HomeMy WebLinkAboutItem 6.5 DublinTransitCtrAmend
CITY CLERK
File # O[ij]IOJOJ-I6JEiJ
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: September 20,2005
SUBJECT:
PUBLIC HEARING: PA ()o-013 Dublin Transit Center
Amendment to Master Development Agreement (\,(l /~
Report prepared by: Jeri Ram, Planning Manager \.4Y
1. Master Development Agreement between the City of Dublin and
Alameda County Surplus Property Authority for the Transit
Center
2. An Ordinance orthe City of Dublin approving an Amendment to
the Master Development Agreement between the City of Dublin
and Alanleda County Surplus Property Authority for the Transit
Center (with Amendment to Master Dewlopment Agreement
attached as Exhibit A)
RECOMMENDATION: - ri'1. Open public hearing and receive Staff presentation
( ~u 2, Take testimony from the applicant and the public
3, Close public hearing and deliberate
4, Waive Reading and introduce Ordinance (Attachment I)
approving thc Amendment to the Development Agreement
A TT ACHMENTS:
FINANCIAL STATEMENT:
There is no financial impact at this time,
DESCRIPTION:
The Dublin Transit Center project area is located generally within the area of the Iron Horse Trail to the
West, Dublin Boulevard to the North, Arnold Road to the East, and the 1-580 Freeway to the South, The
DublinlPleasanton ßay Arca Rapid Transit (BAKI) Station is locatcd within the Transit Ccntcr projcct
area along thc north side of 1-580, In December 2002, the City Council adoptcd Resolution 216-02
approving a General Plan/Eastcrn Dublin Specific Plan Amendment which added thc Transit Center
project area to the Eastern Dublin Spccific Plan area and established the approved land uses for the future
development. The project also ineluded Stage 1 Planned Development Zoning approved by Ordinance
21-02 and Tentative Parcel Map No, 7892 approved by Planning Commission Resolution 02-40. Project
approval was accompanied by a Master Development Agreement adopted by Ordinance 05-03 in May
2003,
The Dublin Transit Center project area allows for the future development of 1,500 residential units on
Sites A, B and C; 2-million squarc feet of campus officc on Sitcs D and E; and 70,000 square feet of
ancillary retail uses to be permitted at strcet level on Sites B through E. Open space will be provided in
the fè.Jrm of a 12.20 gross acre park located on Site F and a I-acre Village Green located between Sites B
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COPIES TO:
Alameda County Surplus Property Authority
In House Distribution
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and C. The Transit Center projcct arca also ineludes 8,65 gross acres of public/semi-public uses ineluding
the fnture BART parking garage, Pacific Gas & Electric (PG&E) substation, and surface BART parking.
The Stage I Development Plan brcaks up Sites D and E into D-1, D-2, E-l and E·2. It provides that Site
E-1 could contaiJl up to 300,000 square fect of campus office uses and Site D-l could contain up to
190,000 square feet of campus omce uscs. In the alternative, up to 300 residential units could be
approved on these sites. Implementation of this "flex zoning" would increase the residcntial unit count of
the Transit Center by 300 units to 1800 rcsidcntial units and decrease the amount of Campus Omee by
300,000 square feet.
An Ordinance approving a Master Development Agreement betwecn the City of Dublin and Alameda
County Surplus Propcrty Authority (ACSP A) for the Transit Center Development is required by State law_
The Ordinancc was adoptcd on May 6,2003. Items in the original Development Agreement inelude, but
are not limitcd to, vesting approvals for the ability to receive approvals for 1500 residential dwelling units,
the financing and timing of infrastructure; affmdahle housing and a public art contribution.
Alameda ComIty Surplus Property Authority (ACSP A) has submitted an application with D.R. Horton to
exercise the flex zoning on Site E-1 ofthe Transit Centcr. As part of that request, the ACSPA has
requested an amendment to the Master Development Agreement to reflect an increase in thc total
available residential unit count and reduction ofthc Campus Office square footage.
ANALYSIS:
The Master Development Agreement hetwcen the City of Dublin and Alameda County Surplus Property
Authority is attached as Exhibit A to Attachment I to this staffreport. The rol1owing discussion is a
summary of what items are ineluded in that Agreement.
The Master Agreement:
The Master Development Agreement sets forth the agreemcnt between the parties in relation to many
items, including, but not limited to, infrastructure construction and phasing, affordable housing, public art
contribution and conveyance of park land. The Mastcr Development Agreement is effective for a term of
five years. The Master Development Agreement runs with the land and the rights thereunder can be
assigned. The main points ofthe original Master Development Agreement are highlighted below:
· The development agrcement vests the approved land uses for five years, with the right to ten
optional cxtcnsions, for a cost of $1 00,000 per year.
· It specified the timing of construction of certain infrastructure, which wil1 assure that the cntire site
functions well.
· It requircd construction of 15% of the units to be affordable and provides the developer with a
credit for any affordable units in excess of 15%. It also al10ws the elustering of the low- and very
low-income units on Site A-2. Thc moderate units will be constructed on the other sites.
· It addressed maintenance of street landscaping and lighting.
· It included a $250,000 contribution for public art for the residential phase.
· Finally, it ineluded the developer's commitment to convey the remaining lands necdcd for
completion of Emerald Glen Park.
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Amendment to Master Development Agreement:
The existing Master Dcvelopmcnt Agreement contains the agreement between ACSP A and the City of
Dublin based on a certain mix of development as noted above, The additional 300 units were not
considered when the Master Development Agreement was ceviewed and approved by the City Council.
Therefore, the Development Agreement is silent when it addcesses how these additional units wi11 meet
their Inclusionary Zoning Requirements,
Thc City's Inclusionary Zoning Ordinance requires projccts that contain 20 or more units to provide 12.5
percent Inelusionary Units. The developer can eithcr build alll2,S percent or, at a minimum, build 7.5
percent and pay in-lieu fees for the remaining 5 percent. In addition, the Ordinance requires a certain mix
of units as 1è.111ows: 50 percent moderate, 30 percent very low and 20 pcrcent low, The City Council has
the ability to modify these requirements under the code.
The Transit Center project as approved with 1,500 units providcd IS percent Inelusionary Units (22S
units) with no in-lieu fees_ This represents 2-1/2 percent morc than is required under the Inelusionary
Zoning Ordinance. The mix of units conforms to thc rcquircments of the Inclusionary Zoning Ordinance_
ACSP A's rcqucst for the new 300 units would change the percent and mix; howevec, it would provide for
othcr bcncfits that would help thc City achievc affordable housing and transportation goals.
The City Attorney has prepared the Amended Master Development Agreement with input from Staff and
ACSP A.
Undcr thc Amcndcd Mastcr Dcvc10pment Agrccmcnt, the majority of the provisions oflhe existing
Developmcnt Agrccmcnt (Exhibit A to Attachment I) would remain the same. The main modifications to
the Agrccment as result of these units are as follows:
· The Dcvc10pcr would make a $4.5 mi11ion contribution to the bond reserve fund for the proposed
Wcst Dublin BART Station. Should BART not issue the bonds within 2 years, the City could
elect to havc the obligation continued or could require a payment of2 mìl1ion dol1ars to the City's
In-licu Affordablc Housing Fund or for another community benefit.
· If the developer elects a flex zoning option on either site E-1 oc D-l and the City approves such a
project, the additional units (for example, 300 units) would pay ful1 in licu fecs, It should be noted
that even with this option being exercised, the total anlount ofInclusionary Units at the Transit
Center would sti11 be 13.9% which is more than the City's minimum undcr thc Inelusionary
Zoning Ordinance of 12,5%.
· If the developer elects a flex zoning option on either E-1 oc D-l and the City approvcs such a
projcct, thc amount of Campus Office square footage originally designated for that particular sitc
would be rcmoved from thc Tablc of Proposed Land Uses on page 1.13 oflhe Land Use and
Dcvelopment Plan ofthc Stagc One P.D. for the Transit Center and would not he al10wed to bc
developed on the site or at the Transit Centcr, in gcneral
· Thc Dcvelopcr agrccs to construct 10 percent affordable units on sites A-I, A-3, Band C.
The fol1owing table provides a comparison of the implementation of the inclusionaryrequirement based
on 1500 units at 15 percent and the proposed Amended Development Agreement with 1800 units:
3~!..
MASTER DA REQ. "'OR PROPOSED AMENDED
1500 UNITS MASTER DA
(15% MUST BUILD) FOR 1800 UNITS
Unitslfees % of total units Unilslfees % of tala I units
Modcrate-income units 113' 7_5% 138" 7.7%
Low-income units 45-' 3% 45 2.5%
Very low-income units 68 4.5% 67 3,7%
Total 225 250 13.9%
Payment Nonc $3,788,9104
In summary, the proposed Amendment to the Master Development Agreement would provide a $4.5
minion contribution towards the constmction of the West BART parking garage or $2 million to the
City's inelusionary housing program or other comlnunity bencfit; provide 25 additional moderate units;
reduce the!5 pcrcent inelusionary overall at the Transit Center to 13.9 (above the 12.5 CityreqllÌrement).
ENVIRONMENTAL REVIEW:
The City orDub1in, as the Lead Agency, has prepared an Environmental Impact Report and Mitigation
Monitoring Program for the above-referenced proposed project. The Draft Environmental Impact Report
was available ror public review rrom July 6, 2001 to August 21, 2001 and the City subsequently
recirculated an analysis of additional impacts for a 45-day public review period from July 16, 2002 to
August 30, 2002. Thc Environmental Impact rcport was certified by the City Council on December 3,
2002,
Planning Commission Action:
On August 24, 2005, the Planning Commission heard this item at a noticcd public hearing and
recommended the approval of the Amendment to thc Master Development Agreement to thc City Council.
RECOMMENDATION:
Staff recommends that the City Council conduct a public hearing, deliberate, waive the reading and
introduce an Ordinance (Attachment!) approving the Amendment to the Development Agreement
(Exhibit A) betwcen the City of Dublin and Alameda County Surplus Property Authority_
, The Master DA states that sites Band C must contain 10% moderate income lUlits with thc remainder on Site A-I_ If the
maximum numher of units are constructcd on Sites Band C, 565 and 405 units, respectively, the Master DA wouJd require that
Site B contain 56 moderate units and Site C contain 40 moderate units. The remaining moderate income units to reach the 15%
requirement of the Master DA is 17 units, and those units can be constructed on Site A-I.
Z The County's agreement to add a requirement that 10% of the units on Sitcs A-I and A-3 hc moderate units result, in 25
additional moderate onits, notwithstanding the fact that the coonty woold be paying fees associated with the 45 inc1usionary
units required for the 300 additional units_
'The Master DA permits the County to construct all the very low- and low-income units on Site A-2,
4 This payment is equal to the in-lieu fee amount for 45 units (15%), which would otherwise be required to he constructed for
300 units proposed for E-I,
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r.· -CORDING REQUESTED iii.' ''{;
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City of Dublin
When Recorded Mall To:
CIty Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
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MASTER DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY
FOR THE
DUBLIN TRANSIT CENTER PROJECT
AttACHMENT I
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THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on
this 6th day of May, 2003, by and between the CITY OF DUBLIN, a Municipal
Corporation (hereafter "City"), and SURPLUS PROPERTY AUTHORITY OF THE
COUNTY OF ALAMEDA, a Public Corporation (hereafter "Developer"), pursuant to the
authority of §§ 65864 et seq. of the Califomia Government Code and Dublin Municipal
Code, Chapter 8.56.
RECITALS
A. Califomia 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. DEVELOPER desires to develop and holds legal interest in certain real
property located in the City of Dublin, County of Alameda, State of Callfomla, consisting
of approximately 77 acres, which property together with approximately 14 acres of
public right-of-way is more particularly described In Exhibit A attached hereto and
incorporated herein by this reference and which real property is hereafter called the
"Dublin Transit Center Property"; and
C. DEVELOPER proposes the development of the Dublin Transit Center
Property with a mixed use project to include a village green, approximately 1,500 high-
density residential units (referred to as Sites A, B and C), approximately two million
square feet of campus office ranging in height from eight to ten stories (referred to as
Sites 0-1, D-2, E-1, and E-2), a neighborhood park (Site F), approximately 8.65 acres of
public/semi public uses including a parking garage for the adjacent BART station and
public roads (DeMarcus Boulevard, Iron Horse Parkway, Campus Drive and Altamirano
Road) (together, the "Dublin Transit Center Project"); and
D. DEVELOPER has applied for, and CITY has approved. various land use
approvals in connection with the development of the Dublin Transit Center Project,
including: 1) a general plan amendment (Resolution No. 216-02); 2) an amendment to
the Eastem Dublin Specific Plan to add the Dublin Transit Center Property to the
specific plan area (Resolution No. 216-02); 3) tentative parcel map 7892 to divide 35.1
acres west of Arnold Road Into five parcels (Planning Commission Resolution 02-40);
and 4) a PD District rezoning including a Stage 1 Development Plan (Ordinance No. 21-
02) (collectively the "Dublin Transit Center Project Approvals"); and
E. Development of the Dublin Transit Center Property by DEVELOPER is
subject to certain future discretionary approvals including Stage 2 Development Plans,
and site development review; and
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
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F. DEVELOPER has requested a development agreement In advance of the
time when a development agreement will be required by CITY for the Dublin Transit
Center Property to comply with Chapter 11 of the Eastern Dublin Specific Plan and
CITY has agreed to enter Into this agreement on the condition that a further
development agreement or agreements will be required at the times described
hereinafter in Section 6; and
G. The City Council has found that, among other things, this Development
Agreement is consistent with its General Plan and the Eastem Dublin Specific Plan and
has been reviewed and evaluated in accordance with Chapter 8.56; and
H. CITY and DEVELOPER have reached agreement and desire to express
herein a Development Agreement that will facilitate development of the Dublin Transit
Center Project subject to conditions set forth herein; and
I. Pursuant to the Califomia Environmental Quality Act (CEQA) the City
certified an Environmental Impact Report ("EIR") for the Dublin Transit Center Project by
Resolution 215-02 and has found that the EIR is adequate for this Agreement; and
J. On May 6,2003, the City Council ofthe City of Dublin adopted Ordinance
No. 05-03 approving this Development Agreement. The ordinance took effect on June
5. 2003.
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
Section 1. Description of Prooertv.
The property which is the subject of this Development Agreement Is described In
Exhibit A attached hereto (the "Dublin Transit Center Property").
Section 2. Interest of Developer.
The DEVELOPER has a legal or equitable interest in the Dublin Transit Center
Property in that, with the exception of public rights-of-way and a portion of the property
owned by the Bay Area Rapid Transit District, it owns the Dublin Transit Center
Property in fee simple.
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
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Section 3. Relationshio of City and Develooer.
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.
Section 4. Effective Date and Term.
Section 4.1 Effective Date. The effective date of this Agreement shall
be the date upon which this Agreement is signed by CITY.
Section 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.
Notwithstanding the preceding sentence, this agreement shall not be applicable to any
portion of the Dublin Transit Center Property following the effective date of a Specific
Plan Development Agreement, as defined and described in Section 6.
Section 4.3 Ootional Extension. Prior to the termination of this
Development Agreement, as provided in Section 4.2, DEVELOPER may extend the
term of the Development Agreement. To do so, DEVELOPER shall give CITY written
notice at least 90 days prior to the termination date of the Development Agreement. At
the time DEVELOPER provides such notice, DEVELOPER shall make a contribution to
CITY In the amount of One Hundred Thousand Dollars ($100,000). Upon receipt of the
notice and the contribution, the City Manager shall approve the extension and shall
notify the DEVELOPER In writing that the term of the Development Agreement has
been automatically extended for an additional one-year period, commencing on the date
the Development Agreement would otherwise have terminated. The DEVELOPER may
exercise its option to extend the Development Agreement no more than ten times, for a
maximum total term of the Development Agreement of fifteen years. The total
contribution for the maximum extension of ten years will be One Million Dollars
($1,000,000).
Section 5. Use of the Dublin Transit Center Prooertv.
Section 5.1 Riaht to Develoo. Developer shall have the vested right to
develop the Dublin Transit Center Project on the Dublin Transit Center Property in
accordance with the terms and conditions of this Agreement, the Dublin Transit Center
Project Approvals, and any amendments to any of them as shall, from time to time, be
approved pursuant to this Agreement.
Section 5.2 Permitted Uses. The permitted uses of the Dublin Transit
Center Property, the density and intensity of use, the height, bulk and size of proposed
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
Page 3 of 20
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buildings, general provisions for reservation or dedication of land for public purposes
and general location and maintenance of on-site and off-site Improvements, general
location of public utilities (operated by CITY) and other terms and conditions of
development applicable to the Dublin Transit Center Property, shall be those set forth in
this Agreement, the Dublin Transit Center Project Approvals and any amendments to
this Agreement or the Dublin Transit Center Project Approvals.
Section 6. Future Development Aareement(s) Reauired.
Notwithstanding any other provision of this Development Agreement to the
contrary, DEVELOPER shall not be able to develop the Dublin Transit Center Property.
or any portions thereof, until it has entered into another development agreement or
agreements with CITY, applicable to the portions of the Dublin Transit Center Property,
which DEVELOPER proposes to develop as required by Chapter 11 of the Eastem
Dublin Specific Plan (a "Specific Plan Development Agreement"). The purpose ofthe
·Speclfic Plan Development Agreement" shall be to comply with the requirement of
Chapter 11. The "Specific Plan Development Agreement" for Sites A, Band C will
include affordable housing provisions consistent with Section 12 of this agreement.
As used herein, "develop· shall mean recordation of a final subdivision map, a
final parcel map for a commercial or office use, a final map for medium, medium high or
high density residential use or issuance of a conditional use permit, site development
review or a building permit.
Section 7. Applicable Rules. Reoulations and Official Policies.
Section 7.1 Rules re Permitted Uses. Unless otherwise expressly
provided in Paragraph 5 of this Agreement, for the term of this Agreement, the City's
ordinances, resolutions, rules, regulations and official policies governing the permitted
and conditional permitted uses of the Dublin Transit Center Property, governing density
and Intensity of use of the Dublin Transit Center 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.
Section 7.2 Rules re Desion and Construction of Public Improvements.
The ordinances. resolutions, rules, regulations and official policies governing design,
Improvement and construction standards and specifications applicable to public
improvements to be constructed by Developer shall be those in force and effect at the
time of the applicable permit approval for the public improvement.
Section 7.3 Uniform Codes Applicable. Unless expressly provided in
Paragraph 5 of this Agreement, the Dublin Transit Center Project shall be constructed in
accordance with the provisions of the City's adopted 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
Development Agreement Between City of Dublin
Surplus Property Authorily and Transit Center
May 6, 2003
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building, grading, or other construction permits for the Dublin Transit Center Project.
Section 8. Moratorium Not Applicable.
Notwithstanding anything to the contrary contained herein, in the event an
ordinance, resolution or other measure is enacted, whether by action of CITY, by
initiative, referendum, or otherwise, that imposes a building moratorium, a limit on the
rate of development, or a voter-approval requirement which affects the Dublin Transit
Center Project on all or any part of the Dublin Transit Center Property, CITY agrees that
such ordinance, resolution or other measure shall not apply to the Dublin Transit Center
Project, the Dublin Transit Center Property, this Agreement or the Dublin Transit Center
Project Approvals unless the building imposed by CITY as part of a declaration of a
local emergency (Including a moratorium due to lack of sewer or water capacity) or state
of emergency as defined in Govemment Code § 8558.
Section 9. Applicable Fees and Dedications: Time of Pavment.
The Dublin Transit Center Property shall be subject to those development impact
fees, dedications and other fees applicable to new development required by CITY's
adopted ordinances, resolutions and policies which are in effect at the time of approval
of the last discretionary approval.
All applicable development impact fees for the Dublin Transit Center Property will
be paid by DEVELOPER at the time of issuance of building permits and in the then-
current amount of the impact fee.
DEVELOPER has requested CITY consider amendIng Its Eastern Dublin Traffic
Impact Fee ('TIF") to include the Dublin Transit Center Property within such fee and to
determine whether certain infrastructure improvements required by the parcel map
conditions and the proposed BART parking garage are needed by development within
the Eastem Dublin area and should be included as improvements to be funded by the
fee. These improvements consist of (1) improvements to the Dublin/Dougherty
intersection Including Dougherty Road from the intersection to 1-580; (2) Scarlett Drive
extension; (3) Hacienda Drive/I·580 Interchange; and (4) parking spaces in the
proposed BART parking garage estimated to cost $6,000,000.
CITY agrees to consider such amendments to its TIF as expeditiously as
possible.
Section 10. Subseouentlv Enacted or Revised Fees. Assessments and Taxes.
Section 10.1 Fees. Exactions, Dedications. CITY and DEVELOPER
agree that the fees payable and exactions required in connection with the development
of the Dublin Transit Center Project for purposes of mitigating environmental and other
impacts of the Dublin Transit Center Project, providing Infrastructure for the Dublin
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
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Transit Center Project and complying with the Specific Plan shall be determined at the
time of future discretionary approvals.
Section 10.2 Revised ADDlication Fees. Any existing application,
processing and inspection fees that are revised during the term of this Agreement shall
apply to the Dublin Transit Center Project provided that (1) such fees have general
applicability; and (2) the application of such fees to the Dublin Transit Center Property Is
prospective.
Section 10.3 New Taxes. Any subsequently enacted city-wide taxes shall
apply to the Dublin Transit Center Project provided that the application of such taxes to
the Dublin Transit Center Property is prospective.
Section 10.4 Assessments. Nothing herein shall be construed to relieve
the Dublin Transit Center 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 Dublin Transit Center Property.
Section 10.5 Vote on Future Assessments and Fees. In the event that
any assessment, fee or charge which is applicable to the Dublin Transit Center Property
is subjectto Article XIlID of the California 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.
Section 11. Infrastructure.
Certain infrastructure improvements will be required for the Dublin Transit Center
Project. Notwithstanding anything to the contrary in the Dublin Transit Center Project
Approvals or this agreement, DEVELOPER will construct, or cause to be constructed,
the following infrastructure Improvements at the times indicated below. All infrastructure
improvements shall be constructed to the satisfaction and requirements of the CITY's
Public Works Director. All other infrastructure for the Dublin Transit Center Project will
be provided as required by the Dublin Transit Center Project Approvals or future
approvals.
Section 11.1 Altamirano Road and AmoldRoad to Dublin Boulevard.
Altamirano Road and Arnold Road north to Dublin Boulevard shall be constructed to
provide a second access to the BART garage generally as shown on the diagram
attached as Exhibit B-1.
The Altamirano Road improvements shall, at a minimum, consist of the
southern curb and gutter and a minimum 24-foot wide pavement with a temporary 4-foot
wide rock shoulder on the north frontage. The Arnold Road improvements shall consist
of median curbs with 12- foot wide pavements in each direction and a temporary 4-foot
wide rock shoulder on each frontage. Lighting will be required. Landscaping will not be
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
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required with this phase of construction.
The DEVELOPER shall enter into an agreement for construction of the
improvements and a right-of-entry to construct the improvements within CITY right-of-
way. DEVELOPER shall complete construction of the improvements and offer them to
CITY for dedication no later than commencement of public use of the BART parking
garage to be constructed to accommodate approximately 1,700 spaces in the area
shown as Public/Semi-Public in the General Plan.
Construction of such improvements shall be at DEVELOPER's sole cost
and expense.
Section 11.2 Martinelli Way (also known as Digital Drive)from Iron
Horse Parkwav to Amold Road. Martinelli Way (Digital Drive) shall be constructed to
provide access from Iron Horse Parkway to Arnold Road generally as shown on the
diagram attached as Exhibit B-2.
The improvements shall consist of median curbs with 12- foot wide pavement
in each direction and a temporary 4-foot wide rock shoulder on each frontage. Lighting
will be required. Landscaping will not be required with this phase of construction.
The DEVELOPER shall enter into an agreement for construction of the
Improvements and a right-of.entry to construct the improvements within CITY rlght-of-
way. DEVELOPER shall complete construction of the improvements and offer them to
CITY for dedication no later than issuance of a certificate of occupancy for the first
residential building on Site C.
Construction of such improvements shall be at DEVELOPER's sole cost and
expense.
Section 11.3 DubllnlDouohertv Intersection Improvements. Within 60
days of notice from CITY, DEVELOPER will advance to CITY monies for acquisition of
right-of-way needed for the improvements planned for the intersection of Dublin
Boulevard and Dougherty Road and for construction of such improvements. The
amount of money requested by CITY will be based on the DEVELOPER's fair share of
the deficit (spread over those projects which are required to make up the deficit)
between funds available to CITY from Category 2 Eastern Dublin Traffic Impact Fee
funds and the estimated cost of acquiring the right-of-way and constructing the
Improvements. The City will request advances in increments as monies ara needed,
provided that the amount of money to be advanced shall not exceed Two Million Dollars
($2,000,000).
CITY shall provide a credit to DEVELOPER for any advance of monies made
pursuant to this section. The credit shall be for Category 2 of the Eastern Dublin Traffic
Impact Fee, All aspects of the credit shall be governed by CITY's Administrative
l
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
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Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99) ("TIF
Guidelines").
Section 11.4 Scarlett Drive Riqht-of-Wav. DEVELOPER will recommend
to the County of Alameda ("COUNTY') that, upon request by City to acquire any of the
land owned by the County of Alameda adjacent to the former Southern Pacific Railroad
right-of-way between Dublin Boulevard and Dougherty Road, for construction of a road
known as Scarlett Drive, COUNTY will agree that the value of the portion of such
property to be so acquired shall be the then-current "fair market value," provided in no
event shall the ''fair market value" exceed the land value used by CITY in calculating its
then-current Eastern Dublin Traffic Impact Fee. COUNTY agrees that it will sell such
land to CITY when requested by CITY. CITY will use such land for construction of a
new road, to be called Scarlett Drive, and will relocate any portions of the existing Iron
Horse Trail required to be relocated as part of such construction at CITY's expense.
This section shall survive termination of this Agreement.
Section 12. Affordable Housinq.
DEVELOPER shall comply with the provisions of CITY's Inclusionary Zoning
Ordinance (Dublin Municipal Code Chapter 8.68) in effect at the time of approval of Site
Development Review.
All required low Income and very-low Income units for the entire Dublin Transit
Center Project rnay be located on Site A-2, a portion of Site A.
All required moderate units for the entire Dublin Transit Center Project may be
located on Sites A-1, Band C. City shall require ten percent (10%) of the units on Sites
Band C to be moderate units, with remaining moderate units to be located on Site A-1.
CITY shall use the definition In Dublin Municipal Code §8.68.020.D [80% to 120% of
median income, as adjusted] for "moderate income."
A minimum of 15% of the total units constructed on the Dublin Transit Center
Property shall be inclusionary units consistent with the Inclusionary Zoning Ordinance.
The CITY will provide credits to DEVELOPER for any inclusionary units constructed in
excess of 15% as provided In the Inclusionary Zoning Ordinance.
DEVELOPER shall enter Into an affordable housing agreement, as required by
the Incluslonary Zoning Ordinance, for each project within the Dublin Transit Center.
Each project on Sites Band C shall include a minimum often percent (10%) moderate
units. The affordable housing agreement shall assure that construction of the
inclusionary units occurs contemporaneously with construction of the market rate units
on Sites A-1, Band C. No building permit for any building on Sites A-1 or C shall be
issued unless the building permits for all low income and very-low income units on Site
A-2 have been issued and construction of such units has commenced.
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
Page 8 of 20
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This section shall survive termination of this agreement.
Section 13, Maintenance of LandscapinCl and Street LlClhtinCl,
The City will maintain improvements within the public right-of.way which have
been dedicated to and accepted by CITY, provided that frontage improvements
consisting of sidewalks and landscaping located behind the street curb or extension of
the curb will be maintained by DEVELOPER.
DEVELOPER 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
DEVELOPER's obligation to pay for street lighting in the Dublin Transit Center Property.
DEVELOPER will not protest the formation of, or annexation to, such an assessment
district or the levy of an assessment. Furthermore, DEVELOPER agrees to record a
declaration of covenants, conditions and restrictions or a similar document against the
Dublin Transit Center Property before issuance of a Certificate of Occupancy for any
structure on such property, which declaration will covenant DEVELOPER, on behalf of
itself and its successors, to pay a "deed assessment" to CITY for the costs 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.
In the event the assessment district is not formed and assessments are not
levied for the costs of such street light maintenance prior to such costs accruing,
DEVELOPER will pay CITY for such costs directly.
Section 14. Public Art Contribution.
Section 14.1 Residential Phase. DEVELOPER agrees to contribute Two
Hundred Fifty Thousand Dollars ($250,000) to CITY for use by CITY for construction of
public art within the residential phase of the Dublin Transit Center Project (Sites A. B, C,
the Village Green and adjacent to the BART parking garage). DEVELOPER will pay
$125,000 to CITY prior to issuance of the first building permit for a residential building or
unit on Site B. DEVELOPER will pay $125,000 to CITY prior to issuance of the first
building permit for a residential building or unit on Site C, or prior to public use of the
BART parking garage, whichever is first. CITY will consult with DEVELOPER regarding
the selection of public art to be purchased with such monies.
Section 14.2 Campus Office Phase. DEVELOPER shall be subject to the
CITY's public art policy or requirement in effect at the time of the last discretionary
approval of any projects on Sites D-1, D-2, E-1, or E-2.
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
Page 9 of 20
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Section 15. Park Land.
Section 15.1 Convevance of Land for Emerald Glen Park. By grant deed,
DEVELOPER shall convey to CITY in fee simple and free of any assessments the
remaining land needed by CITY for completion of Emerald Glen Park located north of
Central Parkway, west of TassaJara Road and south of Gleason Drive in Dublin
("Remaining Emerald Glen Park Acreage"). The amount of land required is 18.177+/-
acres. The exact location of the "Remaining Emerald Glen Park Acreage" shall be
determined by CITY. DEVELOPER shall provide City with all documentation available
to DEVELOPER that the "Remaining Emerald Glen Park Acreage" and underlying
groundwater are free of hazardous substances, including any Phase I or Phase II
environmental assessments performed for DEVELOPER. CITY may enter such
property for the purpose of performing its own testing to determine if the "Remaining
Emerald Glen Park Average" is suitable for park usages. DEVELOPER will remove all
debtis and/or hazardous materials left on the property during the preceding three years
from use of the property as a construction yard,
Section 15.2 Timina of Convevance. The "Remaining Emerald Glen Park
Acreage" shall be conveyed to CITY within 10 days of the Effective Date of this
agreement.
Section 15.3 Credit for Convevance. DEVELOPER shall be entitled to a
credit for conveyance of the "Remaining Emerald Glen Park Acreage" at the time the
deed is accepted by CITY. The credit shall be for community park land, provided the
DEVELOPER may use the credit against its obligation for neighborhood park land for
the Dublin Transit Center Project by using its community park land credit equaling .8029
acres of neighborhood park land. For example, if the DEVELOPER's obligation for
neighborhood park land for the Dublin Transit Center Is 4.5 acres, DEVELOPER may
use 5.6 acres of community park land credits to satisfy the 4.5 acre neighborhood park
land obligation (4,5 acres /0.8029'" 5.6046).
DEVELOPER may use its credit for conveyance of the "Remaining Emerald Glen Park
Acreage" to satisfy its obligation under Dublin Municipal Code Chapter 9,28 (City's
"Quimby Act" ordinance) for community park land or neighborhood park land (with one
community park land credit equaling .8029 acres of neighborhood park land), for any
residential project on the Dublin Transit Center Property or in Eastern Dublin. All other
aspects of use of the credit shall be as provided in CITY's Public Facilities Fee
Administrative Guidelines (Resolution 195-99) ("PubliC Facilities Fee Guidelines").
Section 15.4 Possible Compensation for "Remainina Emerald Glen Park
Acreaae". In the event that the total "Quimby Act" community park land dedication
requirement for the Dublin Transit Center Property and other land owned by
DEVELOPER in Dublin is less than the "Remaining Emerald Glen Park Acreage" and
provided there are sufficient Public Facilities Fee monies for the Community Park Land
"component" of the Fee available, CITY shall compensate DEVELOPER for the
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
Page 10 of 20
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difference between the "Quimby Act" ordinance dedication requirement and the
"Remaining Emerald Glen Park Acreage" ("the Difference"). In such event,
DEVELOPER agrees that CITY will pay DEVELOPER for the "Difference" at the then-
current ''fair market value (based on DEVELOPER's estimation)," provided In no event
shall the ''fair market value" exceed the community park land value used by CITY in
calculating its then-current Public Facilities Fee. The payment to DEVELOPER shall
occur upon issuance of the last building permit for construction of a building on the
Santa Rita Property, provided that if there are insufficient Public Facilities Fee monies at
such time, the amount of the payment shall become a right to reimbursement, to be paid
pursuant to adopted guidelines from Fee monies only, As used in this Section, "then
current" means the date of an agreement to purchase or the "valuation date", as defined
in the Eminent Domain Law and "Santa Rita Property" means all lands west of
Tassajara Road which are or were owned by DEVELOPER and generally bounded by 1-
580 on the south, the Iron Horse Traîl on the west and Gleason Drive on the north.
Section 15.5 Illustrative Example. The following example illustrates the
provisions of Section 15.4:
Assume that the "Quimby Act" dedication requirement for all of the
Dublin Transit Center Property and other lands owned by DEVELOPER within the
Santa Rita Property is 10.5 acres.
DEVELOPER conveys 18.2 acres and receives a credit for 18.2
acres. DEVELOPER's "Quimby Act" dedication requirement of 10.50 acres is
subtracted from 18,2 acres for a total of 7.7 acres for which CITY must compensate
DEVELOPER.
At the time of the conveyance, the ''fair market value" of the 7.7
acres
(based on DEVELOPER's estimation) is $600,000 an acre and the
community park land value used by CITY in its then-current Public Facilities Fee is
$538,000 an acre, CITY shall pay DEVELOPER the sum of $4,142,600 (7.7 x
$538,000). Alternatively, if the "fair market value" (based on DEVELOPER's estimation)
is $500,000 an acre, CITY shall pay DEVELOPER $3,850,000.
Section 15.6 Payment of Public Facilities Fee. DEVELOPER will be
subject to CITY's Public Facilities Fee for all development within the Dublin Transit
Center Project.
Section 16. Tlmina.
With the exception of the infrastructure improvements described in Section 11,
this Agreement contains no requirements that DEVELOPER must initiate or complete
development of the Dublin Transit Center Project within any period of time set by CITY.
It is the Intention of this provision that DEVELOPER be able to develop the Dublin
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
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Transit Center Property in accordance with its own time schedules and the Dublin
Transit Center Project Approvals.
Section 17. Amendment or Cancellation.
Section 17.1 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,
Section 17.2 Amendment bv Mutual Consent. This Agreement may be
amended in writing from time to time by mutual consent of the parties hereto and in
accordance with the procedures of State law and Chapter 8.56.
Section 17.3 Insubstantial Amendments. Notwithstanding the provisions
of the preceding paragraph 17.2, any amendments to this Agreement which do not
relate to (a) the term of the Agreement as provided in Section 4; (b) the permitted uses
ofthe Dublin Transit Center Property as provided in Section 5.2; (c) provisions for
"significant" reservation or dedication of land; (d) conditions, terms, restrictions or
requirements for subsequent discretionary actions; (e) the density or intensity of use of
the Dublin Transit Center Project; (f) the maximum height or size of proposed buildings;
(g).monetary contributions by DEVELOPER as provided in this Agreement; or (h) the
Dublin Transit Center Property 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".
Section 17.4 Amendment of Dublin Transit Center Proiect ADDrovals. Any
amendment.of Dublin Transit Center Project Approvals relating to: (a) the permitted use
of the Dublin Transit Center 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; (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. Any other
amendment of the Dublin Transit Center Project Approvals, or any of them, shall not
require amendment of this Agreement unless the amendment of the Dublin Transit
Center Project Approval(s) relates specifically to some provision of this Agreement.
Section 17.5 Cancellation bv Mutual Consent. Except as otherwise
permitted herein, this Agreement may be canceled in whole or in part only by the mutual
consent of the parties or their successors In Interest, in accordance with the provisions
of Chapter 8.56. Any fees paid and/or land dedicated pursuant to thIs Agreement prior
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
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to the date of cancellation shall be retained by CITY.
Section 18. Annuai Review.
Section 18.1 Review Date. The annual review date for this Agreement
shall be July 15, 2004 and each July 15 thereafter.
Section 18,2 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
as provided in Government Code §§65684 et seq. The burden of proof by substantial
evidence of compliance is upon the DEVELOPER.
Section 18.3 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.
Section 18.4 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.
Section 19. Default.
Section 19,1 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 pelformance of this Agreement.
Section 19.2 Notice and Cure. Upon the occurrence of an event of default
by either party, the nondefaulting party shall serve written notice of such default upon
the defaulting party. If the default is not cured by the defaulting party within thirty (30)
days after service of such notice of default, the nondefaulting party may then commence
any legal or equitable action to enforce its rights under this Agreement; provided,
however, that if the default cannot be cured within such thirty (30) day period, the
nondefaulting party shall refrain from any such 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.
Section 19.3 No Damaoes Aaainst CITY. In no event shall damages be
awarded against CITY upon an event of default or upon termination of this Agreement.
('m...
Developmenl Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
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Section 20. Estoppel Certificate.
Either party may, at any time, and from time to time, request written notice from
the other party requesting such party to certify in writing that, (a) this Agreement is in full
force and effect and a binding obligation of the parties, (b) this Agreement has not been
amended or modified either orally or in writing, or if so amended, identifying the
amendments, and (c) to the knowledge of the certifying party the requesting party is not
in default in the performance of its obligations under this Agreement, or if in default, to
describe therein the nature and amount of any such defaults. A party receiving a
request hereunder shall execute and return such certificate within thirty (30) days
following the receipt thereof, or such longer period as may reasonably be 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.
Section 21. Mortaaaee Protection: Certain Riahts of Cure.
Section 21.1 Mortaaaee Protection This Agreement shail be superior
and senior to any lien placed upon the Dublin Transit Center 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 Dublin Transit Center
Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of
foreclosure, or otherwise.
Section 21.2 Mortaaaee Not Obliaated. Notwithstanding the provisions of
Section 21.1 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 Dublin Transit Center
Property to any uses or to construct any improvements thereon other than those uses or
improvements provided for or authorized by the Dublin Transit Center Project Approvals
or by this Agreement.
Section 21.3 Notice of Default to Mortaaaee and Extension of Riaht to
Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of
default given DEVELOPER hereunder and specifying the address for service thereof,
then CITY shall deliver to such Mortgagee, concurrently with service thereon to
DEVELOPER, any notice given to DEVELOPER 'Nith respect to any claim by CITY that
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
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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 19.2
for not more than an additional sixty (60) days upon request of DEVELOPER or a
Mortgagee.
Section 22. Severabilitv,
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.
Section 23. Attornevs' Fees and Costs.
If CITY or DEVELOPER initiates any action at law or in equity to enforce or
interpret the tellllS 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'lt 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, the Dublin Transit Center Project Approvals, or CITY's actions pursuant to
this agreement, the parties shall cooperate in defending such action. DEVELOPER
shall bear its own costs of defense as a real party In interest In any such action, and
shall reimburse CITY for all reasonable court costs and attorneys' fees expended by
CITY in defense of any such action or other proceeding and for any attorney's fees and
costs awarded to a party to be paid by CITY.
Section 24. Transfers and Assianments.
Section 24.1 RiQht to Assian. DEVELOPER may sell, transfer or assign
all of the Property to another developer ("Transferee"). In connection with any such
sale, transfer or assignment to a Transferee, DEVELOPER may sell, transfer or assign
to such Transferee all rights, interests and obligations of DEVELOPER arising
hereunder provided, however, that no such transfer, sale or assignment of
DEVELOPER's rights, interests and obligations hereunder shall occur without prior
written notice to CITY and approval by the City Manager (which shall be for the purpose
of assuring CITY that the proposed transferee can perform DEVELOPER's obligations
hereunder), which approval shall not be unreasonably withheld or delayed.
Section 24.2 Approval and Notice of Sale, Transfer or Assianment. The
City Manger shall consider and decide on any tænsfer, sale or assignment within ten
(10) working days after DEVELOPER's notice, provided all necessary documents,
certifications and other information showing the proposed transferee can perform
DEVELOPER's obligations are first provided to the City Manager. Notice of any such
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
Page 15 of 20
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approved sale, transfer or assignment shall be recorded in the official records of
Alameda County, in a form acceptable to the City Manager, concurrently with such sale,
transfer or assignment.
Section 24,3 Effect of Sale, Transfer or Assianment. DEVELOPER shall
be released from any obligations hereunder sold, transferred or assigned to a
Transferee pursuant to subparagraph 24.1 ofthis Agreement, provided that: a) such
sale, transfer or assignment has been approved by the City Manager pursuant to
subparagraph 24.1 of this Agreement; and b) such obligations are expressly assumed
by Transferee; provided that Transferee shall be subject to all the provisions hereof and
shall provide all necessary documents, certifications and other necessary information
prior to City Manager approval pursuant to subparagraph 24.1 of this Agreement.
Section 24.4 Permitted Transfer, Purchase or Assianment. The sale or
other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to
the exercise of any right or remedy under a deed of trust encumbering DEVELOPER'S
interest in the Property shall not require City Manager approval pursuant to the
provision of paragraph 24.1. Any subsequent transfer, sale or assignment by the
Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the
provisions of paragraph 24.1.
Section 24.5 Sale of a Portion of P'cperty. The sale or transfer of a
portion of the Dublin Transit Center Property shall not require approval by the City
Manager but the new owner shall enter into a Specific Plan Development Agreement
pursuant to Section 6, which Agreement will include any of the Infrastructure obligations
of Section 11 which DEVELOPER may wish to assign to a new owner.
Section 25. Aareement 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 Dublin Transit
Center Property, or any portion thereof, or any imerest therein, whetherby 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
Dublin Transit Center 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 (0) 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.
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
Page 16 of 20
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Section 26. Bankruptcy.
The obligations of this Agreement shall not be dischargeable in bankruptcy.
Section 27. 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 Dublin Transit Center
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).
Section 28. Insurance.
Section 28,1 Public Liability and Property Damaae Insurance. At all times
that DEVELOPER is constructing any improvemi>nts that will become public
improvements, DEVELOPER shall maintain in effect a polley 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 '00 maintained by DEVELOPER shall name the CITY
as an additional insured and shall include either a severability of interest clause or
cross-liability endorsement.
Section 28.2 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 Dublin Transit Center Project site or for work
performed pursuant to this Agreement. 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.
Section 28.3 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 28.1 and 28.2 and evidenGe 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 tQ the CITY, its elective and appointive boards,
I·
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Celitat
May 6, 2003
Page 17 of 20
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commissions, officers, agents, employees and representatives and to DEVELOPER
performing work on the Dublin Transit Center Property and pursuant to this Agreement.
DEVELOPER may satisfy the requirements of this Section by providing a Certificate of
self insurance.
Section 29. 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.
Section 30. 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 DEVELOPER shall be addressed as follows:
Project Manager
Surplus Property Authority of Alameda County
224 W. Winton Avenue, Suite 110
Hayward, CA 94544
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 deemea given upon verification of receipt.
Section 31. AQreement is Entire UnderstandinQ,
This Agreement constitutes the entire understanding and agreement of the
parties.
Section 32. Exhibits.
~~
The following documents are referred to in this Agreement and are attached
hereto and incorporated herein as though set forth in full:
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
Page 18 Of 20
626294
7-0 ~3~
Exhibit A Legal Description of Dublin Transit Center Property
Exhibit B-1 Location Map (Altamirano Road and Arnold Road north to
Dublin Boulevard)
Exhibit B-2 Location Map (Martinelli Way [Digital Drive] from Iron Horse
Parkway to Arnold Road)
Exhibit C
Sites A-1 and A-2
Section 33. Counterparts.
This Agreement is executed in two (2) duplicate originals, each of which is
deemed to be an original.
Section 34. 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 tile date and year first above written.
CITY OF DUBLIN:
~~)M Date
net Lockti rt, Mayor
(o/;¿/00
By:
A ST:
Date:
~/Í$ /0\3
Approved as to Form:
â~iV 1~,--
Elizabeth H. Silver, City Attorney
Development Agreement Between City Of Dublin
Surplus Property Authority and Transit Center
May 6. 2003
Page 19 of 20
626294
SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY:
~~~¡;,t4i
Adolph a ¡nelll
Its Manager
Development Agreement Between City of Dublin
Surplus Property Authority and Transit Center
May 6, 2003
Date:
/WAV
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Page 20 of 20
626294
-¿ 7- Db '?~
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APA S;<N VALl.EY-SIERRA. 800-362-3369
"2A tib 3112
. Exhibit A
Legal Description
Dublin Transit Center Property
BEING THOSE CERTAIN PARCELS OF LAND DESIGNATED AS PARCELS 1,
2,3,4, A & C OF PARCEL MAP 7395 AS FILED ON THE 31sT DAY OF
OCTOBER, 2000, RECORDER SERIES NO. 2000323901, IN BOOK 254 OF
PARCEL MAPS AT PAGES 28 THROUGH 34 ALAMEDA COUNTY RECORDS,
CALIFORNIA.
APNs: 986-0001-006-00
986-0001-009-00
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986-0001-013-02
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ORDINANCE NO. XX - 05
AN ORDINANCE OF THE CITY COUNCIL
OF TIlE CITY OF DUBLIN
*** ** ** ** * ** * **** * * *** **********
APPROVING THE AMENDMENT TO THE MASTER DEVELOPMENT AGREEMENT
FOR PA 00-013 SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY
FOR TIlE DUBLIN TRANSIT CENTER
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS;
Section 1. RECTTALS
A. Thc proposed Dublin Transit Ccntcr is located within thc boundaries of the Eastern Dublin
Spccific Plan ("Specific Plan") in an area, which is designated on the General Plan Land Usc Element
Map, and Eastern Dublin Specific Plan Lad Use Map as High Density Residential, Campus Officc and
Public/Semi Public land uses,
B. Pursuant to the California Enviromnental Quality Act (CEQA), CEQA Guidelines Section
15182, the City of Dublin, as the Lead Agency, has prepared an Enviromnental hnpaçt Report and
Mitigation Monitoring Program for the above-referenced proposed project. The Draft Environmental
Impact Report was available for public review from July 6, 2001 to August 21, 2001 and the City
subsequently recirculated an analysis of additional impacts for a 45-day public review period from July
16,2002 to August 30, 2002. The Environmentallmpact Report was certified by the City Council on
December 3, 2002,
C. The City Council approved the Master Development Agreement between thc City of
Dublin and Alameda County Surplus Property Authority by Ordinance No, 5-03 on May 6, 2003.
D. A public hearing on the proposed Amendment to the Master Development Agreement was
held before the Planning Commission on August 24, 2005, for which public notice was given as provided
bylaw.
E. The Planning Commission has made its recommendation to the City Council for approval
ofthe Amendment to the Master Development Agreement.
F. A public hcaring on the proposed Master Development Agreementwas held before the
City Council on September 20 and October 4, 2005, for which public notice was given as provided by
law.
G. The City Council has considered the recommendation ofthe Planning Commission who
considered the item at the August 24, 2005 meeting, ineluding the Planning Commission's reasons for its
recommendation, the Agenda Statement, all comments received in writing and all testimony received at
the public hearing,
Section 2.
FINDINGS AND DETERMINATIONS
Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of
Dublin's General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the Specific Plan, (e) the
EIR, (f) the individual Mitigated Ncgative Deelarations (g) the Agenda Statement, and on the basis of the
specific conelusions sct forth below, the City Council finds and determines that:
I. The Amendment to thc Master Development Agreemcnt is consistent with the objectives, policies,
gcneral1and uses and programs specified and contained in the City's General Plan, as amendcd by the
Eastern Dublin General Plan Amendment, and in the Specific Plan in that (a) the General Plan and
ATTACHMENT 2
.3Dob~LÞ
Specific Plan land use designation for the site are High Density Residential, Campus Office and
Public/Semi Public Land Uses and the proposed project is a project consistent with that land use, (b) the
project is eonsistcnt with the fiscal policies of the General Plan imd Specific Plan with respect to
provision of infrastructure and public services, and (c) the Amendment to the Master Developmcnt
Agrccment includes provisions relating to vesting of dcvclopmcnt rights, and similar provisions set forth
in the Specific Plan.
2. The Amendment to the Master Development Agreenlent is compatible with the uses
authorized in, and the regulations prescribed for, the land use districts in which the real property is 10catcd
in that thc project approvals indude a PD District Overlay Zone for the Dublin Transit Ccntcr and Vesting
Tentative Map, General Plan and Specific Plan Amendmcnt and Sitc Development Review.
3. The Amendment to the Master Development Agreement is in confonmity with public
convcnience, general welfare and good land use policies in that the Dublin Transit Center will implement
land usc guidelines set forth in the Specific Plan and the General Plan which havc p1anncd for residential,
commercial, pa,ks, public and semi-public, open spacc and campus office uses at this location.
4. The Amendment to the Master Development Agreement will not be detrimental to the
health, safety and general welfare in that the projcct will proceed in accordance with all the programs and
policies of the Eastern Dublin Specific Plan.
5_ The Amendment to thc Mastcr Development Agreement wilt not adversely affect the
orderly development of property or thc preservation ofproperty values in that the pmject will be
consistent with the General Plan and with the Specific Plan.
Section 3. APPROVAL
The City Council hereby approves the Amendment to the Development Agreement (Exhibit A)
and authorizes the Mayor to sign,
Scction4. RECORDATION
Within ten (10) days after the Development Agreements are fully executed by an parties, the City
Clerk shaH 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 fÌ'om and after the date of its
passage. Thc City Clerk ofthe City of Dublin shall cause the Ordinance to be posted in at least three (3)
public places in the City of Dublin in accordance with Section 36933 of the Government Codc ofthc
State of California.
PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 4th day of October,
2005, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
(j:\PA#\lOOO\oo...01' "fr.tlnsll (:cmc '\dt1\(1~l)JNAN(:ëAMHNDMENT 9-20-Q;5,d.x
~ I Dt~Lo
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
FIRST AMENDMENT TO
MASTER DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY
FOR THE
DUBLIN TRANSIT CENTER PROJECT
EXHIBIT A
3'2. ~ ~1.4
THIS AMENDMENT is made and entered in the City of Dublin on this _ day of
_' _' by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter
"City"), and SURPLUS PROPERTY AUTHORITY OF THE COUNTY OF ALAMEDA, a
Public Corporation (hereafter "Developer"), pursuant to the authority of §§ 65864 et seq.
of the Califomia Government Code and Dublin Municipal Code, Chapter 8.56.
RECITALS
A. Developer and CIty are parties to that certain Master Development
Agreement Between the City of Dublin and Surplus Property Authority of Alameda
County for the Dublin Transit Center Project, dated May 6, 2003 ("the Agreement"),
which was entered into pursuant to California Government Code §§ 65864 et seq. and
Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56"); and
B. Developer, pursuant to the Agreement, proposes the development of the
Dublin Transit Center Property with a mixed use project to include a village green,
approximately 1,500 high-density residential units (referred to as Sites A, B and C),
approximately two million square feet of campus office ranging in height from eight to
ten stories (referred to as Sites D-1, D-2, E-1, and E-2), a neighborhood park (Site F),
approximately 8.65 acres of public/semi public uses including a parking garage for the
adjacent BART station and public roads (DeMarcus Boulevard, Iron Horse Parkway,
Campus Drive and Altamirano Road) (together, the "Dublin Transit Center Project"); and
C. City granted various land use approvals in connection with the
development of the Dublin Transit Center Project, including a Planned Development
Rezoning and Stage 1 Development Plan (Ordinance 21-02), which allow Developer to
propose development of up to 300 additional residential units on certain property within
the Transit Center Project designated "Campus Office" under the Eastern Dublin
Specific Plan (known as Site D-1 and Site E-1), in accordance with Policy 4-4 of the
Eastern Dublin Specific Plan.
D. The Agreement requires that the project comply with the City's
Incluslonary zoning ordinance in effect at the time of Site Development Review, and
requires that 15% of the residential units be Inclusionary Units, even though the
Inclusionary Zoning Regulations only require that 12.5% of the units be Inclusionary
Units and permit up to 40% of that obligation (or 5% of the total number of units in the
Project as a whole) to be satisfied by the payment of a fee in-lieu of construction of the
Inclusionary Units; and
E. Under the approvals, the 300 units may be constructed on Sites D and E,
or all may be constructed on either Site D-1 or E-1. If those units were all constructed
on Site E-1, the maximum square footage of campus office on Sites D and E would be
reduced by 300,000 square feet; and
First Amendment to Development Agreement Between City of Dublin
Surplus Property Authority for the Transit Center
776137_5;114.140
Page 1 of 5
August .18, 2005
'3 3 O:S~\Q
F. Developer desires to amend the Agreement to provide that if it applies for
and receives final approvals to construct 300 residential units on Site E-1 (a) instead of
constructing the required inclusionary units in Site E-1 Project it may make a payment
to the City equal to the amount of the City's then-current in-lieu fee under the
Inclusionary Zoning Regulations and (b) 10% of the units on Sites A-1 and A-3 will be
moderate income units, which would result in an additional 25 moderate income units
on the residential Sites A, B, and C; and
G. The City is amenable to Developer's proposed amendments because the
proposal would stili meet or exceed the requirements under the lncluslonary Zoning
Regulations for the Dublin Transit Center Project as a whole; and
H. Developer and City are negotiating with BART regarding funding towards
construction of the proposed West Dublin BART station. Developer has agreed to·
provide certain funding towards construction of the proposed West Dublin BART station
and City desires to see that station constructed. Developer's commitment is a result of
its development of a garage at the East Dublin BART station and future development of
Site C, as well as its desire to see regional transportation improvements.
I. 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
J. On October _' 2005, the City Council of the City of Dublin adopted
Ordinance No. _-_ approving this Amendment to the Agreement. The ordinance took
effect on
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:
AMENDMENT TO AGREEMENT
Section 1. Amendment to Section 12 of the Aqreement. Section 12 of the Agreement
Is hereby amended in its entirety to read as follows:
"Section 12. Affordable Housinq.
a. DEVELOPER shall comply with the provisions of CITY's
Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68) in
effect at the time of approval of Site Development Review.
b. All required low income and very-low income units for the
entire Dublin Transit Center Project may be located on Site A-2, a portion
of Site A.
First Amendment to Development Agreement Between City of Dublin
Surplus Properly Authority for the Transit Center
776137_6:114,140
Page 2 of 5
August 18, 2005
3~ 1)b ~ l.Q
c. All required moderate units for the entire Dublin Transit
Center Project may be located on Sites A·1, A-3, B, and C. City shall
require ten percent (10%) of the units on Sites A-1, A-3, B, and C to be
moderate units. CITY shall use the definition in Dublin Municipal Code
§8.68.020.D [80% to 120% of median income, as adjusted] for "moderate
income."
d. A minimum of 15% of the total units constructed on the
Dublin Transit Center Property shall be Incluslonary Units consistent with
the Inclusionary Zoning Ordinance.
e. Notwithstanding the foregoing, if Developer receives final
entitlements to construct 300 residential units on Site E-1, the requirement
under Subsection 12.d that 15% of the units be Inclusionary Units shall not
apply to the units constructed on Site E-1 if DEVELOPER makes a
payment to CITY prior to the issuance of first building permit for a
residential unit within Site E-1 equal to the number of Inclusionary Units
that would otherwise be required to be constructed pursuant to Subsection
12.d multiplied by the amount of the then-current in-lieu fee under the
Inclusionary Zoning Regulations. Pursuant to Resolution No. 56-02, the
current amount of the in-lieu fee is $84,198 per Inclusionary Unit.
(I). By way of example, if DEVELOPER received final
entitlements to construct 300 units on Site E-1, prior to issuance of first
building permit, it could elect to make a payment to the City equal to
$3,788,910,00, assuming the current in-lieu fee amount. If this payment
were made, DEVELOPER would not be obligated to construct 45
Inclusionary Units on Site E-1, as would otherwise be required by
Subsection 12.d.
f. DEVELOPER shall enter into an affordable housing
agreement, as required by the Inclusionary Zoning Ordinance, for each
project within the Dublin Transit Center. Each project on Sites A-1, A-3, B
and C shall include a minimum of ten percent (10%) moderate units. The
affordable housing agreement shall assure that construction of the
Inclusionary units occurs contemporaneously with construction of the
market rate units on Sites A·1, A-3, Band C. No building permit for any
building on Sites A-1 or C shall be issued unless the building permits for
all low income and very-low income units on Site A-2 have been issued
and construction of such units has commenced.
g. This section shall survive termination of this agreement."
First Amendment to Development Agreement Between City of Dublin
Surplus Property Authority for the Transit Center
77e137_~:' '4.140
Page 3 of 5
August 18, 2005
35 ao 3LD
Section 2. Addition of Section 35 to the Aareement Section 35 is added to the
Agreement to read as follows:
"Section 35. Contribution to West Dublin BART Station.
Developer will make a contribution of $4.5 million to the bond reserve fund
for the proposed West Dublin BART station. The contribution will be made
at the same time and be subject to the same terms as the proposed
anticipated contribution that City will make to the bond reserve fund for
such station, to be used by BART for debt service on the bonds if the fare
revenues from the station are not adequate to pay the debt service. The
parties anticipate that the Developer's contribution will be made as follows:
$2.25 million will be paid when BART issues bonds for construction of the
station and $2.25 million will be paid when construction is cOmpleted.
When such events occur, Developer will pay said monies to BART and will
immediately provide City with a copy of such payment
In the event that (a) BART does not issue bonds within two years of the
effective date of this amendment, (b) Developer is released by BART from
its obligation to make a contribution of $4.5 million to the West Dublin
BART reserve fund and (c) City agrees that Developer's $4.5 million
contribution will no longer be required for the West Dublin BART station,
Developer will make an additional inclusionary zoning in-lieu fee payment
to City of $2 million (two million dollars) or a payment of $2 million (two
million dollars) to City for community uses.
This section shall survive termination of this agreement"
Section 3. Counterparts.
This Agreement may executed in two (2) duplicate originals, each of which is
deemed to be an original.
Section 4. Recordation.
CITY shall record a copy of this Agreement within ten days following execution
by all parties.
First Amendment to Development Agreement Between City of Dublin
Surplus Property Authority for the Transit Center
776137_S:114,140
Page 4 of 5
August18,2005
3ü 0t"~Lo
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
CITY OF DUBLIN:
By: Date:
Janet Lockhart, Mayor
ATTEST:
By: Date:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY:
1. J!!:::!if
, J . Its Manager
Date:
s(1'Z(VS"
First Amendment to Development Agreement Between City of Dublin
Surplus Property Authority for the Transit Center
776137_5;114.140
Page 5 of 5
August 18, 2005