HomeMy WebLinkAboutAttach 4 PA02-003 RESOLUTION NO. 04-
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE FOR A
DEVELOPMENT AGREEMENT
FOR PA 02-003 WEST DUBLIN TRANSIT VILLAGE
WHEREAS, AMB Property Corporation, has requested approval of a Development Agreement for the
West Dublin Transit Village Project on 9.06 + acres at 6700 Golden Gate Drive, generally located north of the 1-
580 freeway and south of the future extension of St. Patrick Way in the West Dublin BART Specific Plan area;
and
WHEREAS, the Project site is in the Dublin downtown area and within the planning area for the West
Dublin BART Specific Plan ("Specific Plan"). The Specific Plan is one of three downtown specific plans
approved by the City on December 19, 2000 and intended to improve the appearance, functionality, and
economic vitality of the downtown area, particularly in recognition of a planned BART station adjacent to the
Project site. (See Resolution 00-227, incorporated herein by reference). The Specific Plan includes permitted
land uses, development standards, urban design guidelines, transportation improvements and implementation
programs to achieve the City's General Plan goals. The effects of implementing the Specific Plan and related
general plan amendments were reviewed in a Negative Declaration which was properly circulated for public
review and adopted by the City Council on December 19, 2000 (See Resolution 00-227, incorporated herein by
reference). The City subsequently rezoned the Project site to PD Planned Development and adopted a related
Stage 1 Development Plan on June 4, 2002, based on the prior adopted Negative Declaration. The Negative
Declaration is available for review in the Planning Department and is incorporated herein by reference; and
WHEREAS, the Specific Plan was prepared as a self-mitigating plan. Upon adoption of the Negative
Declaration, the City found that the Specific Plan and associated actions would not have a significant effect on
the environment because mitigation was incorporated into the Plan as part of the Plan implementation
(Resolution 00-227). In this context, the Specific Plan policies, standards and programs act as mitigations that
must be included in subsequent implementing developments, such as the Project. The Project is consistent with
and implements the Specific Plan land uses, policies, standards, guidelines and programs; and
WHEREAS, the City prepared an Initial Study dated November 6, 2003 for the Project consistent with
CEQA Guidelines section 15162 and determined that the Project would not result in any significant adverse
impacts. Although not required by CEQA, the City prepared a draft subsequent Mitigated Negative Declaration
pursuant to CEQA Guidelines section 15162 to examine how the Specific Plan policies, standards and programs
were included in the Project, and thus how prior adopted mitigation established in the Specific Plan would be
implemented. The draft Mitigated Negative Declaration and Initial Study are attached as Exhibit A of
Attachment 1 to the Staff report and incorporated herein by reference; and
WHEREAS, the draft Mitigated Negative Declaration was circulated for public review from November
10, 2003 to December 2, 2003. The City received one comment letter on the Project, from Adams Broadwell
Joseph & Cardozo, dated December 2, 2003. Although not required by CEQA, the City prepared written
responses to all the comments in a Responses to Comments document dated February 10, 2004. The comment
letter and responses are attached as Exhibit B and incorporated herein by reference. The comment letter
included a substantial amount of background materials that are on file and available for review in the Planning
Department; and
WHEREAS, the responses provide the City's good faith, reasoned analysis of the environmental issues
raised by the comments; and
WHEREAS, the City carefully reviewed the comments and written responses and determined that no
subsequent EIR-level review of the document was wan'anted, that the prior Negative Declaration and the Project
Mitigated Negative Declaration adequately identified and analyzed the Project's environmental impacts, and
that the comments and responses did not constitute or require substantial revisions to the Mitigated Negative
Declaration. On these bases, the City determined that no recirculation of the Mitigated Negative Declaration
was required pursuant to CEQA Guidelines section 15073.5; and
WHEREAS, a Staff report, dated February 24, 2004 and incorporated herein by reference, described and
analyzed the draft Mitigated Negative Declaration, including comments and responses, and the Project for the
Planning Commission; and
WHEREAS, the Planning Commission reviewed the Staff report, the Development Agreement, the
draft Mitigated Negative Declaration, including comments and responses, at a noticed public hearing on
February 24, 2004 at which time all interested parties had the opportunity to be heard; and
WHEREAS, the draft Mitigated Negative Declaration, including comments and responses, reflects the
City's independent judgment and analysis on the potential for environmental impacts from the AMB/Legacy
Partners Transit Village Project; and
WHEREAS, proper notice of said public hearing was given in all respects as required by law; and
WHEREAS, the Staff Report was submitted recommending that the Planning Commission recommend
that the City Council approve the Development Agreement.
NOW THEREFORE BE IT RESOLVED THAT THE Dublin Planning Commission does hereby
make the following findings and determinations regarding said proposed Development Agreement:
1. Said Agreement is consistent with the objectives, policies, general land uses and programs
specified in the City of Dublin General Plan and the West Dublin BART Specific Plan in that, a) the General
Plan and West Dublin BART Specific Plan land use designation for the subject site is Mixed Use and Office
and that this is a mixed-use development involving neighborhood retail uses, an apartment project, and an office
building consistent with that designation and the policies of the West Dublin BART Specific Plan; b) the project
is consistent with the fiscal policies in relation to provision of infrastructure and public services of the City's
General Plan and West Dublin BART Specific Plan; c) the Agreement sets forth the rules the Developer and
City will be governed by during the development process; and, (d) site-specific Mitigation Measures contained
in the Initial Study prepared for the project have been incorporated into the project.
2. Said Agreement is compatible with the uses authorized in, and the regulations prescribed for, the
land use district in which the real property is located in that the project approvals include a Planned
Development Rezoning/Development Plan adopted specifically for the Legacy Partners West Dublin Transit
Village Project.
3. Said Agreement is in conformity with public convenience, general welfare and good land use
practice in that the Project will implement land use guidelines set forth in the West Dublin BART Specific Plan
and City of Dublin General Plan which have planned for a mixed-use development at this location.
4. Said Agreement will not be detrimental to the health, safety and general welfare in that the
development will proceed in accordance with the Agreement and any Conditions of Approval for the Project;
and
5. Said Agreement will not adversely affect the orderly development of the property or the
preservation of property values in that the development will be consistent with the City of Dublin General Plan
and West Dublin BART Specific Plan.
NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning Commission
does hereby recommend that the City Council approve the Development Agreement between AMB Property
Corporation and the City of Dublin, as shown in attached Exhibit A, for PA 02-003, the West Dublin Transit
Village Project proposed by Legacy Panners.
PASSED, APPROVED AND ADOPTED this 24th day of February 2004.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Planning Commission Chairperson
Planning Manager
g:\PA~2002\PA 02-003\pc-resDA
3
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DUBLIN
APPROVING THE DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
AMB PROPERTY CORPORATION (PA 02-003) .
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1: RECITALS
A. The proposed Legacy Partners 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 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 Legacy Partners 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 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 Legacy Partners 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. Legacy Partners has filed an application requesting approval of a development agreement
for the West Dublin BART Specific Plan project.
E. A Development Agreement between the City of Dublin and AMB Properties has been
presented to the City Council, a copy of which is attached as Exhibit A to Attachment 4 of the agenda
statement.
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.
Agreement.
The Planning Commission has made its recommendation for approval of the Development
H. A public hearing on the proposed Development Agreement was held before the City
Council on March 16, 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.
ATTACHMENT 1
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
Specif Plan, (e) the Mitigated Negative Declaration for the project, and, (f) the Agenda Statement, and on
the basis of specific conclusions set forth below, the City Council finds and determines that:
1. The Development Agreement is consistent with the objectives, policies, general plan uses
and programs specified and contained in the City's General Plan, as amended by the 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 project.
3. The Development Agreement is in conformity with public convenience, general welfare
and good 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
Specific Plan.
Section 3: APPROVAL
The City Council hereby approved the Development Agreement (Exhibit A of Attachment 4 to the
Staff Report) and authorizes the Mayor to sign it.
Section 4: RECORDATION
Within ten (10) days after the Development Agreement is executed by the Mayor, the City Clerk
shall submit the Agreement to the County Recorder for recordation.
Section 5: EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of its
passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3)
public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State
of California.
PASSED AND ADOPTED BY the City Council of Dublin, on the 16th day of March 2004.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Mayor
City Clerk
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 ANDBETWEEN THE
CITY OF DUBLIN
AND
AMB PROPERTY CORPORATION
DUBLIN PLANNING
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A
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS ..................................................................................... 3
ARTICLE 2 EFFECTIVE DATE AND TERM ....................................................... 5
Section 2.01 Effective Date .......................................................................... 5
Section 2.02 Term ......................................................................................... 5
ARTICLE 3 STANDARDS, LAWS AND PROCEDURES GOVERNING
THE PROJECT .................................................................................... 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 Prqject ............................ 10
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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 ............................................................................ I5
Section 6.02 Egress Easement for BART ................................................... 15
ARTICLE 7 ADDITIONAL OBLIGATIONS OF CITY ...................................... 15
Section 7.01 Availability of Public Services .............................................. 15
ARTICLE 8 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
Section 10.01 Cooperation ............................................................................ 17
ARTICLE 11
Section 11.01
Section 11.02
Section 11.03
Section 11.04
Section 11,05
Section 11.06
.ARTICLE 12
ARTICLE 13
Section 13.01
Section 13.02
Section 13.03
Section i3.04
Section 13.05
DEFAULT; REMEDIES; TERMINATION .....................................18
Defaults .................................................................................. 18
Termination ............................................................................ 18
Annual Review ....................................................................... 18
Enforced Delay; Extension of Time Performance ................. 19
Legal Action ........................................................................... 20
Indemnification and Waiver .................................................. 20
NO AGENCY, JOINT VENTURE, OR PARTNERSHIP ................ 20
MISCELLANEOUS ....................................... '. .................................. 21
Incorporation of Recitals and Introductory Paragraph ........... 21
Severability ............................................................................ 21
Other Necessary Act .............................................................. 21
Construction ........................................................................... 21
California Law. ...................................................................... 21
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ii
TABLE OF CONTENTS
(continued)
Page
Section 13.06
Section 13.07
Section 13.08
Section 13.09
Section 13.10
Section 13.11
Attorneys' Fees ...................................................................... 21
Hold Harmless ....................................................................... 22
Agreement Runs with the Land ............................................. 22
Notices ................................................................................... 22
Entire Agreement, Counterparts and Exhibits ....................... 23
Recordation of Development Agreement .............................. 24
List of Exhibits
Exhibit A-1:
Exhibit A-2:
Exhibit B:
Exhibit C:
Exhibit D:
Legal Description of Project Site
Diagram of Project Site
St. Patrick Way Right of Way Diagram
Parking Diagram
Egress Easement to St. Patrick Way
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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 seq. 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, 1-580 and 1-680 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 intens}ty 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
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designation coveting the Project Site and increased the FAR for
office development within the West Dublin Planning Area (the
"General Plan Amendment").
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 (O) development.
E. In furtherance o£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. __) ("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
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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.
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"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 oft his 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.
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4
"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 bv 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 o'ff-site public
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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 shell 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.
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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 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
zood 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 Pro,iect 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
Approx~al. 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 Restrictin~ Timing of Development Inapplicable. in
litht of the foregoing and except as set forth in Section 3.11 of this
A'greement, the Parties a~ee that Developer shall be able to develop in
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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, mad 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 Th-Valley Transportation Development Fee in the amount
and at the times set forth in City of Dublin Resolution No. 89-98 or any
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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 XIIID of the Constitution and Developer does not return its ballot,
Developer agrees, on behalf of itself and its successors, that City may count
Developer's ballot as affirmatively voting in favor of such assessment, fee or
charge.
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
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Wav 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 pursuar!.t to the terms set forth in
this Article.
Section 5.02 Developer's Obligation to Develop St. Patrick Way
Extension in Con.iunction with the Proiect. 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 Are'a 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
Ag-reement), 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 Ag-reement), shall be borne by City. City
shall have the right to approve the purchase price of Area 3, except
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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
RiRht 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 by City.
(2) Ri~,hts 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.&rea 3 from the third-party property owner
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directly to City pursuant to Section 5.02(a)(4) of this Agreement,
City shall pay the purchase price directly fo the third-party
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
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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 Cit~T's Right to Elect to Construct Portions of St. Patrick
W__._~.. Notwithstanding anything to the contrary in this Agreement, City may, at
any time prior to the commencement of construction of the St. Patrick Way
InJprovements 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.
(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 Citv within thirty (30) days of receipt of the Notice of Election or
withi~ 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
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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 th6 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 Wa,/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
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 ~f 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
subiect to refinement during final design. Developer shall have no obligation to
_oraht an easement that would inhibit or obstruct the continued use and operation
~f the Industrial Warehouse. Developer shall not bear any of the costs associated
with the preparation, execution, and recordation of the easement document.
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!5
ARTICLE 7 ADDITIONAL OBLIGATIONS OF CITY
Section 7.01 AvailabiliW 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 A~reement.
(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 A~reement 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 Ri~,ht to Assil~n... 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 CiD~ (the "Proposed Assignment Notice") and approval by
the City Manager, which approval shall not be unreasonably withheld or delayed.
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i6
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 obIigations 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
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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
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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 A~reement.
(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~is Agreement,
(ii) permitted uses of the Proj eot 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 assig~unent
of Developer's rights, interests and obligations hereunder shall occur without
prior written notice to City (the "Proposed Assi~munent Notice") and approval by
the City Manager, which approval shall not be unreasonably withheld or delayed.
wc-8656()
i6
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 Assienment. Developer shall be
released fi-om 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 A~eement or any Project
wc:-8(,56(i
t7
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 attomeys' 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 occurrdnce ora default under
this Agreement, the non-defauking 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
wc-8656C
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.
(~:) 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 rehed 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 tine receipt thereof~ or such longer period as may reasonably be
agreed to by the Parties. City Manager of City shall be authorized to
execute any certificate requested by Developer. Should the party
receiving the request not execute and return such certificate within the
applicable period, this shall not be deemed to be a default, provided that
such party shall be deemed to have certified that the statements in clauses
(a) through (c) of this Section are true, and any party may rely on such
deemed certification.
Section 11.04 Enforced Delay~ Extension of Time Pert~ormance. 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, hots, 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
S~aon 5.03 of this A~eement, the foregoing
3, 4B, 6, and 6-West pursuant to ~' ~
wc-8656¢
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 Severabilitv. 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
enjoyrnent of its rights and privileges hereunder, including but not hmited 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 Wa)' Improvements.
wc-8656(i~
2t
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 party 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
part5' 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:
wc-8656(',
If to Ci~,, to:
With Copies to:
If to Developer, to:
With Copies to:
Richard C. Ambrose
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94569
Telephone: (925) 833-6650
Facsimile: (925) 833-6651
Meyers, Nave, Riback, Silver & Wilson
555 12th Street, Suite 1500
Oakland, CA 94607
Attn: John Bakker
Telephone: (510) 808-2000
Facsimile: (510) 444-1108
AMB Property Corporation
Pier 1, Bay 1
San Francisco, CA 94111
Attn: Luis Belmonte
Telephone: (415) 733-9404
Facsimile: (415) 394-9000
Morrison & Foerster u,p
101 Ygnacio Valley Road, Suite 450
Walnut Creek, CA 94596
Atto: 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 A~reement~ 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.
wc-8056(i
23
The following exhibits are attached to this Ag-reement and incorporated herein for
all purposes:
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
Section 13.11 Recordation of Development Aereement. 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,
a municipal corporation
By:
Mayor
AMB PROPERTY CORPORATION,
a Ma~iand_corpor~ation
Name:
ATTEST:
By:
City Clerk
,APPROVED AS TO FORM:
By:
City Attorney
wc-86560
24
STATE OF )
) SS.
COUNTY OF )
On ,2004, before me,
undersigned notary public in and for said County and State, personally appeared
the
personally known to me [or]
proved to me on the basis of satisfactory evidence
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 Ms/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
STATE OF )
) SS.
COUNTY OF )
On ,2004, before me,
undersigned notary public in and for said County and State, personally appeared
the
personally known to me [or]
proved to me on the basis of satisfactory evidence
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
STATE OF )
COUNTY OF )
On ,2004, before me,
undersigned notary public in and for said County and State, personally appeared
the
personally known to me
proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the withir~ 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
COUNTY
,2004, before me "' Jrl~ 0 c_Z_. the
un~..r, rcgned notary public in anal for said County aaa Sta},~_pya:zo~lly appe.r~ .
personally ~own to me Jori
proved to me on the basis of satisfactow evidence
to be the person(~) whose name(~ is/~ subscribed to the within instrument and ac~owledged
to me that he/~/t~ executed the sine in his~/t~ authorized capacity(~) ~d that by
his/~/t~ si~ature(8) on the inst~ent, the person(~) or the entity(i~) won behalf of which
the person(st)' acted executed the instrument.
WITNESS my hand and official seal.
',,, ?~y>eommission expires o ~
w:-8556(
Exhibit A-1
Legal Description of Project Site
(see attached)
Page i DESCRIPTION
Order No. 15023-4
CITY OF DUBLIN
PARCEL ONE:
PARCEL E OF PARCEL MAP 4224, FILED FEBRUARY 6, !984, 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. 84-33062, ALAMEDA COUNTY RECORDS, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOLVlWAWESTERN CORNER OF PARCEL C OF PARCEL MAP 1307, FILED
JAI~JARY 29, 1976, IN BOOK 89 OF PARCEL 5~LPS, PAGE 8, AI2%MEDA CO~ RECORDS;
THENCE ALONG THE SOUTHERN LINE OF SAID PARCEL C, NORTH 69° 08' 15" EAST, 239.05
FEET; THENCE LEAVING SAID LINE, SOUTH 20° 51' 45" EAST, 183.49 FEET TO THE
SOUTHERN LINE OF PARCEL E (143 PM 6); THENCE ALONG THE LAST MENTIONED LINE,
SOUT~ 61° 24' 22" WEST, 9.66 FEET; SOUTH 78° 3-8' 18" WEST, 160.61 FEET; AND SOUTH
76° 24' 44" WEST, 67.63 FEET TO THE WESTERN LINE OF SAID PARCEL E (143 PM 6);
THENCE ALONG THE LAST MENTIONED LINE, NORTH 20° 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 JANIIARY 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 ~ ACROSS THAT CERTAIN LA/~D SITUATED IN THE TOWNSHIP OF PLEASANTON,
COUNTY OF A/.JLMEDA, 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 I IN THE DEED FROM MOTEL INTERSTATE SYSTEMS,
INC., TO THE COUNTY OF A/.~%MEDA, 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 A~RIL 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 LAITD AND ALONG
THE LAST NAMED NORTHWESTERN LINE, NORTH 69° 08' 15" EAST, 329.29 FEET; THENCE
ALONG THE NORTHEASTERN LINE OF LJ~ST NAMED PARCEL OF LAND, SOUTH 20° 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 69° 08'
!5" WEST, 329.29 FEET, TO THE NORTHEASTERN LINE OF SAID PARCEL OF LAND DESCRIBED
AS PARCEL i TO THE COLIN/~' OF Ai~AMEDA, SERIES NO. 71-26256; THENCE ALONG THE LAST
NAMED LINE, NORTH 20° 51' 45" WEST, 40.00 FEET TO THE POINT OF BEGINNING.
Page v. DESCRIPTION
Order No. 150214
RESERVING UNTO GRANTOR, THE SAME RIGHTS AND PRIVILEGES GRltNTED TO GRANTEE EY
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 ~ 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, I/PON ~ TERIMS,
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, A~ 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 COIINTYRECORDER OF AI2%MEDA COUNTY, MORE
PARTI~Y 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 69° 08' 15" EAST, 237.00 FEET;
THENCE NORTH 53° 24' 20" EAST, 221.29 FEET TO A POINT ON'THE EASTERN LINE OF SAID
LOT C;
THENCE ALONG SAID FO%STERN LINE, THE FOLLOWING THREE (3) COURSES:
1) SOUTH 20° 51' 45" EAST, 28.66 FEET;
2) ALONG A TANGENT 34.00 FOOT RADIUS CURVE TO THE RIGHT, THROUGH A C~
ANGLE OF 35~ 57' 02", AN ARC LENGTH OF 21.33 FEET; AiTD
3) ALONG A REVERSE 50.00 FOOT RJkDIUS CURVE TO THE LEFT, FROM WHICH THE CEITrER
OF SAID CURVE BEARS SOUTH 74~ 54' 43" EAST, THROUGH A CEITrRAL ANGLE OF 44°
0!' 37", AN ARC LENGTH OF 38.42 FEET TO THE SOUTHEASTERN CORi~ER OF SAID LOT
C;
THENCE FROM SAID SOUTHEASTERN CORIqER, ALONG THE SOUTHERN LINE OF SAID LOT C,
SOUTH 69° 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 A1TD THREE C:
Page 3 DESCRIPTION
Order No. 150214
PARCEL THREE B
COMMENCING AT THE SOUT/~STERN CORNER OF SAID LOT B;
THENCE FROM SAID POINT OF COMMENCEMENT, ALONG THE WESTEP-N LINE OF SAID LOT B,
NORTH 20° 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 69° 08' 15"
EAST, 21.00 FEET;
THENCE SOUTH 20° 51' 45" EAST, 20.00 FEET TO A POINT ON THE SOUTHERN LINE OF SAID
LOT B;
THENCE ALONG SAID SOUTHERN LINE, NORTH 69° 08' 15" EAST, 25.00 FEET;
THENCE LEAVING SAID SOUTHERN LINE, NORT}{ 20° 51' 45" WEST, 20.00 FEET;
THENCE NORTH 69° 08' 15" EAST, 84.00 FEET;
THENCE SOUTH 65° 51' 45" EAST, 21.21 FEET;
THENCE NORTH 69° 08' 15" EAST, 160.00 FEET;
THENCE NORTH 33° 35' 59" EAST, 25.81 FEET;
THENCE NORT}t 69° 08' 15" EAST, 80.00 FEET;
THENCE SOUTH 20° 51' 45" EAST, 20.00 FEET TO A POINT ON SAID SOUTHEP~N LINE;
THENCE ALONG SAID SOUTHERN LINE, NORTH 69° 08' 15" EAST, 80.00 FEET;
THENCE LEAVING SAID SOUTHERN LINE, NORTH 20° 51' 45" WEST, 45.00 FEET;
THENCE SOUTh{ 69° 08' 15" WEST 172.60 FEET;
THENCE SOUTH 33° 35' 59" WEST, 27.53 FEET;
THENCE SOUTH 69° 08' 15" WEST 120.00 FEET;
THENCE SOUTH 86° 07' 42" WEST 37.64 FEET;
THENCE SOUT~ 74° 19' 55" WEST 55.23 FEET;
THENCE SOUT~ 69° 08' 15" WEST, 80.00 FEET TO A POINT ON SAID WESTERN LINE;
THENCE ALONG SAID WESTERN LINE, SOUTE 20° 51' 45" EAST, 25.00 FEET TO SAID POINT
OF BEGI1TNING.
PARCEL THREE C:
COMMENCING AT THE SOUTHEASTERN CORNER OF SAID LOT B;
p~c 4 DESCRIPTION
Order No. 150214
THENCE FROM SAID POINT OF COMMENCEMENT, ALONG THE SOUTHERN LINE OF SAID LOT B,
SOUTH 69° 08' 15" WEST, 108.29 FEET TO THE POINT OF BEGINNING FOR THIS
DESCRIPTION;
TI~ENCE FROM SAID POINT OF BEGINNING, LEAVING SAID SO~RN LINE, NORTH 20° 51'
45" ~EST, 45.00 FEET;
T~ENCE NORTH 69° 08' 15" EAST, 17.40 FEET;
TI~ENCE NORTH 58° 26' 23" F~AST, 92.50 FEET TO A POINT ON ~I~IE F_~k~TEP~N LINE OF SAID
LOT B;
THENCE ALONG SAID E~TERN LINE, SOUTH 20° 51' 45" EAST, 25.00 FEET;
THENCE LEAVING SAID EASTERN LINE, SOLr~H 57° 29' 22" WEST, 85.04 FEET;
THENCE SOUTH 20° 51' 45" EAST, 20.00 FEET TO A POINT ON SAID SOUTHERN LINE;
THENCE ALONG SAID SOUTHERN LIATE, SOUTH 69° 08' 15" WEST, 25.00 FEET TO SAID POINT
OF BEGINNING ~
PARCEL FOUR:
NON-EXCLUSIVE RECIPROCAL UTILITY F2%SEMElqTS, A~PURTENANT TO PARCEL ONE, AS
CREATED, DEFINED AND DESCRIBED IN THAT CERTAIN GRANT OF EASEMENTS blqD RELATED
AGREEMENTS BETWEEN LIBERTY HOUSE PROPERTIES, A CALIFORNIA LIMITED pARTNERS~IIP,
~ KI DUBLIN BOULEVARD, INC., A_N 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, blAINTAIN, REPAIR ~ REPLACE MONUI~ENT SIGNS
APPURTENANT TO PARCEL ONE, AS CREATED, DEFINED IN THAT CERTAIN GRANT OF
EASEMENTS ~ RELATED AGREEMENTS BETWEEN LIBERTY HOUSE PROPERTIES, A CALIFORNIA
LIMITED pARTNERSHIP ~ KI DUBLIN BOI/LEVA~RD 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)
Exhibit B
St. Patrick Way Right of Way Diagram
(see attached)
0
3AI~IO 3_LYD
N3(]]OD
Exhibit C
Parking Diagram
(see attached)
Z
Exhibit D
Egress Easement to St. Patrick Way
(see attached)
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