HomeMy WebLinkAboutItem 6.3 DubTransitCtrDevAgmt CITY CLERK
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: April 20, 2004
SUBJECT: PUBLIC HEARING: PA 03-061 Dublin Transit Center Site A-2 (EAH,
Inc) - 2''d Reading. Stage 2 Planned Development Zoning and
Development Agreement for the project area.
Report Prepared by: Marnie R. Waffle, Assistant Planner fffl
ATTACHMENTS: 1. Ordinance adopting a Stage 2 Planned Development Zoning
Development Plan (with Development Plan attached as Exhibit A).
2. Ordinance adopting a Development Agreement (with the
Development Agreement attached as Exhibit A).
RECOMMENDATION: 1. Open Public Hearing and receive Staff presentation.
2. Take testimony from the Applicant and Public.
3. Question Staff, Applicant, and Public.
4. Close pUblic Hearing and deliberate.
5. Waive the 2nd reading and adopt an Ordinance approving Stage 2
Planned Development Zoning (with Development Plan attached as
Exhibit A).
6. Waive the 2nd reading and adopt an Ordinance approving a
Development Agreement (with the Development Agreement
attached as Exhibit A).
FINANCIAL STATEMENT: No financial impact.
PROJECT DESCRIPTION:
In December 2002 the City Council adopted Resolution 216-02 approving a General Plan/Eastern Dublin
Specific Plan Amendment; Ordinance 21-02 approving a Stage 1 Planned Development Zoning; and,
Resolution 02-40 approving Tentative Parcel Map 7892, for the Dublin Transit Center, located generally
between the Iron Horse Trail to the West, Dublin Boulevard to the North, Arnold Road to the East, and
the Dublin/Pleasanton BART Station to the South. A Master Development Agreement for the Dublin
Transit Center was adopted by Ordinance 5-03 in May 2003 and together with the approved General
Plan/Eastern Dublin Specific Plan Amendment, Stage 1 Planned Development Zoning, and Tentative
Parcel Map established the land use approvals for the future development of the site.
The project, Dublin Transit Center Site A-2, includes Stage 2 Planned Development Zoning and a
Development Agreement, for the construction of a 112-unit affordable apartment community within a
portion of Dublin Transit Center Site A. The Stage 1 Planned Development Zoning for Site A allows for
a maximum of 530 residential units to be constructed on the site and the Master Development Agreement
COPIES TO: Applicant
Property Owner
G:LPA~L2003\03-061 Transit Center A-2\CCSR 04-20-04.doc ITEM NO.
allows for all very low and low income units tO be l°eated specifically on Site A-2. The proposed Stage 2
Planned Development Zoning for Transit Center Site A-2 is compatible with the Dublin Transit Center
Stage 1 Planned Development in that the Project is a high density residential land use as planned for in the
Stage 1 Development Plan and conforms with the development regulations established under the Stage 1
Development Plan for maximum building heights and parking ratios.
The proposed Development Agreement between the City of Dublin and EAH, Inc for the Dublin Transit
Center Site A-2 project is based on the standard Development Agreement developed by the City Attomey
and adopted by the City Council for Eastern Dublin Projects and covers future Parcel A-2, including
provisions related to infrastructure sequencing, financing, fees and dedications, credits, and street lighting
maintenance. The term of the Development Agreement would be five (5) years from the date of approval.
City Council Action
On April 6, 2004 the City Council heard a presentation from Staff and the Applicant for the project. The
City Council waived the reading and introduced an Ordinance adopting Stage 2 Planned Development
Zoning and waived the reading and introduced an Ordinance adopting a Development Agreement.
As required by the City of Dublin Municipal Code, a second reading of the proposed Ordinance's is
necessary Prior to final adoption of the Stage 2 Planned Development Zoning and the Development
Agreement.
RECOMMENDATION:
Staff recommends that the City Council, 1) open the Public Hearing and receive Staff's presentation; 2)
take testimony from the Applicant and the Public; 3) question Staff, the Applicant, and the Public; 4)
close the Public Hearing and deliberate; 5) waive the 2nd reading and adopt an Ordinance (Attachment 1)
approving a Stage 2 Planned Development Zoning (with the Development Plan attached as Exhibit A);
and, 6) waive the 2nd reading and adopt an Ordinance (Attachment 2) approving a Development
Agreement (with the Development Agreement attached as Exhibit A).
ORDINANCE NO. - 04
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING A STAGE 2 DEVELOPMENT PLAN FOR THE PROJECT KNOWN AS DUBLIN
TRANSIT CENTER SITE A-2 (EAH, INC) PA 03-061
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. By Ordinance No. 21-02 the City Council rezoned the approximately 91-acre area known
as the Transit Center ("the Transit Center") to a Planned Development Zoning District and adopted a
Stage 1 Development Plan for the Transit Center.
B. This Ordinance adopts a Stage 2 Development Plan for a portion of the Transit Center,
known as Site A-2.
Section 2. FINDINGS AND DETERMINATIONS
Pursuant to Section 8.32.070 of the Dublin Municipal Code, the City Council finds as follows:
1. The Project, known as Dublin Transit Center Site A-2 (EAH, Inc), Planned Development
Zoning meets the purPose and intent of Chapter 8.32 in that it provides a comprehensive
development ptan that is tailored t° the high density residential land uses proposed on the
Project site and creates a desirable use of land that is sensitive to surrounding land uses by
virtue of the layout and design which is in close proximity to mass transit.
2. Development of Dublin Transit Center Site A-2 (EAH, Inc) under the Planned
Development Zoning will be harmonious and compatible with existing and future
development in the surrounding area in that the land uses and site plan establish a high
density residential apartment community with on-site amenities and a variety of affordable
unit types. The land uses and. site plan provide effective transitions to surrounding
development which is characterized by the proposed vehicular and pedestrian circulation
system.
Pursuant to Section 8.120.050.A and B of the Dublin Municipal Code, the City Council finds as follows:
1. The Stage 2 Development Plan for Dublin Transit Center Site A-2 (EAH, Inc) will be
harmonious and compatible with existing and potential development in the surrounding
area in that the land uses and site plan establish a high density residential apartment
community with on-site amenities and a variety of affordable unit types. The land uses
and site plan provide effective transitions to surrounding development which is
characterized by the proposed vehicular and pedestrian circulation system.
ATTACHMENT 1
2. The Stage 2 Development Plan for Dublin Transit Center Site A-2 (EAH, Inc) Planned
Development Zoning has been designed to accommodate the topography of the Project site
which typically is characterized as vacant, flat land suitable for the development of a
residential apartment community and therefore physically suitable for the type and
intensity of the proposed Planned Development Zoning district.
3. The Stage 2 Development Plan will not adversely affect the health or safety of persons
residing or working in the vicinity or be detrimental to the public health, safety and welfare
in that the Project will comply with all applicable development regulations and standards
and will implement all adopted mitigation measures.
4. The Stage 2 Development Plan is consistent with the Dublin General Plan, Eastern Dublin
Specific Plan, and the Transit Center Stage 1 Development Plan (Ordinance No. 21-02) as
it is in conformance with the land use designation of high density residential and the
various requirements of the Stage 1 Development Plan.
Pursuant to the California Environmental Quality Act, the City Council finds as follows:
1. The project is found to be exempt from CEQA pursuant to Government Code section
65457 for residential projects that are consistent with a Specific Plan. The Project is
within the scope of the Final Environmental Impact Report for the Dublin Transit Center
General Plan Amendment, Eastem Dublin Specific Plan Amendment, Stage I Planned
Development Zoning, Tentative Parcel Map, and Development Agreement (SCH
2001120395) which was certified by City Council Resolution No. 215-02 dated November
19, 2002. This recommendation is based on a determination that there are no supplemental
impacts that would require preparation of a Supplemental EIR
Section 3. Map of the Property.
Pursuant to Chapter 8.32, Title 8 of the City of Dublin Municipal Code, the Stage 2 Development Plan
applies to the following property ("the Property"):
2+ net acres within an existing 8.29 net acre parcel [APN: 986-0001-010 in part] of Dublin Transit
Center Site A at the southwest comer of Dublin Boulevard and DeMarcus Boulevard. The Site A-
2 Project area begins at the comer of southwest comer of Dublin Boulevard and runs 400-feet in
width in a westerly direction and 189.50-feet in depth in a southerly direction.
A vicinity map showing the area for a Stage 2 Development Plan is shown below:
2
Section 4. APPROVAL
The regulations for the use, development, improvement, and maintenance of the Property are set forth in
the following Stage 2 Planned Development Zoning Development Plan for the Property, which is hereby
approved. Any amendments to the Stage 2 Planned Development Zoning Development Plan shall be in
accordance with Section 8.32.080 and/or Section 8.120 of the Dublin Municipal Code or its successors.
Stage 2 Development Plan for Dublin Transit Center Site A-2
This is a Stage 2 Development Plan pursuant to Chapter 8.32 of the Dublin Zoning Ordinance. This
Development Plan meets all the requirements for a Stage 2 Development Plan and is adopted as a zoning
amendment pursuant to section 8.32.030.B of the Dublin Zoning Ordinance. The Stage 2 Development
Plan consists of the items and plans identified below, many of which are contained in the Stage 2
Development Plan, dated April 20, 2004 ("Stage 2 Development Plan"), which are incorporated herein by
reference. The Stage 2 Development Plan booklet is on file in the Dublin Planning Department under
~ project file PA 03-061. The PD, Planned Development Zoning District and this Stage 2 Development
Plan provide flexibility to encourage innovative development while ensuring that the goals, policies, and
action programs of the General Plan, Eastern Dublin Specific Plan, and provisions of Chapter 8.32 of the
Zoning Ordinance are satisfied.
1. Statement of Compatibility with Stage 1 Development Plan. The Dublin Transit Center Site A-
2 (EAH, Inc) Stage 2 Development Plan is compatible with the Dublin Transit Center Stage 1
Development Plan in that the Project is a high density residential land use as planned for in the
Stage 1 Development Plan and conforms with the development regulations established under the
Stage 1 Development Plan for maximum building heights and parking ratios.
2. Statement of permitted Uses. Permitted, Conditional, accessory and temporary uses are allowed
as set forth in the Stage 2 Development Plan booklet, pp. 1-2.
3. Stage 2 Site Plan. See Stage 2 Development Plan booklet, pp. 3.
4. Site Area, Proposed Densities, For site area, proposed densities, maximum permitted residential
units and maximum non-residential square footages, see Stage 2 Development Plan booklet, pp. 2.
5. Development Regulations. See Stage 2 Development Plan booklet, pp. 2-3.
6. Architectural Standards. See Stage 2 Development Plan booklet, pp. 3.
7. Preliminary Landscaping Plans. See Stage 2 Development Plan booklet, pp. 3.
8. Applicable Requirements of Dublin Zoning Ordinance. Except as specifically provided in this
Stage 1 Development Plan, the use, development, improvement and maintenance of the Property
shall be governed by the provisions of the Dublin Zoning Ordinance pursuant t? section
8.32.060.C.
Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of its
passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3)
3
public places in the City of Dublin in accordance with Section 36933 of the Government Code of the
State of California.
PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 20th day of April
2004, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
4
Stage 2 Development Plan
Stage 2 Planning Development Zoning District (PA 03-061)
Dublin Transit Center Site A-2, EAH, Inc
(APN 986-0001-010 in part)
This is a Stage 2 Development Plan pursuant to Chapter 8.32 of the Dublin Zoning
Ordinance for Dublin Transit Center Site A-2, located on the southwest corner of
Dublin Boulevard and DeMarcus Boulevard. This Development plan meets all of the
requirements for Stage 2 Planned Development review of the project.
This Development Plan includes Site, Architectural, Circulation, and Landscape Plans, other
plans and exhibits prepared by KTGY Group, Inc date stamped received March 8, 2004 and
labeled Exhibit A to the March 23, 2004 Planning Commission Staff Report, stamped
approved and on file in the Planning Department. The Planned Development District allows
the flexibility needed to encourage innovative development while ensuring that the goals,
policies and action programs of the General Plan, Eastern Dublin Specific Plan, and
provisions of Section 8.32, Planning Development Zoning District of the Zoning Ordinance
are satisfied.
The Stage 2 Planned Development Zoning district Development Plan meets the requirements
of Section 8.32.040.B of the Zoning Ordinance and consists of the following:
1. Zoning
2. Permitted Uses
3. Conditional Uses
4. Temporary Uses J
5. Accessory Uses.
6. Dublin Zoning Ordinance - Applicable Requirements
7. Density & Affordability
8. Development Regulations
9. Parking/Garage and Loading
10. Site Plan and Architecture
11. Preliminary Landscape Plan
12. Compliance with Stage 2 Planned Development Plans
Stage 2 Planned Development Zoning District Development Plan
1. Zoning
PD, Planned Development Zoning District. This is a high density residential zoning
district which provides for high density residential uses.
2. Permitted Uses
Permitted uses shall be as adopted by Ordinance 21-02, the Dublin Transit Center Stage 1
Planned Development Zoning Development Plan (PA 00-013).
EXHIBIT A
PD, Planned Development ZOning District ~.-~- ~)(~'~3
PA 03-061 Dublin Transit Center Site A-2
3. Conditional Uses
Conditional uses shall be as adopted by Ordinance 21-02, the Dublin Transit Center Stage
1 Planned Development Zoning Development Plan (PA 00-013).
4. Temporary Uses
Temporary uses shall be as adopted by Ordinance 21-02, the Dublin TranSit Center Stage
1 Planned Development Zoning Development Plan (PA 00-013).
5. Accessory Uses
Accessory uses shall be as adopted by Ordinance 21-02, the Dublin Transit Center Stage
1 Planned Development Zoning Development Plan (PA 00-013).
6. Dublin Zoning Ordinance - Applicable Requirements
Except as specifically modified by the provisions of this PD, Planned Development
Zoning District Development Plan, all applicable general requirements and procedures of
the Dublin Zoning Ordinance shall be applied to the land uses designated in this PD,
Planned Development Zoning District Development Plan.
7. Density & Affordability
Site Area: 2.0 acres (net)
Density: 56 dwelling units per acre (net)
Number of Units: 112 dwelling units
Unit Mix: 1 bedroom, 1 bath flat 24 units (600 square feet)
2 bedrooms, 1 bath flat 27 units (894 square feet)
2 bedrooms, 1.5 bath townhouse 26 units (985 square feet)
3 bedrooms, 2 bath flat 35 units (1,165 square feet)
Unit Affordability:
1 bedroom 2 bedrooms 3 bedrooms Total
Very Low 19 (79%) 30 (57%) 18 (51%) 67 (60%)
(50% or below)
Low
5 (21%) 23* (43%) 17 (49%) 45 (40%)
(60%-50% )
Total 24 53 35 112
*Includes Manager Unit
8. Development Regulations
Unless otherwise stated below, all development regulations in this Stage 2 Planned
Development Zoning district are subject to the requirements of the R-M Zoning District.
2
PD, Planned Development Zoning District
PA 03-061 Dublin Transit Center Site A-2
Development Standard Multi-Family Residential
Lot Area: 2 acres (net)
Lot Width: 400 feet
Lot Depth: 189.50 feet
15' along Dublin Boulevard
Setbacks: 20' along DeMarcus Boulevard
20' along One-Way Private Access Road
5' along Street "A"
Height Limits: 3 stories over parking, 53'
Required Parking: 1.5 spaces per dwelling unit
9. Parking/Garage and Loading
Parking/Garage, and Loading shall be provided in accordance with the Dublin Zoning
Ordinance standards and regulations, except as shown otherwise on the Site Plan (Sheet
A-l) and Ground Floor Plan (Sheet A-3) prepared by KTGY Group, Inc date stamped
received March 8, 2004 and labeled 'Exhibit A to the March 23, 2004 Planning
Commission Staff Report. The number of parking spaces shall be provided in accordance
with Section 8 above.
10. Site Plan and Architecture
This Development Plan applies to approximately _+_2 net acres on the southwest comer of
Dublin Boulevard and DeMarcus Boulevard. The architectural theme for the project is
based upon a contemporary style that provides two types of exterior finishes and color
blocking to articulate the massing of the building. See attached plans and building
elevations prepared by KTGY Group, Inc date stamped received March 8, 2004 and
labeled Exhibit A to the March 23, 2004 Planning Commission Staff Report. Any
modifications to the project shall be substantially consistent with these plans and of equal
or superior materials and design quality.
11. Preliminary Landscape Plan
See plans (Sheet L-I) prepared by KTGY Group, Inc date stamped received March 8,
2004 and labeled Exhibit A to the March 23, 2004 Planning Commission Staff Report.
12. ComPliance with Stage 2 Planned Development Plans
The project shall substantially comply with the project plans and details prepared by
KTGY Group, Inc date stamped received March 8, 2004 and labeled Exhibit A to the
March 23, 2004 Planning Commission Staff Report. Such project plans are incorporated
by reference.
3
ORDINANCE NO. -04
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING A DEVELOPMENT AGREEMENT FOR PA 03-061
DUBLIN TRANSIT CETNER SITE A-2 (EAH, 1NC)
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. EAH, Inc. submitted an application for a 112-unit affordable apartment community and related
improvements on a 2.0 acre site on the southwest comer of Dublin Boulevard and DeMarcus
Boulevard within a portion of Dublin Transit Center Site A. The project proposes a 3 story
residential building over one level of parking on the northeast portion of Site A. The development
includes applications for a Stage 2 Planned Development and Site Development Review
Development Agreement. The applications are collectively known as the "Project"; and
B. Pursuant to the Califomia Environmental Quality Act, Staff has recommended that the project be
found exempt from CEQA pursuant to Government Code section 65457 for residential projects that
are consistent with a specific plan. The Project is within the scope of the Final Enviromnental
Impact Report for the Dublin Transit Center General Plan Amendment, Eastern Dublin Specific
Plan Amendment, Stage 1 Planned Development Zoning, Tentative Parcel Map, and Development
Agreement (SCH 2001120395) which was certified by City Council Resolution No. 215-02 dated
November 19, 2002. This recommendation is based on a determination that there are no
supplemental impacts that would require preparation of a Supplemental EIR. On March 23, 2004,
the Planning Commission adopted Resolution 04-23 recommending that the City Council adopt the
Stage 2 Planned Development, which resolution is incorporated herein by reference.
C. The text of the Development Agreement is attached to this resolution as Exhibit A.
D. The Development Agreement is required as an ~mplementing measure of the Eastern Dublin
Specific Plan and is authorized by Government Code section 65865 and Chapter 8.56 of the Dublin
Municipal Code.
E. A public hearing on the proposed Development Agreement was held before the Planning
Commission on March 23, 2004, for which public notice was given as provided by law.
F. A public hearing on the proposed Development Agreement was held before the City Council on
April 6, 2004 and April 20, 2004, for which public notice was given as provided by law.
G. The City Council has considered the recommendation of the Planning Commission who considered
the item at the March 23, 2004 meeting, the Agenda Statement, all comments received in writing
and all testimony received at the public hearing.
ATTACHMENT 2
Section 2. FINDINGS AND DETERMINATIONS
Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of
Dublin's General Plan, (c) the Eastern Dublin Specific Plan, (d) the Stage 1 Planned Development, (e) the
Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and
determines that:
1. Said Agreement is consistent with the objectives, policies, general land uses and programs
specified in the Eastern Dublin Specific Plan/General Plan in that, a) the Eastern Dublin Specific
Plan/General Plan land use designation for the subject site is High Density Residential and that the Dublin
Transit Center Site A-2 Project is consistent with that designation; b) the project is consistent with the
fiscal policies in relation to provision of infrastructure and public services of the City's Eastern Dublin
Specific Plan/General Plan; c) the Agreement sets forth the rules the Developer and City will be governed
by during the development process which is required by the Eastern Dublin Specific Plan; and the
Mitigation Monitoring Program of the Eastern Dublin Specific Plan.
2. The Development Agreement is compatible with the uses authorized in, and the regulations
prescribed for, the land use districts in which the real property is located in that the project approvals
include a Stage 2 Planned Development and Site Development Review.
31 The Development Agreement is in conformity with public convenience, general welfare
and good land use policies will implement land use guidelines set forth in the Specific Plan and the
General Plan which have planned for this use at this location.
4. The Development Agreement will not be detrimental to the health, safety and general
welfare in that the project will proceed in accordance with all the programs and policies of the Eastern
Dublin Specific Plan.
5. The Development Agreement will not adversely affect the orderly development of property
or the preservation of property values in that the project will be consistent with the General Plan and with
the Specific Plan~ '
Section 3. APPROVAL
The City Council hereby approves the Development Agreement (Exhibit A) and authorizes the
Mayor to sign.
Section 4. RECORDATION
Within ten (10) days after the Development Agreement is fully executed by all parties, the City
Clerk shall submit the Agreement to the County Recorder for recordation.
Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of its
passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3)
public places in the City of Dublin in accordance with Section 36933 of the Government Code of the
State of California.
2
PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 20th day of April
2004, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
City of Dublin
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
EAH, INC.
FOR THE DUBLIN TRANSIT CENTER SITE A-2 PROJECT
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6837,7.3 EXHiBiT
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this __ day of ,2004, by and between the CITY OF DUBLIN, a
Municipal Corporation (hereafter "CITY") and EAH, Inc., a California corporation
(hereafter "DEVELOPER") pursuant to the authority of §§ 65864 et seq. of the
California Government Code and Dublin Municipal Code, Chapter 8.56. CITY and
DEVELOPER are, from time-to-time, individually referred to in this Agreement as a
"Party," and are collectively referred to as Parties.
RECITALS
A. California Government Code §§65864 et seq. ("Development
Agreement Statute") and Chapter 8.56 of the Dublin Municipal Code (hereafter
"Chapter 8.56") authorize the CITY to enter into a Development Agreement for the
develoPment of real property with any person having a legal or equitable interest in
such property in order to establish certain development rights in such property.
B. DEVELOPER desires to develop and holds an equitable interest in, in
that it has the right to purchase, under that certain Agreement for Purchase and Sale of
Real Property and Escrow Instructions, dated December 9, 2003, between the Surplus
Property Authority of Alameda County and Developer ("the Purchase and Sale
Agreement"), certain real property consisting of approximately 2 acres of land, located
in the City of Dublin, County of Alameda, State of California, which is more partiCularly
described in Exhibit A attached hereto and incorporated herein by this reference, and
which real property is hereafter called the "Property." The Alameda County Surplus
Property Authority ("COUNTY") presently is the fee owner of the Property.
C. The City Council adopted the Eastern Dublin Specific Plan by
Resolution No. 53-93 which Plan is applicable to the Property. The Eastern Dublin
Specific Plan requires DEVELOPER to enter into a development agreement.
D. The Property is within an approximately 91-acre master-planned area
("the Transit Center Property") that was the subject in 2002 of a General Plan
Amendment, a specific plan amendment to add the area to the Eastern Dublin Specific
Plan, a master tentative map to create master parcels for development, and a master
development agreement ("the Transit Center Approvals").
E. DEVELOPER proposes the development of the Property as a 112-
unit affordable apartment community (the "Project").
G. DEVELOPER has applied for, and CITY has approved or is
processing, various land use approvals in connection with the development of the
Project, including, without limitation, a General Plan Amendment (Resolution No. 216-
02), an amendment to the Eastern Dublin SPecific Plan to add the Transit Center
Property to add the Dublin Transit Center to the specific plan area (Resolution No. 216-
02), a master tentative parcel map (tract 7892) (Planning Commission Resolution 02-
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683717.3
40);'a planned development district rezoning including a Stage I Development Plan
(Ord. No. 21-02); a vesting tentative parcel map (tract 8275) that would create the
parcel on which the Project would be constructed (Planning Commission Resolution
); a Stage 2 Development Plan (Ord. No. __); and site development review
(Planning Commission Resolution No. ). All such approvals collectively, together
with any approvals or permits now or hereafter issued with respect to the Project are
referred to as the "Project Approvals."
H. DeVelopment of the Property by DEVELOPER may be subject to
certain future discretionary approvals, which, if granted, shall automatically become part
of the Project Approvals as each such approval becomes effective.
I. CITY desires the timely, efficient, orderly and proper development of
the Project.
J. The City Council has found that, among other things, this
Development Agreement is consistent with its General Plan and the Eastern Dublin
Specific Plan and has been reviewed and evaluated in accordance with the
Development Agreement Statute and Chapter 8.56.
K. CITY and DEVELOPER have reached agreement and desire to
express herein a Development Agreement that will facilitate development of the Project
subject to conditions set forth herein.
L. Pursuant to the California Environmental Quality Act (CEQA) the City
Council adopted Resolution No. finding that the Project is within the scope of the
Program EIR prepared for the Dublin Transit Center Approvals, which was certified
pursuant to the California Environmental Quality Act (CEQA) (Resolution 215-02); and
M. On ., the City Council of the City of Dublin adopted
Ordinance No. approving this Development Agreement ("the Approving
Ordinance"). The Approving Ordinance will take.effect on ("the
Approval Date").
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained,
CITY and DEVELOPER agree as follows:
AGREEMENT
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
2. Interest of Developer.
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The DEVELOPER has a legal or equitable interest in the Property.
3. Relationship of CITY and DEVELOPER.
It is understood that this Agreement is a contract that has been
negotiated and voluntarily entered into by CITY and DEVELOPER and that the
DEVELOPER is not an agent of CITY. The CITY and DEVELOPER hereby renounce
the existence of any form of joint venture or partnership between them, and agree that
nothing contained herein or in any document.executed in connection herewith shall be
construed as making the CITY and DEVELOPER joint venturers or partners.
4. Effective Date and Term.
4.1 Effective Date. The effective date of this Agreement shall
be the date ("the Effective Date") upon which a grant deed conveying the Property from
COUNTY to DEVELOPER is recorded in the Official Records of Alameda County. This
Agreement shall automatically terminate without any further action of the Parties upon
the happening of either of the following:
(a) If a grant deed conveying the Property from COUNTY to
DEVELOPER is not recorded within 12 months of the Approval Date: or
(b) if the Purchase and Sale Agreement is terminated for
· any reason (and upon DEVELOPER's providing satisfactory of evidence of such :fact to
4.2 Term. The "Term" of this Development Agreement shall
commence on the Approval Date and extend five (5) years thereafter, unless said Term
is otherwise terminated or modified by circumstances set forth in this Agreement.
5. Use of the Property.
5.1 Right to Develop. DEVELOPER shall have the vested right
to develop the Project on the Property in accordance with the terms and conditions of
this Agreement, the Project Approvals (as and when issued), and any amendments to
any of them as shall, from time to time, be approved pursuant to this Agreement.
5.2 Permitted Uses. The permitted uses of the Property, the
density and intensity of use, the maximum height, bulk and size of proposed buildings,
provisions for reservation or dedication of land for public purposes and location and
maintenance of on-site and off-site improvements, location of public utilities (operated
by CITY) and other terms and conditions of development applicable to the Property,
shall be those set forth in this Agreement, the Project Approvals and any amendments
to this Agreement or the Project Approvals.
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5.3 Additional Conditions. Provisions forthe 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.)
See Exhibit B.
5.3.2 Mitigation Conditions. Additional or modified
conditions agreed upon by the parties in order to eliminate or mitigate
adverse environmental impacts of the Project or otherwise relating to
development of the Project.
See Exhibit B
5.3.3 Phasing, Timing. 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
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
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6. Applicable Rules, Regulations and Official Policies.
6.1 Rules re Permitted Uses. For the term of this Agreement,
the City's ordinances, resolutions, rules, regulations and official policies governing the
permitted uses of the Property, governing density and intensity of use of the Property
and the maximum height, bulk and size of proposed buildings shall be those in force
and effect on the effective date of this Agreement.
6.2 Rules re Design and Construction. Unless otherwise
expressly provided in Paragraph 5 of this Agreement or in Chapter 7.28 of the Dublin
Municipal Code, the ordinances, resolutions, rules, regulations and official policies
governing design, improvement and construction standards and specifications
applicable to Project construction (but not use) shall be those in force and effect at the
time the DEVELOPER submits its application for the relevant building, grading, or other
construction permits to CITY. In the event of a conflict between such ordinances,
resolutions, rules, regulations and official policies and the Project Approvals, the Project
Approvals shall prevail.
For construction of public infrastructure, the ordinances, resolutions, rules,
regulations and official policies governing design, improvement and construction
standards and specifications applicable to Project shall be those in force and effect at
the time of execution of an improvement agreement between CITY and DEVELOPER
pursuant to Chapter 9.16 of the Dublin Municipal Code.
6.3 Building Standards Codes Applicable. Unless expressly
provided in Paragraph 5 of this Agreement or in Chapter 7.28 of the Dublin Municipal
Code, the Project shall be constructed in accordance with the provisions of the Building,
Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of
Regulations, relating to Building Standards, in effect at the time the DEVELOPER
submits its application for the relevant building, grading, or other construction permits
for the Project to CITY.
7. Subsequently Enacted Rules and Regulations.
7.1 New Rules and Regulations. During the term of this
Agreement, the CITY may apply new or modified ordinances, resolutions, rules,
regulations and official policies of the CITY to the Property which were not in force and
effect on the Approval Date and which are not in conflict with those applicable to the
Property as set forth in this Agreement and the Project Approvals if: (a) the application
of such new or modified ordinances, resolutions, rules, regulations or official policies
would not prevent, impose a substantial financial burden on, or materially delay
development of the Property as otherwise con,templated by the Project Approvals and
(b) if such ordinances, resolutions, rules, regulations or official policies have general
(City-wide) applicability.
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7.2 Approval of Application. Nothing in this Agreement shall
prevent the CITY from denying or conditionally approving any subsequent land use
permit or authorization for the Project on the basis of such new or modified ordinances,
resolutions, rules, regulations and policies except that such subsequent actions shall be
subject to any conditions, terms, restrictions, and requirements expressly set forth
herein.
7.3 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, in the event an ordinance, resolution or other measure is
enacted, whether by action of CITY, by initiative, referendum, or otherwise, that
imposes a building moratorium which affects the Project on all or any part of the
Property, CITY agrees that such ordinance, resolution or other measure shall not apply
to the Project, the Property, this Agreement or the Project Approvals unless the building
moratorium is imposed as part of a declaration of a local emergency or state of
emergency as defined in Government Code §8558.
7.4 Rights Under Vesting Tentative Map. Notwithstanding
anything to the contrary contained herein, this Agreement shall not supercede any
rights DEVELOPER may obtain pursuant to CITY's approval of the vesting tentative
map for the Project.
8. Subsequently Enacted or Revised Fees, Assessments and Taxes.
8.1 Fees, Exactions, Dedications. CITY and DEVELOPER
agree that the fees payable and exactions required in connection with the development~
of t.he Project Approvals for purposes of mitigating environmental and other impacts of
the Project, providing infrastructure for the Project and complying with the Specific Plan
shall be those set forth in the Project Approvals and in this Agreement (including Exhibit
B). The CITY shall not impose or require payment of any other fees, dedications of
land, or construction of any public improvement or facilities, shall not increase or
accelerate existing fees, dedications of land or 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
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
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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
XlIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER
agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's
ballot as affirmatively voting in favor of such assessment, fee or charge.
9. Amendment or Cancellation.
· 9.1 Modification Because of Conflict with State or Federal Laws.
In the event that state or federal laws or regulations enacted after the effective date of
this Agreement prevent or preclude compliance with one or more provisions of this
Agreement or require changes in plans, maps or permits approved by the CITY, the
parties shall meet and confer in good faith in a reasonable attempt to modify this
Agreement to comply with such federal or state law or regulation. Any such
amendment or suspension of the Agreement shall be approved by the City Council in
accordance with Chapter 8.56.
- .. · -'~. ,~:~- .... ~." 9.2 Amendment by Mutual Consent. This Agreement may be
.,.~ : .. amended in writing from time to time by mutual consent of the parties hereto and in
accordance with the procedures of State law and Chapter 8.56.
9.3 Insubstantial Amendments. Notwithstanding the provisions
of the preceding section 9.2, any amendments to this Agreement which do not relate to
(a) the term of the Agreement as provided in section 4.2; (b) the permitted uses of the
Property as provided in section 5.2; (c) provisions for "significant" reservation or
dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or
requirements for subsequent discretionary actions; (e) the density or intensity of use of
the Project; (f) the maximum height or size of proposed buildings; or (g) monetary
contributions by DEVELOPER as provided in this Agreement, shall not, except to the
extent otherwise required by law, require notice or public hearing before either the
Planning Commission or the City Council before the parties may execute an
amendment hereto. CITY's Public Works Director shall determine whether a
reservation or dedication is "significant".
9.4 Cancellation by Mutual Consent. Except as otherwise
permitted herein, this Agreement may be canceled in whole or in part only by the
mutual consent of the parties or their successors in interest, in accordance with the
provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of
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this Agreement prior to the date of cancellation shall be retained by CITY.
10. Term of Proiect Approvals.
The term of any Project Approval Shall be extended only if so provided
in Exhibit B.
11. Annual Review.
11.1 Review Date. The annual review date for this Agreement
shall be between July 15 and August 15, 2005 and each July 15 to August 15
thereafter.
11.2 Initiation of Review. The CITY's Community Development
Director shall initiate the annual review, as required under Section 8.56.140 of Chapter
8.56, by giving to DEVELOPER thirty (30) days' written notice that the CITY intends to
undertake such review. DEVELOPER shall provide evidence to the Community
Development Director prior to the hearing on the annual review, as and when
reasonably determined necessary by the Community Development Director, to
demonstrate good faith compliance with the provisions of the Development Agreement.
The burden of proof by substantial evidence of compliance is upon the DEVELOPER.
11.3 Staff Reports. To the extent practical, CITY shall deposit in
the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits
concerning contract performance at least five (5) days prior to any annual review.
11.4 Costs. Costs reasonably incurred by CITY in connection
with the annual review shall be paid by DEVELOPER in accordance with the City's
schedule of fees in effect at the time of review.
12. Default.
12.1 Other Remedies Available. Upon the occurrence of an
event of default, the parties may pursue all other remedies at law or in equity which are
not otherwise provided for in this Agreement or in CITY's regulations governing
development agreements, expressly including the remedy of specific performance of
this Agreement.
12.2 Notice and Cure. Upon the occurrence of an event of
default by any party, the nondefaulting party shall serve written notice of such default
upon the defaulting party. If the default is not cured by the defaulting party within thirty
(30) days after service of such notice of default, the nondefaulting party may then
commence any legal or equitable action to enforce its rights under this Agreement;
provided, however, that if the default cannot be cured within such thirty (30) day period,
the nondefaulting party shall refrain from any such legal or equitable action so long as
the defaulting party begins to cure such default within such thirty (30) day period and
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diligently pursues such cure to completion. Failure to give notice shall not constitute a
waiver of any default.
12.3 No Damages Against CITY. In no event shall damages be
awarded against CITY upon an event of default or upon termination of this Agreement.
13. Estoppel Certificate.
Any party may, at any time, and from time to time, request written
notice from the other party requesting Such party to certify in writing that, (a) this
Agreement is in full force and effect and a binding obligation of the parties, (b) this
Agreement has not been amended or modified either orally or in writing, or if so
amended, identifying the amendments, and (c) to the knowledge of the certifying party
the requesting party is not in default in the performance of its obligations under this
Agreement, or if in default, to describe therein the nature and amount of any such
defaults. A party receiving a request hereunder shall execute and return such
certificate within thirty (30) days following the receipt thereof, or such longer period as
may reasonably be agreed to by the parties. City Manager of CITY shall be authorized
to execute any certificate requested by DEVELOPER. Should the party receiving the
request not execute and return such certificate within the applicable period, this shall
not be deemed to be a default, provided that such party shall be deemed to have
certified that the statements in clauses (a) through (c) of this section are true, and any
party may rely on such deemed certification.
.- ' 14. Mortgagee Protection; Certain Rights of Cure.
14.1 Mortgagee Protection. This Agreement shall be superior
and senior to any lien placed upon the Property, or any portion thereof after the date of
recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render
invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but
all the terms and conditions contained in this Agreement shall be binding upon and
effective against any person or entity, including any deed of trust beneficiary or
mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by
foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise.
14.2 Mortgagee Not Obli,qated. Notwithstanding the provisions of
Section 14.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or
complete the construction of improvements, or to guarantee such construction of
improvements, or to guarantee such construction or completion, or to pay, perform or
provide any fee, dedication, improvements or other exaction or imposition; provided,
however, that a Mortgagee shall not be entitled to devote the Property to any uses or to
construct any improvements thereon other than those uses or improvements provided
for or authorized by the Project Approvals or by this Agreement.
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14.3 Notice of Default to Mortgagee and Extension of Riqht to
Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of
default given DEVELOPER hereunder and specifying the address for service thereof,
then CITY shall deliver to such Mortgagee, concurrently with service thereon to
DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that
DEVELOPER has committed an event of default. Each Mortgagee shall have the 'right
during the same period available to DEVELOPER to cure or remedy, or to commence
to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY,
through its City Manager, may extend the thirty-day cure period provided in section 12.2
for not more than an additional sixty (60) days upon .request of DEVELOPER or a
Mortgagee.
15. Severability.
The unenforceability, invalidity or illegality of any provisions, covenant,
condition or term of this Agreement shall not render the other provisions unenforceable,
invalid or illegal.
16. Attorneys' Fees and Costs.
If CITY or DEVELOPER initiates any action at law or in equity to
enforce or interpret the terms and conditions of this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees and costs in addition to 'any other
relief to which it may otherwise be entitled. If any person or entity not a party to this
Agreement initiates an action at law or in equity to challenge the validity of any provision
of this Agreement or the Project Approvals, the parties shall cooperate and appear in
defending such action. DEVELOPER shall bear its own costs of defense as a real
party in interest in any such action, and DEVELOPER shall reimburse CITY for all
reasonable court costs and attorneys' fees expended by CITY in defense of any such
action or other proceeding.
17. Transfers and Assiqnments.
17.1 DEVELOPER's Ri.qht to Assiqn. All of DEVELOPER'S
rights, interests and obligations hereunder may be transferred, sold or assigned in
conjunction with the transfer, sale, or assignment of the Property subject hereto, or any
portion tl'iereof, at any time during the term of this Agreement, provided that no transfer,
sale or assignment of DEVELOPER's rights, interests and obligations hereunder shall
occur without the prior written notice to CITY and approval by the City Manager, which
approval shall not be unreasonably withheld or delayed. The City Manager shall
consider and decide the matter within 10 working days after DEVELOPER's notice
provided and receipt by City Manager of all necessary documents, certifications and
other information required by City Manager to decide the matter. In considering the
request, the City Manager shall base the decision upon the proposed assignee's
reputation, experience, financial resources and access to credit and capability to
successfully carry out the development of the Property to completion. The City
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Manager's approval shall be for the purposes of: a) providing notice to CITY; b)
assuring that all obligations of DEVELOPER are allocated as between DEVELOPER
and the proposed purchaser, transferee or assignee; and c) assuring CITY that the
proposed purchaser, transferee or assignee is capable of performing the
DEVELOPER's obligations hereunder not withheld by DEVELOPER pursuant to section
17.3. Notwithstanding the foregoing, provided notice is given as specified in Section
23, no CITY approval shall be required for any transfer, sale, or assignment of this
Agreement to: 1) any entity which is an affiliate or subsidiary of DEVELOPER; 2) any
Mortgagee; or 3) any transferee of a Mortgagee.
17.2 Release Upon TranSfer. Upon the transfer, sale, or
assignment of all of DEVELOPER's rights, interests and obligations hereunder pursuant
to section 17.1 of this Agreement, DEVELOPER shall be released from the obligations
under this Agreement, with respect to the Property transferred, sold, or assigned,
arising subsequent to th.e date of City Manager approval of such transfer, sale, or
assignment; provided, however, that if any transferee, purchaser, or assignee approved
by the City Manager expressly assumes all of the rights, interests and obligations of
DEVELOPER under this Agreement, DEVELOPER shall be released with respect to all
such rights, interests and assumed obligations. In any event, the transferee, purchaser,
or assignee shall be subject to all the provisions hereof and shall provide all necessary
documents, certifications and other necessary information prior to City Manager
approval.
17.3 Developer's Riqht to Retain Specified Rights or Obligations.
':. Notwithstanding sections 17.1 and 17.2 and section 18, DEVELOPER may withhold
from a sale, transfer or assignment of this Agreement certain rights, interests and/or
obligations which DEVELOPER Shall retain, provided that DEVELOPER specifies such
rights, interests and/or obligations in a written document to be appended to this
Agreement and recorded with the Alameda County Recorder prior to the sale, transfer
or assignment of the Property. DEVELOPER's purchaser, transferee or assignee shall
then have no interest or obligations for such rights, interests and obligations and this
Agreement shall remain applicable to DEVELOPER with respect to such retained rights,
interests and/or obligations.
18. Agreement Runs with the Land.
All of the provisions, rights, terms, covenants, and obligations
contained in this Agreement shall be binding upon the parties and their respective heirs,
successors and assignees, representatives, lessees, and all other persons acquiring
the Property, or any portion thereof, or any interest therein, whether by operation of law
or in any manner whatsoever. All of the provisions of this Agreement shall be
enforceable as equitable servitude and shall constitute covenants running with the land
pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code
of the State of California. Each covenant to do, or refrain from doing, some act on the
Property hereunder, or with respect to any owned property, (a) is for the benefit of such
properties and is a burden upon such properties, (b) runs with such properties, and (c)'
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is binding upon each party and each successive owner during its ownership of such
properties or any portion thereof, and shall be a benefit to and a burden upon each
party and its propertY hereunder and each other person succeeding to an interest in
such properties.
19. Bankruptcy.
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
20. Indemnification.
DEVELOPER agrees to indemnify, defend and hold harmless CITY,
and its elected and appointed councils, boards, commissions, officers, agents,
employees, and representatives from any and all claims, costs (including legal fees and
costs) and liability for any personal injury or property damage which may arise directly
or indirectly as a result of any actions or inactions by the DEVELOPER, or any actions
or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in
connection with the construction, improvement, operation, or maintenance of the
Project, provided that DEVELOPER shall have no indemnification obligation with
respect to negligence or wrongful conduct of CITY, its contractors, subcontractors,
agents or employees or with respect to the maintenance, use or condition of any
improvement after the time it has been dedicated to and accepted by the CITY or
another public entity (except as provided in an improvement agreement or maintenance
bond). If CITY is named as a party to any legal action, CITY will cooperate with
DEVELOPER, will appear in such action and will not unreasonably withhold approval of
a settlement otherwise acceptable to DEVELOPER. If CITY is named as a party to any
legal action, CITY will cooperate with DEVELOPER, will appear in such action and will
not unreasonably withhold approval of a settlement otherwise acceptable to
DEVELOPER.
21. Insurance.
21.1 Public Liability and Property Damage 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.
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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
100 Civic Plaza
Dublin, CA 94568
Notice required to be given to DEVELOPER shall be addressed as
follows:
EAH, Inc.
A party may change address by giving notice in writing to the other party and thereafter
all notices shall be addressed and transmitted to the new address. Notices shall be
deemed given and received upon personal delivery, or if mailed, upon the expiration of
48 hours after being deposited in the United States Mail. Notices may also be given by
overnight courier which shall be deemed given the following day or by facsimile
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683717.3
transmission which shall be deemed given upon verification of receipt.
24. Recitals.
The foregoing Recitals are true and correct and are made a part
hereof.
25. Agreement is Entire Understanding.
This Agreement constitutes the entire understanding and agreement
of the parties.
26. Exhibits.
The following documents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
Exhibit A Legal Description of Property
Exhibit B Additional Conditions
27. Counterparts.
This Agreement is executed in three (3) duplicate originals, each of
which is deemed to be an original.
28. Recordation
CITY shall record a copy of this Agreement within ten days of
DEVELOPER providing CITY notice that a grant deed conveying the Property from
COUNTY to DEVELOPER is recorded in the Official Records of Alameda County.
[EXECUTION PAGE FOLLOWS]
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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:
Mayor
Attest:
By: Date:
City Clerk
Approved as to Form:
City Attorney
EAH, INC., a California Corporation
Its:
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Exhibit A
Property Description
683717.3
Exhibit B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3
above.
Subparagraph 5.3.1 -- Subsequent Discretionary Approvals
None
Subparagraph 5.3.2 -- Miti.qation Conditions
Subsection a. Infrastructure Sequencin.q Proqram
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of dedication)
identified in Resolution No. ~ approving Site Development Review ("the SDR
Resolution") shall be completed by DEVELOPER to the satisfaction and requirements
of the Public Works Director at the times and in the manner specified in the SDR
Resolution unless otherwise provided below.
--Condition 85 [Traffic Mitigation] .
Condition 85 reads as follows:
Traffic Mitigation. The City is presently working on an update to the
Eastern Dublin Traffic Impact Fee ("the TIF") that would include the
Transit Center Property within the TIF area ("the TIF Update"). If the
Transit Center area is included in the TIF area prior to issuance of
building permits, the Developer shall pay the adopted TIF. If the TIF
Update is not effective at the time of building permit issuance, the
Developer shall pay a cash deposit equal to the City Engineer's estimate
of amount of the project's TIF were the TIF Update in effect ("the
Deposit"). If the developer makes the Deposit, immediately upon the TIF
Update becoming effective, Developer shall pay the actual TIF, either
from the deposit or with TIF credits, and, upon such payment, City shall
return the funds remaining from the Deposit. If the Deposit and
Developer's credits are inadequate to satisfy the TIF obligation, the
Developer shall make a cash payment to the City equal to the deficit. If,
within 2 years of building permit issuance, the TIF Update has not
become effective, Developer shall instead pay to City an amount equal
to Developer's fair share, based on average daily trips, and as
determined by the City Engineer, of the costs for the following
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687317.3
improvements: 1) Dougherty Road improvements at the Dublin
Boulevard intersection and the 1-580 ramps; 2) Scarlett Drive extension;
and 3) Hacienda Drive / 1-580 improvements, which improvements are
more fully described in Conditions 26, 27 & 29 of Approval for Parcel
Map 7892 (Planning Commission Resolution No. 02-40). Upon applying
the Deposit towards this obligation, the City shall immediately refund any
surplus funds to the Developer. If the Deposit is inadequate to satisfy
this obligation, the Developer shall make a cash payment to the City
equal to the deficit.
Notwithstanding the provisions of Section 4 of this Agreement,
Condition 85 shall survive termination of this Agreement.
(ii)Sewer
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with DSRSD
requirements.
(iii) Water
An all-weather roadway and an approved hydrant and water supply
system shall be available and in service at the site in accordance with the SDR
conditions of approval to the satisfaction and requirements of the CITY's fire
department.
All potable water system components to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with DSRSD
requirements.
Recycled water lines shall be installed in accordance with the SDR
conditions of approval.
(iv) Storm Drainage
Prior to issuance of the first Certificate of Occupancy for any building
which is part of the Project, the storm drainage systems off site, as well as on site
drainage syStems to the areas to be occupied, shall be improved to the satisfaction and
requirements of the Dublin Public Works Department applying CITY's and Zone 7
(Alameda County Flood Control and Water Conservation District, Zone 7) standards
and policies which are applicable. Pursuant to Alameda County's National Pollution
Discharges Elimination Permit (NPDES) No. CAS0029831 with the California Regional
Water Quality Control Board, all grading, construction, and development activities within
the City of Dublin must comply with the provisions of the Clean Water Act. Proper
erosion control measures must be installed at development sites within the City during
construction, and all activities shall adhere to Best Management Practices.
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(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 to defer completion
of discrete portions of any of the public improvements required for the Project until after
issuance of Certificate of Occupancy for the first building for the Project if the Public
Works Director determines that to do so would not jeopardize the public health, safety
or welfare.
Subparagraph 5.3.3 -- Phasinc~, Timinq
This Agreement contains no requirements that DEVELOPER must initiate or
complete development of the Project within any period of time set by CITY. It is the
intention of this provision that DEVELOPER be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
Subparagraph 5.3.4 -- Financing Plan
DEVELOPER will install all improvements necessary for the Project at its own
cost (subject to credits for any improvements that qualify for credits as provided in
Subparagraph 5.3.6 below), unless otherwise required by this Agreement.
Other infrastructure necessary to provide sewer, potable water, and recycled
water services to the Project will be made available by the Dublin San Ramon Services
District. The present owner of the Property, the Alameda County Surplus Property
· Authority, has entered into an "Area Wide Facilities Agreement" with the Dublin San
Ramon Services District to pay for the cost of extending such services to the Project.
Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above.
Subparagraph 5.3.5 -- Fees, Dedications
Subsection a. Traffic Impact Fees.
If the Transit Center Property is added to the area covered by the Eastern
Dublin Traffic Impact Fee at the time of issuance of building permits, Developer shall
pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 225-99,
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including any future amendments to such fee. Developer will pay such fees no later
than the time of issuance of building permits and in the amount of the impact fee in
effect at time of building permit issuance.
If the Transit Center Property is added to the area covered by the Eastern
Dublin Traffic Impact Fee at the time of issuance of building permits, Developer further
agrees that it will pay a minimum of five percent (5%) of the "Section l/Category 1"
portion of the TIF in cash.
If the Transit Center Property is added to the area covered by the Eastern
Dublin Traffic Impact Fee at the time of issuance of building permits, Developer also
agrees that it will pay at least 12.4% of the "Section 2/Category 2" portion of the TIF in
cash. If City amends its TIF fee and as a result the City's outstanding balance due on
loans is more or less than 12.4% of total Section 2/Category 2 improvements, the
Developer shall pay such increased or reduced percentage of the "Section 2/Category
2" portion of the TIF in cash.
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway
Interchanqes.
DEVELOPER shall pay a Eastern Dublin 1-580 Interchange Fee in the
amounts and at the times set forth in City of Dublin Resolution No. 155-98, or in the
amounts and at the times set forth in any resolution revising the amount of the Eastern
Dublin 1-580 Interchange Fee.
Subsection c. Public Facilities Fees.
DEVELOPER shall pay a Public Facilities Fee established by City of
Dublin Resolution No. 214-02, including any future amendments to such fee.
DEVELOPER will pay such fees no later than the time of issuance of building permits
and in the then-current amount of the fee.
Subsection d. Noise Mitigation Fee.
DEVELOPER shall pay a Noise Mitigation Fee established by City of
Dublin Resolution No. 33-96, including any future amendments to such fee.
DEVELOPER will pay such fees no later than the time of issuance of building permits
and in the amount of the fee in effect at time of building permit issuance.
Subsection e. School Impact Fees.
School impact fees shall be paid by DEVELOPER in accordance with
Government Code section 53080 and the existing agreement between DEVELOPER's
predecessor in interest and the Dublin Unified School District.
Subsection f. Fire Impact Fees.
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DEVELOPER shall pay a fire facilities fee established by City of Dublin
Resolution No. 12-03 including any future amendments to such fee. DEVELOPER will
pay such fees no later than the time of issuance of building permits and in the amount
of the fee in effect at time of building permit issuance.
Subsection fl. Tri-Valley Transportation Development Fee.
DEVELOPER shall pay the Tri-Valley Transportation Development Fee in
the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any
subsequent resolution which revises such fee. DEVELOPER will pay such fees no later
than the time of issuance of building permits and in the amount of the impact fee in
effect at time of building permit issuance.
Subparagraph 5.3.6 -- Credit
Subsection a. Traffic Impact Fee Improvements Credit
CITY shall provide a credit to DEVELOPER for those improvements
described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such
improvements are constructed by the DEVELOPER in their ultimate location pursuant
this Agreement. All aspects of credits shall be governed by CITY's Administrative
Guidelines regarding credits (Resolution No. 23-99).
Subsection b. Traffic Impact Fee Right-of-Way Dedications Credit
CITY shall provide a credit to DEVELOPER for any TIF area right-of-way
dedicated by DEVELOPER to CITY which is required for improvements which are
described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All
aspects of credits shall be governed by CITY's Administrative Guidelines regarding
credits (Resolution No. 23-99).
Subparagraph 5.3.7 -- Miscellaneous
Subsection a. Maintenance of Street Li_clhtin_q
COUNTY has asked CITY to form an assessment district pursuant to the
Lighting and Landscaping Act of 1972 to pay for street lighting in order to satisfy the
obligation of future developers to pay for street lighting in the Dublin Transit Center
Property. In addition, COUNTY agreed in the Master Development Agreement to
record a Declaration of Covenants, Conditions and Restrictions or a similar document
("CC&Rs") that covers the Dublin Transit Center Property, whereby COUNTY, on behalf
of itself and its successors (including DEVELOPER), has covenanted to pay a "Deed
Assessment" to CITY for maintenance of street lighting and street light maintenance in
the event that the assessment for street light costs and maintenance is not levied
against the Dublin Transit Center Property, or any portion of it, in any year.
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DEVELOPER acknowledges that the City intends to form (or annex the Property to) a
landscaping and lighting district and impose an assessment on the Property for such
purposes. DEVELOPER hereby waives its right to protest the formation of or the
Property's annexation to the district and the imposition of the annual assessment. In
addition, DEVELOPER hereby covenants to pay a Deed Assessment, pursuant to the
terms of CC&Rs.
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