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HomeMy WebLinkAbout6.1 MicroDentalLabsAGMT,2 r ...- . CITY CLERK File # D[QJ[QJ~-~~ ( AGENDA STATEMENT CITY COUNCIL MEETING DATE: May 4, 1999 SUBJECT: ATTACHMENTS: RECOMME~"DATION: ~ FINANCIAL STATEMENT: . DESCRIPTION: BACKGROUND: PUBLIC HEARING PA 98-055 Micro Dental Labs, Inc., Development Agreement (Second Reading) Prepared by Eddie Peabody, Jr., Community Development Director 1. Development Agreement for Micro Dental Labs, Inc. 2. Ordinance adopting Development Agreement for Micro Dental Labs, Inc. 1. Open Public Hearing. 2. Receive Staff presentation and receive public testimony. 3. Question Staff and the public 4. Close Public Hearing and deliberate. 5. Waive reading and adopt Ordinance _-99 (Attachment 2) approving the Development Agreement. No financial impact anticipated. An Ordinance approving a Development Agreement between the City of Dublin, HHH Supply and Investment (Micro Dental Labs), and Alameda County Surplus Property Authority. The Development Agreement is required by the Eastern Dublin Specific Plan. Items included in the Development Agreement include, but are not limited to, the financing and timing of infrastructure; payment of traffic, noise and public facilities impact fees; oversizing of roads and general provisions. The City Council approved an Amendment to the Eastern Dublin Specific Plan for the entire Santa Rita area (primarily owned by the Alameda County Surplus Property Authority) in October 1996. As a part of that action, this site ,vas given a new Specific Plan and General Plan Land Use Designation of "IndustriaVCampus Office (I1CO)". On March 17, 1998, on the Planning Commission's recommendation, the City Council approved a Planned Development Rezone for the Site. Tentative Parcel Map 7233, creating Parcel One on which this project is proposed, was approved on June 2, 1998, by the Community Development Director. . COPIES TO: Micro Dental Lab., Inc. Alameda County Surplus Property Authority In House Distribution .i.. 4- ITEM NO.--.liild Plan/ling Commission Action: On April 13, 1999, the Planning Commission reviewed the Staff Report for the proposed development agreement and adopted a Resolution recommending that the City Council adopt an Ordinance accepting a Development Agreement with HHH Supply and Investment and Alameda County for the Microdental . Laboratories project. City Council Action: At the Public Hearing of April 20, 1999, the City Council heard a presentation from Staff and the applicant, took public testimony and waived the first reading of the Ordinance adopting a Development Agreement with HHH Supply and Investment and Alameda County for the Microdental Laboratories project. . ANALYSIS: As required by the City of Du15'lin Municipal Code, a second reading of the proposed"Ordinance is necessary prior to final adoption ofthe Development Agreement. The Ordinance will become effective 30 days after the second reading. RECOMMENDATION: Staff recommends that the City Council open the Public Hearing, take testimony from Staff and the public, deliberate, waive the second reading and adopt the Ordinance approving a Development Agreement for the Microdental Laboratories project with HHH Supply and Investment and the Alameda County Surplus Property Authority, P A 98-055. . G:98055 2nd cc da micro . "l- -~ " . .. . . . . '. City of Dublin / r{ $,/ 'Vhen Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Space aQove this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND HHH SUPPLY AND INVESTMENT AND . THE SURPLUS PROPERTY AUTHORITY OFTHECOUNTYOF~EDA FOR THE MICRO DENTAL PROJECT ATTACHMENT 1 . " . ., ;< "i ~ 'I TABLE OF CONTENTS . I. Description of Property. ........................................ 3 2. Interest of Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ". . . . . . . . 3 3. Relationship of City and Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. Effective Date and Term. ........................................ 3 4.1 Effective Date. ........................................... 3 4.2 Thm1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5. Use of the Property. ........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5.1 Ri?ht to Develop ......................................... 4 5.2 Permitted Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5.3 Additional Conditions ..................................... 4 6. Applicable Rules. Regulations and Official Policies .................... 5 6.1 Rilles re Permitted Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6.2 Rules re Design and Construction ............................ 5 6.3 Uniform Codes Applicable . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . 7. Subsequently Enacted Rilles and ReV1lations . . . . . . . . . . . . . . . . . . . . . . . . . 6 7.1 New Rules and Regulations ............................,.... 6 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 CanceIIation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.1 Modification Because of Conflict with State or Federal Laws ....... 8 9.2 Amendment by Mutual Consent ............................. 8 Dublin/Alameda Development Agreement for the Micro Dental Project Table of Contents - Page i of Hi March 30, 1999 . '. . . . "3 .:-6' 31 9.3 Insubstantial Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.4 Amendment of Project Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.5 Cancellation bv Mutual Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 - 10. Term of Project Approvals ....................................... 9 II. Annual Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -. . . . . . . . 9 Il.I Review Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 11.2 Initiation of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 11.3 Staff Reports ............................................ 9 11.4 Costs .................................................. 9 12. Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 12.1 Other Remedies Available ................................. 10 12.2 Notice and Cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 12.3 No Darna~es A~ainst CITY ................................ 10 13. Estoppel Certificate ........................................... 10 14. Mort~a~ee Protection: Certain Rights of Cure ....................... 11 14.1 Mortgagee Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II 14.2 Mortgagee Not Obligated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II 14.3 Notice of Default to Mortp,-agee and E^-"tension of Ri~ht to Cure .... II 15. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . II 16. Attorneys' Fees and Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 17. Transfers and Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 12 17.1 DEVELOPER's Right to Assign. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 . 17.2 Release Upon Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12 17.3 Developer's Right to Retain Specified Rights or Obligations ....... 13 17.4 Permitted Transfer. Purchase or Assignment ................... 13 17.5 COUNTY's Right to Assign. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 18. Azreernent Runs ""rith the Land .................................. 13 19. Banknlptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; . . . . . . . . . . . . 14 Dublin/Alameda Development Agreement for the Micro Dental Project Table of Contents. Page ii of iii March 30, 1999 v 06 3r 20. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 21. Insurance ................................................... 15 21.1 Public Liability and Property Damage Insurance . . . . . . . . . . . . . . . . 15 21.2 Workers Compensation Insurance. . . . . . . . . . . . . . . . . . . . . . . . . .. 15 21.3 Evidence of Insurance .................................... 15 22. Sewer and Water ............................................. 15 23. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 25. Agreement is Entire Understanding ............................... 17 26. Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 27. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 28. Recordation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Dublin/Alameda Development Agreement for the Micro Dental Project Table of Contents. Page iii of Hi March 3D, 1999 . . . :5~J'I . THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this 4th day of May, 1999, 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 HHH Supply and Investment, a general partnership (hereinafter "DEVELOPER") pursuant to the authority of ss 65864 et seq. of the California Government Code and Dublin :Municipal Code, Chapter 8.56. REcrT ALS A California Government Code SS 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 11.47 acres of land, located in the City of Dublin, County of Alameda, State of California, which is more partiruIarly 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 Opus West Corporation which acquired the Property from COUNTY pursuant to a purchase and sale agreement entitled "Surplus Property Authority as Seller, Opus West Corporation as Buyer Purchase and Sale Agreement dated November 18, 1997" which allocates rights and obligations as between COUNTY and DEVELOPER. COUNTY is a party to this Agreement because COUNTY will perform certain obligations and receive certain credits; F. DEVELOPER proposes the development of the Property for office uses consisting of two 4-story office buildings totaling approximately 249,860 square feet (the "Project"); and . Dublin/Alameda Development Agreement for the Micro Dental Project Page 1 of 18 March 30, 1999 6. ~ .jy 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 for the PD District rezoning including the Land Use and Development Plan (Res. No. 30-98), tentative parcel map (Community Development Director Resolution No. 2- 98), and site development review (Planning Commission Resolution No. 99-03) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and H. DEVELOPER presently contemplates constructing two 4-story structures on the Property, to be used for office and light industrial uses, including a dental laboratory and supply company, a permitted use under the PD District rezoning; and 1. 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 J. CITY desires the timely, efficient, orderly and proper development of said Project; and . K. 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 1. 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 M. 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 Dublin/Alameda Development Agreement for the Micro Dental Project Page 2 of 18 March 30. 1999 . . . . iJ ~ :3 r./ N. On adopted Ordinance No. ordinance took effect on , 1999, the City Council .of the City of Dublin approving this Development Agreement. The ,1999. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY, COUNTY and DEVELOPER agree as follows: AGREEMENT 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 the Agreement has been executed by an authorized official of CITY, by a general partner of DEVELOPER and by an authorized official of COUNTY. Although, the signature of authorized parties may be completed in counterparts, the effective date will not be established until all three parties to the agreement have singed the agreement. The party who is signing third shall fax copies of the signature pages to the other parties on the date of execution. Dublin/Alameda Development Agreement for the Micro Dental Project Page 3 of 18 March 30, 1999 ?~3'( 4.2 Thrrn.. The term of this Development Agreement shall commence on the Effective Date and eA'tend 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 Rip;ht 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 Proj~ct 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 Dublin/Alameda Development Agreement for the Micro Dental Project Page 4 of 18 March 30, 1999 . . . . / 06 :3'1 within a specified time, and that the Project or any phase thereof be completed within a specified time. See Exhibit B 5.3.4 Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5 Fees. Dedications. Terms relating to payment of fees or dedication of property. See Exhibit B 5.3.6 Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B 5.3.7 Miscellaneous. Miscellaneous terms. See Exhibit B 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 pennitted 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 eA'Pressly 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 eA-pressly provided in Dublin/Alameda Development Agreement for the Micro Dental Project Page 5 of 18 March 30, 1999 /tJ ~.:3'1. 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 tem1 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 of such new or modified ordinances, resolutions, rules, regulations or official policies ,,,auld not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2 Approval of Application. Nothing in this Agreement shall prevent the CITY from denying or conditionally approving any subsequent land use . permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements e:>...-pressly 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 Dublin/Alameda Development Agreement for the Micro Dental Project Page 6 of 18 March 30. 1999 . . . . . . II q) 3'1 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 (induding 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 eristing 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). 8.2 Revised Application Fees. Any eristing application, processing and inspection fees that are revised during !he term of this Agreement shall apply to the Proj ect provided that (I) 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 Virith 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-Viride taxes shall apply to the Project provided that: (I) 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. Dublin/Alameda Development Agreement for the Micro Dental Project Page 7 of 18 March 30. 1999 /dZ 0( .51. 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. Not,vithstanding 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. CIJ"Yls 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 ofland; (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. Dublin/Alameda Development Agreement for the Micro Dental Project Page 8 of 18 March 30. 1999 . . . . IS c6 3Y 9.5 Cancellation by Mutual Consent. Except as othervvise permitted herein, this Agreement may be canceled in v{hole 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 eA"tended for the term of this Agreement. The term of any other 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 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 t9 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 e>.."tent 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 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. Dublinl.A.laroeda Development Agreement for the Micro Dental Project Page 9 of 18 March 30, 1999 J '/ co' :3 '/ . 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 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 th~ default cannot be cured within such thirty (30) day period, the non defaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 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 ,vritten 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 Dublin/Alameda Development Agreement for the Micro Dental Project Page 10 of 18 March 30, 1999 . . . . /5 cz:f 31 are true, and any party may rely on such deemed certification. 14. Mort~agee 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 Mortga~ee Not Obli~ated. 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. 14.3 Notice of Default to Mortga.e;ee and Extension of Ri.e;ht 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. IS. Severability. The unenforceabiIity, invalidity or illegality of any provisions, Dublin/Alameda Development Agreement for the Micro Dental Project Page 11 of 18 March 30. 1999 /6 .'tf :3 C/ 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 ex-pended by CITY in defense of any such action or other proceeding. 17. Transfers and Ac:;signments. 17.1 DEVELOPER's Right to AssiV"\. All of DEVELOPER'S lights, 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 . assigrunent of DEVELOPER's rights, interests and obligations hereunder shall occur without the prior written notice to CITY and approval by the City 1\1anager, 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 assigrunent of all of DEVELOPER's rights, interests and obligations hereunder pursuant to subparagraph 17.1 of this Agreement, D EVELO PER 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 ex'}Jressly 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 Dublin/Alameda Development Agreement for the Micro Dental Project Page 12 of 18 March 30. 1999 . /J cD ~r . 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. 17.4 Permitted Transfer. Purchase or A'isignment. 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 subj ect to the provisions of paragraph 17.1. 17.5 COUNTY's Right to A'isien. COUNTY shall not assign its rights interests or obligations hereunder. 18. Agreement Runs with the Land. All of the provisions, rights, terms, c0venants, 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, induding, 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 . Dublin/Alameda Development Agreement for the Micro Dental Project Page 13 of 18 March 30, 1999 Ig.~ ~.Y 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, 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 ,Ivith the construction, improvement, operation, or maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation v,rith 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 V\rith 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). Dublin! Alameda Development Agreement for the Micro Dental Project Page 14 of 18 March 30, 1999 . . . . /7~ :3( 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 require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. DEVELOPER agi-ees 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 eA"tend 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: Dublin/Alameda Development Agreement for the Micro Dental Project Page 15 of 18 March 30, 1999 ;;Je> qj' :3 Y. 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 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 follml\'s: Andres Hites George Hites HHH Supply and Investment 6665 Amador Plaza Road Dublin, CA 94568 . 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 o.."piration 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. Dublin/Alameda Development Agreement for the Micro Dental Project Page 16 of 18 March 3D, 1999 . . i. . ~/ ~ :31 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 vvithin ten days follovving 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: Date: Attest: By: City Clerk Date: Dublin/Alameda Development Agreement for the Micro Dental Project Page 17 of 18 March 30, 1999 Approved as to Form: City Attorney SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY: Adolph Martinelli Its Manager Approved as to Form: Attorney for Surplus Property Authority of the County of Alameda HHH SUPPLY AND INVESTMENT, a general partnership By: General Partner Date: ;? :4 &7j ,"3 V Date: (NOTARIZATION ATIACHED) EHS:rja J ;\''''PD\MNRS'^/\114\124\AGREE\MICRO _DA330 Dublin/Alameda Development Agreement for the Micro Dental Project Page 18 of 18 March 30, 1999 . . . ~ 3 11 3'1 . State of California ) ) ss. County of Alameda ) 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 . ;<'1 ~ .3r . EXHIBIT B Additional Conditions . The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparagraph 5.3. I -- 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 Planning Commission Resolution No. 99-03 Approving Site Development Review shall be completed by DEVELOPER to the . satisfaction' of the Public Works Director at the times and in the manner specified in Resolution No. 99-03 unless otherwise provided below or unless performed by others. All such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public Works Director. A. 1-580 at Santa Rita Roadffassajara Road Eastbound Off Ramp Condition Nos. 23 and 24 of Resolution No. 99-03 shall be revised to read as follows: liThe Public Works Director shall determine when the eastbound off-ramp from 1-580 at the Santa Ritaffassajara Road exit shall be widened and restriped to provide one exclusive through lane and two left-turn lanes (with the existing free right- Dublin/Alameda Development Agreement for the Micro Dental Project ~ Exhibit B Page 1 of 8 March 30. 1999 . . . . c::< 5 -rl 1; Y turn lane 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 o."tent practical, the notice shall be timed so that the work shall be completed immediately prior to the point where Level of Service E occurs." B. Miscellaneous The obligation of subsection (A) above shall be of no force or effect until DEVELOPER obtains the first building permit for the Project. Once effective, such obligation 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 subsection (A) 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. Dublin/Alameda Development Agreement for the Micro Dental Project - Exhibit B Page 2 of 8 March 30, 1999 ~6 ~,3i DEVELOPER and COUNTY shall be responsible for transitioning ellsting improvements to match improvements required by this Agreement, including . 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 ,,,hich 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. Dublin/Alameda Development Agreement for the Micro Dental Project. Exhibit B Page 3 of 8 March 30, 1999 . . '. . ;J '/ crf :3 ;I (v) Other Utilities (e.g. gas. electricity. cable televisions. telephone) Construction shall be complete by phase prior to issuance of the first Cenificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous (i) Completion May be Deferred. Notv.r:ithstanding the foregoing, CITYs 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)(i) above, COUNTY (or its assignee) 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, COUNTY (or its assignee) 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) 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 "rritten by a surety licensed to conduct business in the State of California and approved by CITY's City Manager. Dublin/Alameda Development Agreement for the Micro Dental Project. Exhibit B Page 4 of 8 March 30, 1999 r:2~ ~. :J Y (iv) Right to Construct Additional Road Improvements . With the prior written consent of CIITs Public Works Director, COUNTY or DEVELOPER may construct roadway improvements which are not described in this 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. COUNTY (or its assignee) 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 COUNTY 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 CITI. 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 COUNTY will install all street improvements necessary for the Project at its ovm cost (subject to credits for certain improvements as provided in Subparagraph 5.3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project will be made available by the Dublin San Ramon Services District. COUNTY has entered into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of eA'tending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (Hi) above. Dublin/Alameda Development Agreement for me Micro Dental Project - Exhibit B Page 5 of 8 March 30, 1999 . . . . ~9~ 91 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 Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 41 ~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 then-current amount of the impact fee. DEVELOPER, COUNTY and CITY acknowledge that COUNTY is entitled to certain credits (" 1991 Credits") against payment of the Traffic Impact Fee for Eastern Dublin by separate agreements previously entered into betv,reen 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" 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" portion of the fee in cash. COUNTY further agrees that it (and its assignee) will use the 1991 Credits and/or Prior Agreement Credits against at least one.half (1;2) of the "Section III portion of the Traffic Impact Fee for Eastern Dublin for the Project provided that it has sufficient such credits. CITY shall determine which of the 1991 Credits and/or Prior Agreement Credits shall be used pursuant to this paragraph. Notwithstanding anything herein to the contrary, DEVELOPER further agrees that it will pay at least seven percent (7%) of the "Section I" portion of the Traffic Impact Fee for Eastern Dublin in cash. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchange~. DEVELOPER shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155-98 and by any subsequent resolution which revises such Fee. DEVELOPER will Dublin/Alameda Development Agreement for the Micro Dental Project - Exhibit B Page 6 of 8 March 30. 1999 :J6 ~ :3// - pay such fees no later than the time of issuance of building permits and in the then- current amount of the impact fee. . Subsection c. Public Facilities Fees. DEVELOPER shall pay a Public Facilities Fee in the amounts and at the times set forth in City of Dublin Resolution No. 32-96, adopted by the City Council on March 26, 1996, or in the amounts and at the times set forth in any resolution revising the amount of the Public Facilities Fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the then-current amount of the impact 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. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the then-current amount of the impact fee. Subsection e. School Impact Fees. . School impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080 and the eristing agreement between COUNTY, as DEVELOPER's predecessor in interest, and the Dublin Unified School District. Subsection f. Fire Impact Fees. DEVELOPER shall pay a fire facilities fee in the amounts and at the times set forth in City of Dublin Resolution No. 37-97 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 then-current amount of the impact fee. Subsection g. Tn-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 then-current amount of Dublin/Alameda Development Agreement for the Micro Dental Project. Exhibit B Page 7 of 8 March 30. 1999 . 31 06 31 . the impact fee. Subparagraph 5.3.6 -- Credit All aspects of use of credits shall be governed byCITY's Administrative Guidelines governing traffic fee credits and reimbursements (Resolution No. 23-99.) Subparagraph 5.3.7 -- Miscellaneous Subsection a. Landscaping Maintenance Along Streets and Creek CITY has formed a landscape maintenanceclistrict known as the "Landscape Maintenance Assessment District No. 97-1 (Santa Rita Area)" pursuant to a petition from DEVELOPER, and imposed a~ 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 COUNTI, on behalf of itself and its successors, has covenanted to pay a "Deed Assessment" to erTI for maintenance of street and creek landscaping. . . J:\VVPD\MNRSW\114\124\AGREE\MICROEXB.330 EHS:z-ja Dublin! Alameda Development Agreement for the Micro Dental Project - Exhibit B Page 8 of 8 March 30. 1999 3:< ct 3 V ORDINANCE NO. AN ORDINANCE OF THE CITY OF DUBLIN APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN, HHH SUPPLY AND INVESTMENT (P A 98-055) and ALAMEDA COUNTY SURPLUS PROPERTY AUTHORITY FOR MICRODENTAL LABORATORIES . THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLO'VS: Section I. RECITALS A. The proposed Microdental Laboratories Project (P A 98-055) 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 (1) and Campus Office (CO) uses. B. This project is within the scope of the Eastern Dublin Specific Plan and General Plan Junendment, for which a Program EIR was certified (SCH 91 103064). 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 ofCEQA. The analysis indicated that no new effects could occur and no new mitigation measures would be required for the Microdental Laboratories 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 I I thereof, require that all projects within the Specific Plan area enter into development agreements with the City. D. HHH Supply and Investment has filed an application requesting approval of a development agreement for the MicrodentaI Laboratories project. E. A Development Agreement between the City of Dublin, HHH Supply and Investment, and Alameda County Surplus Property Authority has been presented to the City Council, a copy of which is attached to the Staff Report as Attachment I. F. A public hearing on the proposed Development Agreement was held before the Planning Commission on April 13, 1999, 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. H. A public hearing on the proposed Development Agreement was held before the City Council on April 20, 1999, for which public notice was given as provided by law. . ATTACHMENT 2 ::. ~. . - . , "13 ~ 31 J. The City Council has considered the recommendation of the Planning Commission at the April 20, 1999 meeting, 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 (I) and Campus Office (CO) uses and the proposed project is an office development 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 fmancing, 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 and Site Design Review adopted specifically for the Microdental Laboratories Project. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies in that the Microdental Laboratories 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. 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 (Attachment 1 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. :3L/ ~ :3f 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 4th day of May 1999, by the following votes: A YES: NOES: ABSENT: ABSTAIN: MAYOR ATTEST: CITY CLERK. G:PA 98-055 Ord DA . . .