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HomeMy WebLinkAboutItem 4.4 - 1403 DGMC DA Extension 2nd Reading Page 1 of 4 STAFF REPORT CITY COUNCIL DATE: April 18, 2017 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Development Agreement Extension for the Dublin Gateway Medical Center Project at 4084 & 4100 Dublin Boulevard (PA 06-026), Second Reading Prepared by: Marnie Delgado, Senior Planner EXECUTIVE SUMMARY: The Applicant is requesting an extension to the existing Development Agreement for the Dublin Gateway Medical Center. The Development Agreement vested the hospital alternative Planned Development Zoning, Conditional Use Permit and Site Development Review entitlements approved in 2007. The Development Agreement will expire on July 6, 2017 unless extended before that time. The Applicant has requested to extend the Development Agreement for up to five years. The Planning Commission reviewed the proposed extension on March 14, 2017 and adopted a Resolution recommending that the City Council adopt an Ordinance approving the extension. The City Council waive d the reading and introduced an Ordinance approving the extension on April 4, 2017. STAFF RECOMMENDATION: Conduct the public hearing, deliberate, waive the reading and adopt an Ordinance Approving an Amendment to the Development Agreement between the Ci ty of Dublin and Triad Dublin Gateway, L.P. to Allow for a Five -Year Time Extension with Conditions. FINANCIAL IMPACT: The Developer will make a contribution of $200,000 per year for each year the Development Agreement is extended up to a maximum of five (5) years. DESCRIPTION: Triad Dublin Gateway, L.P. obtained a Conditional Use Permit and Site Development Review approval in 2005 to develop a medical center consisting of three buildings and a parking structure. See Figure 1 below. Phase 1 of the proje ct includes two medical office buildings totaling 120,000 square feet. Phase 1 has been constructed and is occupied. Phase 2 of the project included a third medical office building totaling 58,000 square feet and a multi-level parking structure. Phase 2 has not been constructed. Page 2 of 4 Figure 1. Dublin Gateway Medical Center: 2005 Approval In 2007, Triad Dublin Gateway, L.P. obtained Planned Development Zoning, Conditional Use Permit and Site Development Review entitlements for an alternate approval for Phase 2 of the project. The alternate approval allows construction of the originally approved 58,000 square foot medical office building and a 4 -level parking structure or a 100-bed hospital with a 5-level parking structure. See Figure 2 and 3 below. Page 3 of 4 Figure 2. Dublin Gateway Medical Center: 2007 Approval Figure 3. Dublin Gateway Medical Center Hospital Triad Dublin Gateway, L.P. entered into a Development Agreement with the City of Dublin to vest the alternate approval for a period of 10 years (Attachme nt 1). The Development Agreement is set to expire on July 6, 2017 unless extended before that time. The developer has requested to extend the Development Agreement for up to 5 years (Attachment 2). Page 4 of 4 Following is an overview of the terms of the proposed ame ndment to the Development Agreement: 1. Developer will contribute $200,000 a year for each year the Developer desires to extend the Agreement; 2. Developer may request annual extensions for no more than 5 years; 3. Developer may submit payment for the first yea r extension in quarterly payments of $50,000; and 4. Failure to make a payment would result in termination of the Agreement. The Planning Commission reviewed and recommended approval of the extension at their meeting on March 14, 2017 (Attachment 3). The City Council held a public hearing, waived the reading and introduced the Ordinance to extend the Development Agreement on April 4, 2017. The City Council will consider taking action on the request to extend the Development Agreement (Attachment 4). ENVIRONMENTAL REVIEW: On May 15, 2007, the City Council adopted Resolution 71-07 adopting a CEQA Addendum and Statement of Overriding Considerations for the Dublin Gateway Medical Center Building 3 Hospital and Garage project located at 4084 and 4100 Dublin Boulevard (PA 06-026). Approval of the Development Agreement was an action covered by the Addendum and therefore extending the term of the Development Agreement does not require additional environmental review. ATTACHMENTS: 1. Ordinance 14-07 - Gateway Medical Development Agreement 2. Request from Eden Health District dated October 20, 2016 3. Planning Commission Resolution 17-02 4. Draft City Council Ordinance 5. Exhibit A - Amendment No 1 to the Development Agreement ORDINANCE NO. 14 - 07 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A DEVELOPMENT AGREEMENT FOR THE DUBLIN GATEWAY MEDICAL CENTER BUILDING 3 HOSPITAL AND GARAGE PROJECT LOCATED AT 4084 AND 4100 DUBLIN BOULEVARD APN 986-0016-021 & 986-0016-022 P A 06-026 THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The Dublin Gateway Medical Center Building 3 Hospital and Garage project (the Project") is located within the boundaries of the Eastern Dublin Specific Plan ("Specific Plan") in an area designated Campus Office on the General Plan Land Use Element Map and Eastern Dublin Specific Plan Land Use Map with an allowance for General Commercial land uses pursuant to Planned Development Zoning. B. Pursuant to the California Environmental Quality Act (CEQA), Sections 15162 and 15164 provide that an addendum to a previously certified Environmental Impact Report (EIR) may be prepared when a project requires a minor technical change to an EIR and there are no new significant environmental effects and no substantial increase in the severity of previously identified significant effects. C. A public hearing on the proposed Development Agreement was held before the Planning Commission on April 24, 2007 and May 8, 2007, for which public notice was given as provided by law. D. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreement. F. A public hearing on the proposed Development Agreement was held before the City Council on May 15,2007 and June 5, 2007 for which public notice was given as provided by law. G. The City Council has considered the recommendation of the Planning Commission who considered the item at the April 24, 2007 and May 8, 2007 meetings, 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. Section 2.FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin's General Plan, (c) the Eastern Dublin Specific Plan, (e) the Eastern Dublin EIR, (d) the 1996 Mitigated Negative Declaration for the Santa Rita Property, (e) the CEQA Addendum (f) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: Page 1 of3 RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee waived per GC 27383 Space above this line for Recorder's use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND TRIAD DUBLIN GATEWAY, L.P. FOR THE DUBLIN GATEWAY MEDICAL CENTER PROJECT HOSPITAL ALTERNATIVE) THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered in the City of Dublin on this 15th day of May, 2007, by and between the City of Dublin, a Municipal Corporation (hereafter "City"), and Triad Dublin Gateway, L.P., a California limited partnership (hereafter "Developer"), pursuant to the authority of SS 65864 et seq.of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. California Government Code SS 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the City to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. Developer owns fee title to four separate legal parcels of real property consisting of approximately 7.139 acres located in the City of Dublin, County of Alameda, State of California. These four parcels are sometimes referred to individually herein as Parcel 1, Parcel 2, Parcel 3 and Parcel 4, respectively. The property subject to this Agreement consists of Parcel 3 and Parcel 4, the size of which is 3.13 total acres and which is legally described in Exhibit A attached hereto (the "Property"). Parcel 1 , Parcel 2, Parcel 3 and Parcel 4 are sometimes each individually referred to herein as a "Parcel" and collectively as the "Parcels"; and C. On February 28, 2005, the City granted a Vesting Tentative Parcel Map for Tract 8524 for Dublin Gateway Medical Center (Community Development Director Resolution No. 05-01) and on January 25,2005, the City granted a Conditional Use Permit (Planning Commission Resolution No.05-06) and Site Development Review (Planning Commission Resolution No.05-06) for the development of the Parcels (these approvals are hereinafter collectively referred to as the "Original Approvals"). Under these Original Approvals, the original plan was to develop the Parcels in two phases, with Phase I consisting of two medical/professional office buildings totaling approximately 120,000 square feet, and Phase II consisting of a third approximately 58,000 square-foot medical/professional office building of three stories and a 427 -space, 4-level parking structure. Building 1 on Parcel 1 is approximately 65,295 square feet, Building 2 on Parcel 2 is approximately 57,786 square feet and Building 3 on Parcel 3 is approximately 58,000 square feet. Phase I and Phase II of the project, as configured under the Original Approvals, are depicted on the Site Plan attached hereto as Exhibit C. The plan proposed by the Original Approvals is commonly referred to as the "Dublin Gateway Medical Center"; and D. Developer has completed construction of Phase I contemplated under the Original Approvals. Developer now desires to provide for an alternate Dublin/Triad Dublin Gateway, L.P. Development Agreement Page 2 of 16 for the Dublin Gateway Medical Center Project May 15, 2007 CLEAN_DA Dublin Gateway Medical Center_041007.DOC Phase II development plan, which will provide the Developer with the flexibility to develop either the original Phase II plan, as described in Recital C (the "Original Plan") or the alternate Phase II development plan (the "Alternate Plan"). The Alternate Plan consists of a six-story, approximately 168,000 square-foot, 100- bed hospital building and a five-level parking structure, of which one level will be located below-ground. The Site Plan for the Alternate Plan, which also depicts Phase I of the Project, is attached hereto as Exhibit D. Developer has applied for, and City has approved or is processing various land use approvals in connection with the Alternate Plan, including a Conditional Use Permit (City Council Resolution No. ~, a Site Development Review (City Council Resolution No.~, and an amended Stage 1 and Stage 2 Development Plan Planning Commission Resolution No.~, (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the Alternate Approvals"). Any reference in the remainder of this Agreement to the Project" or to the "Hospital" shall mean the development contemplated in the Alternate Plan that was approved by the Alternate Approvals. In addition, any reference in this Agreement to the Project shall mean and include the Property, and any reference in this Agreement to the Property shall mean and include the Project; and E. City desires the timely, efficient, orderly and proper development of the Project; and F. The Property is located within the Eastern Dublin Specific Plan and General Plan Amendment area. The Eastern Dublin Specific Plan requires Developer to enter into this development agreement for the development of the Project contemplated in the Alternate Approvals, and City has agreed to extend the term of the Agreement beyond the standard five-year term that the City offers for development agreements required by the Eastern Dublin Specific Plan in exchange for the Developer's making a community benefit payment to the City, as set forth in Exhibit B. A previous development agreement satisfies the Eastern Dublin Specific Plan's development agreement requirement as to the Original Approvals. The City Council has found that, among other things, this Agreement, which applies to the Alternate Approvals, is consistent with the General Plan and the Eastern Dublin Specific Plan, and has been reviewed and evaluated in accordance with Chapter 8.56; and G. The Project is located in the Dublin General Plan Eastern Extended Planning Area and the Eastern Dublin Specific Plan area, for which a Program EIR was certified pursuant to the California Environmental Quality Act (CEQA) SCH No. 91-103064, Resolution 53-93); the City also approved a Mitigated Negative Declaration (SCH No. 1996082092) for the Santa Rita Specific Plan Amendment, of which the Project isa part (collectively, "CEQA Compliance Documentation"). The City prepared an Initial Study for the Project to determine Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 2 of 16 May 15, 2007 whether supplemental environmental impacts would occur as a result of the project beyond or different from those already addressed in the CEQA Compliance Documentation, and concluded that it did not. Thus, an Addendum has been prepared in accordance with CEQA Guidelines Sections 15162 and 15164 (City Council Resolution No.~. H. City and Developer have reached agreement, and desire to express herein a development agreement that will facilitate development of the Alternate Plan subject to conditions set forth herein; and I. On , 2007, the City Council of the City of Dublin adopted Ordinance No. _ - _ approving this Agreement. The Ordinance took effect on 2007 ("the Approval Date"). NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants contained herein, City and Developer agree as follows: AGREEMENT 1. Description of Property. The Property that is the subject of this Agreement is described in Exhibit A attached hereto. 2. Interest of Developer. The Developer has a legal or equitable interest in the Property in that it owns or holds a right to purchase the Property. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Developer, and that the Developer is not an agent of City. The City and Developer hereby renounce the existence of any form of joint venture or partnership between them. Nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. 4. Effective Date and Term. 4.1. Effective Date. The effective date of this Agreement shall be the date ("the Effective Date") upon which this Agreement is signed by the City. Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 3 of 16 May 15, 2007 4.2. Term. The "Term" of this Agreement shall commence on the Effective Date and extend ten (10) years thereafter, unless said Term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Property. 5.1. Riqht to Develop. Developer shall have the vested right to develop and use the Project on the Property in accordance with the terms and conditions of this Agreement, the Alternate Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2. Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities operated by City) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Alternate Approvals and any amendments to this Agreement or the Alternate Approvals. 5.3. Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1. Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin to be obtained from other regulatory agencies.) Currently, no future discretionary approvals (beyond the Alternate Approvals) are needed from City to develop the Project. None 5.3.2. Mitiqation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmental impacts of the Project or otherwise relating to development of the Project. See Exhibit B 5.3.3. Phasinq, Timinq. Provisions that the Project be constructed in specified phases, that construction shall commence within a specified time, and that the Project or any phase thereof be completed within a specified time. Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 4 of 16 May 15, 2007 See Exhibit B 5.3.4. Financinq Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5. Fees, Dedications. Terms relating to payment of fees or dedication of property. See Exhibit B 5.3.6. Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B 5.3.7. Miscellaneous. Miscellaneous terms. See Exhibit B 6. Applicable Rules, Requlations and Official Policies. 6.1. Rules re Permitted Uses. For the Term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Property, governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the effective date of this Agreement. 6.2. Rules re Desiqn and Construction. Unless otherwise expressly provided in paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary approval, whether the date of that approval is prior to or after the effective date of this Agreement. Currently, no future discretionary approvals (beyond the Alternate Approvals) are needed from City to develop the Project. 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 discretionary approval, whether that date of approval is prior to or after the date of this Agreement. 6.3. Uniform Codes Applicable. Unless expressly provided in paragraph 5 of this Agreement, the Project shall be constructed in accordance Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 5 of 16 May 15, 2007 with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Requlations. 7.1. New Rules and Requlations. During the Term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the effective date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Alternate Approvals, and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2. Approval of Application. Nothing in this Agreement shall prevent the City from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements expressly set forth herein. 7.3. Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of City, by initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Alternate Approvals, unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code S 8558. 8. Subsequently Enacted or Revised Fees. Assessments and Taxes. 8.1. Fees. Exactions, Dedications. City and Developer agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Eastern Dublin Specific Plan shall be those set forth in the Alternate Approvals and in this Agreement (including Exhibit B). The City shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 6 of 16 May 15, 2007 facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, or impose other exactions in connection with the Alternate Approvals or any subsequent discretionary approval for the Property, except as set forth in the Alternate Approvals and this Agreement including Exhibit B, subparagraph 5.3.5). 8.2. Revised Application Fees. Any existing application, processing and inspection fees that are revised during the Term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective only; and (3) the appfication of such fees would not prevent, impose a substantial financial burden on, or materially delay development in accordance with this Agreement. Developer has no vested right against such revised application, processing and inspection fees, but Developer does not waive its right to challenge the legality of any such application, processing and/or inspection fees under the controlling law then in place. 8.3. New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent, impose a substantial financial burden on, or materially delay development in accordance with this Agreement. Developer has no vested right against such new taxes, but Developer does not waive its right to challenge the legality of any such taxes under the controlling law then in place. 8.4. Assessments. Nothing herein shall be construed to relieve the Property from assessments levied against it by City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5. Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution c;ind Developer does not return its ballot, City may, only after providing reasonable notice to Developer (30 days minimum) of the assessment, fee or charge, count Developer's ballot as affirmatively voting in favor of such assessment, fee or charge. 9. Amendment or Cancellation. 9.1. Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 7 of 16 May 15, 2007 modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56. 9.2. Amendment bv Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of state law and Chapter 8.56. 9.3. Insubstantial Amendments. Notwithstanding the provisions of the preceding subparagraph 9.2, any amendments to this Agreement which do not relate to (a) the Term of the Agreement as provided in subparagraph 4.2; (b) the permitted uses of the Property as provided in subparagraph 5.2; (c) provisions for significant" reservation or dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings; or (g) monetary contributions by Developer as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. City's Public Works Director shall determine whether a reservation or dedication is significant" . 9.4. Cancellation bv Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to subparagraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by City. 10. Term of Alternate Approvals. Notwithstanding Dublin Municipal Code section 8.96.020.0, the term of all of the Alternate Approvals shall be extended to and until the end of the Term of this Agreement. 11. Annual Review. 11.1. Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2008 and each July 15 to August 15 thereafter. 11.2. Initiation of Review. The City's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to Developer thirty (30) days' written notice that the City intends to Dublin/Triad Dublin Gateway, L.P. DevelopmentAgreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 8 of 16 May 15,2007 undertake such review. Developer shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Agreement. The burden of proof by substantial evidence of compliance is upon the Developer. 11.3. Staff Reports. To the extent practical, City shall deposit in the mail and fax to Developer a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4. Costs. Costs reasonably incurred by City in connection with the annual review shall be paid by Developer in accordance with the City's schedule of fees in effect at the time of review. 12. Default. 12.1. Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2. Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such le9al or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3. No Damaqes Aqainst City. In no event shall damages be awarded against City upon an event of default or upon termination of this Agreement. 13. 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 Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_D41DD7.DOC Page 9 of 16 May 15, 2007 obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall be authorized to execute any certificate requested by Developer. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this paragraph are true, and any party may rely on such deemed certification. 14. Mortqaqee Protection; Certain Riqhts of Cure. 14.1. Mortqaqee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherWise. 14.2. Mortqaqee Not Obliqated. Notwithstanding the provisions of subparagraph 14.1 above, no Mortgagee shall have any obligation orduty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Alternate Approvals or by this Agreement. 14.3. Notice of Default to Mortqaqee and Extension of Riqht to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the City's notice. City, through its City Manager, may extend the thirty-day cure period Dublin/Triad Dublin Gateway, L. P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 10 of 16 May 15, 2007 provided in subparagraph 12.2 for not more than an additional sixty (60) days upon request of Developer or a Mortgagee. 15. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or Term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. If City or Developer initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Alternate Approvals, 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. 17. Transfers and Assiqnments. 17.1 Developer's Riqht to Assiqn. All of Developer's rights, interests and obligations hereunder may be transferred, sold or assigned in conjunction with the transfer, sale, or assignment of the Property subject hereto, or any portion thereof, at any time during the Term of this Agreement, provided that no transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur without the prior written notice to City and approval by the City Manager of City, which approval shall not be unreasonably withheld or delayed. The City Manager shall consider and decide the matter within ten (10) working days after Developer's notice is given to City and receipt by City Manager of all necessary documents, certifications and other information required by City Manager to decide the matter. In considering the request, the City Manager shall base the decision upon the proposed assignee's reputation, experience, financial resources and access to credit and capability to successfully carry out the development of the Property to completion. The City Manager's approval shall be for the purposes of: (a) providing notice to City; (b) assuring that all obligations of Developer are fully allocated as between Developer and the proposed purchaser, transferee or assignee; and (c) assuring City that the proposed purchaser, transferee or assignee is capable of performing Developer's obligations hereunder not withheld by Developer pursuant to Paragraph 17.3. Notwithstanding the foregoing, provided notice is given as Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_D41DD7.DOC Page 11 of 16 May 15, 2007 specified in Paragraph 23, no City approval shall be required for any transfer, sale, or assignment of this Agreement to: (1) any entity which either (i) is an affiliate or subsidiary of Developer or (ii) results from the merger of Developer or its parent or is the purchaser of all, or substantially all, of the assets of Developer or its parent; (2) any Mortgagee; or (3) any transferee of a Mortgagee. 17.2 Release Upon Transfer. Upon the transfer, sale, or assignment of all of Developer's rights, interests and obligations hereunder pursuant to Paragraph 17.1 of this Agreement, Developer shall be released from the obligations under this Agreement, with respect to the Property transferred, sold, or assigned, arising subsequent to the date of City Manager approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or assignee approved by the City Manager expressly assumes all of the rights, interests and obligations of Developer under this Agreement, Developer shall be released with respect to all such rights, interests and assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval. 17.3 Developer's Riqht to Retain Specified Riqhts or Obliqations. Notwithstanding Paragraphs 17.1 and 17.2 and Paragraph 18, Developer may withhold from a sale, transfer or assignment of this Agreement certain rights, interests and/or obligations which Developer shall retain, provided that Developer specifies such rights, interests and/or obligations in a written document to be appended to this Agreement and recorded with the Alameda County Recorder prior to the sale, transfer or assignment of the Property. Developer's purchaser, transferee or assignee shall then have no interest or obligations for such rights, interests and obligations and this Agreement shall remain applicable to Developer with respect to such retained rights, interests and/or obligations. 18. Aqreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 12 of 16 May 15, 2007 a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. Developer may assign its benefits and burdens under this Agreement, subject to the provisions set forth above in paragraph 16 of this Ag reement. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. Developer agrees to indemnify, defend and hold harmless City, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the Developer, or any actions or inactions of Developer's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that Developer shall have no indemnification obligation with respect to negligence or wrongful conduct of City, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been. dedicated to and accepted by the City or another public entity (except as provided in an improvement agreement or maintenance bond). If City is named as a party to any legal action, City shall cooperate with Developer, shall appear in such action and shall not unreasonably withhold approval of a settlement otherwise acceptable to Developer. 21. Insurance. 21.1. Public Liability and Property Damaqe Insurance. During construction of the Project, Developer shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than One Million Dollars ($1,000,000.00). The policy so maintained by Developer shall name the City as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2. Workers Compensation Insurance. During construction, Developer shall maintain Worker's Compensation insurance for all persons employed by Developer for work at the Project site. Developer shall require each contractor Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 13 of 16 May 15, 2007 and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. Developer shall indemnify the City for any damage resulting from Developer's failure to maintain any such insurance. 21.3. Evidence of Insurance. Prior to City Council approval of this Agreement, Developer shall furnish City satisfactory evidence of the insuranc.e required in subparagraphs 20.1 and 20.2 and evidence that the carrier is required to give the City at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the City, its elective and appointive boards, commissions, officers, agents, employees and representatives and to Developer performing work on the Project. 22. Sewer and Water. Developer acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of City. 23. Notices. 23.1. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to City shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 Notices required to be given to Developer shall be addressed as follows: Joseph D. Carroll Triad Partners, Inc. 8001 Irvine Center Drive, Suite 1000 Irvine, CA 92618 FAX No. (949) 679-4242 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 14 of 16 May 15, 2007 following day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Recitals. The foregoing Recitals are true and correct and are made a part hereof. 25. Aqreement is Entire Understandinq. This Agreement constitutes the entire understanding and agreement of the parties. 26. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions Exhibit C Site Plan of Phase I and II Under the Original Approvals Exhibit D Site Plan of Phase I and II Under the Alternate Approvals 27. Counterparts. This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. 28. Recordation. City shall record a copy of this Agreement within ten days following execution by all parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN: By:Date: Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 1 5 of 16 May 15, 2007 j . Janet Lockhart, Mayor ATTEST: By: Date: Ffl'vvn I j.elmafl, City Clerk APPROVED AS TO FORM: N~ 1L Elizabeth H. Silver, City Attorney TRIAD DUBLIN GATEWAY, L.P., a California limited partnership By: Triad Partners, Inc., a California corporation, General Partner By: J h D. Carroll, President By: ~~r~ Richard T. Needham, Senior Vice President NOTARIZATION ATTACHED) Dublin/Triad Dublin Gateway, L.P. Development Agreement for the Dublin Gateway Medical Center Project CLEAN_DA Dublin Gateway Medical Center_041007.DOC Page 16 of 16 May 15, 2007 Exhibit A Legal Description of the Property Dublin/Triad Dublin Gateway, L.P. Development Agreement For the Dublin Gateway Medical Center Project-EXHIBIT A EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to paragraph 5.3 of this Agreement. Subparagraph 5.3.1 -- Subsequent Discretionary Approvals None. Subparagraph 5.3.2 -- Mitigation Conditions Subsection a.Infrastructure Sequencing Program The Infrastructure Sequencing Program for the Project is set forth below. i) Roads: The project-specific roadway improvements (and offers of dedication) identified in Resolution No. 07-_ ofthe City Council of the City of Dublin approving Site Development Review (hereafter "SDR Resolution") shall be completed by Developer to the satisfaction of the Public Works Director at the times and in the manner specified in the SDR Resolution unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of City's Public Works Director. ii) Sewer. All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with DSRSD requirements. iii) Water. An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative map conditions of approval to the satisfaction and requirements of the City's fire department. All potable water system components to serve the project site shall be completed in accordance with the DSRSD requirements. Recycled water lines shall be installed in accordance with the SDR Resolution. iv) Storm Drainage. Dubiin/Triad Dubiin Gateway, L.P. Development Agreement For the Dublin Gateway Medical Center Project-EXHiBIT B A) The storm drainage systems off-site, as well as on- site drainage systems for the areas to be occupied, shall be improved consistent with the Drainage Plan and conditions of approval and to the satisfaction and requirements of the Dublin Public Works Department applying City's and Zone 7 Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. Pursuant to Alameda County's National Pollution Discharge Elimination Permit (NPDES) No. CAS0029831 with the California Regional Water Quality Control Board, all grading, construction, and development activities within the City of Dublin must comply with the provisions of the Clean Water Act. Proper erosion control measures must be installed at development sites within the City during construction, and all activities shall adhere to Best Management Practices. v) Other Utilities (e.g. gas, electricity, cable televisions, telephone) Construction shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b.Miscellaneous i) Completion May Be Deferred. Notwithstanding the foregoing, City's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow Developer to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subparagraph 5.3.3 -- Phasing, Timing This Agreement contains no requirements that Developer must initiate or complete development of the Project within any period of time set by City. It is the intention of this provision that Developer be able to develop the Property in accordance with its own time schedules and the Alternate Approvals. Subparagraph 5.3.4 -- Financing Plan Developer will install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in subparagraph 5.3.6 below). Dublin/Triad Dublin Gateway, L.P. Development Agreement For the Dublin Gateway Medical Center Project-EXHIBIT B Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project will be made available by the Dublin San Ramon Services District. Developer will enter into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in subparagraph 5.3.2(a)(ii) and (iii) above. Subparagraph 5.3.5 -- Fees, Dedications Subsection a.Traffic Impact Fees. Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 111-04, including any future amendments to such fee. Developer will pay such fees, in cash or credits: 1) no later than the time of issuance of grading/sitework permits for the hospital building and in the amount of the impact fee in effect at time of grading/sitework permit for the hospital building; and 2) no later than the time of issuance of building permits for the parking structure and in the amount of the impact fee in effect at time of building permit issuance for the parking structure. Developer further agrees that it will pay eleven percent (11 %) of the Section 1/Category 1" portion of the TIF in cash. Developer also agrees that it will pay twenty-five percent (25%) of the Section 2/Category 2" portion of the TIF in cash. If City amends its TIF fee and as a result the City's outstanding balance due on loans is less than 25% of total Section 2/Category 2 improvements, the Developer shall pay such reduced percentage of the "Section 2/Category 2" portion of the TIF in cash. Subsection b.Traffic Impact Fee to Reimburse Pleasanton for Freewav Interchanges. Developer shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155-98 and by any subsequent resolution which revises such Fee. Developer will pay such fee: 1) no later than the time of issuance of grading/sitework permits for the hospital building and in the amount of the impact fee in effect at time of grading/sitework permit for the hospital building; and 2) no later than the time of issuance of building permits for the parking structure and in the amount of the impact fee in effect at time of building permit issuance for the parking structure. Subsection c.Public Facilities Fees. 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: 1) no later than the time of issuance of grading/sitework Dublin/Triad Dublin Gateway, L.P. Development Agreement For the Dublin Gateway Medical Center Project-EXHIBIT B permits for the hospital building and in the amount of the fee in effect at time of grading/sitework permit for the hospital building; and 2) no later than the time of issuance of building permits for the parking structure and in the amount of the fee in effect at time of building permit issuance for the parking structure. Subsection d.Noise Mitigation Fee. Developer shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any future amendments to such fee. Developer will pay such fees: 1) no later than the time of issuance of grading/sitework permits for the hospital building and in the amount of the fee in effect at time of grading/sitework permit for the hospital building; and 2) no later than the time of issuance of building permits for the parking structure and in the amount of the fee in effect at time of building permit issuance for the parking structure. Subsection e.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. Subsection f.Fire Impact Fees. 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: 1) no later than the time of issuance of grading/sitework permits for the hospital building and in the amount of the impact fee in effect at time of grading/sitework permit for the hospital building; and 2) no later than the time of issuance of building permits for the parking structure and in the amount of the impact fee in effect at time of building permit issuance for the parking structure. Subsection g.Tri-Valley Transportation Development Fee. Developer shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. Developer will pay such fees: 1) no later than the time of issuance of grading/sitework permits for the hospital building and in the amount of the fee in effect at time of grading/sitework permit for the hospital building; and 2) no later than the time of issuance of building permits for the parking structure and in the amount of the fee in effect at time of building permit issuance for the parking structure. Dublin/Triad Dublin Gateway, L.P. Development Agreement For the Dublin Gateway Medical Center Project-EXHIBIT B SubparaQraph 5.3.6 -- Credit Subsection a.Traffic Impact Fee Improvements -- Credit City shall provide a credit to Developer for those improvements described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such improvements are constructed by the Developer in their ultimate location. All aspects of the credit shall be covered by City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 ("TIF Guidelines")). Subsection b.Traffic Impact Fee RiQht-of-Way Dedications -- Credit City shall provide a credit to Developer for any TIF area right-of-way to be dedicated by Developer to City which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits shall be governed by the TIF Guidelines. SubparaQraph 5.3.7 - Miscellaneous Subsection a.Community Benefit Payment. Developer, as a means of ensuring compliance with Section 10.4 and Policy 10-1 of the Eastern Dublin Specific Plan, has offered to pay to City a community benefit payment in the amount of two million ninety-three thousand eight-hundred and seventy-two dollars ($2,093,872.00) (the "Community Benefit Payment"). The EIR prepared for the Eastern Dublin EIR assumed that project- generated revenues, including property tax revenues, would be sufficient to pay for city services necessary to serve new development and determined that no mitigations were necessary. The Community Benefit Payment is designed to mitigate the potential impact of the loss of property tax that may result if the owner or operator of the Hospital were to apply for a property tax exemption and the Hospital were to be taken off the property tax rolls. Therefore, in addition to any other fees and payments due and payable, Developer hereby agrees to, at the time of the issuance of a grading permit to facilitate the construction of the Hospital under the Alternate Plan, make the Community Benefit Payment, which shall be non-refundable. If Developer fails to make the Community Benefit Payment as set forth in this subsection, then Developer agrees that the City may withhold the issuance of such grading permit. Notwithstanding the foregoing, Developer shall not be required to make the Community Benefit Payment at the time of the issuance of a grading permit to facilitate the construction of the . Hospital under the Alternate Plan, if Developer provides evidence satisfactory to the City Manager that the owner of the Property, when the Hospital commences operation, will not be eligible for a welfare exemption under Revenue and Taxation Code section 214. However, if during the Term of this Agreement the Dublin/Triad Dublin Gateway, L.P. Development Agreement For the Dublin Gateway Medical Center Project-EXHIBIT B Property becomes exempt from taxation under Revenue and Taxation Code section 214, then Developer shall be obligated to make the Community Benefit Payment. Developer, on behalf of itself and its approved successors and assigns, acknowledges that failure to pay the Community Benefit Payment as required by this subsection shall constitute grounds for revocation of the Hospital Conditional Use Permit referenced in Recital D. Dublin/Triad Dublin Gateway, L.P. Development Agreement For the Dublin Gateway Medical Center Project-EXHIBIT B EXHIBIT C Site Plan of Phase I and II Under the Original Approvals Dublin/Triad Dublin Gateway, LP. Development Agreement For the Dublin Gateway Medical Center Project-EXHIBIT C EXHIBIT D Site Plan of Phase I and Phase II Under the Alternate Approvals Dublin/Triad Dublin Gateway, L.P. Development Agreement For the Dublin Gateway Medical Center Project-EXHIBIT D • EDEN HEALTH DISTRICT INVESTING IN THE HEALTH CAF OUR COMMUNITS lr�0501� SINCT 1948 October 20, 2016 Mr. Chris Foss City Manager City of Dublin 100 Civic Plaza Dublin CA 94568 Re: Development Agreement Dear Mr. Foss: (C.; I OCT 2 6 2016 I)UN "N PLANNING ING The Eden Township Healthcare District (dba Eden Health District) Board of Directors has authorized me to ask for an extension of the Development Agreement with the City of Dublin for five years and has authorized payment for the first year's extension of $200,000, payable in four installments starting in July 2017. Sincerely, —Z— Dev Mahadevan r Chief Executive Officer cc: Luke Sims, City of Dublin Linda Smith, City of Dublin Eden Health District Board of Directors ATTACHMENT 2 20400 Lake Chabot Road, Suite 303., Castro Valley, California 94546 • (510) 538 -2031 • Fx (510) 582 -4670 • www.ethd.org RESOLUTION NO. 17-02 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND TRIAD DUBLIN GATEWAY, L.P. TO ALLOW FOR A FIVE YEAR TIME EXTENSION WITH CONDITIONS PA 06-026 WHEREAS, the Eden Health District has submitted a request for a time extension to the existing Development Agreement between the City of Dublin and Triad Dublin Gateway, L.P. for the project known as the Dublin Gateway Medical Center Hospital Alternative located at 4084 and 4100 Dublin Boulevard (APN 986-0016-021 & 986-0016-022); and WHEREAS, the existing Development Agreement vested the Planned Development Zoning, Conditional Use Permit and Site Development Review approvals that were granted in 2007 for a ten year period and will expire on July 6, 2017 unless extended before that time; and WHEREAS, the Eden Health District is requesting an extension and City Staff supports a five year extension assuming certain conditions can be met; and WHEREAS, the proposed Development Agreement Amendment is attached to this Resolution as Exhibit A; and WHEREAS, on May 15, 2007, the City Council adopted Resolution 71-07, adopting a CEQA Addendum and Statement of Overriding Considerations for the Dublin Gateway Medical Center Building 3 Hospital and Garage Project (PA 06-026). Approval of the Development Agreement was an action covered by the CEQA Addendum and therefore an extension to the time period that the Development Agreement is effective does not require additional environmental review; and WHEREAS, on March 14, 2017, the Planning Commission held a public hearing on the proposed Development Agreement Amendment; and WHEREAS, proper notice of the 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 adopt an Ordinance approving the Development Agreement Amendment; and WHEREAS, the Planning Commission did hear and use their independent judgment and considered all reports, recommendations, and testimony hereinabove set forth. NOW, THEREFORE, BE IT RESOLVED THAT the City of Dublin Planning Commission does hereby recommend that the City Council make the following findings and determinations regarding the proposed Development Agreement Amendment: 1. The proposed Development Agreement Amendment is consistent with the objectives, policies, general land uses and programs specified in the General Plan and Eastern Dublin Specific Plan in that: a) the General Plan and Eastern Dublin Specific Plan land use designation for the subject site is Campus Office and the Development Agreement Amendment is consistent with that designation; and b) the Development Agreement Amendment is consistent with the fiscal policies in relation to the provision of infrastructure and public services of the General Plan and Eastern Dublin Specific Plan. 2. The proposed Development Agreement Amendment is compatible with the uses authorized in, and the regulations prescribed for, the land use designation in which the real property is located. 3. The proposed Development Agreement Amendment is in conformity with the public convenience, general welfare and good land use practice in that the proposed project will implement land use guidelines that were in place at the time the project was approved. 4. The proposed Development Agreement Amendment will not be detrimental to the health, safety, and general welfare in that the project will proceed in accordance with the General Plan, Eastern Dublin Specific Plan, Project approvals and any Conditions of Approval for the proposed project. 5. The proposed Development Agreement Amendment will not adversely affect the orderly development of the property or the preservation of property values in that the development will be consistent with the City of Dublin General Plan, Eastern Dublin Specific Plan and future project approvals. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT the City of Dublin Planning Commission does hereby recommend that the City Council adopt the Ordinance, included as Exhibit A, approving an amendment to the Development Agreement between the City of Dublin and Triad Dublin Gateway, L.P. to allow for a five year time extension with conditions. PASSED, APPROVED AND ADOPTED this 14th day of March 2017 by the following vote: AYES: Wright, Qureshi, Mittan, Bhuthimethee, Kothari NOES: ABSENT: ABSTAIN: 11104P Planning Commission Chair ATTEST: Assista t Co munity Development Director 2 of 2 1 of 3 ORDINANCE NO. xx – 17 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * * * * APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND TRIAD DUBLIN GATEWAY, L.P. TO ALLOW FOR A FIVE YEAR TIME EXTENSION WITH CONDITIONS PA 06-026 THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1: RECITALS A. Eden Health District has made a request for a time extension to the existing Development Agreement between the City of Dublin and Tria d Dublin Gateway, L.P. for the project known as the Dublin Gateway Medical Center Hospital Alternative located at 4084 and 4100 Dublin Boulevard (APN 986 -0016-021 & 986-0016-022); and B. The existing Development Agreement vested the Planned Development Zonin g, Conditional Use Permit and Site Development Review approvals that were granted in 2007 for a ten year period and will expire on July 6, 2017 unless extended before that time; and C. The Eden Health District is requesting an extension and City Staff suppor ts a five year extension assuming certain conditions can be met; and D. On May 15, 2007, the City Council adopted Resolution 71 -07, adopting a CEQA Addendum and Statement of Overriding Considerations for the Dublin Gateway Medical Center Building 3 Hospital and Garage Project (PA 06-026). Approval of the Development Agreement was an action covered by the CEQA Addendum and therefore an extension to the time period that the Development Agreement is effective does not require additional environmental review; and E. The Planning Commission held a public hearing on the proposed Development Agreement Amendment on March 14, 2017 for which public notice was given by law; and F. The Planning Commission made its recommendation to the City Council for approval of the Development Agreement Amendment by Resolution 17-02; and G. A public hearing on the proposed Development Agreement Amendment was h eld before the City Council on April 4, 2017 for which public notice was given as provided by law; and H. The City Council has considered the recommendation of the Planning Commission including the Planning Commission’s reasons for its recommendation, the C ity Council Staff Report dated April 4, 2017 and all comments received in writing and all testimony received at the public hearing. 2 of 3 Section 2: FINDINGS AND DETERMINATIONS Therefore, on the basis of: a) the foregoing Recitals which are incorporated herein, b) the City of Dublin General Plan and Eastern Dublin Specific Plan, c) the Staff Report, and, on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The proposed Development Agreement Amendment is consistent with the objectives, policies, general land uses and programs specified in the General Plan and Eastern Dublin Specific Plan in that: a) the General Plan and Eastern Dublin Specific Plan land use designation for the subject site is Campus Office and the Development Agreement Amendment is consistent with that designation; and b) the Development Agreement Amendment is consistent with the fiscal policies in relation to the provision of infrastructure and public services of the General Plan and Eastern Dublin Specific Plan. 2. The proposed Development Agreement Amendment is compatible with the uses authorized in, and the regulations prescribed for, the land use designation in which the real property is located. 3. The proposed Development Agreement Amendment is in conformity with the public convenience, general welfare and good land use practice in that the proposed project will implement land use guidelines that were in place at the time the project was approved. 4. The proposed Development Agreement Amendment will not be detrimental to the health, safety, and general welfare in that the project will proceed in accordance with the General Plan, Eastern Dublin Specific Plan, Project approvals and any Conditions of Approval for the proposed project. 5. The proposed Development Agreement Amendment will not adversely affect the orderly development of the property or the preservation of property values in that the development will be consistent with the City of Dublin General Plan, Eastern Dublin Specific Plan and future project approvals. Section 3: APPROVAL The City Council hereby approves the Development Agreement Amendment (Exhibit A to the Ordinance) and authorizes the City Manager to execute it. Section 4: RECORDATION Within ten (10) days after the Development Agreement Amendment is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. Section 5: EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its final adoption. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 39633 of the Government Code of California. 3 of 3 PASSED, APPROVED, AND ADOPTED BY the City Council of the City of Dublin on this day of , 2017, by the following votes: AYES: NOES: ABSENT: ABSTAIN: _____________________________ Mayor ATTEST: ___________________________________ City Clerk RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee waived per GC 27383 Space above this line for Recorder’s use AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN GATEWAY, LLC FOR THE DUBLIN GATEWAY MEDICAL CENTER PROJECT (HOSPITAL ALTERNATIVE) Dublin/Dublin Gateway, LLC Amendment No. 1 to Development Agreement for the Dublin Gateway Medical Center Project __________, 201_ Page 2 of 5 THIS AMENDMENT (“Amendment”) is made and entered in the City of Dublin on this _____, by and between the City of Dublin, a Municipal Corporation (hereafter “City”), and Dublin Gateway, LLC, a California limited liability company (hereafter “Developer”), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. City and Developer are from time-to-time individually referred to in this Amendment as a “Party” and are collectively referred to as “Parties”. RECITALS A. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter “Chapter 8.56”) authorize the City to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. Pursuant to that authority, City and Triad Dublin Gateway, L.P., a California limited partnership (“Triad”) entered into that certain “Development Agreement Between the City of Dublin and Triad Dublin Gateway, L.P.” dated May 15, 2007 and recorded in the Official Records of Alameda County ("Official Records") on July 13, 2007 as document number 2007259364 (“the Agreement”), regarding that certain real property legally described in Exhibit A to the Agreement and in Exhibit A attached hereto (the “Property”). Amendments to the Agreement are permitted by the mutual consent of the Parties in accordance with Article 8 of the Agreement and by the Development Agreement Statutes; and C. On June 5, 2007, the City Council of the City of Dublin adopted Ordinance No. 14-07 approving the Agreement. The Ordinance took effect on July 5, 2007 (“the Approval Date”); and D. In 2014, Developer obtained title to the Property. E. Pursuant to Section 4.2 of the Agreement, the Term of the Agreement commenced upon the Approval Date and will continue for a period of (10) years unless otherwise terminated, extended, or modified by the terms of the Agreement; and NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants contained herein, City and Developer agree as follows: Section 1. Section 4.2 of the Agreement is amended to read in its entirety as follows: Dublin/Dublin Gateway, LLC Amendment No. 1 to Development Agreement “4.2 Term. The “Term” of this Agreement, shall commence on the Effective Date and extend ten (10) years, unless said Term is otherwise terminated or modified by circumstances set forth in this Agreement. 4.2.1 Optional Extension. Prior to the termination of this Development Agreement, as provided in Section 4.2, Developer may extend the term of the Development Agreement. To do so, Developer shall give City written notice at least 90 days prior to the termination date of the Development Agreement. At the time Developer provides such notice, Developer shall make a contribution to City in the amount of Two Hundred Thousand Dollars ($200,000) for each year of extension requested under this provision . Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the Developer in writing that the term of the Development Agreement has been automatically extended for an additional time period equal to the time period requested by Developer under this provision, commencing on the date the Development Agreement would otherwise have terminated; provided Develo per may exercise its option to extend the Development Agreement no more than five times, for a maximum total term of the Development Agreement of fifteen(15) years. Notwithstanding the foregoing, payment for the first year extension may be made in quarterly installments of Fifty Thousand Dollars ($50,000), due on or before July 7,2017, October 7, 2017, January 7, 2018, and April 7, 2018. During the first year extension, Developer shall have the opportunity to cure late payment, by remitting the full amount due within 10 days of City’s notice to Developer that payment is late. Failure to make payment within 10 days of City’s notice results in automatic termination of the Agreement. Section 2. Full Force and Effect. Except as specifically clarified, confirmed or modified herein, the Agreement shall continue in full force and effect according to its terms. Section 3. Defined Terms. Defined terms have the same meaning in this Amendment as in the Agreement unless otherwise specified. Section 4. Effective Date of Amendment. This Amendment shall become effective upon the date the ordinance approving t his Agreement becomes effective. Section 5. Recordation. City shall record a copy of this Amendment within ten (10) days following execution by all parties. [signature page immediately follows] Dublin/Dublin Gateway, LLC Amendment No. 1 to Development Agreement IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date and year first above written. CITY OF DUBLIN: By: _______________________ Date: _______________ Mayor ATTEST: By: _______________________ Date: _______________ Caroline Soto, City Clerk APPROVED AS TO FORM: _________________________ John Bakker, City Attorney DUBLIN GATEWAY, LLC, a California limited liability company By: ________________________ Date: _______________ Dev Mahadevan, Chief Executive Officer Dublin/Dublin Gateway, LLC Amendment No. 1 to Development Agreement Exhibit A Legal Description of the Property Parcels 3 and 4, as shown on Parcel Map 8524, filed November 23, 2005, in Book 286 of Parcel Maps, pages 38-41 in the Office of the Recorder of Alameda County, Assessor Parcel Numbers 986-0016-021 and 986-0016-022 respectively. [NOTE: LEGAL DESCRIPTION TAKEN FROM 2007 AGREEMENT. NEED TO VERIFY DETAILS AND APNS STILL ARE CORRECT.]