By 'Reviewed By Community Development Director Acting Assistant City Manager DESCRIPTION: Prologis, Inc (formerly known as AMB Properties) received approvals in 2004 to develop a mixed -use office and residential project comprised of a 150,000 square foot office complex and an adjacent 308 -unit multi - family residential project. The project site is currently occupied by a 225,000 square foot warehouse building that houses tenants including Sky River RV and Coast Building Supply. The project received Site Development Review and Tentative Map approval along with a Development Agreement with a 10 -year term (Attachment 1). The Development Page 1 of 3 ITEM NO. 6.2 Agreement "locked -in" the land -use rules in effect at the time the Agreement became effective. The Development Agreement provided the developer certainty that they could proceed with their projects, even if the City's land use policies change in the future. Although it was originally anticipated that the new development would be constructed once the leases for the existing tenants at the site expired, the economic downturn hampered efforts to bring the project to fruition. Over the past several years, the property owners had considered re- entitling the site with a different project that could be more marketable given changing conditions, but no projects moved forward. At this time, the Development Agreement is close to expiring and Prologis has submitted a request to extend the existing term to allow them to process an application with a new development partner for a new project on the site (Attachment 2). Staff is supportive of the request and has crafted terms for the extension that will provide incentive for the development team to move forward quickly with entitling the new project. It is in the City's interest to see this project site redevelop with commercial and residential uses, as it is a key property in the Transit - Oriented District of the Downtown Dublin Specific Plan area with excellent access to BART and adjacent to the newly- opened Connolly Station apartment building. ANALYSIS: The following is an overview of the terms of the proposed amendment to the Development Agreement: • Prologis will receive an extension to the existing Development Agreement for an initial six -month term at no cost with the option to extend for two additional six -month terms at the cost of $100,000 with each extension. The total extension time could be eighteen (18) months. • In order to receive the first six -month extension, Prologis is required to submit a preliminary application and concept plans for the new project no later than May 24, 2014. • In order to receive the second six -month extension, Prologis is required to pay $100,000 to the City and shall have a full and complete Planning Application on file with the City for the new project no later than December 3, 2014. • Granting the third six -month extension is at the discretion of the City, provided that Staff determines the Developer is moving forward in good faith and is expected to have the full project entitlements completed by the end of the third six -month period. Prologis is required to pay $100,000 to the City for the third extension. If Prologis does not comply with the terms outlined in the Development Agreement Amendment (Exhibit A -1 to Attachment 3), the Development Agreement expires. Development Agreements are approved by an Ordinance of the City Council upon recommendation by the Planning Commission. The proposed Development Agreement Amendment was drafted with input from City Staff, Prologis, and the City Attorney. The document was reviewed by the Planning Commission at a public hearing on March 25, 2014. At the meeting, the Planning Commission adopted Resolution 14 -13 recommending that the City Council adopt an Ordinance approving an amendment to the Development Agreement. Page 2 of 3 ENVIRONMENTAL REVIEW: On April 20, 2004, the City Council adopted Resolution 67 -04, adopting a Mitigated Negative Declaration (MND) and Mitigation Monitoring Program for the AMB Properties Transit Village Project (PA 02 -003). Approval of the Development Agreement was an action covered by the MND and therefore an extension to the time period does not require additional environmental review. PUBLIC NOTIFICATION: In accordance with State law, a Public Notice was mailed to all property owners and occupants within 300 feet of the proposed Project as well an expanded area which includes surrounding developments. A Public Notice was also published in the Valley Times and posted at several locations throughout the City. To date, the City has received no objections from surrounding property owners regarding the Project. A copy of this Staff Report was also forwarded to the Applicant. ATTACHMENTS: 1. City Council Ordinance 18 -04 (original Development Agreement) 2. Request from Prologis dated February 14, 2014 3. Ordinance approving an amendment to the Development Agreement between the City of Dublin and Prologis, Inc. to allow for an eighteen month time extension with conditions, with the Development Agreement Amendment, attached as Exhibit A -1 Page 3 of 3 ORDINANCE NO. 18 - 04 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE DEVELOPMENT AGREEMENT BETWEEN TI THE CITY OF DUBLIN AN AMB PROPERTY CORPORATION (PA 02 -003) The Dublin City Council does hereby ordain as follows: Section 1. RECITALS A. The proposed AMB Property Corporation's West Dublin Transit Village project (PA 02- 003) is located within the boundaries of the West Dublin BART Specific Plan ( "Specific Plan ") in an area which is designated on the General Plan Land Use Element and the West Dublin BART Specific Plan Land Use Map as Mixed Use and Office. An application has been filed by AMB Property, Inc. to change the approximately 9.06 -acres site occupied by the Cor -O -Van warehouse business to Planned Development (PD). B. This project is within the scope of the West Dublin BART Specific Plan and General Plan, for which a Negative Declaration was prepared for the Specific Plan, and approved by the Dublin City Council on December 19, 2000. An initial study and Mitigated Negative Declaration has been prepared for the AMB Property/Legacy Partners project, herein after called the AMB Property project. That initial study and Mitigated Negative Declaration together with the Negative Declaration for the Specific Plan, the Responses to Comments prepared and dated February 10, 2004, and updated April 20, 2004, 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 AMB Property project that were not addressed in the Negative Declaration as certified by the City Council (Resolution 00 -227). Further, that analysis found that the project is in conformity with the West Dublin BART Specific Plan/General Plan. C. AMB Property, Inc. has filed an application requesting approval of a development agreement for the West Dublin Transit Village project. E. A Development Agreement between the City of Dublin and AMB Property, Inc. has been presented to the City Council, a copy of which is attached as Exhibit A. F. A public hearing on the proposed Development Agreement was held before the Planning Commission on February 24, 2004, for which public notice was, given as provided by law. G. The Planning Commission has made its recommendation for approval of the Development Agreement. H. A public hearing on the proposed Development Agreement was held before the City Council on April 20, 2004, for which public.notice was given as provided by law. J. The City Council has considered the recommendation of the Planning Commission at the February 24, 2004 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 in making its determination on the project. 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 West Dublin BART Specific Plan, (d) the Negative Declaration for the Specific Plan, (e) the Mitigated Negative Declaration for the project, (f) the Responses to Comments on the MND, and (g) 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 West Dublin BART General Plan Specific Plan in that (a) the General Plan and Specific Plan land use for the site is currently Mixed Use and Office, which allows development of the West Dublin Transit Village. The proposed project is consistent with the land use designation of Mixed Use and 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 a Planned Development Rezoning/Stage 2 Development Plan, Site Development Review, and Vesting Tentative Parcel Map adopted specifically for the West Dublin Transit Village proj ect. 3. The Development Agreement is in conformity with public convenience, general welfare and good, sound land use policies in that the West Dublin Transit Village 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 West Dublin BART 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 West Dublin BART Specific Plan and is consistent with the planned development of a transit - oriented mixed use project intended for the Specific Plan area. Section 3. APPROVAL. The City Council hereby approves the Development Agreement and authorizes the Mayor to sign it on the City's behalf. 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. 2 Section 5: EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30). days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council of Dublin, on the 4t' day of May 2004 by the following votes: AYES: Councilmembers McCormick, Oravetz, Sbranti and Zika and Mayor Lockhart NOES: None ABSENT: None ABSTAIN: None Mayor A'T'TEST: ity erk W /G/5 -4 -04 lord - AMA- DA.d0c (Item 6. 1) G;\pa\20 02102- 003 \CC -DAord 3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 (Space Above This Line Reserved For Recorder's Use) DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF DUBLIN AND AMB PROPERTY CORPORATION we -86560 TABLE OF CONTENTS Page ARTICLE1 DEFINITIONS ....................................................... ..............................3 ARTICLE 2 EFFECTIVE DATE AND TERM ........................ ............................... 5 Section 2.01 Effective Date ........................................... ............................... 5 Section2.02 Term .......................................................... ............................... 5 ARTICLE 3 STANDARDS, LAWS AND PROCEDURES GOVERNING THEPROJECT ..................................................... ............................... 5 Section 3.01 Vested Right to Develop .........................:. ............................... 5 Section 3.02 Permitted Uses Vested by This Agreement ............................. 5 Section 3.03 Applicable Law ......................................... ............................... 6 Section 3.04 Rules regarding Design and Construction of Public Improvements ........................................... ............................... 6 Section 3.05 Building Standards .................................... ............................... 6 Section 3.06 Processing of Subsequent Approvals ........ ............................... 6 Section 3.07 ` Moratorium Not Applicable ...................... ............................... 6 Section 3.08 Life of Subdivision Maps, Development Approvals, and Permits...................................................... ............................... 7 Section 3.09 State and Federal Law ............................... ............................... 7 Section 3.10 Timing of Project Construction and Completion ..................... 7 Section 3.11 Nothing in this Agreement shall exempt Developer from completing work required by a subdivision agreement, road improvement agreement, or similar agreement.................................................. ............................... 8 ARTICLE 4 SUBSEQUENTLY ENACTED OR REVISED FEES, ASSESSMENTS AND TAXES ........................... ............................... 8 Section 4.01 Developer's Payment of City Fees ........... ............................... 8 Section 4.02 Revised Application Fees ......................... ............................... 9 Section 4.03 New Taxes ................................................ ............................... 9 Section 4.04 Assessments .............................................. ............................... 9 Section 4.05 Vote on Future Assessments and Fees ...... ............................... 9 ARTICLE 5 COMPLETION OF ST. PATRICK WAY EXTENSION ................... 9 Section 5.01 Introduction ..............:................................. ..............................9 Section 5.02 Developer's Obligation to Develop St. Patrick Way Extension in Conjunction with the Project ............................ 10 1 we -86560 ii we -86560 TABLE OF CONTENTS (continued) Page Section 5.03 City's Right to Elect to Construct Portions of St. Patrick Way........................................................... ......................:......13 ARTICLE 6 ADDITIONAL OBLIGATIONS OF DEVELOPER ........................15 Section 6.01 Storm Drain ...................:......................... ............................... 15 Section 6.02 Egress Easement for BART ......... . ......... ................................ 15 ARTICLE 7 ADDITIONAL OBLIGATIONS OF CITY ....... ............................... 15 Section 7.01 Availability of Public Services ..............: ............................... 15 ARTICLE8 AMENDMENT ....................:................................ .............................16 Section 8.01 Amendment of This Agreement ................ .............................16 ARTICLE 9 ASSIGNMENT, TRANSFER AND NOTICE ..... .............................16 Section 9.01 Right to Assign ....................................... ............................... 16 Section 9.02 Approval and Notice of Sale, Transfer or Assignment.......... 16 Section 9.03 Effect of Sale, Transfer or Assignment ..... .............................17 Section 9.04 Permitted Transfer, Purchase or Assignment .........................17 ARTICLE 10 COOPERATION IN THE EVENT OF. LEGAL CHALLENGE ......17 Section10.01 Cooperation ............................................. ............................... 17 ARTICLE 11 DEFAULT; REMEDIES; TERMINATION .....:.. .............................18 Section 11.01 Defaults ................................................... ............................... 18 Section 11.02 Termination ............:................................ ............................... 18 Section 11.03 Annual Review .......................................... .............................18 Section 11.04 Enforced Delay; Extension of Time Performance .................19 Section 11.05 Legal Action ............................................ ............................... 20 Section 11.06 Indemnification and Waiver ................... ............................... 20 ARTICLE 12 NO AGENCY, JOINT VENTURE, OR PARTNERSHIP ................ 20 ARTICLE 13 MISCELLANEOUS ........................................... ............................... 21 Section 13.01 Incorporation of Recitals and Introductory Paragraph ........... 21 Section 13.02 Severability ............................................. ............................... 21 Section 13.03 Other Necessary Act ............................... ............................... 21 Section 13.04 Construction ......................:....................... .............................21 Section 13.05 California Law ........................................ ............................... 21 ii we -86560 TABLE OF CONTENTS (continued) Page Section 13.06 Attorneys' Fees ....................................... ............................... 21 Section 13.07 Hold Harmless ........................................ ............................... 22 Section 13.08 Agreement Runs with the Land .............. ............................... 22 Section13.09 Notices ........................:........................... ............................... 22 Section 13.10 Entire Agreement, Counterparts and Exhibits ....................... 23 Section 13.11 Recordation of Development Agreement .............................. 24 List of Exhibits Exhibit A -1: Legal Description of Project Site Exhibit A -2: Diagram of.Project Site Exhibit B: St. Patrick Way Right of Way Diagram Exhibit C: Parking Diagram Exhibit D: Egress Easement to St. Patrick Way we -86560 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement ") is entered into as of , 2004 by and between AMB Property Corporation, a Maryland corporation ( "Developer "), and the City of Dublin, a municipal corporation ( "City "), pursuant to California Government Code Section 65864 et seq. City and Developer are sometimes hereinafter individually referred to as a "Party" and collectively referred to as the "Parties." RECITALS A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California enacted California Government Code Section 65864 et se q. and, pursuant thereto City has enacted Chapter 8.56 of the Dublin Municipal Code, entitled Development Agreements Regulations (collectively the "Development Agreement Statute "). B. The Development Agreement Statute authorizes 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 development rights in such property. This Development Agreement has been processed, considered and executed in accordance with these laws. C. Developer has a legal interest in certain real property consisting of approximately 9.07 acres located in the City of Dublin, County of Alameda, State of California, as more particularly described in Exhibit A -1 attached hereto, and as diagrammed in Exhibit A -2 attached hereto (the "Project Site "). The Project Site is currently improved with an approximately 204,000 sq. ft. industrial warehouse building (the "Industrial Warehouse "). D. On December 19, 2000, the City Council, following months of public hearings, studies and adoption of a Negative Declaration in compliance with the California Environmental Quality Act, Public Resources Code Section 21000 et seq., approved the following planning entitlements covering an approximately 70 acre planning area proximate to Downtown Dublin, I -580 and I -680 and the proposed West Dublin BART station (the "West Dublin Planning Area "). A primary purpose of this extensive planning effort undertaken by City was to encourage the redevelopment of existing uses, such as the Industrial Warehouse, to higher intensity mixed uses such as higher intensity residential development and commercial office buildings. The Project Site is located in a central portion of the West Dublin Planning Area. 1. General Plan Amendment. Following review and recommendation by the Planning Commission and after a duly noticed public hearing, the City Council, by Resolution 228 -00, approved certain general plan amendments which added a Mixed Use land use we -86560 designation covering the Project Site and increased the FAR for office development within the West Dublin Planning Area (the "General Plan Amendment "). 2. West Dublin BART Specific Plan. Following review and recommendation by the Planning Commission, the City Council at a duly noticed public hearing , adopted Resolution No. 227 -00 approving the West Dublin BART Specific Plan (the "Specific Plan"). The Specific Plan designates the Project Site as an opportunity site for Mixed Use (MU) and Office (0) development. E. In furtherance of the General Plan Amendment and the Specific Plan, Developer has applied for, and City has approved various land use approvals in connection with the development of the Project, including for 1) Planned Development Rezone (Ordinance No. 11-A ( "PD Rezone "), 2) general provisions for the PD Rezone including Stage 1 and Stage 2 Development Plans (City Council Resolution No. _), 3) Site Development Review (City Council Resolution No. _), and 4) Vesting Parcel Map ( Resolution No. _.) covering the Project Site (collectively the "Project Approvals"). F. The Project Approvals propose the mixed use development of the Project Site for approximately 310 multi - family residential units and a five - story, approximately 150,000 square foot office building, together with associated supporting retail, parking, and landscaping (the "Project "). G. City has determined that the Project presents substantial public benefits and opportunities which are advanced by City and Developer entering into this Agreement. This Agreement will, among other things, (1) provide for the redevelopment of the older, Industrial Warehouse improvement on the Project Site to higher density multiple family housing development and commercial uses; (2) expand City's tax base, provide jobs, and stimulate downtown redevelopment in furtherance of goals and policies set forth in the General Plan Amendment and the Specific Plan; (3) help to implement City's vision for the Project Site as smart growth transit village as set forth in the Specific Plan; (4) provide a variety of needed housing, including affordable housing and/or funds in furtherance of affordable housing opportunities; (5) provide visual benefits by enhancing the image of Dublin from Interstate 580 and 680 viewsheds; (6) provide public infrastructure, including the dedication of property necessary for and construction of a key new arterial street improvements to St. Patrick. Way; (7) reduce uncertainties in planning and provide for the orderly development of the Project; and (8) otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted. H. In order to further City's goal of creating a smart growth transit village surrounding the future West Dublin BART Station (the "BART Station "), it is the intention of the Parties that the design of the Project and the development on the adjacent parcel owned by the Bay Area Rapid Transit District (the "BART Parcel ") include 4 we -86560 internal pedestrian circulation plans to facilitate pedestrian access between the Project and the BART Station. I. In exchange for the benefits to City described in the preceding Recital, together with the other public benefits that will result from the development of the Project, Developer will receive by this Agreement assurances that it may proceed with the Project in accordance with the "Applicable Law" (defined below), and therefore desires to enter into this Agreement. J. The City Council, after conducting a duly noticed public hearing, has found that this Agreement is consistent with the General Plan and with the Specific Plan and has conducted all necessary proceedings in accordance with City's rules and regulations for the approval of this Agreement. K. City and Developer have reached agreement and desire to express a Development Agreement that will facilitate development of the Project subject to conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the premises, covenants and provisions set forth herein, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: ARTICLE 1 DEFINITIONS "Administrative Agreement Amendment" shall have that meaning set forth in Section 8.01(b) of this Agreement. "Agreement" shall have that meaning set forth in the introductory paragraph of this Agreement. "Annual Review shall have that meaning set forth in Section 11.03(a) of this Agreement. "Applicable Law" shall have that meaning set forth in Section 3.03 of this Agreement. "Authorizations" shall have that meaning set forth in Section 5.03(d) of this Agreement. "BART Parcel" shall have that meaning set forth in Recital H of this Agreement. "BART Station" shall have that meaning set forth in Recital H of this Agreement. "City" shall have that meaning set forth in the introductory paragraph of this Agreement. 3 we -86560 "City Fees shall have that meaning set forth in Section 4.01 of this Agreement. "Default Notice" shall have that meaning set forth in Section 11.01 of this Agreement. "Developer" shall have that meaning set forth in the introductory paragraph of this Agreement. "Development Agreement Statute" shall have that meaning set forth in Recital A of this Agreement. "Effective Date" shall have that meaning set forth in Section 2.01 of this Agreement. "General Plan Amendment" shall have that meaning set forth in Recital D of this Agreement. "Improvement Completion Notice" shall have that meaning set forth in Section 5.02(c)(2) of this Agreement. "Industrial Warehouse" shall have that meaning set forth in Recital C of this Agreement. "Notice of Election" shall have that meaning set forth in Section 5.03 of this Agreement. "Parties" shall have that meaning set forth in the introductory paragraph of this Agreement. "PD Rezone" shall have that meaning set forth in Recital E of this Agreement. "Project" shall have that meaning set forth in Recital F of this Agreement. "Project Approvals" shall have that meaning set forth in Recital E of this Agreement. "Project Site" shall have that meaning set forth in Recital C of this Agreement. "Proposed Assignment Notice" shall have that meeting set forth in Section 9.01 of this Agreement. "Punch List" shall have that meaning set forth in Section 5.02(c)(2) of this Agreement. "Purchaser" shall have that meaning set forth in Section 9.04 of this Agreement. "Specific Plan" shall have that meaning set forth in Recital D of this Agreement. I we -86560 "St. Patrick Way Extension" shall have that meaning set forth in Section 5.01 of this Agreement. - "St. Patrick Way Improvements" shall have that meaning set forth in Section 5.02(c)(1) of this Agreement. "Storm Drain" shall have that meaning set forth in Section 6.01 of this Agreement. "Subsequent Approvals" shall mean such other land use approvals, entitlements, and permits, including amendments to Project Approvals (but excluding the Project Approvals), that are approved by City after the Effective Date and that authorize the development of the Project Site. "Term" shall have that meaning set forth in Section 2.02 of this Agreement. "Transferee" shall have that meaning set forth in Section 9.01 of this Agreement. "West Dublin Planning Area" shall have that meaning set forth in Recital D of this Agreement. "Western Improvements" shall have that meaning set forth in Section 5.03(e) of this Agreement. ARTICLE 2 EFFECTIVE DATE AND TERM Section 2.01 Effective Date. This Agreement shall become effective upon the date the ordinance approving this Agreement becomes effective (the "Effective Date "). Section 2.02 Term. The term of this Agreement (the "Term ") shall commence upon the Effective Date and continue for a period of ten (10) years unless otherwise terminated, extended, or modified by the terms of this Agreement. ARTICLE 3 STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT Section 3.01 Vested Right to Develop. Developer shall have a vested right to develop the Project on the Project Site in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), the Subsequent Approvals, if any (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. Section 3.02 Permitted Uses Vested by This Agreement. The permitted uses of the Project Site, 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 the location of on -site and off -site public 5 we -86560 improvements; the general location of public utilities (operated by City); and other terms and conditions of development applicable to the Project, shall be those in effect on the Effective Date of this Agreement. The Parties understand that the Project Approvals approve development at a density and intensity of development and building height (i) below the maximum 331 dwelling units permitted on the Project Site by the General Plan Amendment and Specific Plan, (ii) below the maximum 1.0 FAR permitted by the General Plan Amendment and Specific Plan for nonresidential development on the Project Site, and (iii) below the eight (8) story maximum height designated in the General Plan Amendment and the Specific Plan. These maximum development standards set forth in the General Plan Amendment and Specific Plan shall during the Term of this Agreement be vested elements applicable to the Project Site. However, nothing in this Section shall be deemed to eliminate or diminish the requirement of Developer to obtain any required Subsequent Approvals. City acknowledges that when calculating the maximum FAR permitted on the Project Site, such calculation shall be based upon the size of the Project Site as of the Effective Date, exclusive of any future dedications to City. Section 3.03 Applicable Law. The rules, regulations, official policies, standards and specifications applicable to the Project Site (the "Applicable Law "), including those rules, regulations, official policies, standards, and specifications (including City ordinances and resolutions) governing permitted uses, building locations, timing of construction, densities, design, heights, fees, exactions, and taxes, shall be those in force and effect on the Effective Date of this Agreement, unless otherwise provided for in this Agreement and the Project. Approvals. Section 3.04 Rules regarding Design and Construction of Public Improvements. The 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. Section.3.05 Building Standards. The Project shall be constructed in accordance with the provisions of the City of Dublin Building, Mechanical, Plumbing, Electrical, and Fire Codes, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. Section 3.06 Processing of Subsequent Approvals. Nothing in this Agreement shall prevent City from denying or conditionally approving any subsequent land use permit or authorization for the Project, provided, however, that City's actions shall be subject to any conditions, terms, restrictions, and requirements that are expressly set forth in this Agreement. In particular, City acknowledges that the terms of Sections 3.01 and 3.02 contain certain limitations that prevent City from considering subsequently enacted land use regulations in passing on a Subsequent Approval that might otherwise be applicable. n we -86560 Section 3.07 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, a limit on the rate of development, or a voter - approval requirement 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, the Project Approvals, or the Subsequent Approvals, if any, during the term of this Agreement unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code Section 8558. Section 3.08 Life of Subdivision Maps, Development Approvals, and Permits. The term of any subdivision map or any other map, permit, rezoning, or other land use entitlement approved as a Project Approval or Subsequent Approval, that would otherwise terminate, shall automatically be extended for the longer of the duration of this Agreement or the term otherwise applicable to such Project Approval or Subsequent Approval if this Agreement is no longer in effect. Section 3.09 1 State and Federal Law. As provided in California Government Code Section 65869.5, this Agreement shall not preclude the application to the Project Site of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations. 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 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 of the Agreement shall be approved by the City Council in accordance with Chapter 8.56 of the Dublin Municipal Code. Section 3.10 Timing of Project Construction and Completion. (a) Timing of Development. Notwithstanding any provision of this Agreement, City and Developer expressly agree that there is no requirement that Developer initiate or complete development of the Project or any particular phase of the Project within any particular period of time, and City shall not impose such a requirement on any Project Approval. The Parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition, and other similar factors. (b) Initiatives Restricting Timing of Development Inapplicable. In light of the foregoing and except as set forth in Section 3.11 of this Agreement, the Parties agree that Developer shall be able to develop in 7 wc- 86560' accordance with Developer's own time schedule as such schedule may exist from time to time, and Developer shall determine which part of the Project Site to develop first, and at Developer's chosen schedule. In particular, and not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the Parties therein to consider and expressly provide for the timing of development resulted in a later - adopted initiative restricting the timing of development to prevail over such Parties' agreement, it is the Parties' desire to avoid that result by acknowledging that Developer shall have the right to develop the Project in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. Section 3.11 Nothing in this Agreement shall exempt Developer from completing work required by a subdivision agreement, road improvement agreement, or similar agreement. ARTICLE 4 SUBSEQUENTLY ENACTED OR REVISED FEES, ASSESSMENTS AND TAXES Section 4.01 Developer's Payment of City Fees. Notwithstanding any vested rights it may acquire pursuant to this agreement or the vesting parcel map, Developer shall pay the development impact fees ( "City Fees ") in. the amount in effect as of the time when the fees would otherwise be payable. Provided, however, Developer shall not be subject to City Fees that were not in existence on the Effective Date of this Agreement. Specifically, the Parties agree as follows: (a) Public Facilities Fee. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214 -02, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. (b) School Impact Fees. School impact fees shall be paid by Developer in accordance with Government Code Section 53080 and the - agreement between Developer's predecessor in interest and the Dublin Unified School District regarding payment of mitigation fees. (c) Fire Facilities Fee. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12 -03 including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. (d) Tri- Valley Transportation Development Impact 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 any 8 we -86560 subsequent resolution which revises such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Notwithstanding the foregoing, Developer also agrees to pay, to the extent applicable, any fee adopted subsequent to the Effective Date pursuant to Resolution No. 173 -01 [ "A Resolution Expressing the City's Intent to Adopt Development Fee to Mitigate the Impacts of Non - Residential Development on the Affordability of Housing in the City of Dublin "], dated October 2, 2001. Developer shall not be subject to any traffic fees or traffic - related exactions or dedication requirements other than as specifically set forth in the Project Approvals or this Agreement. Notwithstanding anything to the contrary in this Agreement, Developer preserves its right to challenge updates to existing City Fees or to challenge any new fees adopted by City to which the Developer, pursuant to this Agreement, is subject. Section 4.02 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. Section 4.03 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. Section 4.04 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 that benefit the Property. Section 4.05 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. XTIID 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. ARTICLE 5 COMPLETION OF ST. PATRICK WAY EXTENSION. Section 5.01 Introduction. The Specific Plan provides for the construction of an extension of St. Patrick Way between Golden Gate Drive and Regional Street., within the right of way described in Ordinance No. 19 -03 and as shown on Exhibit B ( "the St. Patrick Way Extension "). As an inducement to City entering into this Agreement, Developer desires to complete the entirety of the St. Patrick 9 we -86560 Way Extension as part of the Project. Completion of the eastern third of the St. Patrick Way Extension is necessary to serve other anticipated development to the immediate east of the Project Site that may or may not take place prior to development of the Project Site. As set forth in detail in this Article, the parties, through the completion of the St. Patrick Way Extension, intend to facilitate the development of the Project Site and the properties to Project Site's east. In general, the parties intend that (a) if development of the Project commences prior to the completion of any portion of the St. Patrick Way Extension, Developer shall complete the construction of the St. Patrick Way Extension in conjunction with the development of the Project; and (b) if Developer has not yet commenced construction of the St. Patrick Way Extension, the City may elect to construct all or a portion of the St. Patrick Way Extension, all pursuant to the terms set forth in this Article. Section 5.02 Developer's Obligation to Develop St. Patrick Way Extension in Conjunction with the Project. As more particularly described in this Section, if at the time Developer proceeds with development of the Project the entirety of the St. Patrick Way Extension has not been completed, Developer shall provide a substantial portion of the right of way necessary to construct St. Patrick Way to City and shall construct the St. Patrick Way improvements as set forth in this Section. (a) Developer's Provision of Right of Way. Developer's obligations to provide the property for the St. Patrick Way right of way are as follows:. (1) Area 4A. Developer shall dedicate Area 4A (as identified on Exhibit B) to City for a portion of the future St. Patrick Way. (2) Area 4B. Developer shall sell Area 4B (as identified on Exhibit B) to City at the price set forth in Section 5.02(b)(3) of this Agreement for a portion of the future St. Patrick Way. (3) Areas 6 and 6 -West. Developer shall sell Areas 6 and 6- West (as identified on Exhibit B) in fee simple to City at the price set forth in Section 5.02(b)(3) of this Agreement. (4) Areas 1, 2, 3, and 5. Developer shall undertake good faith efforts to negotiate the sale of Areas 1, 2, 3, and 5 (as identified on Exhibit B) from the respective third -party property owners directly to City. All costs associated with acquiring Areas 1, 2, and 5, whether by negotiated sale from the third -party to City, or, condemnation by City (as set forth in Section 5.02(b)(1) of this Agreement), shall be borne by Developer. All costs associated with acquiring Area 3, whether by negotiated sale from the third - party owner to City or condemnation by City (as set forth in Section 5.02(b)(1) of this Agreement), shall be borne by City. City shall have the right to approve the purchase price of Area 3, except 10 we -86560 that City shall approve the- purchase price if it does not exceed the property's fair market value, as determined by an appraiser mutually chosen by City and Developer. The costs of such an appraisal shall be borne equally by the Parties. All dedications by Developer to City pursuant to this Section 5.02 of this Agreement shall be made on the final parcel or subdivision map or pursuant to separate grant deed prior to the commencement of construction of the residential or office portion of the Project, whichever is the first to occur. Developer shall deliver grant deeds for land or right of way that City will purchase directly from Developer pursuant to this Section prior to the commencement of construction of the residential or office portion of the Project, whichever is the first to occur. (b) City's Obligations with Respect to Acquisition of St. Patrick Right of Way. City shall have the following obligations with respect to the acquisition of right of way for the St. Patrick Way Extension: (1) Potential Condemnation of Areas 1, 2, 3, and 5. In the event Developer, despite reasonable efforts, cannot successfully negotiate City's acquisition of Areas 1, 2, 3, and 5 (as identified on Exhibit B), City shall use its eminent domain authority to acquire such property. In the event City acquires Areas 1, 2, or 5 pursuant to its eminent domain power, all costs of acquisition, including appraisal fees, attorneys' fees and expert witness fees, shall be paid by Developer and at no cost to City. The cost of City's acquisition of Area 3 pursuant to its eminent domain power, if any, shall be borne byCity. (2) Rights of Entry for Construction of St. Patrick Way. Upon request by Developer, City shall promptly issue to Developer and any contractors or subcontractors designated by Developer a license or similar right of access across Areas 1, 2, 3, 4A, 4B, 5, 6, and 6 -West, if such lands are acquired or otherwise controlled by City, to facilitate the construction of the St. Patrick Way Improvements. Any such right of access granted by City shall remain in effect until City's acceptance of the St. Patrick Way Improvements. (3) Payment for Areas 4B, 6, and 6 -West. City shall pay Developer thirteen dollars ($13) per square foot for Developer's granting of Areas 4B, 6, and 6 -West to City. Payment shall be made to Developer upon City's acceptance of the St. Patrick Way Improvements as set forth in Section 5.02(c)(2) of this Agreement. (4) Payment for Area 3. In the event Developer successfully negotiates the sale of Area 3 from the third -party property owner 11 we -86560 directly to City pursuant to Section 5.02(a)(4) of this Agreement, City shall pay the purchase price directly to the third -parry property owner. (c) Construction and Acceptance of St. Patrick Way Improvements; Payment. (1) Construction by Developer. Developer shall commence construction of St. Patrick Way and. the related improvements, including a major storm drain line within St. Patrick Way, pursuant to plans and specifications approved by the City Engineer (the "St. Patrick Way Improvements "), concurrently with commencing construction of the residential or office portion of the Project, whichever is the first to occur. The roadway shall be completed and useable prior to any occupancy of the Project. As used herein, "St. Patrick Way Improvements" may refer to the construction of the entirety of St. Patrick Way and related improvements or to a portion thereof in the event City elects to construct a portion of St. Patrick Way pursuant to Section 5.03 of this Agreement. (2) Acceptance by City. Immediately upon receipt of written notice from Developer that the St. Patrick Way Improvements are complete and that Developer is prepared to dedicate such improvements to City (the "Improvement Completion Notice "), City staff shall diligently inspect the St. Patrick Way Improvements and determine whether to (a) recommend to the City Council that it accept such improvements or (b) provide Developer with a punch list of specific deficiencies to correct before City will accept the St. Patrick Way Improvements (the "Punch List "). Any such deficiencies shall be limited to those necessary to complete the St. Patrick Way Improvements to City standards. In no event shall City staff take more than sixty (60) days from its receipt of the Improvement Completion Notice to determine whether to recommend acceptance of the St. Patrick Way Improvements to the City Council or to provide the Punch List to Developer. In the event City staff recommends acceptance of the St. Patrick Way Improvements to the City Council, the City Council shall promptly consider whether to accept such improvements. The City Council may refuse to accept the St. Patrick Way Improvements only if it finds that such improvements have not been constructed substantially in accordance with the approved plans and specifications. (3) Payment by City. Within thirty (30) days of City's acceptance of the St. Patrick Way Improvements constructed by Developer, City shall reimburse Developer for all costs incurred by Developer in constructing that portion of the St. Patrick Way 12 we -86560 4_ Improvements lying within Areas 3, 4B, 6, and 6 -West, provided that following City approval of the plans for the St. Patrick Way Improvements, Developer shall solicit bids from three (3) contractors to construct such improvements. Upon Developer entering into a construction contract, Developer and the City Engineer shall meet and confer in good faith to reasonably allocate the actual costs to complete such improvements among the Parties on a proportionate basis based upon each Party's respective share of the entire cost of the St. Patrick Way Improvements as set forth in this Agreement. Section 5.03 City's Right to Elect to Construct Portions of St. Patrick Way. Notwithstanding anything to the contrary in this Agreement, City may, at any time prior to the commencement of construction of the St. Patrick Way Improvements by Developer, elect to construct, at its sole cost, those portions of the St. Patrick Way Improvements within Area 3, Area 4B, Area 6, and Area 6- West. Upon such election, which shall be noticed in writing pursuant to Section 13.09 of this Agreement (the "Notice of Election "), the Parties shall have the following obligations. v c -86560 (a) Acquisition of Areas 2 and 3. If Developer has not previously negotiated the sale of Areas 2 and 3 to City pursuant to 5.02(a)(4), City shall acquire Areas 2 and 3 from the third -party owner, for use in connection with the St. Patrick Way Improvements and Developer shall have no further obligation to negotiate the acquisition of Areas 2 and 3 as otherwise required by Section 5.02(a)(4) of this Agreement. (b) Dedication of Areas 4B, 6, and 6 -West. Provided City has acquired Area 2 and Area 3 as set forth above, Developer shall dedicate Area 4B, Area 6, and Area 6 -West (as identified on Exhibit B) to City, subject.to any payment by City required by Section 5.03(c), for use as a portion of the future St. Patrick Way. Developer shall deliver a grant deed to City within thirty (30) days of receipt of the Notice of Election or within thirty (30) days of City's acquisition of both Area 2 and Area 3, whichever is the later to occur. (c) Payments to City for Acquisition of Area 2. If at the time that City issues the Notice of Election, the City has already acquired Area 2 pursuant to Section 5.02(a)(4) and at no cost. to the City, the City shall make the payments required by Section 5.02(b)(3) to compensate Developer for the dedication of Areas 4B, 6, and 6 -West. In the event that City is required to condemn or negotiate the purchase of Area 2 pursuant to Section 5.03(a), Developer shall pay to the City the difference, if any, between the City's cost of acquiring Area 2 and the costs the City would have been required to pay to compensate Developer for the dedication of Areas 4B, 6, and 6 -West pursuant to Section 5.02(b)(3). For example, if the cost of acquiring Area 2 is $650,000 and if the cost of acquiring Areas 13 4B, 6, and 6 -West at $13 per square foot is $300,000, Developer would pay City $350,000. Any payment required by Developer pursuant to this subsection shall be made prior to issuance of the first building permit in the Project. (d) Developer's Temporary Parking and Access Rights. Provided City has acquired Areas 2, 3, 4B, 6, and 6 -West as set forth above, City shall promptly grant Developer a license or similar right to. utilize on a temporary basis (i) Area 2 for vehicle and pedestrian ingress to and egress from the Project Site and for passenger car and truck parking associated with the Industrial Warehouse (as shown on Exhibit C); (ii) Area 6 West (as identified on Exhibit B) for ingress to and egress from the Project Site; and (iii) portions of Areas 3 and 4B for passenger car parking (as shown on Exhibit C) ( "the Authorizations "). During the term of this Agreement, the Authorizations shall continue in effect but shall terminate upon Developer providing City with written notice that it is ready to commence construction of the residential or office portion of the Project or the issuance of the first building permit for the Project, whichever comes first. The Authorizations shall be of no further force and effect upon the termination of this Agreement, unless Developer has made the payment required by subsection (c) of this Section, in which case the Authorizations shall continue until such time as the City Council determines that the use of the lands is necessary for. public roadway or other public purposes. If, after the termination of this Agreement, the City Council determines that the use of the lands subject to the Authorizations is necessary for public roadway or other public purposes, the Authorizations shall terminate, and Developer shall be entitled to no compensation for any loss of the right to use the lands subject to the Authorizations. Notwithstanding anything to the contrary in this Agreement, the provisions of this subsection shall survive the termination of this Agreement, and City may exercise its power of eminent domain to acquire any rights Developer may acquire pursuant to this subsection. (e) City's Right to Construct Entirety of St. Patrick WU Extension. Notwithstanding anything to the contrary in this Agreement, in the event that City has completed a portion of the St. Patrick Way Extension pursuant to this Section 5.03, City may complete those portions of the St. Patrick Way Extension outside of Areas 3, 4B, 6, and 6- West ( "the Western Improvements ") provided that it compensates Developer for the acquisition of the necessary right of way from Developer, including any rights developer obtains pursuant to this Agreement. By agreeing to this provision, Developer does not waive any right to severance damages or damages for loss of business good will that it may incur in the event that City condemns the right of way for the Western Improvements. In the event that City does construct the Western Improvements pursuant to this subsection 5.03(e), Developer agrees to pay to City, prior to the issuance of the first building permit issued to Developer in the Project, an amount 14 we -86560 equal to the City's costs of acquiring the right of way for the Western Improvements (but specifically excluding any compensation to Developer associated with severance damages or damages for loss of business good will) and all of the City's cost of constructing the Western Improvements. If the construction of the Western Improvements is part of a larger City project, upon City awarding a construction contract for such project, Developer and the City Engineer shall meet and confer in good faith to reasonably allocate the costs of construction between the Western Improvements and the remainder of the project. (f) Developer's Continuing Obligation to Complete Remainder of St. Patrick Way Extension. In the event that the City elects to complete a portion of the St. Patrick Way Extension pursuant to this Section 5.03, Developer shall remain obligated to dedicate land for and construct the portion of St. Patrick Way Extension remaining incomplete. The terms of Section 5.02, to the extent then applicable, shall continue to apply. ARTICLE 6 ADDITIONAL OBLIGATIONS OF DEVELOPER Section 6.01 Storm Drain. In the event development of the BART Parcel necessitates the relocation of the storm drain crossing the BART Parcel (the "Storm Drain "), which serves to drain the Project Site and several neighboring parcels, Developer shall, within thirty (30) days of receipt of written notice from .City, contribute up to thirty thousand dollars ($30,000) to City or BART, as appropriate, toward the cost of relocating the Storm Drain. Provided, however, that Developer shall have no obligation to contribute any funds toward the cost of relocating the Storm Drain until any such relocation has been completed and accepted by City. This provision shall survive termination of this Agreement. Section 6.02 Egress Easement for BART. Developer and the developer of the BART Parcel have agreed in concept to a shared driveway.to serve both the Project and anticipated development on the BART Parcel. In the event development of the BART Parcel precedes development of the Project, and the BART project approvals necessitate vehicular and pedestrian. egress across Developer's property for access to the proposed shared driveway to St. Patrick Way, Developer shall, within thirty (30) days of receipt of written notice from City, grant to the owner of the BART Parcel a private non - exclusive egress easement across a portion of the Property (depicted on Exhibit D) to allow a temporary driveway connection to be constructed and utilized. The shared driveway is illustrated on Exhibit D and the precise location of the easement is subject to refinement during final design. Developer shall have no obligation to grant an easement that would. inhibit or obstruct the continued use and operation of the Industrial Warehouse. Developer shall not bear any of the costs associated with the preparation, execution, and recordation of the easement document. 15 we -86560 ARTICLE 7 ADDITIONAL - OBLIGATIONS OF CITY Section 7.01 Availability of Public Services. To the maximum extent permitted by law and consistent with its authority, and at no cost to City, City shall cooperate with Developer in Developer's efforts to reserve such capacity for sewer, water, and other public services and to obtain related permits and approvals from other governmental or quasi - governmental entities as may be necessary to serve the Project. ARTICLE 8 AMENDMENT Section 8.01 Amendment of This Agreement. (a) Amendment by Mutual Consent. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the Parties or their successors in interest, in accordance with the Development Agreement Statute. (b) Administrative Agreement Amendments. Any amendment to this Agreement that does not relate to (i) the Term of this Agreement, (ii) permitted uses of the Project Site, (iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions, or requirements for subsequent discretionary actions, (v) the density or intensity of use of the Project Site or the maximum height or size of proposed buildings, or (vi) monetary contributions by Developer, shall not, except to the extent otherwise required by law, require notice or public hearing before the Parties may execute an amendment hereto. Such amendment may be approved by the City Manager. (c) Amendment Exemptions: No amendment of a Project Approval or Subsequent Approval shall require an amendment to this Agreement. Instead, any such Subsequent Approvals automatically shall be vested pursuant to Section 3.01 of this Agreement. ARTICLE 9 ASSIGNMENT, TRANSFER AND NOTICE Section 9.01 Right to Assign. Developer may wish to sell, transfer or assign all or portions of its Property to other developers (each such other developer is referred to as a "Transferee "). In connection with any such sale, transfer or assignment to a Transferee, Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer arising hereunder and that pertain to the portion of the Property being sold or transferred, to such Transferee, provided, however, that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur without prior written notice to City (the "Proposed Assignment Notice ") and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. 16 we -86560 Section 9.02 Approval and Notice of Sale, Transfer or Assignment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) days following City's receipt of the Proposed Assignment Notice, provided all necessary documents, certifications and other information are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform the Developer's obligations hereunder. The City Manager may refuse to give his consent only if, in light of the proposed transferee's reputation and financial resources, such transferee would not in City's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Developer may appeal the City Manager's determination to the City Council. In the event the City Manager has not notified Developer of his or her decision regarding the proposed transfer, sale or assignment within ten (10) days of City's receipt of the Proposed Assignment Notice, provided the City Manager has received all necessary documents, Developer may deliver a subsequent Proposed Assignment Notice. If the City Manager has, not notified Developer of his or her decision within ten (10) days of the City's receipt of the subsequent Proposed Assignment Notice, the City Manager shall be deemed to have approved such proposed transfer, sale or assignment. Notice of any such approved sale, transfer or assignment (which includes a description of all rights, interests and obligations that have been transferred and those which have been retained by Developer) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. Section 9.03 Effect of Sale, Transfer or Assignment. Developer shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to Section 9.01 of this Agreement, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to Section 9.01 of this Agreement; and b) such obligations are expressly assumed by Transferee and provided that such Transferee shall be subject to all the provisions. Section 9.04 Permitted Transfer, Purchase or Assignment. The sale or other transfer of any interest in the Property to a purchaser ( "Purchaser ") pursuant to the exercise of any right or remedy under a deed of trust encumbering Developer's interest in the Property shall not require City Manager approval pursuant to the provision of Section 9.01 of this Agreement. Any subsequent transfer, sale or assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of Section 9.01 of this Agreement. ARTICLE 10 COOPERATION IN THE EVENT OF LEGAL CHALLENGE Section 10.01 Cooperation. (a) In the event of any administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of the Agreement or any Project 17 we -86560 Approval or Subsequent Approval, the Parties shall cooperate in defending such action or proceeding. 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, the Project Approvals, or the Subsequent Approvals, if any, the Parties shall cooperate in defending such action. Developer shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse City for all reasonable court costs and attorneys' fees expended by City in defense of any such action or other proceeding. Developer's obligation to pay for City's legal counsel shall not extend to fees incurred on appeal unless otherwise authorized by Developer. (b) The Parties agree that this Section shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terms of this Section, which shall survive such invalidation, nullification or setting aside. ARTICLE 11 DEFAULT; REMEDIES; TERMINATION Section 11.01 Defaults. Any failure by either party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other party (unless such period is extended by mutual. written consent), shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence ( "Default Notice ") shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30 -day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such 30 -day period. Upon the occurrence of a default under this Agreement, the non - defaulting party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, then no default shall exist and the noticing party shall take no further action. Section 11.02 Termination. If City elects to consider terminating this Agreement due to a material default of Developer, then City shall give a notice of intent to terminate this Agreement and the matter shall be scheduled for consideration and review by the City Council at a duly noticed and conducted public hearing. Developer shall have the right to offer written and oral evidence prior to or at the time of said public hearings. If the City Council determines that a material default has occurred and is continuing, and elects to terminate this Agreement, City shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter; provided, however, that if Developer files an action to W-1 wr -$6560 challenge City's termination of this Agreement within such sixty -day period, then .this Agreement shall remain in full force and effect until a trial court has affirmed City's termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired). Section 11.03 Annual Review. (a) - Review Date. The annual review date for this Agreement shall be, July 15, 2004 and each July 15 thereafter (the "Annual Review "). (b) Initiation of Review. City's Community Development Director shall initiate the Annual Review, as required under Section 8.56.140 of Chapter 8.56 of the City Municipal Code, by giving to.Developer thirty (30) days' written notice that City intends to undertake such review. The Annual Review shall be limited in scope to compliance with the terms of this Agreement pursuant to California Government Code Section 65865.1 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 Developer. (c) Notice. City shall use its best efforts to deposit in the mail and fax to Developer at least five (5) days prior to any Annual Review a copy of all staff reports and related exhibits to be used or relied upon in conducting the review concerning Developer's performance hereunder. Developer shall be permitted an opportunity to respond to City's evaluation of Developer's performance, either orally at a.public hearing or in a written statement, at Developer's election. Such response shall be made to the Community Development Director. (d) Costs. The costs incurred by City in connection with the Annual Review shall be paid by Developer in accordance with the schedule of fees in effect at the time of review. (e) Estoppel Certificate. Either 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 19 we -86560 agreed to by the Parties. City Manager of City shall be authorized to execute any certificate requested by Developer. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this Section -are true, and any party may rely on such deemed certification. Section 11.04 Enforced Delay; Extension of Time Performance. In addition to specific provisions of this Agreement, neither party shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, terrorism, insurrection, strikes or other labor disturbances, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God, judicial decisions, or similar basis for executed performance which is not within the reasonable control of the party to be excused. Litigation attacking the validity of this Agreement or any of the Project Approvals or Subsequent Approvals, or any permit, ordinance, entitlement or other action of a governmental agency other than City necessary for the development of the Project pursuant to this Agreement, or Developer's inability to obtain materials, power, or public facilities (such as water or sewer service) to the Project, shall be deemed to create an excusable delay as to Developer. Upon the request of either party hereto, an extension of time for the performance of any obligation whose performance has been so prevented or delayed will be memorialized in writing. The term of such extension shall be equal to the period of the excusable delay, or longer, as may mutually agreed upon. Section 11.05 Legal Action. Either party may, in addition to any other rights or remedies, institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, recover damages for any default, enforce by specific performance the obligations and rights of 'the Parties, or to obtain any remedies consistent with the purpose of this Agreement. Notwithstanding the foregoing, in no event shall damages be awarded against City upon an event of default or upon termination of this agreement. Section 11.06 Indemnification and Waiver. Developer shall defend City, its officers, employees and officials, against any claims or actions (including declaratory or injunctive relief) concerning the bidding on the contract for the construction of the St. Patrick Way Improvements on Developer's property or on Areas 1, 2, 3, and 5, whether owned by City or not, or the payment of wages pursuant to such contract, and shall indemnify and hold City harmless from any damages, charges, fees or penalties that may be awarded or imposed against City and /or Developer in connection with, or on account of, the bidding for the contract for the construction of the St. Patrick Way Improvements or the payment of wages pursuant to such contract. Notwithstanding the foregoing, in the event City constructs those portions of the St. Patrick Way Improvements within Areas 3, 4B, 6, and 6 -West pursuant to Section 5.03 of this Agreement, the foregoing WE we -86560 provisions of this Section 11.06 shall not apply to any contracts related to such construction. ARTICLE 12 NO AGENCY, JOINT VENTURE, OR PARTNERSHIP It is specifically understood and agreed to by and between the Parties that: (i) the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Project Approvals or Subsequent Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, the Project Approvals, Subsequent Approvals, and Applicable Law; and (iv) City and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer. ARTICLE 13 MISCELLANEOUS Section 13.01 Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. Section 13.02 - Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the Parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void, or unenforceable, either City or Developer may (in their sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other party. Section 13.03 Other Necessary Act. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Project Approvals, Subsequent Approvals, and this Agreement and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder, including but not limited to any and all such instruments as may be necessary to grant Developer a reasonable right of access across any City -owned property so that Developer may construct the St. Patrick Way Improvements. 21 we -86560 Section 13.04 Construction. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting parry shall apply to the interpretation or enforcement of this Agreement. Section 13.05 California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Section 13.06 Attorneys' Fees. In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Agreement, the prevailing party is entitled to reasonable attorneys' fees and any other costs incurred in that proceeding in addition to any other relief to which it is entitled. Section 13.07 Hold Harmless. Developer shall hold City and its elected and appointed officers, agents, employees, and representatives harmless from claims, costs, and liabilities for any personal injury, death, or property damage which is a result of the construction of the Project, or of operations performed under this Agreement by Developer or by Developer's contractors, subcontractors; agents or employees, whether such operations were performed by Developer or any of Developer's contractors, subcontractors, agents or employees. Nothing in this Section shall be construed to mean that Developer shall hold City harmless from any claims of personal injury, death or property damage arising from, or alleged to arise from, any act, failure to act, on the part of City, its elected and appointed representatives, offices, agents and employees. Section 13.08 Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring all or a portion of the Project Site, 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 Project Site hereunder (a) is for the benefit of the Project Site and is a burden upon the Project Site, (b) runs with the Project Site, and (c) is binding upon each party and each successive owner during its ownership of the Project Site 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 property, Section 13.09 Notices. All notices required or provided for under this Agreement shall be in writing. Such notices shall be given to the Parties at their addresses set forth below: 22 we -86560 If to City, to: Richard C. Ambrose City Manager City of Dublin 100 Civic Plaza Dublin, CA 94569 Telephone: (925) 833 -6650 Facsimile: (925) 833 -6651 With Copies to: Meyers, Nave, Riback, Silver & Wilson 555 12th Street, Suite 1500 Oakland, CA 94607 Attn- John Bakker Telephone: (510) 808 -2000 Facsimile: (510) 444 -1108 If to Developer, to: AMB Property Corporation Pier .l, ,Bay 1 San Francisco, CA 94111 Attn: Luis Belmonte Telephone: (415) 733 -9404 Facsimile: (415) 394 -9000 With Copies to: Morrison & Foerster LL.r 101 Ygnacio Valley Road, Suite 450 Walnut Creek, CA 94596 Attn: David A. Gold Telephone: (925) 295 -3300 Telephone: (925) 946 -9912 A party may change its 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 forty -eight (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. Section 13.10 Entire Agreement, Counterparts and Exhibits. This Agreement may be executed in multiple counterparts and counterpart signature pages may be assembled to form a single original document. This Agreement consists of pages and exhibits which constitute in full, the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements of the Parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of City and the Developer. 23 we -86560 i i The following exhibits are attached to this Agreement and incorporated herein for all purposes: Exhibit A-1: Legal Description of Project Site i i Exhibit A -2: Diagram of Project Site Exhibit B: St. Patrick Way Right of Way Diagram i Exhibit C: Parking Diagram Exhibit D: Egress Easement to St. Patrick Way Section 13.11 Recordation of Development' Agreement. Pursuant to California Government Code Section 65868.5, no later than ten (10) days after City enters into this Agreement, the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of Alameda. IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the day and year first above written. CITY OF DUBLIN, AMB PROPERTY CORPORATION, a municipal corporation a Maryland corporation : Mayor Name: Its: ATTEST: By: City Clerk APPROVED AS TO FORM: LE City Attorney 24 we -86560 5 STATE X11 ss. COUNTY On %�qt' G-�!� 3 C) , 2004, before meld !� n a. / lr� �r��v -yTT_ the undemi gnedliotary public in -=Lfor,said County and State„ personally appeped personally known to me [or] proved to me on the basis of satisfactory evidence to be the person(495 whose name(o) is /ate subscribed to the within instrument and acknowledged to me that he /sie/tke�; executed the same in his/her /th4icauthorized capacity(iQs) and that by his/her /tkerrsignature(jr) on the instrument, the person(w) or the entity(iees) upon behalf of which the person(/) acted executed the instrument. WITNESS my hand and official seal. DONNA RODRIGUEZ s fa Commission # 1383305 y G 0,C )a Notary Public California w 7" San Francisco County My Comm. Expires Nov ?006 STATE OF COUNTY OF ) ss. On , 2004, before me, undersigned notary public in and for said County and State, personally appeared personally known to me [or] proved to me on the basis of satisfactory evidence the to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies) and that by his/her /their signature(s) on the instrument, the person(s) or the entity(ies) upon behalf of which the person(s) acted executed the instrument. WITNESS my hand and official seal. My commission expires on we -86560 Exhibit A -1 Legal Description of Project Site (see attached) Page 1 DESCRIPTION Order No. 150214 CITY OF DUBLIN PARCEL ONE: PARCEL E OF PARCEL MAP 4224, FILED FEBRUARY 6, 1984, IN BOOK 143 OF MAPS, AT PAGE 6, ALAMEDA COUNTY RECORDERS OFFICE. EXCEPTING THEREFROM: THAT PORTION CONVEYED IN THE DEED FROM PETER B. BEDFORD AND KIRSTEN N. BEDFORD, HUSBAND AND WIFE, TO MOTOR LODGE ASSOCIATES, A CALIFORNIA GENERAL PARTNERSHIP, RECORDED FEBRUARY 21, 1984, SERIES NO. B4- 33062, ALAMEDA COUNTY RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERN CORNER OF PARCEL C OF PARCEL MAP 1307, FILED JANUARY 29,. 1976,.IN BOOK 89 OF PARCEL MAPS, PAGE 8, ALAMEDA COUNTY RECORDS; THENCE ALONG THE SOUTHERN LINE OF SAID PARCEL C, NORTH 690 08' 15" EAST, 239.05 FEET; THENCE LEAVING SAID LINE, SOUTH 200 51' 45" EAST, 183.49 FEET TO THE SOUTHERN LINE OF PARCEL E,(143 PM 6); THENCE ALONG THE LAST MENTIONED LINE, SOUTH 610 24' 22" WEST, 9.66 FEET; SOUTH 780 18' 18" WEST, 160.61 FEET; AND SOUTH 760 24' 44" WEST, 67.63 FEET TO THE WESTERN LINE OF SAID PARCEL E (143 PM 6); THENCE ALONG THE LAST MENTIONED LINE, NORTH 200 51' 45" WEST, 149.83 FEET TO THE POINT OF BEGINNING. PARCEL TWO: EASEMENT GRANTED TO BAYDALE, INC., A DELAWARE CORPORATION, IN THE "GRANT OF EASEMENT FOR JOINT USE ACCESS ", RECORDED JANUARY 21, 1976, REEL 4233, IMAGE 390, OFFICIAL RECORDS, AS FOLLOWS: AN ACCESS EASEMENT, NOT TO BE EXCLUSIVE, TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS THEREFORE, FOR THE JOINT BENEFIT OF THE GRANTOR AND GRANTEE IN, OVER, ALONG AND ACROSS THAT CERTAIN LAND SITUATED IN THE TOWNSHIP OF PLEASANTON, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE NORTHEASTERN LINE OF REGIONAL STREET, BEING THE PARCEL OF LAND DESCRIBED AS PARCEL 1 IN THE DEED FROM MOTEL INTERSTATE SYSTEMS, INC., TO THE COMM OF ALAMEDA, RECORDED MARCH 8, 1971, IN REEL 2802, AT IMAGE 484, RECORDER'S SERIES NO. 71- 26256, OFFICIAL RECORDS OF ALAMEDA-COUNTY, CALIFORNIA, AT ITS INTERSECTION WITH THE NORTHWESTERN LINE OF THE PARCEL OF LAND DESCRIBED IN THE DEED FROM BAYDALE,INC., A DELAWARE CORPORATION, TO AMFAC MERCHANDISING CORPORATION, A CALIFORNIA CORPORATION, FORMERLY RHODES WESTERN, INC., A CORPORATION, RECORDED APRIL 12, 1972, IN REEL 3104, AT IMAGE 883, RECORDER'S SERIES NO. 72- 47311, OFFICIAL RECORDS OF ALAMEDA COUNTY, STATE OF CALIFORNIA; THENCE THROUGH A PORTION OF THE LAST NAMED PARCEL OF LAND AND ALONG THE LAST NAMED NORTHWESTERN LINE, NORTH 690 08' 15" EAST, 329.29 FEET; THENCE ALONG THE NORTHEASTERN LINE OF LAST NAMED PARCEL OF LAND, SOUTH 200 51' 45" EAST, 40.00 FEET; THENCE ALONG A LINE LYING 40 FEET SOUTHEASTERLY, MEASURED AT RIGHT ANGLES FROM AND PARALLEL WITH THE ABOVE NAMED NORTHWESTERN LINE, SOUTH 690 08' 15" WEST, 329.29 FEET, TO THE NORTHEASTERN LINE OF SAID PARCEL OF LAND DESCRIBED AS PARCEL 1 TO THE COUNTY OF ALAMEDA, SERIES NO. 71- 26256; THENCE ALONG THE LAST NAMED LINE, NORTH 200.51' 45" WEST, 40.00 FEET TO THE POINT OF BEGINNING. Page 2 DESCRIPTION Order No. 150214 RESERVING UNTO GRANTOR, THE SAME RIGHTS AND PRIVILEGES GRANTED TO GRANTEE BY THIS DESCRIPTION OVER THE SAME PARCEL OF LAND. PARCEL THREE: NON - EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OF TRUCKS AND AUTOMOBILES, APPURTENANT TO PARCEL ONE, AS CREATED, DEFINED AND DESCRIBED IN THAT CERTAIN GRANT OF EASEMENTS AND_RELATED AGREEMENTS BETWEEN LIBERTY HOUSE PROPERTIES, A CALIFORNIA LIMITED PARTNERSHIP, AND KI DUBLIN BOULEVARD, INC., AN ILLINOIS CORPORATION, RECORDED OCTOBER 4, 1994, SERIES NO. 94- 323681, UPON THE TERMS, CONDITIONS CONTAINED IN ARTICLE II THEREIN, OVER THE FOLLOWING DESCRIBED PROPERTY, IDENTIFIED HEREAFTER AS PARCELS THREE A, THREE B, THREE C: PARCEL THREE A: BEING A PORTION OF LOT C, AS SAID LOT C.IS SHOWN AND SO DESIGNATED ON THAT CERTAIN PARCEL MAP NO. 4224 RECORDED FEBRUARY 6, 1984, IN BOOK 143 OF MAPS, AT PAGE 6, IN THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERN CORNER OF SAID LOT C; THENCE FROM SAID POINT OF BEGINNING, ALONG THE WESTERN LINE OF SAID LOT C, NORTH 20° 51' 45" WEST, 25.00 FEET; THENCE LEAVING SAID WESTERN LINE, NORTH 690 08' 15" EAST, 237.00 FEET; THENCE NORTH 530 24' 20" EAST, 221.29 FEET TO A POINT ON THE EASTERN LINE OF SAID LOT C; THENCE ALONG SAID EASTERN LINE, THE FOLLOWING THREE (3) COURSES: 1) SOUTH 200 51' 45" EAST, 28.66 FEET; 2) ALONG A TANGENT 34.00 FOOT RADIUS CURVE TO THE RIGHT, THROUGH A CENTRAL ANGLE OF 350 57' 0211, AN ARC LENGTH OF 21.33 FEET; AND 3) ALONG.A REVERSE 50.00 FOOT RADIUS CURVE TO THE LEFT, FROM WHICH THE CENTER OF SAID CURVE BEARS SOUTH 740 54' 43" EAST, THROUGH A CENTRAL ANGLE OF 440 01' 3711, AN ARC LENGTH OF 38.42 FEET TO THE SOUTHEASTERN CORNER OF SAID LOT C; THENCE FROM SAID SOUTHEASTERN CORNER, ALONG THE SOUTHERN LINE OF SAID LOT C, SOUTH 690 08' 15" WEST, 434.50 FEET TO SAID POINT OF BEGINNING. PARCELS THREE B AND THREE C: BEING A PORTION OF LOT B, AS SAID LOT B IS SHOWN AND SO DESIGNATED ON THAT CERTAIN PARCEL MAP NO. 4224, RECORDED FEBRUARY 6, 1984, IN BOOK 143 OF MAPS, AT PAGE 6, IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF ALAMEDA, COMPRISED OF TWO (2)° PARCELS, MORE PARTICULARLY DESCRIBED AS FOLLOWS, AND IDENTIFIED AS PARCELS THREE B AND THREE C: Page, No. 150214 DESCRIPTION PARCEL THREE B COMMENCING AT THE SOUTHWESTERN CORNER OF SAID LOT B; THENCE FROM SAID POINT OF COMMENCEMENT, ALONG THE WESTERN LINE OF SAID LOT B, NORTH 200 51' 45" WEST, 20.00 FEET TO THE POINT OF BEGINNING FOR THIS DESCRIPTION; THENCE FROM SAID POINT OF BEGINNING, LEAVING SAID,WESTERN LINE, NORTH 690 08' 15" EAST, 21.00 FEET THENCE SOUTH 200 51' 45" EAST, 20.00 FEET TO A POINT ON THE SOUTHERN LINE OF SAID LOT B; THENCE ALONG SAID SOUTHERN LINE, NORTH 690 08' 15" EAST, 25.00 FEET; THENCE LEAVING SAID SOUTHERN LINE, NORTH 200 51' 45" WEST, 20.00 FEET; THENCE NORTH 69008' 15" EAST, 84.00 FEET; THENCE SOUTH 650 51' 45" EAST, 21.21 FEET; THENCE NORTH 690 08' 15" EAST, 160.00 FEET; THENCE NORTH 330 35' 59" EAST, 25.81 FEET; THENCE NORTH 690 08' 15" EAST, 80.00 FEET; THENCE SOUTH 200 51' 45" EAST, 20.00 FEET TO A POINT ON SAID SOUTHERN LINE; THENCE ALONG SAID SOUTHERN LINE, NORTH 690 08' 15" EAST, 80.00 FEET; THENCE LEAVING SAID SOUTHERN LINE, NORTH 200 51' 45" WEST, 45.00 FEET; THENCE SOUTH 690 08' 15" WEST, 172.60 FEET; THENCE SOUTH 330 35' 59" WEST, 27.53 FEET; THENCE SOUTH 690 08' 15" WEST, 120.00 FEET; THENCE SOUTH 860 07' 42" WEST, 37.64 FEET; THENCE SOUTH 740 19' 55" WEST, 55.23 FEET; THENCE SOUTH 690 08' 15" WEST, 80.00 FEET TO A POINT ON SAID WESTERN LINE; THENCE ALONG SAID WESTERN LINE, SOUTH 200 51' 45" EAST, 25.00 FEET TO SAID POINT OF BEGINNING. PARCEL THREE C. COMMENCING AT THE SOUTHEASTERN CORNER OF SAID LOT B; Order No. 150214 DESCRIPTION THENCE FROM SAID POINT OF COMMENCEMENT, ALONG THE SOUTHERN LINE OF SAID LOT-B, SOUTH 690 08' 15" WEST, 108.29 FEET TO THE POINT OF BEGINNING FOR THIS DESCRIPTION; THENCE FROM SAID POINT OF BEGINNING, LEAVING SAID SOUTHERN LINE, NORTH 200 51' 45" WEST, 45.00 FEET; THENCE NORTH 690 08' 15" EAST, 17.40 FEET; THENCE NORTH 580 26' 23" EAST, 92.50 FEET TO A POINT ON THE EASTERN LINE OF SAID LOT B; THENCE ALONG SAID EASTERN LINE, SOUTH 200 51' 45" EAST, 25.00 FEET; THENCE LEAVING SAID EASTERN LINE, SOUTH 570 29' 22" WEST, 85.04 FEET; THENCE SOUTH 200 51' 45" EAST, 20.00 FEET TO A POINT ON SAID SOUTHERN LINE; THENCE ALONG SAID SOUTHERN LINE, SOUTH 690 08' 15" WEST, 25.00 FEET TO SAID POINT OF BEGINNING. PARCEL FOUR: NON - EXCLUSIVE RECIPROCAL UTILITY EASEMENTS, APPURTENANT TO PARCEL ONE, AS CREATED, DEFINED AND DESCRIBED IN THAT CERTAIN GRANT OF EASEMENTS AND RELATED AGREEMENTS BETWEEN LIBERTY HOUSE PROPERTIES, A CALIFORNIA LIMITED PARTNERSHIP, AND KI DUBLIN BOULEVARD, INC., AN ILLINOIS CORPORATION, RECORDED OCTOBER 4, 1994, SERIES NO. 94- 323681, UPON THE TERMS AND CONDITIONS CONTAINED IN SAID INSTRUMENT, AT ARTICLE III THEREOF. PARCEL FIVE: AN EASEMENT TO ERECT, INSTALL, MAINTAIN, REPAIR AND REPLACE MONUMENT SIGNS APPURTENANT TO PARCEL ONE, AS CREATED, DEFINED IN THAT CERTAIN GRANT OF EASEMENTS AND RELATED AGREEMENTS BETWEEN LIBERTY HOUSE PROPERTIES, A CALIFORNIA LIMITED PARTNERSHIP AND KI DUBLIN BOULEVARD INC., AN ILLINOIS.CORPORATION, RECORDED OCTOBER 4, 1994, SERIES NO. 94- 323681, UPON THE TERMS, CONDITIONS CONTAINED THEREIN AT ARTICLE IV THEREOF. ASSESSOR'S PARCEL NO. 941 -1500- 047 -02 Exhibit A -2 Diagram, of Project Site (see attached) . . . . . . . . . . . fi Exhibit S St. Patrick Way Right of Way Diagram (see attached) 0 Q T LLJ Q LL. 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CatKomia'114556 F= (925) ?.46 -8363 � r', "*T,y;_�iL. 4.. �w �:•! -Via Email- February 14, 2014 Ms. Linda Smith Acting Assistant City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 RE: DEVELOPMENT AGREEMENT EXTENSION 6700 GOLDEN GATE DRIVE DUBLIN, CALIFORNIA Dear Linda, Pursuant to our recent discussions, Prologis (formerly AMB Property Corporation) respectfully requests an extension to the original development agreement to allow for additional time to process the redevelopment of the site. As you know, we have been actively pursuing the property redevelopment during the past several years. We have managed our leasing to accommodate near term redevelopment and we have identified a strong developer to take on the project. We had the property in contract to sell in 2008 and unfortunately, due to the recession and the severe downturn in the housing market, the sale did not go through. For the past five years we have monitored market conditions and discussed the potential sale with brokers and potential developers, but the market conditions did not make a sale during that period feasible. It is only recently that the site's value has come back to a level that redevelopment of the site makes sense versus the continued industrial use which is currently in place. We appreciate you and the City working with us. We look forward to proceeding quickly to maintain the schedule we discussed in our meeting last week. Best regards, �4w__ Mark Hansen Senior Vice President, Investment Officer Pier 1, Bay 1 San Francisco, California 94111 Main 415 394.9000 www.prologis.com ORDINANCE NO. xx - 14 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * * * * * * * * * * * * * * * * * ** APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND PROLOGIS, INC. TO ALLOW FOR AN EIGHTEEN MONTH TIME EXTENSION WITH CONDITIONS PLPA- 2014 -00006 THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. Prologis has made a request for a time extension to the existing Development Agreement ( "Amendment No. 1 to Development Agreement between the City of Dublin and Prologis, Inc (formerly known as AMB Property Corporation ") for the project known as the West Dublin Transit Village), which is located at 6700 Golden Gate Drive (APN 941 - 1500- 04 -04); and B. The existing Development Agreement vested the Site Development Review and Tentative Map approvals that were granted in 2004 for a ten year period and will expire on June 3, 2014 unless extended before that time; and C. The Developer requested an extension and City Staff supports three consecutive six month extensions (eighteen months total) assuming that certain conditions can be met; and D. On April 20, 2004, the City Council adopted Resolution 67 -04, adopting a Mitigated Negative Declaration (MND) and Mitigation Monitoring Program for the AMB Properties Transit Village Project (PA 02 -003). Approval of the Development Agreement was an action covered by the MND and therefore an extension to the time period that the Development Agreement is effective does not require additional environmental review; and E. The Planning Commission held a public hearing on the proposed Development Agreement Amendment on March 25, 2014 for which public notice was given by law; and F. The Planning Commission made its recommendation to the City Council for approval of the Development Agreement Amendment by Resolution 14 -13. G. A public hearing on the proposed Development Agreement Amendment was held before the City Council on April 1, 2014 for which public notice was given as provided by law. H. The City Council has considered the recommendation of the Planning Commission, including the Planning Commission's reasons for its recommendation, the City Council Staff Report dated April 1, 2014, all comments received in writing, and all testimony received at the public hearing. Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of: (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin General Plan; (c) the Staff Report; and on the basis of the specific conclusions set forth below, the City Council finds and determines that- 1 . The proposed Development Agreement Amendment is consistent with the objectives, policies, general land uses and programs specified in the General Plan and Downtown Dublin Specific Plan in that: a) the General Plan and Downtown Dublin Specific Plan land use designation for the subject site is Downtown Dublin — Transit Oriented District and is consistent with those designations; and b) the project is consistent with the fiscal policies in relation to provision of infrastructure and public services of the City's Downtown Dublin Specific Plan /General Plan. 2. The proposed Development Agreement Amendment is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located. 3. The proposed Development Agreement Amendment is in conformity with public convenience, general welfare, and good land use practice in that the Applicant's proposed project will implement land use guidelines that were in place at the time the project was approved. 4. The proposed Development Agreement Amendment will not be detrimental to the health, safety, and general welfare in that the development will proceed in accordance with the General Plan, Downtown Dublin Specific Plan, Project Approvals, and any Conditions of Approval for the proposed project. 5. The proposed Development Agreement Amendment 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 General Plan, Downtown Dublin Specific Plan, and future Project Approvals. Rartinn fl APPRM/AI The City Council hereby approves the Development Agreement Amendment (Exhibit A -1 to the Ordinance) and authorizes the City Manager to execute it. Section 4. RECORDATION Within ten (10) days after the Development Agreement is fully executed by all parties, 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. 2 PASSED AND ADOPTED BY the City Council of the City of Dublin, on this day of , 2014 by the following votes: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor RECORDING REQUESTED BY: CITY OF DUBLIN ►TJI04i1YcW•T eWeI►TAF10Oe City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder's use AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND PROLOGIS, INC. (f /k /a AMB PROPERTY CORPORATION) (WEST DUBLIN TRANSIT VILLAGE) THIS AMENDMENT ( "Amendment ") is made and entered into on this — day of , 2014, by and between the City of Dublin, a Municipal Corporation (hereafter "City "), and Prologis, Inc. (f /k /a AMB Property Corporation), a Maryland corporation (hereafter "Developer "), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS 1. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Development Agreement Statutes ") authorize the City to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property. 2. Developer desires to develop and holds legal interest in certain real property consisting of approximately 9.07 acres of land, located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibit 1 attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Project Site." 3. City and Developer entered into that certain "Development Agreement Between the City of Dublin and AMB Property Corporation" dated June 3, 2004 and recorded in the Official Records of Alameda County ( "Official Records ") on June 11, 2004 as document number 2004 - 261599 ( "Agreement "). 4. In conjunction with the Agreement, Developer applied for, and City approved various land use entitlements for the development of the Project Site, including an amendment to the General Plan (City Council Resolution No. 228 -00), an amendment to the West Dublin BART Specific Plan (City Council Resolution No. 227 -00), PD District rezoning and related Stage 1 and Stage 2 development plans (City Council Ordinance No. 17- 04), Site Development Review (City Council Ordinance No. 66- 04), and a Vesting Parcel Map covering the Project Site (City Council Resolution No. 66 -04) (collectively, "the Project Approvals "). 5. Effective as of June 3, 2011, AMB Property Corporation, the Developer under the Agreement, changed its name to "Prologis, Inc. ". Prologis, Inc. is the current Developer Amendment No. 1 to Dublin /Prologis, Inc. Development Agreement Page 1 of 5 for West Dublin Transit Village and owner of the Project Site and, therefore, is subject to all rights and obligations of Developer under the Agreement. 6. Developer intends to submit applications to the City for land use entitlements required to build a proposed new development project on the Project Site consisting of both residential and office uses ( "New Project "). 7. Developer and the City desire to amend the Agreement to include options for three six (6) month extensions of the Term for a total of eighteen (18) months. Developer has an option to extend the Term for two additional periods of six (6) months each (maximum twelve (12) month total), subject to certain terms and conditions. The City has the option, in its discretion, to extend the Term for an additional six (6) months beyond the total twelve month extension under Developer's option, subject to certain terms and conditions. 8. The Development Agreement Statutes and Article 8 of the Agreement authorize an amendment to the Agreement in accordance with certain conditions and procedures. 9. On , the Planning Commission adopted Resolution No. 14 -XX recommending that the City Council adopt this Amendment. 10. On 2014, the City Council of the City of Dublin adopted Ordinance No. approving this Amendment ( "Ordinance "). The Ordinance took effect on , 2014. 11. In approving the Ordinance, the City Council found that the environmental impacts of this Amendment were addressed by the Mitigated Negative Declaration adopted by City Council Resolution No. 67 -04 in conjunction with the approval of the Agreement and Project Approvals. Therefore, no further environmental review for the Amendment is required under the California Environmental Quality Act. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, City and Developer agree as follows: AGREEMENT Amendment No. 1 to Dublin /Prologis, Inc. Development Agreement Page 2 of 5 for West Dublin Transit Village Section 1. Section 2.02 of the Agreement is amended to read in its entirety as follows: 4.2 Term. The term of this Agreement shall commence on the Effective Date and extend ten (10) years thereafter ( "Term ") unless otherwise terminated, extended, or modified by the terms of this Agreement. Developer has an option to extend the Term up to a maximum of twelve (12) months through two six (6) month extensions in accordance with the following provisions. The first six (6) month extension ( "First Extension ") shall be approved by City staff if the Developer has submitted a preliminary application and conceptual designs for land use entitlements for the New Project in accordance with the requirements of City staff on or before May 23, 2014. A second six (6) month extension commencing on the date of the expiration of the First Extension ( "Second Extension ") shall be approved by City staff upon satisfaction of the following conditions: (a) the determination by City staff, at least fifteen (15) business days prior to the expiration of the First Extension, that all required planning applications for land use entitlements for the New Project ( "Land Use Entitlements ") are complete and ready to be scheduled for the first public hearing ( "Completeness Determination "); and (b) the payment by Developer of One Hundred Thousand Dollars ($100,000) to the City within eight (8) business days of the Completeness Determination. The City has an option to approve a third six (6) month extension commencing on the date of the expiration of the Second Extension ( "Third Extension ") upon satisfaction of the following conditions: (aa) the determination by City staff, at least fifteen (15) days prior to the expiration of the Second Extension, that the Developer is proceeding diligently and in good faith to obtain final approvals for the Land Use Entitlements so that, if approved by the City, the Land Use Entitlements will be in effect at least ten (10) business days prior to the expiration of the Third Extension ( "Good Faith Determination ") - and (bb) the payment by Developer of One Hundred Thousand Dollars ($100,000) to the City within eight (8) business days of the Good Faith Determination. All extensions to the Term under this Section must take effect before the Agreement expires and a document Amendment No. 1 to Dublin /Prologis, Inc. Development Agreement Page 3 of 5 for West Dublin Transit Village evidencing approval of an extension of the Term shall be prepared by City staff, signed by the parties, and recorded in the Official Records. Section 3. Effect of Amendment. Except as specifically amended or modified herein, the Agreement shall continue in full force and effect according to its terms. Section 4. Defined Terms. Defined terms have the same meaning in this Amendment as in the Agreement unless otherwise specifically defined, modified or amended in this Amendment. Section 5. Effective Date of Amendment. This Amendment shall become effective upon the date that the Ordinance becomes effective (the "Amendment Effective Date "). Section 6. Recordation. City shall record an executed copy of this Amendment in the Official Records within ten (10) days after the Amendment Effective Date. Section 7. Authorized Signatory. The City Manager is authorized to execute on behalf of the City this Amendment and any extensions of the Term approved under Section 1 of this Amendment. IN WITNESS WHEREOF this Amendment has been entered into by and between Developer and City as of the day and year first above written CITY OF DUBLIN: Christopher L. Foss, City Manager ATTEST: Caroline Soto, City Clerk APPROVED AS TO FORM: Date: Date: Amendment No. 1 to Dublin /Prologis, Inc. Development Agreement Page 4 of 5 for West Dublin Transit Village John Bakker, City Attorney PROLOGIS, INC. A Maryland Corporation Date: Mark Hansen Its: Senior Vice President (NOTARIZATION ATTACHED) Amendment No. 1 to Dublin /Prologis, Inc. Development Agreement Page 5 of 5 for West Dublin Transit Village Exhibit 1 Legal Description of Project Site 2251747.1 Amendment No. 1 to Dublin /Prologis, Inc. Development Agreement Page 6 of 5 for West Dublin Transit Village