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Home My WebLink About00-015 Cancellation CommerceOne AGENDA STATEMENT PLANNING COMMISSION MEETING DATE: September 28, 2004 SUBJECT: PUBLIC HEARING - PA 00-015 Cancellation of Commerce One Development Agreement-J / Report Prepared by: Jeri Ram, Planning Manager " .~ A TT ACHMENTS 1. Letter dated 7/30/04 from Alameda County Surplus Property Authority 2. Commerce One Development Agreement 3. Resolution recommending Cancellation of Commerce One Development Agreement RECOMMENDATION: 1. Open public hearing and hear Staff presentation 2. Take testimony from the Applicant and the public 3. Question Staff, Applicant and the public 4. Close public hearing and deliberate and adopt a Resolution (Attachment 3) Recommending Cancellation of the Commerce One Development Agreement to the City Council PROJECT DESCRIPTION: The Commerce One Project was approved in 2001 to construct an office building complex on a 27.4 acre site located at the Martinelli Way and Hacienda Drive, Interstate 580 and Arnold Road within the Eastern Dublin Specific Plan area. One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into development agreements with developers in the plan area. As part of the project approvals, a Development Agreement was approved in early 2001 between Commerce One, Alameda County Surplus Property Authority and the City of Dublin (Attachment 2). The Development Agreement was based on the standard Development Agreement developed by the City Attorney and adopted by the City Council for Eastern Dublin Projects. The term of the Development Agreement was for a period of eight years. Following the approval of the Commerce One Project (including the Development Agreement), Commerce One made a business decision to not pursue the project. Subsequent to that, the property owner, Alameda County Surplus Property Authority, negotiated with Ikea to develop the site. The Ikea Project was approved by the City Council in March of this year. The Ikea Project also contained a Development Agreement as required by the Eastern Dublin Specific Plan. As a clean up item, Alameda County Surplus Property Authority has now requested that the Development Agreement with Commerce One be terminated (Attachment 1). Staff concurs that it is necessary to cancel this Development Agreement. The process for canceling a development agreement (Section 8.56.120 of the Municipal Code) is the same COPIES TO: Applicant Property Owner PAFile Project Manager ITEM NO. RL G: ·PA#\2000\OO-O 15 Commerce One\DA Cancer'PCSRcommerceoneDA8-24-04.doc as for approving a development agreement. Therefore, the Planning Commission must make a recommendation to the City Council to adopt an Ordinance canceling the Development Agreement. RECOMMENDATION: Staff recommends the Planning Commission open the public hearing; take testimony from the Applicant and public; question Staff, Applicant and the public; close the public hearing and deliberate; and approve the Resolution recommending that the City Council adopt an Ordinance canceling the Development Agreement between Commerce One, Alameda County Surplus Property Authority and the City of Dublin (Attachment 3). 2 GENERAL INFORMATION APPLICANT: PROPERTY OWNER: LOCATION: GENERAL PLAN DESIGNATION: EXISTING ZONING AND LAND USE: Alameda County Surplus Property Authority 224 W. Winton, Suite 110 Hayward, CA 94544-1215 Peter Pervere, Sr. Vice President Commerce One 4440 Rosewood Drive, Bldg. 4 Pleasanton, CA 94588 Commerce One 4440 Rosewood Drive Pleasanton, CA 94588 Attention: General Counsel Alameda County Surplus Property Authority 224 W. Winton, Suite 110 Hayward, CA 94544-1215 Northwest comer of Hacienda Drive and Interstate 580 APN# 986-005-026 General Commercial PD Planned Development 3 ALAMEDA COUNTY COMMUNITY DEVELOPMENT AGENCY SURPLUS PROPERTY AUTHORITY James E. Sorensen A.gefC'y' Oirec(()' July 30, 2004 HEcetVEfJ Patrick (ashman ,1'1 Richard C. Ambrose City Manager The City of Dublin 100 Civic Plaza Dublin, CA 94568 II' 'I i \ 'ì [¡IlL 1'1,1,": \. 1-' PrOject Oirenor ~rrv OF DUBUN Re: Termination of Commerce One Development Agreement I'!' Dear Rich: The purpose of this letter is to request that the City of Dublin ("City") agree to seek approval from the City Council of City to terminate immediately that certain Development Agreement between the City and Commerce One, Inc. ("Commerce One"), dated February 20,2001, and recorded on November 9,2001, at Series No. 20014405802 in the Alameda County Recorder's Office (the "Commerce One Development Agreement"), which pertains to the undeveloped land within the City, which is more particularly described on Exhibit A to this letter (the "Property"). By an Assignment of Development Agreement, dated November 7,2001, and recorded on January 20,2004, at Series No. 2004021494 in the Alameda County Recorder's Office, Commerce One assigned to the Surplus Property Authority of Alameda County, a public corporation ("County"), all rights and obligations of Commerce One under the Commerce One Development Agreement and County assumed all of Commerce One's rights and obligations under the Commerce One Development Agreement. Thereafter, the City and IKEA Property, Inc. ("IKEN') entered into a development agreement with respect to the Property, entitled "Development Agreement Between the City of Dublin and IKEA Property, Inc. for the IKEA Project", which was approved by the City Council of City on May 6, 2004 (the "IKEA Development Agreement"). The IKEA Development Agreement was recorded on May 27,2004, at Series Number 2004237678 in the Alameda County Recorder's Office. On July 16,2004, IKEA acquired title from County to Parcel 1 described on Exhibit A to this letter, and Pan Pacific Retail Properties, Inc. ("Pan Pacific") acquired title from County to Parcel 2 described on Exhibit A to this letter. Accordingly, in accordance with the provisions of Section 4.1 of the IKEA Development Agreement, the effective date of the IKEA Development Agreement is July 16,2004. At the same time Pan Pacific acquired title to said Parcel 2, the assignment by IKEA to Pan Pacific of IKEA' s rights and obligations under the ATTACHMENT I IKEA Development Agreement, solely with respect to the Retail Center Parcel described therein [parcel 2 on Exhibit A] and the assumption ofIKEA's rights and obligations thereunder, solely with respect to the Retail Center Parcel, became effective by virtue of the recordation of that certain Partial Assignment of Rights and Assumption of Obligations Under Development Agreement, from IKEA to Pan Pacific, dated July 16, 2004, and recorded on July 16,2004, at Series No. 2004-327541 in the Alameda County Recorder's Office. Now that the IKEA Development Agreement is in full force and effect, it is necessary and appropriate that the Commerce One Development Agreement be terminated immediately and that a document entitled "Termination of Commerce One Development Agreement", substantially in the form attached hereto as Exhibit B, be entered into between City and County and recorded as soon as possible in the Alameda County Recorder's Office in order to remove the Commerce One Development Agreement as an exception to title to the Property. We enclose with this letter two (2) originals ofa Termination of Commerce One Development Agreement, in the form attached hereto as Exhibit B. which have been signed by County and acknowledged by a notary public. We request that you confirm in the place provided below for the benefit of County, IKEA and Pan Pacific, that you will seek approval rrom the City Council of City as soon as possible to execute and return to County one (1) duly executed and acknowledged original of the enclosed Termination of Commerce One Development Agreement, and that promptly after obtaining such approval you will send the duly executed and acknowledged original document to the undersigned to be recorded in the Alameda County Recorder's Office. Thank you for your assistance. Very truly yours, SURPLUS PROPERTY AUTHORITY OF ALAME~UNTY By: ///¿//~ Name: Patrick Cashman Title: Director CONFIRMED: CITY OF DUBLIN By: Richard C. Ambrose, City Manager EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY That certain real property located in the City of Dublin, County of Alameda, State of California, described as follows: Parcels 1 and 2 of Parcel Map 8261, filed May 26,2004, in Book 276 of Parcel Maps, at Pages 41 and 42, Series No. 20044233258, Official Records of Alameda County. City of Dublin 2001440502 11/09/2001 11 :40 AM OFFICIAL RECORDS OF RECORDING FEE: ø.øø ALAMEDA COUNTY PATRICK O'CONNELL III iii "1111 nil III li(,26@ When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 % ~ ð~ 'v~V Space above this line for Record~EHf:iVED DEC 5 2001 CITY OF DUBLtN DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND COMMERCE ONE, INC AND THE SURPLUS PROPERTY AUTHORITY OF THE COUNTY OF ALAMEDA FOR THE COMMERCE ONE PROJECT ATTACHMENT ¿) THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this _th day of June, 2001, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "CITY"), Commerce One, Inc., a Delaware corporation) (hereafter "DEVELOPER") and the Surplus Property Authority of Alameda County, a public corporation (hereafter "COUNTY") pursuant to the authority of §§65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. California Government Code §§65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an Agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and C. The Eastern Dublin Specific Plan requires DEVELOPER to enter into a development agreement; and D. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 27.44 acres of land, located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property"; and E. DEVELOPER acquired, or will acquire, its interest in the Property from COUNTY pursuant to a purchase and sale agreement which allocates rights ànd obligations as between COUNTY and DEVELOPER. COUNTY is a party to this Agreement because COUNTY will dedicate certain land and construct certain improvements that relate to the development of the Property; and F. DEVELOPER proposes the development of the Property for a corporate center, including four office buildings, and a commons building and a parking structure (the "Project"); and G. DEVELOPER has applied for, and CITY has approved or is processing, various land use approvals in connection with the deveTopment of the Project, including PD District rezoning (including Stage 1 and 2 Development Plan) (Ordinance No. ), parcel map (Community Development Director Resolution No. ) and Site Development Review (Planning Commission Resolution No. 00- 70), (collectively, together with any approvals or permits now or hereafter issued with Development Agreement Between City of Dublin And Commerce One, Inc. Page 1 of 17 January 12, 2001 respect to the Project, the "Project Approvals"); and H. Development of the Property by DEVELOPER may be subject to certain future discretionary approvals, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective; and I. CITY desires the timely, efficient, orderly and proper development of said Project; and J. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56; and K. CITY, COUNTY and DEVELOPER have reached agreement and desire to express herein a Development Agreement that will facilitate development of the Project subject to conditions set forth herein; and L. Pursuant to the California Environmental Quality Act (CEQA) the City has found, pursuant to CEQA Guidelines section 15182, that the Project is within the scope of the Final Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan (SCH 91103064) which was certified by the Council by Resolution No. 51-93, the Addenda dated May 4,1993, and August 22, 1994 and the Mitigated Negative Declaration for the Santa Rita Specific Plan Amendment (SCH 86082092); and M. On ,2001, the City Council of the City of Dublin adopted Ordinance No. approving this Development Agreement. The ordinance will take effect on I 2001. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY, COUNTY and DEVELOPER agree as follows: AGREEMENT 1. Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property. Development Agreement Between City of Dublin And Commerce One, Inc. Page 2 of 17 January 12, 2001 3. Relationship of CITY. COUNTY and DEVELOPER. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by CITY, COUNTY and DEVELOPER and that neither the DEVELOPER nor COUNTY is an agent of CITY. The CITY, COUNTY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY, COUNTY and DEVELOPER joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by CITY. 4.2 Term. The term of this Development Agreement shall commence on the Effective Date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 4.3 Termination Upon Issuance of Certifiê~te of Occupancy. Upon issuance of the final certificate of Occupancy for the Project, this Development Agreement shall terminate with respect to DEVELOPER only. The agreement shall continue in effect with respect to the COUNTY until terminated pursuant to Section 4.2. 4.4. Optional Extensions~ 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 confribution to CITY in the amount of One Hundred Thousand Dollars ($100,000), which monies will be used by CITY to reduce the existing Public Facilities Fee deficiency. Upon receipt of the notice and the contribution, the City Manager shall notify the DEVELOPER and the COUNTY that the term of the Development Agreement has been extended for a one- year period. The DEVELOPER may exercise its option to extend the Development Agreement no more than three times, for a maximum total term of the Development Agreement of eight years. The total contribution for the maximum extension of three years will be $300,000. 5. Use of the Property. 5.1 RiQht 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 Development Agreement Between City of Dublin And Commerce One, Inc. Page 3 of 17 January 12, 2001 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 dedicatioR of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by CITY) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the following ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1 Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect DEVELOPER's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin and any permits required by regulatory agencies.) , Not Applicable. 5.3.2 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 relãting 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. 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 Development Agreement Between City of Dublin And Commerce One, Inc. Page 4 of 17 January 12,2001 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 discreUonary Project Approval. In the event of a conflict between such ordinances, resolutions, rules, regulations and official policies and the Project Approvals, the Project Approvals shall prevail. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements. to be constructed by Developer shall be those in force and effect at the time of the applicable permit approval for the public improvement. 6.3 Uniform Codes Applicable. Unless expressly prov'ided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and 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 and the Project Approvals if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or Development Agreement Between City of Dublin And Commerce One, Inc. Page 5 of 17 January 12, 2001 official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2 Approval of Application. Nothing in this Agreement shall prevent the CITY from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements expressly set forth herein. 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of CITY, by initiative, referendum, or otherwise, that imposes a building moratorium which affects the Project on all or any part of the Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code §8558. 8. Subsequentlv 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, dedicati?ns of land I or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 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 Development Agreement Between City of Dublin And Commerce One, Inc. Page 6 of 17 January 12,2001 apply to the Project provided that: (1) the application of such taxes to the Property is prospective; and (2) the application of such taxes would not prevent development in accordance with this Agreement. By so agreeing. DEVELOPER does not waive its rights to challenge the legality of any such taxes. 8.4 Assessments. Nothing herein shall be construed to relieve the Property from 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 conse,!1t of the parties hereto ~nd 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". Development Agreement Between City of Dublin And Commerce One, Inc. Page 7 of 17 January 12, 2001 9.4 Amendment of Project Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) monetary contributions by the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by CITY. 10. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the parcel map described in Recital G above shall automatically be extended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit 8. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be August 15, 2002 and each August 15 thereafter. 11.2 Initiation of Review. The CITY's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER twenty (20) 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. CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least three (3) days prior to any annual review and shall make every effort to fax copies five (5) days in advance. Development Agreement Between City of Dublin And Commerce One, Inc. Page 8 of 17 January 12,2001 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 twenty (20Ldays after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. An event of default by COUNTY or DEVELOPER shall not be deemed a default by the other party. 12.3 No 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. Any party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall be authorized to execute any certificate requested by DEVELOPER or COUNTY. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. Development Agreement Between City of Dublin And Commerce One, Inc. Page 9 of 17 January 12,2001 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. DEVELOPER and COUNTY shall jointly bear their own costs of defense as a real party in interest in any such action, and DEVELOPER and COUNTY shall reimburse CITY on an equal basis for all reasonable court costs and attorneys' fees expended by CITY in defense of any such action or other proceeding unless the action is based on an obligation of either COUNTY or DEVELOPER in which case that party shall be wholly obligated to reimburse CITY. 17. Transfers and 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 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, wh~ approval shall not be unreasonably withheld or delayed. The City Manager shåíf~sider 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 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 allocated as between DEVELOPER and the proposed purchaser, transferee ?r 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 Development Agreement Between City of Dublin And Commerce One, Inc. Page 11 of 17 January 12,2001 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 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. AQreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the partiesçmd their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon'such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership ~f 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 Development Agreement Between City of Dublin And Commerce One, Inc. Page 12 of 17 January 12, 2001 or indirectly as a result of any actions or inactions by the DEVELOPER, or any actions or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation with respect to negligence or wrongful conduct of CITY, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). If CITY is named as a party to any legal action, CITY will cooperate with DEVELOPER, will appear in such action and will not unreasonably withhold approval of a settlement otherwise acceptable to DEVELOPER. If CITY is named as a party to any legal action, CITY will cooperate with DEVELOPER, will appear in such action and will not unreasonably withhold approval of a settlement otherwise acceptable to DEVELOPER. COUNTY agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the COUNTY, or any actions or inactions of COUNTY's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that COUNTY shall have no indemnification obligation with respect to negligence or wrongful conduct of CITY, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). If CITY is named as a party to any legal action, CITY will cooperate with COUNTY, will appear in such action and will not unreasonably withhold approval of a settlement otherwise accep(able to COUNTY. 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 And Commerce One, Inc. Page 13 of 17 January 12, 2001 21.2 Workers Compensation Insurance. At all times that DEVELOPER is constructing any improvements that will become public improvements, DEVELOPER shall maintain Worker's Compensation insurance for all persons employed by DEVELOPER for work at the Project site. DEVELOPER shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 Evidence of Insurance. Prior to commencement of construction of any improvements which will become public improvements, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the CITY at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Sewer and Water. DEVELOPER acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of CITY. 23. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin P.O. Box 2340 Dublin, CA 94568 Notices required to be given to COUNTY shall be addressed as follows: Patrick Cashman Project Director Surplus Property Authority of Alameda County 225 W. Winton Avenue, Room 151 Hayward, CA 94544 Development Agreement Between City of Dublin And Commerce One, Inc. Page 14 of 17 January 12, 2001 Notice required to be given to DEVELOPER shall be addressed as follows: Commerce One, Inc. 4440 Rosewood Drive Pleasanton, CA 94588 Attention: Peter Pervere, Senior Vice President With copy to: Commerce One 4440 Rosewood Drive Pleasanton, CA 94588 Attention: General Counsel 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 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 27. Counterparts. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. Development Agreement Between City of Dublin And Commerce One, Inc. Page 15 of 17 January 12, 2001 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: ¡~fiý~ d~"ad yor Atte t: Date: 7fth-.;;;.2¿7ó / Date: /1/1 ¡Ol Approved as to Form: ~Md?K S;~'-G City Attorney SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY: i@~Æ1~' Adolph artinelh Its Manager Date: ~,;.z 7 ) é:71 " I Approved as to Form: ç:'''' . .. AttoFr1êý for Surp us Property Authority of the County of Alameda IOItENZO £. CHAM~Us;s Development Agreement Between City of Dublin And Commerce One, Inc. Page 16 of 17 February 20, 2001 COMMERCE ONE, INC., a Delaware Corporation ~~- \ '"\ "","---- ' / ',\ Peter Perveré Senior Vice President and Chief Financial Officer J:\wpd\Mnrsw\114\098\AGREE\commerce1_dev-agc011201.doc Development Agreement Between City of Dublin And Commerce One, Inc. Page 17of17 February 20, 2001 EXHIBIT A Leqal Description Parcel _ on Parcel Map _, recorded in Alameda County Records on at Development Agreement Between City of Dublin And Commerce One, Inc. - Exhibit A January 12, 2001 EXHIBIT A LEGAL DESCRIPTION ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE STATE OF CALIFORNIA, COUNTY OF ALAMEDA, CITY OF DUBLIN DESCRIBED AS FOLLOWS: BEING A PORTION OF PARCEL FOUR AS SHOWN ON THAT CERTAIN PARCEL MAP NUMBER 7233, FILED FOR RECORD ON JUNE 26,1998 IN BOOK 236 OF PARCEL MAPS AT PAGES 7 THROUGH 13, ALAMEDA COUNTY RECORDS AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTH WEST CORNER OF SAID PARCEL FOUR, THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL FOUR, SOUTH 88° 26' 44" EAST 66.00 FEET TO THE POINT OF BEGINNING OF THIS DESCRIPTION. THENCE LEAVING SAID POINT OF BEGINNING AND ALONG THE SOUTHERLY, SOUTHEASTERLY AND EASTERLY LINES OF SAID PARCEL FOUR THE FOLLOWING ELEVEN COURSES: THENCE SOUTH 88° 26' 44" EAST, 0.11 FEET; THENCE SOUTH 88° 48' 14" EAST, 178.75 FEET; THENCE NORTH 86° 22' 10" EAST 310.74 FEET; THENCE NORTH 87°41' 26" EAST, 448.55 FEET; THENCE EASTERLY ALONG THE ARC OF A NON TANGENT 2937.29 FOOT RADIUS CURVE TO THE LEFT, WHOSE CENTER POINT BEARS, NORTH 2° 45' 35" WEST, THROUGH A CENTRAL ANGLE OF 3° 40' 41", FOR AN ARC DISTANCE OF 188.56 FEET TO A POINT OF COMPOUND CURVATURE; THENCE ALONG THE ARC OF 200.02 FOOT RADIUS CURVE TO THE LEFT, THROUGH A CENTRAL ANGLE OF 24° 58' 14", FOR AN ARC DISTANCE OF 86.17 FEET TO A POINT OF COMPOUND CURVATURE; THENCE ALONG THE ARC OF A 352.03 FOOT RADIUS CURVE TO THE LEFT, THROUGH A CENTRAL ANGLE OF 49° 53' 50", FOR AN ARC DISTANCE OF 306.57 FEET; THENCE NORTH 8° 41' 40" EAST, 128.06 FEET; THENCE NORTH 39° 52' 47" WEST, 22.58 FEET; THENCE NORTH 8°41' 51" EAST, 161.46 FEET; THENCE NORTH 1 ° 11' 51" EAST, 229.20 FEET; THENCE DEPARTING LAST SAID LINE, NORTH 43° 52' 49" WEST, 50.92 FEET; Development Agreement Between City of Dublin And Commerce One, Inc. - Exhibit A Page 1 of 2 January 12, 2001 THENCE NORTH 88° 16' 05" WEST, 658.23 FEET; THENCE SOUTH 1 ° 43' 55" WEST, 6.00 FEET; THENCE NORTH 88° 16' 05" WEST, 649.68 FEET; THENCE SOUTH 51° 51' 19" WEST, 28.66 FEET; THENCE SOUTH 1° 23' 35" WEST, 30.52 FEET; THENCE SOUTH 3° 33' 24" WEST, 236.51 FEET; THENCE NORTH 86° 48' 24" WEST, 9.09 FEET; THENCE SOUTH 1° 23' 35" WEST, 643.75 FEET TO THE POINT OF BEGINNING. CONTAINING 1,195,341 SQUARE FEET MORE OR LESS. Development Agreement Between City of Dublin And Commerce One, Inc. - Exhibit A Page 2 of 2 January 12, 2001 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) described below and those identified in Resolution No. 00-700f the Planning Commission Approving Site Development Review shall be completed by DEVELOPER to the satisfaction of the Public Works Director at the times and in the manner specified in Resolution No. 00-70 unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public Works Director. The obligations of Condition Nos. 76 and 83 of Resolution No. 00-70 and any other conditions of such resolution which are to be completed "as specified by the Director of Public Works" or "when determined necessary by the Public Works Director" ("The Deferred Conditions") shall be of no force or effect until DEVELOPER records a final map or receives a building permit (whichever comes first) for the Project. Once effective, such obligations shall survive termination of this Agreement as to the COUNTY. COUNTY shall provide CITY with security for COUNTY's fair share as determined by CITY for the costs of design and construction of The Deferred Conditions as follows: . Condition 83 [Dublin Boulevard/Dougherty Road Intersection Improvement] A payment to CITY in cash in the amount of the deficiency, if any, between funds available to CITY for CIP Project #9689 [Dougherty Road/Dublin Blvd. Intersection] and the cost of such project, such Development Agreement Between City of Dublin And Commerce One, Inc. - Exhibit B Page 1 of6 January 12, 2001 payment to be made within 30 days of written notice from the Public Works Director to be given following bid opening; . Condition 76 [1-580 Eastbound Offramp at Santa RitalTassajara Road Exit. A payment to CITY in cash in the amount of the deficiency, if any, between funds available to CITY to construct the improvements at the eastbound offramp at Santa RitalTassajara Road exit (one exclusive through lane and 2 left-turn lanes; modification to signal to provide protected left-turn phasing on east and west legs) and the cost of such project, such payment to be made within 30 days of written notice from the Public Works Director to be given following bid opening; (ii) Sewer All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with the tentative subdivision map and DSRSD requirements. (iii) Water An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative subdivision map to the satisfaction and requirements of the CITY's fire department. All potable water system components to serve the project site (or any recorded phase of the Project) shaH be completed in accordance with the tentative subdivision map and DSRSD requirements. . Recycled water lines shall be installed in accordance with the tentative subdivision map. iliù. 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 in force and effect at the time of issuance of the permit for the proposed improvements and shall be consistent with the Drainage Plan. The site shall also be protected from storm flow from off site and shall have erosion control measures Development Agreement Between City of Dublin And Commerce One, Inc. - Exhibit B Page 2 of 6 January 12, 2001 in place to protect downstream facilities and properties from erosion and unclean storm water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan. (v) Other Utilities (e.g. gas, electricity, cable televisions, telephone) Construction. of 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 or COUNTY to defer completion of discrete portions of any of the public improvements required for the Project until after issuance of Certificate of Occupancy for the first building for the Project if the Public Works Director determines that to do so would fiot jeopardize the public health, safety or welfare. Subparagraph 5.3.3 -- Phasing, Timing With the exception of the road improvements described in Subparagraph 5.3.2(a)(i), this Agreement contains no requirements that DEVELOPER must initiate or complete development of the Project within any period of time set by CITY. It is the intention of this provision that DEVELOPER be able to develop the Property in accordance with its own time schedules and the Project Approvals. Subparagraph 5.3.4 -- Financing Plan DEVELOPER will install all street improvements necessary for the Project at its own cost (subject to credits for certain improvements as provided in Subparagraph 5.3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project will be made available by the Dublin San Ramon Services District. COUNTY has entered into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Development Agreement Between City of Dublin And Commerce One, Inc. - Exhibit B Page 30f6 January 12, 2001 Subparagraph 5.3.5 -- Fees, Dedications Subsection a. Traffic Impact Fees. DEVELOPER shall pay all traffic impact fees applicable to the Project which are in effect at the time of issuance of any building permit for the Project in the amounts and at the times set forth in the implementing resolution. Such fees include the Traffic Impact Fee for Eastern Dublin established by Resolution No. 225-99, including any future amendments to such fee. DEVELOPER, COUNTY and CITY acknowledge that COUNTY is entitled to certain credits ("1991 Credits") against payment of the Traffic Impact Fee for Eastern Dublin by separate agreements previously entered into between COUNTY and CITY in 1991 (as such agreements have been amended). COUNTY is also entitled to certain other credits ("Prior Agreement Credits") against payment of the Traffic Impact Fee for Eastern Dublin by other development agreements entered into between COUNTY and CITY. COUNTY agrees that, notwithstanding its entitlement to such 1991 Credits, its 1991 Credits cannot be applied against payment of the "Section 2" portion of the Traffic Impact Fee for Eastern Dublin for the Project. DEVELOPER (and its assignee) will, rather, pay the "Section 2" portion of the fee in cash. COUNTY further agrees that it (and its assignee) will use the 1991 Credits and/or Prior Agreement Credits against at least one-half (1/2) of the "Section 1" portion of the Traffic Impact Fee for Eastern Dublin for the Project provided that it has sufficient such credits. CITY shall determine which of the 1991 Credits and/or Prior Agreement Credits shall be used pursuant to this paragraph. Notwithstanding anything herein to the contrary, DEVELOPER further agrees , that it (and its assignee) will pay at least seven percent (7%) of the "Section 1" portion of the Traffic Impact Fee for Eastern Dublin in cash. > Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchanges. DEVELOPER shall pay a Eastern Dublin 1-580 Interchange Fee in the amounts and at the times set forth in City of Dublin Resolution No. 155-98, or in the amounts and at the times set forth in any resolution revising the amount of the Eastern Dublin 1-580 Interchange Fee. ~. Subsection c. Public Facilities Fees. DEVELOPER shall pay a Public Facilities Fee in the amounts and at the times set forth in City of Dublin Resolution No. 195-99, or in the amounts and at the times set forth in any resolution revising the amount of the Public Facilities Fee. Development Agreement Between City of Dublin And Commerce One, Inc. - Exhibit B Page 4 of6 January 12, 2001 Subsection d. Noise Mitigation Fee. DEVELOPER shall pay a Noise Mitigation Fee in the amounts and at the times set forth in City of Dublin Resolution No. 33-96, or in the amounts and at the times set forth in any resolution revising the amount of the Noise Mitigation Fee. Subsection e. School Impact Fees. School impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080 and the existing agreement between COUNTY and the Dublin Unified School District. Subsection f. Fire Impact Fees. DEVELOPER shall pay a fire facilities fee in the amounts and at the times set forth in City of Dublin Resolution No. or in the amounts and at the times set forth in any resolution revising the amount of such fee. Subsection g. Tri-Valley Transportation Development Fee. DEVELOPER shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98, or in the amounts and at the times set forth in any resolution revising the amount of such fee. COUNTY agrees that its 1991 Credits and Prior Agreement Credits cannot be applied against payment of this fee. Subparagraph 5.3.6 -- Credit Subsection a. Traffic Impact Fee Improvements Credit CITY shall provide a credit to COUNTY for the those improvements described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such improvements are constructed by the DEVELOPER in their ultimate location pursuant this Agreement. All aspects of credits shall be governed by CITY's Administrative Guidelines regarding credits (Resolution No. 23-99). Subsection b. Traffic Impact Fee Right-of-Way Dedications Credit CITY shall provide a credit to COUNTY for any TIF area right-of-way dedicated by COUNTY to CITY which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of credits shall be governed by CITY's Administrative Guidelines regarding credits (Resolution No. 23-99). Development Agreement Between City of Dublin And Commerce One, Inc. - Exhibit B Page 5 of 6 January 12,2001 Subsection c. Use of Excess Credits In the event that credits referred to in Subsections (a) to (b) of this Subparagraph 5.3.6 are in excess of the amount of credits which can be applied against the traffic impact fee payable pursuant to Subsection (a) of Subparagraph 5.3.5 (i.e., one-half of the "Section 1" portion of the Traffic Impact Fee for Eastern Dublin, less 7% of the "Section 1" portion), COUNTY shall be entitled to "bank" such credits (referred to as "Excess Credits") and may use them as provided in CITY's Administrative Guidelines for Credits and Reimbursements (Resolution No. 23-99). Subparagraph 5.3.7 -- Miscellaneous Subsection a. Landscaping Maintenance Along Streets and Creek CITY has formed a landscape maintenance district known as the "Landscape Maintenance Assessment District No. 97-1 (Santa Rita Area)" pursuant to a petition from COUNTY, and imposed an assessment against the Property to pay for street and creek landscape maintenance. In addition, on September 24, 1996, COUNTY recorded a Declaration of Covenants, Conditions and Restrictions which covers the Property, whereby COUNTY, on behalf of itself and its successors (including DEVELOPER), has covenanted to pay a "Deed Assessment" to CITY for maintenance of street and creek landscaping. J:\WPD\MNRSW\114\098\AGREE\COMMERCE1_DEV-AGR_EXB_011201.DOC Development Agreement Between City of Dublin And Commerce One, Inc. - Exhibit B Page 6 of6 January 12, 2001 RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE CANCELLING THE DEVELOPMENT AGREEMENT FOR PA 00-015 COMMERCE ONE HEADQUARTERS WHEREAS, the Commerce One Project was approved by the City Council in 2001; and WHEREAS, the City of Dublin, Alameda County Surplus Property Authority, the property owner, and Commerce One, have an approved Development Agreement for the 27.4 acre property located at APN# 986-005-026 within the Eastern Dublin Specific Plan area; and WHEREAS, a Development Agreement is required as an implementing measure of the Eastern Dublin Specific Plan; and WHEREAS, subsequent to the approval of the Commerce One Project, the Applicant made a decision to not go forward with the development project; and WHEREAS, the property owner and a new developer, Ikea submitted an application for a different project on the same site; and WHEREAS, in March, 2004, the City of Dublin approved the Ikea Project which included a Development Agreement for the project; and WHEREAS, there are currently two development agreement for two separate projects on the same site; and WHEREAS, the Development Agreement for the Ikea Project includes all of the requirements necessary to build the project in conformance with the Eastern Dublin Specific Plan and General Plan policies; and WHEREAS, the process for canceling a development agreement is the same process as for adopting a development agreement; and WHEREAS, the Planning Commission did hold a public hearing on this item on September 28, 2004; and WHEREAS, proper notice of said public hearing was given in all respects as required by law; and WHEREAS, the Staff Report was submitted recommending that the Planning Commission recommend that the City Council approve the cancellation of the Commerce One Development Agreement; and WHEREAS, the Planning Commission did hear and use their independent judgment and considered all said reports, recommendations and testimony hereinabove set forth. ATTACHMENT ,) NOW THEREFORE BE IT RESOLVED THAT THE Dublin Planning Commission does hereby make the following findings and determinations regarding said proposed Development Agreement: 1. The cancellation of said Agreement is consistent with the objectives, policies, general land uses and programs specified in the Eastern Dublin Specific Plan/General Plan in that, the project is no longer active and another project has been approved in its place. Additionally, a new Development Agreement has been approved that includes all of the City's requirements in relation to infrastructure sequencing and payment of fees. 2. The cancellation of said Agreement will not effect the compatibility of the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located in that a new project has been approved to replace this project. 3. The cancellation of said Agreement is in conformity with public convenience, general welfare and good land use practice in that the Commerce One project no longer exists and a new project has replaced it, which will implement land use guidelines set forth in the Eastern Dublin Specific Plan/General Plan. 4. The cancellation of said Agreement will not be detrimental to the health, safety and general welfare in that the project has been replaced with a new project which proceed in accordance with a different development agreement and any Conditions of Approval for that Project; and 5. Cancellation of said Agreement will not adversely affect the orderly development of the property or the preservation of property values in that a new project that is also consistent with the City of Dublin Eastern Dublin Specific Plan/General Plan has been approved in place of this one. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning Commission does hereby recommend that the City Council approve the Cancellation of the Development Agreement between the Alameda County Surplus Property Authority, Commerce One and the City of Dublin for PA 00-015, Commerce One Corporate Headquarters facility. PASSED, APPROVED AND ADOPTED this 28th day of September 2004. AYES: NOES: ABSENT: Planning Commission Chairperson ATTEST: Planning Manager 2