HomeMy WebLinkAboutItem 6.4 Emerald Pointe DA (2) •
CITY CLERK
File #
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: September 1, 1998
SUBJECT: PUBLIC HEARING: Emerald Pointe Development Agreement(PA 98-025)
(Report prepared by: Jeri Ram, Senior Planner) /
EXHIBIT ATTACHED: 1) Ordinance Approving Development Agreement
2) Development Agreement
RECOMMENDATION: 1) Open continued public hearing
2) Receive staff presentation and public testimony
3) Close public hearing
4) Deliberate
5) Waive second reading and adopt Ordinance approving Development
Agreement
—INANCIAL STATEMENT: No financial impact anticipated.
BACKGROUND:
The Planning Commission held a Public Hearing on the proposed Development Agreement on August 11, 1998,
and unanimously recommended approval of the Agreement to the City Council. The City Council held a public
hearing on August 18, 1998, on the Development Agreement and Interim Agreement. At the meeting the City
Council approved the Interim Agreement and held the first reading of the Ordinance approving the Development
Agreement. The public hearing was continued to September 1, 1998,for the second reading of the Development
Agreement.
ANALYSIS:
Attached to this Staff Report is a Development Agreement(Exhibit 2)between the City of Dublin and the
Surplus Property Authority of the County of Alameda(Alameda County). The City Attorney drafted the
proposed Development Agreement with input from City staff, Alameda County Surplus Property Staff and
their attorneys. The Development Agreement sets forth the agreements between the parties in relation to many
items,including,but not limited to, infrastructure construction and phasing, and the payment of various required
impact fees. The Development Agreement becomes effective for a term of five years from the date it is signed
COPIES TO: Alameda County Surplus Property Authority
Opus West
PA File
ITEM NO. .4
by the City. The Development Agreement runs with the land and the rights and obligations thereunder can
assigned. The main points of the Development Agreement can be found in Exhibit B of the Development
Agreement and are highlighted below:
The City requires that Developers,in Eastern Dublin pay traffic impact fees for certain City wide improvements
to the circulation system. Additionally, fees are charged for certain circulation improvements specific to
Eastern Dublin. Developers are also required to make certain improvements to the circulation system that are
required as a result of their project. The City determines the direct project impact through a traffic study that is
conducted. Based on the traffic study conducted for the Emerald Pointe Project, it was determined that certain
improvements were required to the circulation system as a result of the projected future traffic from the project.
Some of these improvements will be required immediately as a result of the construction of the Project. Other
improvements that were identified could be phased and put in as required by traffic warrants or when other
projects come on line. The Agreement sets forth the City Alameda County, and Opus West's understanding in
relation to the phasing of infrastructure construction.
Conclusion:
The Development Agreement furthers the goals of the General Plan and Eastern Dublin Specific Plan by
requiring new development to fund the costs of its infrastructure and service. The City of Dublin, Opus West
and Alameda County have agreed on the sequencing of infrastructure construction, the payment of impact fees
as well as other items required by the Eastern Dublin Specific Plan.
RECOMMENDATION:
Staff recommends that the City Council reopen the continued public hearing, deliberate, waive the second
reading and adopt the Ordinance approving the Development Agreement (Exhibit 1).
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ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DUBLIN
APPROVING THE DEVELOPMENT AGREEMENT
FOR PA 98-025,THE EMERALD POINTE PROJECT
THE CITY COUNCIL OF.THE CITY OF DUBLIN DOES HEREBY
ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The proposed Emerald Pointe Project(PA98-025) is located within the
boundaries of the Eastern Dublin Specific Plan ("Specific Plan") in an area which is
designated on the General Plan Land Use Element Map and Eastern Dublin Specific Plan
Land Use Map as Industrial/Campus Office.
B. This project is within the scope of the Eastern Dublin Specific Plan and
General Plan Amendment, for which a Program EIR was certified(SCH 91103064). A
Mitigated Negative Declaration(SCH 86082092)has been approved for the Santa Rita
Specific Plan Amendment of which this project is a part. That Mitigated Negative
Declaration together with the Program EIR adequately describes the total project for the
purposes of CEQA:The analysis indicated that no new effects could occur and no new
mitigation measures would be required for the Emerald Pointe Project that were not
addressed in the FEIR or Mitigated Negative Declaration. Further,that analysis found
that the project is in conformity with the Eastern Dublin Specific Plan.
C. Implementing actions of the Specific Plan, including.Chapter 11 thereof,
require that all projects within the Specific Plan area enter into development agreements
with the City.
D. The Surplus Property Authority of the County of Alameda and Opus West
have filed an application requesting approval.of a development agreement for the
Emerald Pointe Project.
E. A Development Agreement between the City of Dublin,the Surplus
Property Authority of the County of Alameda, and Opus West("Development
Agreement")has been presented to the City Council, a copy of which is attached to the
Staff Report as Exhibit 2.
F. A public hearing on the proposed Development Agreement was held
before the Planning Commission on August 11, 1998, for which public notice was given
as provided by law.
G. The Planning Commission has made its recommendation to the City
Council for approval of the Development Agreement,which recommendation includes
EXHIBIT 1
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145
•
the Planning Commission's determinations with respect to the matters set forth in Section
8.12.080 of the Dublin Municipal Code.
H. A public hearing on the proposed Development Agreement was held
before the City Council on August 18, 1998, and September 1, 1998, for which public
notice was given as provided by law.
J. The City Council has considered the recommendation of the Planning
Commission(Planning Commission Resolution 98-40 ), including the Planning
Commission's reasons for its recommendation, the Agenda Statement, all comments
received in writing and all testimony received at the public.hearing.
Section 2. FINDINGS AND DETERMINATIONS
Therefore, on the basis of(a)the foregoing Recitals which are incorporated
herein, (b) the City of Dublin's General Plan, (c)the Eastern Dublin General Plan
Amendment, (d)the Specific Plan, (e)the EIR, (f)the Agenda Statement, and on the
basis of the specific conclusions set forth below,the City Council finds and determines
that:
1. The Development Agreement is consistent with the objectives,policies,
general land uses and programs specified and contained in the City's General Plan, as -_
amended by the Eastern Dublin General Plan Amendment, and in the Specific Plan in that
(a)the General Plan and Specific Plan land use designation for the site is
Industrial/Campus Office (I/CO) and the proposed project is an office project consistent
with that land use, (b)the project is consistent with the fiscal policies of the General Plan
and Specific Plan with respect to provision of infrastructure and public services, and(c)
the Development Agreement includes provisions relating to financing, construction and
maintenance of public facilities, and similar provisions set forth in the Specific Plan.
. .2. The Development Agreement is compatible with the uses authorized in,
and the regulations prescribed for,the land use district in which the real property is
located in that the project approvals include a Planned Development Rezoning adopted
specifically for the Emerald Pointe Project.
3. The Development Agreement is in conformity with public convenience,
general welfare and good land use policies in that the Emerald Pointe Project will
implement land use guidelines set forth in the Specific Plan and the General Plan which
have planned for office uses at this location.
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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 2 to the
Staff Report) and authorizes the Mayor to sign it.
Section 4. RECORDATION
Within ten(10) days after the Development Agreement is executed by the Mayor,
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.
PASSED AND ADOPTED BY the City Council of the City of Dublin, on this
1st day of September, 1998,by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
MAYOR
ATTEST:
CITY CLERK
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•
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
OPUS WEST CORPORATION
AND
THE SURPLUS PROPERTY AUTHORITY
OF THE COUNTY OF ALAMEDA
FOR THE EMERALD POINTE BUSINESS PARK
EXHIBJ1' 2.
TABLE OF CONTENTS
1. Description of Property. 3
?. Interest of Developer, 3
3. • Relationship of City and Developer 3
4. Effective Date and Term. 3•4.1 Effective Date. 3
4.2 Term. 3 '
5. Use of the Property. 3
5..1 Right to Develop 3
5.2 Permitted Uses 4
5.3 Additional Conditions 4
6. Applicable Rules, Regulations and Official Policies 5
6.1 Rules re Permitted Uses 5
6.2 Rules re Design and Construction 5
6.3 Uniform Codes Applicable 5
7. Subsequently Enacted Rules and Regulations 5
7.1 New Rules and Regulations 5
7.2 Approval of Application 6
7.3 Moratorium Not Applicable 6
8. - Subsequently Enacted or Revised Fees, Assessments and Taxes 6
8.1 Fees, Exactions, Dedications 6
8.2 Revised Application Fees 7
8.3 New Taxes 7
8.4 Assessments 7
8.5 Vote on Future Assessments and Fees 7
9. Amendment or Cancellation 7
9.1 Modification Because of Conflict with State or Federal Laws 7
9.2 Amendment by Mutual Consent 7
_ Dublin/Alameda Development Agreement Table of Contents- Page i of iii
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20. Indemnification 13
21. Insurance 14
21.1 Public Liability and Property Damage Insurance 14
21.2 Workers Compensation Insurance 14
21.3 Evidence of Insurance 15
22. Sewer and Water 15
23. Notices 15
24. Recitals, 16
25. Agreement is Entire Understanding 16
26. Exhibits 16
27. Counterparts 17
28. Recordation 17
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Dublin/Alameda Development Agreement . Table of Contents - Page iii of iii
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THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this 5th day of May, 1998, by and between the CITY OF DUBLIN, a
Municipal Corporation (hereafter "CITY"), the Surplus Property Authority of
Alameda County, a public corporation (hereafter "COUNTY"), and Opus West
Corporation, a Minnesota Corporation (hereinafter "DEVELOPER") pursuant to the
authority of §§ 65864 et seq. of the California Government Code and Dublin
Municipal Code, Chapter 8.56. •
RECITALS
•
A. California Government Code §§ 65864 et seq. and Chapter 8.56 of
the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter
into an Agreement for the development of real property with any person having a
legal or equitable interest in such property in order to establish certain development
rights in such property; and
B. The City Council adopted the Eastern Dublin Specific Plan by
Resolution No. 53-93 which Plan is applicable to the Property; and
C. The Eastern Dublin Specific Plan requires DEVELOPER to enter
into a development agreement; and
D. DEVELOPER desires to develop and holds legal interest in certain
real property consisting of approximately 19.6 acres of land, located in the City of
Dublin, County of Alameda, State of California, which is more particularly described
in Exhibit A attached hereto and incorporated herein by this reference, and which
real property is hereafter called the "Property"; and
E. DEVELOPER acquired its interest in the Property from COUNTY
pursuant to a purchase and sale agreement which allocates rights and obligations as
between COUNTY and DEVELOPER. COUNTY is a party to this Agreement
because COUNTY will dedicate certain land and receive certain credits;
F. DEVELOPER proposes the development of the Property for
office uses (the "Project"); and
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 a PD District rezoning (Ordinance No. 5-98), general provisions
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for the PD District rezoning including the Land Use and Development Plan (Res. No.
30-98), and tentative parcel map (Community Development Director Resolution No.
2-98), (collectively, together with any approvals or permits now or hereafter issued
with respect to the Project, the "Project Approvals"); and
H. Development of the Property by DEVELOPER may be subject to
certain future discretionary approvals including site development review, which, if
granted, shall automatically become part of the Project Approvals as each such
approval becomes effective; and
I. CITY desires the timely, efficient, orderly and proper development
of said Project; and
J. The City Council has found that, among other things, this
Development Agreement is consistent with its General Plan and the Eastern Dublin
Specific Plan and has been reviewed.and evaluated in accordance with Chapter 8.56;
and
K. CITY, COUNTY and DEVELOPER have reached agreement and
desire to express herein a Development Agreement that will facilitate development of
the Project subject to conditions set forth herein; and
L. Pursuant to the California Environmental Quality.Act (CEQA) the
City has found, pursuant to CEQA Guidelines section 15182, that the Project is
within the scope of the Final Environmental Impact Report for the Eastern Dublin
General Plan Amendment and Specific Plan which was certified by the Council by
Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994
(the "EIR") and the Mitigated Negative Declaration-for the Santa Rita Business-
Center Project and found that the EIR and Mitigated Negative Declaration were
adequate for this Agreement; and
M. On , 1998, the City Council of the City of Dublin
adopted Ordinance No. approving this Development Agreement. The
ordinance took effect on , 1998.
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained,
CITY, COUNTY and DEVELOPER agree as follows:
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AGREEMENT
I. Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
2. Interest of Developer. '
The DEVELOPER has a legal or equitable interest in the Property in
that it owns the Property in fee simple.
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, COUNTY and DEVELOPER and
that neither the DEVELOPER nor COUNTY is an agent of CITY. The CITY,
DEVELOPER and COUNTY 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, DEVELOPER and COUNTY joint venturers or partners..
4. Effective Date and Term.
4.1 Effective Date. The effective date of this Agreement shall
be the date upon which this Agreement is signed by CITY.
4.2 Term. The term of this Development Agreement shall
commence on the Effective Date and extend five (5) years thereafter, unless said term
is otherwise terminated or modified by circumstances set forth in this Agreement.
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.
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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.
5.3 Additional Conditions. Provisions for the following
("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated
herein by reference.
5.3.1 Subsequent Discretionary Approvals.
Conditions, terms, restrictions, and requirements for subsequent
discretionary actions. (These conditions do not affect
DEVELOPER's responsibility to obtain all other land use approvals
required by the ordinances of the City of Dublin.)
Not Applicable
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 Financing Plan. Financial plans which identify
necessary capital improvements such as streets and utilities and
sources of funding.
See Exhibit B
5.3.5 Fees, Dedications. Terms relating to payment of
fees or dedication of property.
See Exhibit B
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5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.3.7 Miscellaneous. Miscellaneous terms.
See Exhibit B
6.. Applicable Rules, 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, the ordinances, resolutions,
rules, regulations and official policies governing design, improvement and
construction standards and specifications applicable to the Project shall be those in
force and effect at the time of the applicable discretionary Project Approval.
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.
6.3 Uniform Codes Applicable. Unless expressly provided in
Paragraph 5 of this Agreement, the Project shall be constructed in accordance with
the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire
Codes and Title 24 of the California Code of Regulations, relating to Building
Standards, in effect at the time of approval of the appropriate building, grading, or
other construction permits for the Project.
7. Subsequently Enacted Rules and 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 effective date of this Agreement and which are not in conflict with
those applicable to the Property as set forth in this Agreement if: (a) the application
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of such new or modified ordinances, resolutions, rules, regulations or official policies
would not prevent, impose a substantial financial burden on, or materially delay
development of the Property as contemplated by this Agreement and the Project
Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies
have general applicability.
7.2 Anproval 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 riew or modified
ordinances, resolutions, rules, regulations and policies except that such subsequent
actions shall be subject to any conditions, terms, restrictions, and requirements
expressly set forth herein.
7.3 Moratorium Not Applicable. Notwithstanding anything to
the contrary contained herein, in the event an ordinance, resolution or other measure
is enacted, whether by action.of CITY, by initiative, referendum, or otherwise, that
imposes a building moratorium which affects the Project on all or any part of the
Property, CITY agrees that such ordinance, resolution or other measure shall not
apply to the Project, the Property, this Agreement or the Project Approvals unless the
building moratorium is imposed as part of a declaration of a local emergency or state
of emergency as defined in Government Code § 8558.
8. Subsequently-Enacted or Revised Fees, Assessments and Taxes.
8.1 Fees, Exactions, Dedications. CITY and DEVELOPER
agree that the fees payable and exactions required in connection with the
development of the Project for purposes of mitigating environmental and other
impacts of the Project, providing infrastructure for the Project and complying with
the Specific Plan shall be those set forth in Ordinance No. 5-98, Resolution No. 30-
98, and the tentative parcel map (Community Development Director Resolution No.
2-98) 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 eadsting fees,dedications of
land or construction of public improvements, in connection with any subsequent
discretionary approval for the Property, except as set forth in Ordinance No. 5-98,
Resolution No. 30-98, and the tentative parcel map and this Agreement (including
Exhibit B, subparagraph 5.3.5).
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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 accordance with this Agreement. By so agreeing. DEVELOPER does not waive its
rights to challenge the legality of any such taxes.
8.4 Assessments. Nothing herein shall be construed to relieve
the Property from assessments levied against it by CITY pursuant to any statutory
procedure for the assessment of property to pay for infrastructure and/or services
which benefit the Property..
8.5 Vote on Future Assessments and Fees. In the event that
any assessment, fee or charge which is applicable to the Property is subject to Article
XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER __
agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's
ballot as affirmatively voting in favor of such assessment, fee or charge.
9. Amendment or Cancellation. •
• 9.1 Modification Because of Conflict with State or Federal
Laws. In the event that state or federal laws or regulations enacted after the effective
date of this Agreement prevent or preclude compliance with one or more provisions of
this Agreement or require changes in plans, maps or permits approved by the CITY,
the parties shall meet and confer in good faith in a reasonable attempt to modify this
Agreement to comply with such federal or state law or regulation. Any such
amendment or suspension of the Agreement shall be approved by the City Council in
accordance with Chapter 8.56.
9.2 Amendment by Mutual Consent. This Agreement may be
amended in writing from time to time by mutual consent of the parties hereto and in
accordance with the procedures of State law and Chapter 8.56.
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9.3 Insubstantial Amendments. Notwithstanding the
provisions of the preceding paragraph 9.2, any amendments to this Agreement which•
do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the
permitted uses of the Property as provided in paragraph 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 Amendment of Project Approvals. Any amendment of
Project Approvals relating to: (a) the permitted use of the Property; (b) provision for
reservation or dedication of land; (c) conditions, terms, restrictions or requirements
for subsequent discretionary actions; (d) the density or intensity of use of the Project;
(e) the maximum height or size of proposed buildings; (f) monetary contributions by
the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER
shall require an amendment of this Agreement. Such amendment shall be limited to
those provisions of this Agreement which are implicated by the amendment of the
Project Approval. Any other amendment of the Project Approvals, or any of them,
shall not require amendment of this Agreement unless the amendment of the Project
Approval(s) relates specifically to some provision of this Agreement.
9.5 Cancellation by Mutual Consent. Except as otherwise
permitted herein, this Agreement may be canceled in whole or in part only by the
• mutual consent of the parties or their successors in interest, in accordance with the
provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B
of this Agreement prior to the date of cancellation shall be retained by CITY.
10. Term of Project Approvals.
Pursuant to California Government Code Section 66452.6(a), the
term of the tentative map described in Recital G above shall automatically be
extended for the term of this Agreement. The term of any other Project Approval
shall be extended only if so provided in Exhibit B.
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11. Annual Review.
11.1 Review Date. The annual review date for this Agreement
shall be August 15, 1999 and each August 15 thereafter.
11.2 Initiation of Review. The CITY's Community
Development Director shall initiate the annual review, as required under
Section 8:56.140 of Chapter 8.56, by giving to DEVELOPER 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. DefauIt..
• 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 form this Agreement or in City's regulations governing •
development agreements, expressly including the remedy of specific performance of
this Agreement.
12.2 Notice and Cure. Upon the occurrence of an event of
default by either party, the nondefaulting party shall serve written notice of such
default upon the defaulting party. If the default is not cured by the defaulting party
within thirty (30) days after service of such notice of default, the nondefaulting party
may then commence any legal or equitable action to enforce its rights under this
Agreement; provided, however, that if the default cannot be cured within such thirty
(30) day period, the nondefaulting party shall refrain from any such legal or equitable
action so long as the defaulting party begins to cure such default within such thirty
•
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(30) day period and diligently pursues such cure to completion. Failure to give notice
shall not constitute a waiver of any default.
12.3 . No 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.
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, provided that such party shall be
deemed to have certified that the statements in clauses (a) through.(c) of this section
are true, and any party may rely on such deemed certification.
14. Mortgagee Protection: Certain Rights of Cure.
14.1 Mortgagee Protection. This Agreement shall be superior
and senior to any lien placed upon the Property, or any portion thereof after the date
of recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render
invalid, diminish or impair the lien of any Mortgage made in good faith and for value,
but all the terms and conditions contained in this Agreement shall be binding upon
and effective against any person or entity, including any deed of trust beneficiary or
mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof,
by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise.
• 14.2 Mortgagee Not Obligated. Notwithstanding the provisions
of Section 14.1 above, no Mortgagee shall have any obligation or duty under this
•
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•
•
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.
•
14.3 Notice of Default to Mortgagee and Extension of Right 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 paragraph 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
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.
•
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17. Transfers and Assignments.
17.1 DEVELOPER'S Right to Assign. All of DEVELOPER'S
rights, interests and obligations hereunder may be transferred, sold or assigned in
conjunction with the transfer, sale, or assignment of all of the Property subject hereto
at any time during the term of this Agreement, provided that no transfer, sale or
assignment of DEVELOPER'S rights, interests and obligations hereunder shall occur
.without the prior written notice to CITY and approval by the City Manager,which
approval shall not be unreasonably withheld or delayed. The City Manager shall
consider and decide the matter within 10 days after DEVELOPER'S notice, provided
all necessary documents, certifications and other information are provided to the City
Manager.
17.2 Release Upon Transfer. Upon the transfer, sale, or
assignment of all of DEVELOPER's rights, interests and obligations hereunder
pursuant to subparagraph 17.1 of this Agreement, DEVELOPER shall be released
from the obligations under this Agreement, with respect to the Property.transferred,
sold, or assigned, arising subsequent to the date of City Manager approval of such
transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or
assignee approved by the City Manager expressly assumes all of the rights, interests
and obligations of DEVELOPER under this Agreement, DEVELOPER shall be
released with respect to all such rights, interests and assumed obligations. In any
event, the transferee, purchaser, or assignee shall be subject to all the provisions
hereof and shall provide all necessary documents, certifications and other necessary
information prior to City Manager approval.
17.3 Developer's Right to Retain Specified Rights or
Obligations. Notwithstanding subparagraphs 17.1 and 17.2 and paragraph 18,
DEVELOPER may withhold from a sale, transfer or assignment of this Agreement
certain rights, interests and/or obligations which DEVELOPER shall retain, provided
that DEVELOPER specifies such rights, interests and/or.obligations in a written
document to be appended to this Agreement and recorded with the Alameda County
Recorder prior to the sale, transfer or assignment of the Property. DEVELOPER'S
purchaser, transferee or assignee shall then have no interest or obligations for such
rights, interests and obligations and this Agreement shall remain applicable to
DEVELOPER with respect to such retained rights, interests and/or obligations.
Dublin/Alameda Development Agreement Page 12 of 18
for Emerald Pointe Business Park July 30, 1998
•
17.4 Permitted Transfer, Purchase or Assignment. 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 17.1. Any subsequent transfer, sale or
assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall
be subject to the provisions of paragraph 17.1.
17.5 COUNTY's Right to Assign.
COUNTY shall not assign its rights interests or obligations
hereunder.
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) 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,
•
Dublin/Alameda Development Agreement Page 13 of 18
for Emerald Pointe Business Park July 30, 1998
•
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).
COUNTY agrees to indemnify, defend and hold harmless CITY, and
its elected and appointed councils, boards, commissions, officers, agents, employees,
and representatives from any and all claims, costs (including legal fees and costs) and
liability for any personal injury or property damage which may arise directly or
indirectly as a result of any actions or inactions by the COUNTY, or any actions or
inactions of COUNTY's contractors, subcontractors, agents, or employees in
connection with the construction, improvement, operation, or maintenance of the
Project, provided that COUNTY shall have no indemnification obligation with
respect to negligence or wrongful conduct of CITY, its contractors, subcontractors,
agents or employees or with respect to the maintenance, use or condition of any
improvement after the time it has been dedicated to and accepted by the CITY or
another public entity (except as provided in an improvement agreement or
maintenance bond).
21. Insurance.
21.1 Public Liability and Property Damage Insurance. During
the term of this Agreement, 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.
21.2 Workers Compensation Insurance. During the term of this
Agreement DEVELOPER shall maintain Worker's Compensation insurance for all
persons employed by DEVELOPER for work at the Project site. DEVELOPER shall
•
Dublin/Alameda Development Agreement Page 14 of 18
for Emerald Pointe Business Park July 30, 1998
f?a y�
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 City Council approval of
this Agreement, DEVELOPER shall furnish CITY satisfactory evidence of the
• insurance required in Sections 21.1 and 21.2 and evidence that the'carrier is required .
to give the CITY at least fifteen days prior written notice of the cancellation or
reduction in coverage of a policy. The insurance shall extend to the CITY, its elective
and appointive boards, commissions, officers, agents, employees and representatives
and to DEVELOPER performing work on the Project.
22. Sewer and Water.
DEVELOPER acknowledges that it must obtain water and sewer
permits from the Dublin San Ramon Services District ("DSRSD") which is another
public agency not within the control of CITY. -
23. Notices.
All notices required or provided for under this Agreement shall be in
writing. Notices required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
P.O. Box 2340
Dublin, CA 94568
Notices required to be given to COUNTY shall be addressed as follows:
Patrick Cashman
• Project Director
Surplus Property Authority of Alameda County
225 W. Winton Avenue, Room 151
Hayward, CA 94544
and
Dublin/Alameda Development Agreement Page 15 of 18
for Emerald Pointe Business Park July 30, 1998
•
•
Adolph Martinelli
Director of Planning
County of Alameda
399 Elmhurst Street
Hayward, CA 94544
Notice required to be given to DEVELOPER shall be addressed as follows:
Robert O'Gorman
Opus Corporation
6130 Stoneridge Mall Road, Suite 115
Pleasanton, CA 94588
A party may change address by giving notice in writing to the other party and
thereafter all notices shall be addressed and transmitted to the new address. Notices
shall be deemed given and received upon personal delivery, or if mailed, upon the
expiration of 48 hours after being deposited in the United States Mail. Notices may
also be given by overnight courier which shall be deemed given the following day or
by facsimile transmission which shall be deemed given upon verification of receipt.
24. Recitals.
The foregoing Recitals are true and correct and are made a part
hereof.
25. 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
a 16 of 18
Dublin/Alameda Development Agreement Page
for Emerald Pointe Business Park • July 30, 1998
Exhibit C Dublin Boulevard Right-of-Way
27. Counterparts.
This Agreement is executed in two (2) duplicate originals, each of
which is-deemed to be an original.
28. Recordation.
CITY shall record a copy of this Agreement within ten days
following execution by all parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date and year first above written.
CITY OF DUBLIN:
By: Date:
Mayor
Attest:
By: Date:
City Clerk
Approved as to Form:
City Attorney
SURPLUS PROPERTY AUTHORITY .
OF ALAMEDA COUNTY:
Date:
Adolph Martinelli
of 18
`
Dublin/Alameda Development Agreement Page 17 1
eement July 17 1 18
for Emerald Pointe Business Park
as . 3 •
Its Manager
Approved as to Form:
•
Attorney for Surplus Property
Authority of the County of Alameda
OPUS WEST CORPORATION
Date:
Its:
(NOTARIZATION ATTACHED)
•
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Dublin/Alameda Development Agreement Page 18 of 18
for Emerald Pointe Business Park July 30, 1998
•
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fraudulent removal and reattachment of this form to another document.
Description of Attached DocumentEflA pobvTE
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On before me, a Notary Public,
•personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument. •
WITNESS my hand and official seal.
NOTARY PUBLIC
•
EXHU3 % T
11 ,?y• e
LEGAL DESCRIPTION
PARCEL TWO, PARCEL MAP 7233
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF DUBLIN, COUNTY OF
ALAMEDA, STATE OF.CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING ALL OF PARCEL TWO AS SAID PARCEL IS SHOWN ON THAT CERTAIN MAP
ENTITLED "PARCEL MAP 7233" FILED JUNE 26, 1998, IN BOOK 236 OF PARCEL MAPS AT
PAGES 7 THROUGH 13, INCLUSIVE, IN THE OFFICE OF THE RECORDER OF ALAMEDA
COUNTY, STATE OF CALIFORNIA, SAID PARCEL BEING MORE PARTICULARLY •
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL TWO AS SHOWN ON SAID
MAP;
THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL TWO, SOUTH 88°13'36" EAST,
878.51 FEET TO THE WESTERLY RIGHT OF WAY LINE OF HACIENDA DRIVE (RIGHT OF
WAY VARIES)AS SHOWN ON SAID MAP;
THENCE SOUTHERLY ALONG SAID WESTERLY RIGHT OF WAY LINE OF THE FOLLOWING
SEVEN (7)COURSES:
1. . SOUTH 01°11'51"WEST, 377.92 FEET;
2. NORTH 88°48'09"WEST, 5.00 FEET;
3. SOUTH 01°11'51"WEST, 164.00 FEET;
4. NORTH 88°48'09"WEST,4.00 FEET;
5. SOUTH 1°11'51"WEST, 196.00 FEET;
6. NORTH 88°48'09"WEST, 9.00 FEET;
7. SOUTH 1°11'51"WEST, 279.00 FEET;
THENCE LEAVING SAID WESTERLY RIGHT OF WAY LINE OF HACIENDA DRIVE IN A
GENERAL WESTERLY DIRECTION ALONG THE NORTHERLY RIGHT OF WAY LINE OF
CENTRAL PARKWAY (AS SHOWN ON SAID MAP) THE FOLLOWING FOURTEEN (14)
COURSES:
1. SOUTH 46°11'51"WEST 39.60 FEET;
2. NORTH 88°48'09"WEST 21.31 FEET;
3. ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 949.00 FEET THROUGH A
CENTRAL ANGLE OF 14°12'37",AN ARC DISTANCE OF 235.37 FEET;
4. NORTH 74°35'32"WEST, 51.04 FEET
5. NORTH 15°24'28" EAST, 8.00 FEET;
6. NORTH 74°35'32"WEST, 20.00 FEET; .
7. . SOUTH 15°24'28"WEST, 8.00 FEET;
8. NORTH 74°35°32"WEST, 106.69 FEET
1998/0811LD-MJF/97650-9 . Page 1 of 2
•
oV9 y-
••
9. NORTH 15°24'28" EAST, 8.00 FEET;
10. NORTH 74°35'32"WEST, 80.10 FEET;.
11. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1059.00 FEET THROUGH A
CENTRAL ANGLE OF 6°16'28", AN ARC DISTANCE OF 115.97 FEET;
12. SOUTH 9°08'00"WEST, 8.00 FEET;
•
13. ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1051.00 FEET,THROUGH A
CENTRAL ANGLE OF 7°44'25", AN ARC DISTANCE OF 141.98 FEET;
14. NORTH 88°36'25" WEST, 77.01 FEET TO THE SOUTHWEST CORNER OF SAID
PARCEL TWO; •
THENCE LEAVING SAID NORTHERLY RIGHT OF WAY LINE NORTHERLY ALONG THE
WESTERLY LINE OF SAID PARCEL TWO, NORTH 1°23'35" EAST, 929.01 FEET TO THE
POINT OF BEGINNING.
•
CONTAINING AN AREA OF 19.686 ACRES, MORE OR LESS.
THIS REAL PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY
DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYORS ACT, AND
SHALL NOT BE UTILIZED'IN ANY CONVEYANCE, WHICH MAY VIOLATE THE SUBDIVISION
MAP ACT OF THE STATE.OF CALIFORNIA OR LOCAL ORDINANCES.
u.
KIER&WRIGHT CIVIL.ENGINEERS AND SURVEYORS, INC.
•
60/7/14e4iej - Vii- ‘414z./,J'r /{)/ 2=e
MICHAEL J. FOLEY,4 5777 DATE
LICENSE EXPIRATION DATE: 06-30-2000 -
•
•
•
• '1CHA LJ.F• r
. 2000 /
• . No.5777 ` i
,
4- •
•
1998/0811LD-MJF/97650-9 Page 2 of 2
30 e v-
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subparagraph 5.3.1 -- Subsequent Discretionary Approvals .
None.
Subparagraph 5.3.2 -- Mitigation Conditions
Subsection a., Infrastructure Sequencing Program
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of dedication)
described below and those identified in Resolution No. 2-98 of the Community
Development Director Approving Tentative Parcel Map 7233 shall be completed by
DEVELOPER to the satisfaction of the Public Works Director at the times and in the
manner specified in Resolution No. 2-98 unless otherwise provided below. All such
roadway improvements shall be constructed to the satisfaction and requirements of
.CITY's Public Works Director.
A. Hacienda Drive (Condition 46)
Condition No. 46 of R esolution No. 2-98 shall be revised to read as
follows:
"A 12' left-turn pocket shall be installed on northbound
Hacienda Drive to allow left turns into the easterly
driveway of the Project. The left-turn pocket shall be
installed no later than Certification of Occupancy for
the first building. Minimum turn length shall be 250'
with a 90' taper. The median break shall be constructed
to accommodate a future left-turn pocket of identical
•
Dublin/Alameda Development Agreement Page 1 of 14
for Emerald Pointe Business Park-Exhibit B July 30, 1998
•
dimensions in the westbound direction at the Project
entrance.
Notwithstanding the foregoing, the City Engineer may
eliminate the left hand turn lane and prohibit the left
turn movement into the easterly driveway of the Project
if the City Engineer determines that the left hand turn
movement is.unsafe due to turning movements, traffic
congestion or other reasons."
B. Traffic Signal at Hacienda Drive and Central Parkway
(Condition 48)
Condition No. 48 of Resolution No. 2-98 shall be revised to read as
follows: •
"DEVELOPER shall construct a traffic signal at
Hacienda Drive and Central Parkway no later
than Certificate of Occupancy for the first
building." •
C. Traffic Signal at Tassajara Road and Gleason Drive (Condition
49)
Condition No. 49 of Resolution No. 2-98 shall be revised to read as
follows:
"COUNTY will construct the traffic signal at Tassajara
Road and Gleason Drive, unless constructed by others.
Within one year of notification from the Public Works
• Director, COUNTY shall construct such signal."
D. Traffic Signal at Hacienda Drive and "S" Street (Condition 50).
Condition No. 50 of Resolution No. 2-98 shall be revised to read as
follows:
"DEVELOPER shall construct the traffic signal at
Hacienda Drive and "S" Street no later than Certificate
Dublin/Alameda Development Agreement Page 2 of 14 •
for Emerald Pointe Business Park-Exhibit B July 30, 1998
3a y3
of Occupancy of the first building. CITY shall pay to
COUNTY all funds received by CITY through other
development agreements for the cost of such traffic
signal at the time CITY accepts the traffic signal
(together with interest earned on such funds). Prior to
the CITY accepting the signal, DEVELOPER shall
provide CITY the actual cost of construction of the
• signal in a form acceptable to CITY." •
•
E. Hacienda Drive (Central Parkway to Gleason Drive)
"Hacienda Drive shall be modified to provide three (3)
lanes (2 northbound and 1 southbound) between
Central Parkway and Gleason Drive. This improvement
shall be completed no later than Certificate of
Occupancy for the first building"
F. Dublin Boulevard (BART to Hacienda Drive)
As part of the improvements required by Condition No. 55 of
Resolution No. 2-98, DEVELOPER will install a traffic signal at Dublin Boulevard
and Arnold Road.
G. Interim Traffic PIan and Improvements for Dublin Boulevard
Extension
DEVELOPER shall prepare an Interim Traffic Plan. The Interim
Traffic Plan will show how traffic from and to the Project will be accommodated prior
to acceptance by CITY of the new alignment of Dublin Boulevard from the BART
station to Hacienda Drive (Condition 55 of Resolution No. 2-98). The Interim
Traffic Plan shall identify all interim traffic improvements necessary for occupancy
which may include, but shall not be limited to, an interim traffic signal at Dublin
Boulevard (existing alignment) and Arnold Road.
The Interim Traffic Plan shall be submitted to and approved by
CITY's Public Works Director no later than the time CITY approves improvement
plans for construction of public improvements.
Dublin/Alameda Development Agreement Page 3 of 14
for Emerald Pointe Business Park-Exhibit B July 30, 1998
•
Any interim traffic improvements identified in the Interim Traffic Plan
shall be constructed by DEVELOPER No Certificate of Occupancy shall be issued
for the Project until all interim traffic improvements have been constructed.
If, following approval of the Interim Traffic Plan and prior to completion of the
new alignment of Dublin Boulevard from the BART station to. Hacienda Drive, the
Public Works Director determines that there are changed traffic conditions not
anticipated when the Interim Traffic Plan was approved, the Public Works Director
• may require the DEVELOPER to•construct additional interim traffic improvements
not included in the Interim Traffic Plan and DEVELOPER shall construct such
improvements.
H. Traffic Signal at Hacienda Drive and Gleason Drive
• COUNTY will design and construct a traffic signal at Hacienda
.Drive and Gleason Drive within one year of notification by the Public Works
Director. To the extent practical, the notice shall be timed so that the work shall be
completed immediately prior to the point where Level of Service E occurs on
Hacienda Drive.
I. Traffic Signal at Arnold Drive and Central Parkway
COUNTY will design and construct a traffic signal at Arnold Drive
and Central Parkway within one year of notification by the Public Works Director.
To the extent practical, the notice shall be timed so that the work shall be completed
immediately prior to the point where Level of Service E occurs on Central Parkway.
J. I-580 at Santa Rita RoadfTassajara Road Eastbound Off
Ramp
•
Condition No. 52 of Resolution No. 2-98 shall be revised to
read as follows:
"The Public Works Director shall
determine when the eastbound off-ramp from I-
580 at the Santa Rita/Tassajara Road exit shall
be widened or restriped to provide one
exclusive through lane and two left-turn lanes
(with the existing free right-turn lane
Dublin/Alameda Development Agreement Page 4 of 14
for Emerald Pointe Business Park-Exhibit B July 30, 1998
•
remaining). In conjunction with this
improvement, the traffic signal shall be
modified to provide protected left-turn phasing
on the east and west legs (removing the existing
split phasing). The Public Works Director shall
also determine when the westbound approach
on Pimlico Drive will need to provide a second
left turn lane.
•
Within one year of notification by the
Public Works Director, unless otherwise
constructed by others and provided consent
from Caltrans and the City of.Pleasanton, if
necessary, has been obtained, COUNTY shall
• design and construct these improvements to the
satisfaction of the Public Works Director with
input from the City of Pleasanton where
applicable. To the extent practical; the notice
shall be timed so that the work shall be
completed immediately prior to the point
where Level of Service E occurs."
K. Miscellaneous
The obligation of subsection (C), (H), (I) and (J) above shall be of
no force or effect until DEVELOPER obtains the first building permit for the Project.
Once effective, such obligations shall survive termination of this Agreement.
Within sixty (60) days of the Effective Date, COUNTY shall
provide CITY with security for the costs of design and construction of the
improvements described in subparagraphs C, H, I and J above in an amount
satisfactory to the Public Works Director. The security may consist of a document,
satisfactory to the City Attorney, pledging COUNTY'S existing credits against
payment of the traffic impact fees as security. The security required by the preceding
sentences is not a substitute for the Improvement Agreement and bonds required by
Subparagraph 5.3.2, subsection (b) (ii) and (iii) below.
DEVELOPER and COUNTY shall be responsible for transitioning
existing improvements to match improvements required by this Agreement, including
•
Dublin/Alameda Development Agreement Page 5 of 14
for Emerald Pointe Business Park-Exhibit B July 30, 1998
•
dedications, to the satisfaction of the CITY's Public Works Director:
(ii) Sewer
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with the tentative
subdivision map and DSRSD requirements.
(iii) Water •
An all weather roadway and an approved hydrant and water supply
system shall be available and in service at the site in accordance with the tentative
subdivision map to the satisfaction and requirements of the CITY's fire department.
All potable water system components to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with the tentative
subdivision map and DSRSD requirements.
Recycled water lines shall be installed in accordance with the tentative
subdivision map.
(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 in force and effect at the time of issuance of the
permit for the proposed improvements and shall be consistent with the Drainage
Plan. The site shall also be protected from storm flow from off site and shall have
erosion control measures in place to protect downstream facilities and properties from
erosion and unclean storm water consistent with the Drainage Plan. As used herein,
"Drainage Plan" shall refer to CITY's master drainage plan.
(v) Other Utilities e._. _as electricity cable televisions tele•hone
Construction shall be complete by phase prior to issuance of the first
Certificate of Occupancy for any building within that specific phase of occupancy.
Dublin/Alameda Development Agreement Page 6 of 14
for Emerald Pointe Business Park-Exhibit B July 30, 1998
3i e y3 •
Subsection b. MisceIIaneous
(i) Completion May be Deferred.
Notwithstanding the foregoing, CITY's Public Works Director may, in
his or her sole discretion and upon receipt of documentation in a form satisfactory to
the Public Works Director that assures completion, allow DEVELOPER or COUNTY
to defer completion of discrete portions of any of the public improvements required
for the Project until after issuance of Certificate of Occupancy for the first building
for the Project if the Public Works Director determines that to do so would not
jeopardize the public health, safety or welfare.
(ii) Improvement Agreement
Prior to constructing the Improvements described in Subparagraph
5.3.2(a) above, DEVELOPER and COUNTY shall submit plans and specifications to
CITY's Public Works Director for review and approval and shall enter into an
improvement agreement with CITY for construction and dedication of the public
facilities. All such improvements shall be constructed in accordance with City's
standards and policies which are in force and effect at the time of issuance of the
permit for the proposed improvements.
(iii) Bonds
Prior to execution of the Improvement Agreement, DEVELOPER shall
provide a cash monument bond, a performance bond and labor and materials bond or
other adequate security to insure that the Improvements described in Subparagraph
5.3.2(a)(i)(A) and (B) above will be constructed prior to the times specified above.
The performance bond or other security shall be in an amount equal to 100% of the
engineer's estimate of the cost to construct the improvements (including design,
engineering, administration, and inspection) and the labor and materials bond shall
be in an amount equal to 50% of the engineer's estimate. The bonds shall be written
by a surety licensed to conduct business in the State of California and approved by
CITY's City Manager.
(iv) Right to Construct Additional Road Improvements
With the prior written consent of CITY's Public Works Director,
DEVELOPER may construct roadway improvements which are not described in this
Dublin/Alameda Development Agreement Page 7 of 14
for Emerald Pointe Business Park-Exhibit B July 30, 1998
•
Exhibit B if such improvements are described in the resolution establishing the
Eastern Dublin Traffic Impact Fee and if such improvements are constructed in their
ultimate location.
DEVELOPER shall be required to enter into an Improvement Agreement and
provide bonds for such improvements, as provided in Subsection (b)(ii) and (iii)
above, prior to construction. CITY shall provide a credit to DEVELOPER for the
cost of such improvements in the manner and subject to the conditions provided in
Subparagraph 5.3.6, Subsections (a), (b) and (c). •
Subparagraph 5.3.3 -- Phasing, Timing
With the exception of the road improvements described in Subparagraph
5.3.2(a)(i) this Agreement contains no requirements that DEVELOPER must initiate
or complete development of the Project within any period of time set by CITY. It is
the intention of this provision that DEVELOPER be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
Subparagraph 5.3.4 -- Financing Plan
" DEVELOPER will install all street improvements necessary for the Project at its
own cost (subject to credits for certain improvements as provided in Subparagraph
5.3.6 below).
Other infrastructure necessary to provide sewer, potable water, and recycled
water services to the Project will be made available by the Dublin San Ramon
Services District. DEVELOPER 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.
DEVELOPER shall pay all traffic impact fees applicable to the Project
which are in effect at the time of issuance of any building permit for the Project.
Such fees include the Traffic Impact Fee for Eastern Dublin established by Resolution
No. 41-96, including any future amendments to such fee.
Dublin/Alameda Development Agreement Page 8 of 14
for Emerald Pointe Business Park-Exhibit B July 30, 1998
5 �3
DEVELOPER, COUNTY and CITY acknowledge that COUNTY is entitled
to certain credits ("1991 Credits") against payment of the Traffic Impact Fee for
Eastern Dublin by separate agreements previously entered into between COUNTY
and CITY in 1991. COUNTY is also entitled to certain other credits ("Prior
Agreement Credits") against payment of the Traffic Impact Fee for Eastern Dublin by
other development agreements entered into between COUNTY and CITY.
COUNTY agrees that, notwithstanding its entitlement to such 1991 Credits, its
1991 Credits cannot be applied against payment of the "Section 2" and "Section 3"
portion of the Traffic Impact Fee for Eastern Dublin for the Project. DEVELOPER -
and/or COUNTY (and its assignee) will, rather, pay the "Section 2" and "Section 3"
portion of the fee in cash.
COUNTY further agrees that it (and its assignee) will use the 1991 Credits
and/or Prior Agreement Credits against one-half (' ) of the "Section 1" portion of the
Traffic Impact Fee for Eastern Dublin for the Project. CITY shall determine which of
the 1991 Credits and/or Prior Agreement Credits shall be used pursuant to this
paragraph.
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway
Interchanges.
DEVELOPER shall pay the Eastern Dublin I-580 Interchange Fee
established by City of Dublin Resolution No. 11-96 or any subsequent resolution
which revises such Fee. DEVELOPER shall be released from its obligation, as set
forth in the preceding sentence, if a lawsuit is filed challenging the Project approvals,
this Agreement, the City's compliance with CEQA for the Project, the Eastern Dublin
Traffic Impact Fee or any other aspect of the development of the Property.
In the event that the Eastern Dublin I-580 Interchange Fee does not
become effective because CITY and the City of Pleasanton do not enter into an
agreement, as provided in Resolution No:11-96, by December 30, 1998,
DEVELOPER agrees that CITY may use the funds collected pursuant to the
preceding paragraph for any interchange improvements on I-580.
Subsection c. Public Facilities Fees.
DEVELOPER shall pay a Public Facilities Fee in the amounts and at the
times set forth in City of Dublin Resolution No. 32-96, adopted by the City Council
on March 26, 1996, or in the amounts and at the times set forth in any resolution
Dublin/Alameda Development Agreement Page 9 of 14
for Emerald Pointe Business Park.-Exhibit B July 30, 1998
revising the amount of the Public Facilities Fee.
Subsection d. Noise Mitigation Fee.
DEVELOPER shall pay a Noise Mitigation Fee in the amounts and at the
times set forth in City of Dublin Resolution No. 33-96, adopted by the City Council
on March 26, 1996, and any amendments thereto.
•
Subsection e. School Impact Fees. •
•
School impact fees shall be paid by DEVELOPER in accordance with
Government Code section 53080.
Subsection f. Fire Impact Fees.
DEVELOPER shall pay a fire facilities fee in the amounts and at the times
set forth in City of Dublin Resolution No. 37-97 or any subsequent resolution which
revises such fee.
Subsection g.. Tri-Valley Transportation Development Fee.
DEVELOPER shall pay the Tri-Valley Transportation Development Fee in
the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any
subsequent resolution which revises such fee if such fee is effective,at the time of
issuance of any building permits for the Project.
Subsection h. Specific Plan Implementation Fee
At the time of approval of this Agreement, DEVELOPER shall pay a
"Specific Plan Implementation Fee" in accordance with Resolution No. 16-98.
Subsection i. Dedications
(i) County Dedications. COUNTY agrees to dedicate the following
property required for roadway improvements to CITY in fee simple and both the land
and groundwater shall be free of hazardous substances:
1. The right-of-way necessary to construct six (6) lanes of Dublin
Boulevard from the westerly BART access road to Hacienda Drive, as shown on
•
Dublin/Alameda Development Agreement Page 10 of 14
for Emerald Pointe Business Park-Exhibit B July 30, 1998
•
Exhibit C as Area 2. Such dedication shall be made at the time CITY approves
improvement plans for the realignment of Dublin Boulevard as described in
Condition No. 55 of Resolution No. 2-98.
2. Any additional right of way and/or easements necessary to
.construct the intersection improvements and transitions listed in Subparagraph
5.3.2(a)(i) above.
(ii) City Dedications. CITY will quit claim to COUNTY the right-of-Way
described on Exhibit C as Area 1 at the time CITY accepts the improvements
constructed pursuant to Condition No. 55.
Subparagraph 5.3.6 -- Credit
Subsection a. Traffic Impact Fee Improvements Credit
CITY shall provide a credit to COUNTY for the following improvements if
such improvements are described in the resolution establishing the Eastern Dublin
Traffic Impact Fee and if such improvements are constructed by the Developer in
their ultimate location pursuant this Agreement:
1) Improvements to the eastbound off-ramp from I-580 at Santa
Rita/Tassajara described in Condition No. 52 of Resolution No. 2-98;
2) Improvements to Tassajara Road between I-580 and Dublin
Boulevard described in Condition No. 53 of Resolution No. 2-98;
3) The new alignment of Dublin Boulevard from the BART station to
Hacienda Drive described in Condition No. 55 of Resolution No. 2-98; and
4) The traffic signal at Hacienda Drive and Central Parkway
described in Condition No. 48 of Resolution No. 2-98.
The amount of the credit to be given shall be determined by CITY'S
Public Works Director at the time of the Improvement Agreement referred to in
Subparagraph 5.3.2(b)(ii) using the costs of construction used by CITY in calculating
and establishing the.Traffic Impact Fee. The amount of the credit, once established,
shall not be increased for inflation nor shall interest accrue on the amount of the
credit.
•
Dublin/Alameda Development Agreement Page 11 of 14
for Emerald Pointe Business Park-Exhibit B July 30, 1998
The credit shall be applied against the "Section 1" portion of the traffic
impact fees required to be paid pursuant to Subsection (a) of Subparagraph 5.3.5.
The credit shall not be applied against the "Section 2" or "Section 3" portion of the
Traffic Impact Fee for Eastern Dublin.
Subsection b. Traffic Impact Fee Right-of-Way Dedications Credit
CITY shall provide a credit to COUNTY for the following TIF area right-of-
way to be dedicated by COUNTY to CITY which is required for roadway
improvements which are described in the resolution establishing the Eastern Dublin
Traffic Impact Fee:
1) Central Parkway, from Arnold Drive to Hacienda Drive (2 lanes).
2) • Dublin Boulevard from Arnold Drive (if extended southerly) to
Hacienda Drive (4 lanes).
The amount of the credit to be given shall be determined by CITY's Public
Works Director at the time of dedication of the right-of-way using the right-of-way
values used by CITY in calculating and establishing the Traffic Impact Fee. The
amount of the credit, once established, shall not be increased for inflation nor shall
interest accrue on the amount of the credit.
The credit shall be applied against the "Section 1" portion of the traffic
impact fees required to be paid pursuant to Subsection (a) of Subparagraph 5.3.5.
The credit shall not be applied against the "Section 2" or "Section 3" portion of the
Traffic Impact Fee for Eastern Dublin.
Subsection c. Use of Excess Credits
•
In the event that credits referred to in Subsections (a) and (b) of this
Subparagraph 5.3.6 are in excess of the amount of credits which can be applied
against the traffic impact fee payable pursuant to Subsection (a) of Subparagraph
5.3.5 (Le., one-half of the "Section 1" portion of the Traffic Impact Fee for Eastern
Dublin), COUNTY shall be entitled to "bank" such credits (referred to as "Excess
Credits") and may use them as provided herein. The Excess Credits shall not bear
interest, nor shall the amount thereof be increased for inflation. The Excess Credits
may only be used for future projects on COUNTY'S "Santa Rita" property, provided
that this limitation may only be applied against the "Section 1" portion of the said
•
•
Dublin/Alameda Development Agreement Page 12 of 14
for Emerald Pointe Business Park-Exhibit B July 30, 1998
Traffic Impact Fee.
The use of Excess Credits shall be subject to any administrative guidelines
adopted by CITY regarding use of credits and reimbursement for unused credits.
Subsection d. Illustrative Example
The following is an example for purposes of illustration only and not using
actual numbers of how the payment of the Traffic Impact Fee would be accomplished
in cash and through the use of credits:
Traffic Impact Fee
Section 1 $2,973,600
Section 2 • $ 892,080
Section 3 $ 382,320
Total: $ 4,248,000
Credit for Construction of Improvements and Dedication of Right-of-Way
TIF Credits for Construction
(Exhibit B, 115.3.6(a)) $ 1,000,000
Right-of-Way credit
(Exhibit B, 115.3.6(b)) $1,000,000
Total: $2,000,000
Payment of Traffic Impact Fees
Section 1
$1,486,800 paid by use of prior credits ("1991
credits" and/or "Prior Agreement
Credits")
•
$1,486,800 paid by use of new credit for right-of-
way dedicated and road improvements
constructed as part of project
Dublin/Alameda Development Agreement Page 13 of 14
for Emerald Pointe Business Park- Exhibit B July 30, 1998
Section 2
$892,080 cash
Section 3
$382,320 cash
"Excess Credits" if any
(Exhibit B, 115.3.6 (c)) $513,200
Subparagraph 5.3.7 -- MisceIlaneous
Subsection a. Landscaping Maintenance Along Streets and Creek
CITY has formed a landscape maintenance district known as the
"Landscape Maintenance Assessment District No. 97-1 (Santa Rita Area)" pursuant
to a petition from DEVELOPER, and imposed an assessment against the Property to
pay for street and creek landscape maintenance. In addition, on September 24, 1996,
COUNTY recorded a Declaration of Covenants, Conditions and Restrictions which
covers the Property, whereby COUNTY,on behalf of itself and its successors, has
covenanted to pay a "Deed Assessment" to CITY for maintenance of street and creek
landscaping. .
•
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Dublin/Alameda Development Agreement Page 14 of 14
for Emerald Pointe Business Park-Exhibit B July 30, 1998