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Ord 14-04 DevAgmtDubTransitCtr
ORDINANCE NO. 14 - 04 AN ORDINANCE OF THE CITY COUNCIL - OF THE CITY OF DUBLIN APPROVING A DEVELOPMENT AGREEMENT FOR PA 03-061 DUBLIN TRANSIT CENTER SITE A-2 (EAH, INC) THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: .Section 1. RECITALS A. EAH, Inc. submitted an application for a 112-unit affordable apartment community and related improvements on a 2.0 acre site on the southwest comer of Dublin Boulevard and DeMarcus Boulevard within a portion of Dublin Transit Center Site A. The project proposes a 3 story residential building over one level of parking on the northeast portion of Site A. The development includes applications for a Stage 2 Planned Development and Site Development Review Development Agreement. The applications are collectively known as the "Project"; and B. Pursuant to the California Environmental Quality Act, Staff has recommended that the project be found exempt from CEQA pursuant to Government Code section 65457 for residential projects that are consistent with a specific plan. The Project is within the scope of the Final Environmental Impact Report for the Dublin Transit Center General Plan Amendment, Eastern Dublin Specific Plan Amendment, Stage 1 Planned Development Zoning, Tentative Parcel Map, and Development Agreement (SCH 2001120395) which was certified by City Council Resolution No. 215-02 dated November 19, 2002. This recommendation is based on a determination that there are no supplemental impacts that would require preparation of a Supplemental EIR. On March 23, 2004, the Planning Commission adopted Resolution 04-23 recommending that the City Council adopt the Stage 2 Planned Development, which resolution is incorporated herein by reference. C. The text of the Development Agreement is attached to this resolution as Exhibit A. D. The Development 'Agreement is required as an implementing measure of the Eastern Dublin Specific Plan and is authorized by Government Code section 65865 and Chapter 8.56 of the Dublin Municipal Code. E. A public hearing on the proposed Development Agreement was held before the Planning Cormnission on March 23, 2004, for which public notice was given as provided by law. F. A public hearing on the proposed Development Agreement was held before the City Council on April 6, 2004 and April 20, 2004, 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 March 23, 2004 meeting, 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, (d) the Stage 1 Planned Development, (e) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. Said Agreement is cOnsistent with the objectives, policies, general land uses and programs specified in the Eastern Dublin Specific Plan/General Plan in that, a) the Eastern Dublin Specific Plan/General Plan land use designation for the subject site is High Density Residential and that the Dublin Transit Center Site A-2 Project is consistent with that designation; b) the project is consi~'fent kvith the fiscal policies in relation to provision of infrastructure and public services of the City's Eastern Dublin Specific Plan/General Plan; c) the Agreement sets forth the rules the Developer and City will be governed by during the development process which is required by the Eastern Dublin Specific Plan; and the Mitigation Monitoring Program of the Eastern Dublin Specific Plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located in that the project approvals include a Stage 2 Planned Development and Site Development Review. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies will implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for this use at this location. 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 programs and policies of the Eastern Dublin Specific Plan. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan and with the Specific Plan. Section 3. APPROVAL The City Council hereby approves the Development Agreement (Exhibit A) and authorizes the Mayor to sign. Section 4. RECORDATION Within ten (10) days after the 'Development Agreement is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall causethe 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 the City of Dublin, on this 20th day of April 2004, by the following votes: AYES: Counciimembers McCormick, Oravetz, Sbranti and Zika and Mayor Lockhart NOES: None ABSTAIN: None ATTEST: · ~_C~T Cl~'~k k~. ~ K2/G/4-20-04/ord-transitctr-da.doc (Item 6.3) U 2 City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND EAH, INC. FOR THE DUBLIN TRANSIT CENTER SITE A-2 PROJECT Development Agreement Between City of Dublin Page 1. of 16 and EAH, Inc. DRAFT: 03/15/2004 THIS DEVELOPMENT AGREEMENT is made and entered in the City of-- ~ Dublin on this ~ day of ,2004, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "CITY") and EAH, Inc., a California corporation (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 Agreement as a "Party," and are collectively referred to as Parties. REcITALs A. California Government Code §{}65864 et seq. ("Development Agreement Statute") and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into a Development 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. B. DEVELOPER desires to develop and holds an equitable interest in, in that it has the right to purchase, under that certain Agreement for Purchase and Sale of Real Property and Escrow Instructions, dated December 9, 2003, between the Surplus Property Authority of Alameda County and Developer ("the Purchase and Sale Agreement"), certain real property consisting of approximately 2 acres of land, located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property." The Alameda .County Surplus Property Authority ("COUNTY") presently is the fee owner of the Property. C. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property. The Eastern Dublin Specific Plan requires DEVELOPER to enter into a development agreement. D. The Property is within an approximately 91-acre master-planned area ("the Transit Center Property") that was the subject in 2002 of a General Plan Amendment, a specific plan amendment to add the area to the Eastern Dublin Specific Plan, a master tentative map to create master parcels for development, and a master development agreement ("the Transit Center Approvals"). E. DEVELOPER proposes the development of the Property as a 112- unit affordable apartment community (the "Project"). G. DEVELOPER has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the Project, including, without limitation, a General Plan Amendment (Resolution No. 216- 02), an amendment to the Eastern DUblin Specific Plan to add the Transit Center Property to add the Dublin Transit Center to the specific plan area (Resolution No. 216- 02), a master tentative parcel map (tract 7892) (Planning Commission Resolution 02- Development Agreement Between City of Dublin Page 2 of 16 and EAH, Inc. DRAFT: 03/15/2004 683717.3 40); a planned development district rezoning including a Stage 1 Development Plan (Ord. No. 21-02); a vesting tentative--parCel map (tract 8.275) that would create the parcel on which the Project Would be constructed (Planning Commission ResOlution ); a Stage 2 Development Plan (Ord. No. ); and site development review (Planning Commission Resolution No. __). All such approvals collectively, together with any approvals or permits now or hereafter issued with respect to the Project are referred to as the "Project Approvals." -H. Development of the Property by DEVELOPER may be subject to certain future discretionary approvals, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective. I. CITY desires the timely, efficient, orderly and proper development of the Project. J. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with the Development Ag reement Statute and Chapter 8.56. K. CITY and DEVELOPER have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein. L. Pursuant to the California Environmental Quality Act (CEQA) the City Council adopted Resolution No. finding that the Project is within the scope of the Program EIR prepared for the Dublin Transit Center Approvals, which was certified pursuant to the California Environmental Quality Act (CEQA) (Resolution 215-02); and M. On , the City Council of the City of Dublin adopted Ordinance No. approving this Development Agreement. ("the Approving Ordinance"). The Approving Ordinance will take effect on ("the Approval Date"). NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPER agree as follows: AGREEMENT 1. Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). 2. Interest of Developer. Development Agreement Between City of Dublin Page .3 of 16 -' and EAH, Inc. '" DRAFT: 03/15/2004 683717.3 The DEVELOPER has a legal or equitable interest in 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, and agree that 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 a grant deed conveying the Property from COUNTY to DEVELOPER is recorded in the Official Records of Alameda County. This Agreement shall automatically terminate without any further action of the Parties upon the happening of either of the following: (a) If a grant deed conveying the Property from COUNTY to DEVELOPER is not recorded within 12 months of the Approval Date: or (b) if the Purchase and Sale Agreement is terminated for any reason (and upon DEVELOPER's providing satisfactory of evidence of such fact to C~TY). 4.2 Term. The "Term" of this Development Agreement shall commence on the Approval Date and extend five (5) years thereafter, unless said Term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Property. 5.1 Right to Develop. DEVELOPER shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by CITY) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. Development Agreement.Between City of Dublin Page 4 of 16 .... and EAH, Inc, · DRAFT: 03/15/2004 683717.3 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 Approvalsl Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect DEVELOPER's respOnsibility to obtain all other land use approvals required by the ordinances of the City of Dublin and any permits required by regulatory agencies.) See Exhibit B. 5.3.2 Mitigati°n 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 Phasing, 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. See Exhibit B 5.3.4 Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5 Fees, Dedications. 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 Development Agreement Between City of Dublin Page 5 of 16 'and EAH, Inc. DR~FT: 03/15/2004 683717.3 6. Applicable Rules, Regulations and Official Policies. 6.1 Rules re Permitted Uses. For the term of this Agreement, the. City's ordinances, resolutions, rules, regulations and official policies 'governing the permitted uses of the Property, governing density and intensity of use of the'Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the effective date of this Agreement. 6.2 Rules re Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement or in Chapter 7.28 of the Dublin Municipal Code, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to Project construction (but not use) shall be those in force and effect at the time the DEVELOPER submits its application for the relevant building, grading, or other construction permits to CITY. In the event of a conflict between such ordinances, resolutions, rules, regulations and official policies and the Project Approvals, the Project Approvals shall prevail. For construction of public infrastructure, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to Project shall be those in force and effect at the time of execution of an improvement agreement between CITY and DEVELOPER pursuant to Chapter 9.16 of the Dublin Municipal Code. 6.3 Building Standards Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement or in Chapter 7.28 of the Dublin Municipal Code, the Project shall be constructed in accordance with the provisions of the 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 the DEVELOPER submits its application for the relevant building, grading, or other construction permits for the Project to CITY. 7. Subsequently Enacted Rules and Requlations. 7.1 New Rules and Regulations. During the term of this Agreement, the CITY may apply new or modified ordinances, resolutions, rules, regulations and official policies of the CITY to the Property which were not in force and effect on the Approval Date and which are not in conflict with those applicable to the Property as set forth in this Agreement and the Project Approvals if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as otherwise con.templated by the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general (City,wide) applicability. Development Agreement Between City of Dublin Page6 of 16 and EAH, Inc. DRAFT: 03/15/2004 683717,3 7.2 Approval of Application. Nothing in this Agreement shall prevent the CITY from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements expressly set forth herein. 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary 'contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of CITY, by .initiative, referendum, or otherwise, that imposes a building moratorium which affects the Project on all or any part of the Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code §~8558. 7.4 Rights Under Vestinq Tentative Map. Notwithstanding anything to the contrary contained herein, this Agreement shall not supercede any rights DEVELOPER may obtain pursuant to CITY's approval of the vesting tentative map for the Project. 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1 Fees, Exactions, Dedications. CITY and DEVELOPER agree that the fees payable and exactions required in connection with the development of the Project Approvals for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement (including Exhibit B). The CiTY shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or const.ruction of public improvements, in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not prevent development in accordance with this Agreement. By so agreeing, DEVELOPER does not waive its rights to challenge the legality of any such application, processing and/or inspection fees. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall " 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 ...... Development Agreement Between City of Dublin , Page 7,¢f.~16...:.. ?.¥..;~:,.,?... ,::.. ' '. ' and EAH, Inc. DRAFT: 03/15/2004 683717.3 accordance with this Agreement. By so agreeing. DEVELOPER does not waive its dghts to challenge the legality of any such taxes. 8.4 Assessments. Nothing herein shall be construed to relieve the Property from assessments levied against it by CITY .pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5 Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's ballot as affirmatively voting in favor of such assessment, fee or charge. 9. Amendment or Cancellation. · 9.1 Modification Because of Conflict with State or Federal Laws. in the event that state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the CITY, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56. 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding section 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in section 4.2; (b) the permitted uses of the Property as provided in Section 5.2; (c) provisions for "significant" reservation or dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum'height or size of 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 by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of Development Agreement Between City of Dublin Page 8 End EAH, Inc. '" DRAFT: 03/15/2004 683717.3 -this Agreement prior to the date of cancellation shall be retained by CITY. 10. Term of Proiect Approvals. The term of any Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2005 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 undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CITY in connection with the annual review shall be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in CITY's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by any party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and Development Agreement Between City of Dublin ..... . Page 9 of 16 ............ .....-... and EAH, Inc. DRAFT: 03/15/2004 683717.3 diligently pursues Such cure to completion. Failure to give notice shall not constitute a ~aiv~r of any default. 12.3 No Damages Against CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Any party may, at any time, and from time to time, request written notice from the other party requesting Such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of CITY shall be authorized to execute any certificate requested by DEVELOPER. 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. 14. Mortgagee Protection; Certain Rights of Cure. 14.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by 'foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under'this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, 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 Project Approvals .or by this Agreement. Development Agreement Between City of Dublin Page 1.0 of 16 .... : .... . ........... ;:. and EAH, Inc. DRAFT: 03/1512004 683717.3 14.3 Notice of Default to Mortqa.qee and Extension of Riqht to Cure. If CITY receives notice from a Mortgagee req~estihg 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 provided in section 12.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee. 15. Severability. The unenforceability, invalidity or illegality of any provisions, Covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. ' 16. Attorneys' Fees and Costs. If CITY 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 Project Approvals, the parties shall cooperate and appear in defending such action. DEVEL©PER shall bear its own costs of defense as a real party in interest in any such action, and DEVELOPER 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 Assi.qnments. 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, which approval shall not be unreasonably withheld or delayed. The City Manager shall consider and decide the matter within 10 working days after DEVELOPER's notice provided and receipt by City Manager of all necessary documents, certifications and other information required by City Manager to decide the matter. In considering the request, the City Manager shall base the decision upon the proposed assignee's reputation, experience, financial resources and access to credit and capability to successfully carry out the development of the Property to completion. The City Development Agreement .Be~veen City of Dublin ,. ...... Page 11 ._of :1.6 and EAH, Inc. DRAFT: 0311512004 683717.3 Manager's approval shall be for the purposes of: a) providing notice to CITY; b) assuring that all obligations of DEVELOPER are allocated as between DEVELOPER and the proPosed purchaser, transferee or assignee; and c) assuring CITY that the proposed purchaser, transferee or assignee is capable of performing the DEVELOPER's obligations hereunder not withheld by DEVELOPER pursuant to section 17.3. Notwithstanding the foregoing, provided notice is given as specified in Section 23, no CITY approval shall be required for any transfer, sale, or assignment of this Agreement to: 1) any entity which is an affiliate or subsidiary of'DEVELOPER; 2) any Mortgagee; or 3) any transferee of a Mortgagee. 17.2 Release Upon Transfer. Upon the transfer, sale, or assignment of all of DEVELOPER's rights, interests and obligations hereunder pursuant to section 17.1 of this Agreement, DEVELOPER shall be released.from the obligations under this Agreement, with respect to the Property transferred, sold, or assigned, arising subsequent to the date of City Manager approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or assignee approved by the City Manager expressly assumes all of the rights, interests and obligations of DEVELOPER under this Agreement, DEVELOPER shall be released with respect to all such rights, interests and assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval. 17.3 Developer's Right to Retain Specified Riqhts or Obliqations. Notwithstanding sections 17.1 and 17.2 and section 18, DEVELOPER may withhold from a sale, transfer or assignment of this Agreement certain rights, interests and/or obligations which DEVELOPER shall retain, provided that DEVELOPER specifies such rights,' interests and/or obligations in a written document to be appended to this Agreement and recorded with the 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. 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 the Property, or any.portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with .such properties, and (c) Developme-ntAgreement Between City of Dublin 1. Page ,12~a~-,,i!6 and EAH. Inc. DRAFT: 03/15/2004 683717.$ is binding upon each party and..each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to- and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the DEVELOPER, or any actions or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation with respect to negligence or wrongful conduct of CITY, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). If CITY'is named as a party to any legal action, CITY will cooperate with DEVELOPER, will appear in such action and will not unreasonably withhold approval of a settlement otherwise acceptable to DEVELOPER. If CITY is named as a party to any legal action, CITY will cooperate with DEVELOPER, will appear in such action and will not unreasonably withhold approval of a settlement otherwise acceptable to DEVELOPER. 21. Insurance. 21.1 Public Liability and Property Damaqe Insurance. At all times that DEVELOPER is constructing any improvements that will become public improvements, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) and a deductible of not more than ten thousand dollars ($10,000.00) per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. .Development Agreement Between City of Dublin ., ..................... Page 13 of 16 .......... and. EAH, Inc. · .... DRAFT: 03/15/2004 683717.3 21.2 Workers Compensation Insurance. At all times that DEVELOPER is constructing any improvements that will become public improvements, DEVELOPER shall maintain Worker's Compensation insurance for all persons employed by DEVELOPER for work at the Project site. DEVELOPER shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to commencement of construction of any improvements which will become public improvements, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the CITY at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER acknowledgesthat it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of CITY. 23. Notices. All notices required or provided for under this Agreement shall be in Writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 Notice required to be given to DEVELOPER shall be addressed as follows: EAH, Inc. A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile Deyelopme,nt Agreement Between City of Dublin ............ Page 14 of. 16 and EAH, Inc. DRAFT: 03/15/2004 683717.3 transmission which shall be deemed given upon verification of receipt. 24. Recitals. The foregoing Recitals are true and correct and are made a part hereof. 25. Agreement is Entire Understanding. This Agreement constitutes 'the entire understanding and agreement of the parties. 26. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions 27. Counterparts. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. 28. Recordation. CITY shall record a copy of this Agreement within ten days of DEVELOPER providing CITY notice that a grant deed conveying the Property from COUNTY to DEVELOPER is recorded in the Official Records of Alameda County. [EXECUTION PAGE FOLLOWS] Development Agreement Between City of Dublin Page 15 of 16 .... · ..,.:. :..~ and EAH, Inc. DRAFT: 03/15/2004 683717.3 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed-as o1: the date and year first above written. CITY OF DUBLIN: By: Date: Mayor Attest: By: Date: City Clerk Approved as to Form: City Attorney EAH, INC., a California Corporation Its: Development Agreement Between City of Dublin Page ~16.of-~16 -, ..... ::,..~. and EAH, Inc. DRAFT: 03/15/2004 683717.3 Exhibit A Property Description 683717.3 Exhibit B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. 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. approving Site Development Review ("the SDR Resolution") shall be completed by DEVELOPER to the satisfaction and requirements of the Public Works Director at the times and in the manner specified in the SDR Resolution unless otherwise provided below. --Condition 85 [Traffic Mitigation] Condition 85 reads as follows: Traffic Mitigation. The City is presently working on an update to the Eastern Dublin Traffic Impact Fee ("the TIF") that would include the Transit Center Property within the TIF area ("the TIF Update"). If the Transit Center area is included in the TIF area prior to issuance of building permits, the Developer shall pay the adopted TIF. If the TIF Update is not effective at the time of building permit issuance, the Developer shall pay a cash deposit equal to the City Engineer's estimate of amount of the project's TIF were the TIF Update in effect ("the Deposit"). If the developer makes the Deposit, immediately upon the TIF Update becoming effective, Developer shall pay the actual TIF, either from the deposit or with TIF credits, and, upon such payment, City shall return the funds remaining from the Deposit. If the Deposit and Developer's credits are inadequate to satisfy the TIF obligation, .the Developer shall make a cash payment to the City equal to the deficit. If, within 2 years of building permit issuance, the TIF Update has not become effective, Developer shall instead pay to City an amount equal to Developer's fair share, based on average daily trips, and as determined by the City Engineer, of the costs for the following Development Agreement BetweenrCity of Dublin Page 1 and EAH, Inc. -- EXHIBIT B DR~FI: 0~/15/2004 687317.3 improvements: 1) Dougherty Road improvements at the Dublin Boulevard intersection and the 1-580 ramps; 2) Scarle-t't Drive extension; and 3) Hacienda Drive / 1-580 improvements, which improvements are more fully described in Conditions 26, 27 & 29 of Approval for Parcel Map 7892 (Planning Commission Resolution No. 02-40). Upon applying the Deposit towards this obligation, the City shall immediately refund any surplus funds to the Developer. If the Deposit is inadequate to satisfy this obligation, the Developer shall make a cash payment to the City equal to the deficit. Notwithstanding the provisions of Section 4 of this Agreement, Condition 85 shall survive termination of this Agreement. (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 SDR conditions of approval to the satisfaction and requirements of the CITY's fire department. All potable water system components to serve the project site (or any recorded phase of the Project) shall be completed in accordance with DSRSD requirements. Recycled water lines shall be installed in accordance with the SDR conditions of approval. (iv) Storm Drainage Prior to issuance of the first Certificate of Occupancy for any building which is part of the Project, the storm drainage systems off site, as well as on site drainage systems to the areas to be occupied, shall be improved to the satisfaction and requirements of the Dublin Public Works Department applying CITY's and Zone 7 (Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are applicable. Pursuant to Alameda County's National Pollution Discharges 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. Development Agreement Between City of Dublin .................. :~,.~,:. Page. 2 : and EAH, Inc. -- EXHIBIT B DRAFT: 03/15/2004 687317.3 (v) Othe~'Utilities (e.g. gas, electricity, cable televisions, telephone) Construction of other utilities shall be complete by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of development. Subsection b. Miscellaneous (i) Completion May be Deferred. Notwithstanding the foregoing, CITY's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow DEVELOPER to defer completion of discrete portions of any of the public improvements required for the Project until after issuance of Certificate of Occupancy for the first building for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subparagraph 5.3.3 -- Phasin_cl, Timin_q This Agreement contains no requirements that DEVELOPER must initiate or complete development of the Project within any period of time set by CITY. It is the intention of this provision that DEVELOPER be able to develop the Property in accordance with its own time schedules and the Project Approvals. Subparagraph 5.3.4 -- Financing Plan DEVELOPER will install all improvements necessary for the Project at its own cost (subject to credits for any improvements that qualify for credits as provided in Subparagraph 5.3.6 below), unless otherwise required by this Agreement. 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. The present owner of the Property, the Alameda County Surplus Property Authority, has entered into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Subparagraph 5.3.5 -- Fees, Dedications Subsection a. Traffic Impact Fees. If the Transit Center Property is added to the area covered by the Eastern Dublin Traffic Impact Fee at the time of issuance of building permits, Developer shall pay the Eastern Dublin' Traffic Impact Fee ("TIF") established by Resolution No. 225-99, ....... Development Agreem.en~t Be .tyveen City of Dublin ,.., ........... . ~.::Page :,3, ~and EAH, Inc. -- EXHIBIT E~ 'DRAFT: 03/15/2004' 687317,3 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 impact fee in effect at time of building permit issuance. If the Transit Center Property is added to the area covered by the Eastern Dublin Traffic Impact Fee at the time of issuance of building permits, Developer further agrees that it will pay a minimum of five percent (5%) of the "Section 1/Category 1"' portion of the TIF in cash. If the Transit Center Property is added to the area covered by the Eastern Dublin Traffic Impact Fee at the time of issuance of building permits, Developer also agrees that it will pay at least 12.4% 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 more or less than 12.-4% of total Section 2/Category 2 improvements, the Developer shall pay such increased or reduced percentage of the "Section 2/Category 2" portion of the TIF in cash. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchanges. DEVELOPER shall pay a Eastern Dublin 1-580 Interchange Fee in the amounts and at the times set forth in City of Dublin Resolution No. 155-98, or in the amounts and at the times set forth in any resolution revising the amount of the Eastern Dublin 1-580 Interchange Fee. 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 no later than the time of issuance of building permits and in the then-current amount of the fee. 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 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. Subsection e. School Impact Fees. School impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080 and the existing agreement between DEVELOPER's predecessor in interest and the Dublin Unified School District. Subsection f. Fire Impact Fees. Deve!opment Ag reement Between City of Dublin .~.::..~.~.,:~,.,~:~...~ . Page 4 ~i':ff~EAR Inc. EXHIBIT B DRAFT: 03/15/2004 687317.3 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. Subsection .q. 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 no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subparagraph 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 pursuant this Agreement. All aspects of credits shall be governed by CITY's Administrative Guidelines regarding credits (Resolution No. 23-99). Subsection b. Traffic Impact Fee Ri.qht-of-Way Dedications Credit CITY shall provide a credit to DEVELOPER for any TIF area right-of-way .dedicated by DEVELOPER to CITY which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. Ail aspects of credits shall be governed by CITY's Administrative Guidelines regarding credits (Resolution No. 23-99). Sub'paragraph 5.3.7 -- Miscellaneous Subsection a. Maintenance of Street Lighting COUNTY has asked CITY to form an assessment district pursuant to the Lighting and Landscaping Act of 1972 to pay for street lighting in order to satisfy the obligation of future developers to pay for street lighting in the Dublin Transit Center Property. In addition, COUNTY agreed in the Master Development Agreement to record a Declaration of Covenants, Conditions and Restrictions or a similar document ("CC&Rs") that covers the Dublin Transit Center Property, whereby COUNTY, on behalf of itself and its successors~(including DEVELOPER), has covenanted to pay a "Deed Assessment" to CITY for maintenance of street lighting and street light maintenance in the event that the assessment for street light Costs and maintenance is not levied against the DUblin Transit Center Property, or any portion of it, in any year. · :.: ......... ~,.,~.. Deyelopment Agreement Between City of Dublin . Page 5 ........... ................ and EAH, Inc. EXHIBIT B DRAFT: 03/15/2004 687317.3 DEVELOPER acknowledges that the City intends to form (or annex the Property to) a landscaping and lighting district and impose an assessment on the Property fOr such purposes. DEVELOPER hereby waives its right to protest the formation of or the Property's annexation to the district and the imposition of the annual assessment. In addition, DEVELOPER hereby covenants to pay a Deed Assessment, pursuant to the terms of CC&Rs. Development Agreement Between City of Dublin ............ Page 6 and EAH, Inc. -- EXHIBIT B DRAFT: 03/15/2004 687317.3