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Home My WebLink About6.1 StaRtaCommPD Rzn . e CITY OF DUBLIN AGENDA STATEMENT City Council Meeting Date: January 31, 1995 Public Hearing P A 94-001 Santa Rita Commercial Center Planned Development Rezoning and Development Agreement ~ . I rJ Jen Ram, AssocIate P anne~ SUBJECT: REPORT PREPARED BY: Exhibit A: / Ordinance Amending the Zoning Ordinance to permit Rezoning Exhibit B: / Resolution Approving and Establishing Findings and General Provisions and Conditions of Approval for a PD, Planned Development Rezoning Exhibit C: / Ordinance approving Development Agreement (includes Development Agreement as Attachment 1 to Ordinance) EXHIBITS ATTACHED RECOMMENDATION: 1) if rvJf il 4) 5) 6) Open continued public hearing and hear staff presentation Take testimony from Applicant and public Question staff, applicant and public Close public hearing and deliberate Waive second reading and adopt Ordinance Amending Zoning Ordinance (Exhibit A) Adopt Resolution Approving and Establishing Findings and General Provisions and Conditions of Approval for a PD Planned Development Rezoning (Exhibit B) Waive second reading and adopt Ordinance approving Development Agreement (Exhibit C) 7) FINANCIAL STATEMENT: (See Fiscal Analysis section of Agenda Statement of January 23, 1995) DESCRIPTION: Homart Development Co. and Alameda County Surplus Property Authority are requesting approval of a rezone of 75:!: acres from Planned Development - Business --------------------------------------------------------------------------------------------------------- ITEM No.6.J COPIES TO: Applicant Owner P A File iJE.V ftG-Hr 000-00 CITY CLERK FILE ~ e - ParklIndustrial (low coverage) to a General Commercial Planned Development. This project has a General Plan and Specific Plan Designation of General Commercial. The project is proposed to be constructed in two phases. The first phase includes 500,000 sq.ft., the second 300,000 sq. ft. The first phase would be closest to the intersection of Dublin Boulevard and Hacienda Drive. The proposed Planned Development would allow for an 800,000:!: square foot commercial center which may include retail shops, offices, movie theaters and restaurants, among other uses. A Development Agreement between Homart Development Co., Alameda County Surplus Property Authority and the City of Dublin is part of the project. The Development Agreement includes traffic, noise and public facilities impact fees, phasing of infrastructure construction and future creek improvements among other items. ENVIRONMENTAL: The City Council approved by Resolution the Mitigated Negative Declaration and Mitigation Monitoring Program for the project at their meeting of January 23, 1995. ANALYSIS: The City Council heard the project at a public hearing on January 23, 1995. As a result of public testimony and discussion among the City Council, staffwas directed by the City Council to include a condition to the Resolution Approving and Establishing Findings and General Provisions and Conditions of Approval for a PD Planned Development Rezoning that would require that the Site Development Review Application for the Project be approved by the City Council rather than the Planning Director. In response to this request, staffhas added a new condition of approval (Condition No. 38) and modified Condition No. 14 of the Resolution Approving and Establishing Findings and General Provisions and Conditions of Approval for a PD Planned Development Rezoning (Exhibit B). Condition No. 38 establishes that Section 8-95 of the City's Zoning Code in relation to Site Development Review will be revised for the Santa Rita Commercial Center Project, P A 94-001. The revisions will enable the City Council to approve the application at a public meeting and the approval will become effective immediately. The Condition will not change the ability of the Planning Director to approve waivers for minor revisions to the approval. Condition No. 14 was modified to be consistent with the City Council's direction that the Site Development Review Application be approved by the City Council. 2 e - RECOMMENDATION: Staff recommends that the City Council: waive the second reading and adopt the Ordinance amending the Zoning Ordinance to allow a PD Rezone (Exhibit A); adopt the Resolution Approving and Establishing Findings and General Provisions and Conditions of Approval for a PD Planned Development Rezoning (Exhibit B); and, waive the second reading and adopt the Ordinance approving the Development Agreement (Exhibit C). Additionally, should the City Council so desire, the City Council could adopt by minute action the recommendations by the Planning Commission relating to the East Bay Regional Parks District's request: 1. Support, in concept, the preparation of a Greenway Study along Tassajara Creek 2. Support continuing to work with the East Bay Regional Park District on trails consistent with the City's Parks and Recreation Master Plan and Eastern Dublin Specific Plan. 3 e e. ORDINANCE NO. -95 AN ORDINANCE OF THE CITY OF DUBLIN AMENDING THE ZONING ORDINANCE TO PERMIT THE REZONING OF REAL PROPERTY LOCATED AT THE SOUTHEAST CORNER OF THE INTERSECTION OF DUBLIN BOULEVARD AND HACIENDA DRIVE (APN 941-15-1-4 (POR)) The City Council of the City of Dublin does ordain as follows: Section 1 Chapter 2 of Title 8 of the Dublin Ordinance Code is hereby amended in the following manner: Approximately 75 acres generally located at the southeast corner of the intersection of Dublin Boulevard and Hacienda Drive, more specifically described as Assessor's Parcel Number 941-15-1-4 (por), are hereby rezoned from a Planned Development Business Park Industrial: Low Coverage district to a Planned Development General Commercial District; and PA 94-001 Santa Rita Commercial Center, as shown and described on Exhibit A (Rezone Application), Exhibit C (Mitigated Negative Declaration) and Exhibit I (Findings, General Provisions and Conditions of Approval), on file with the City of Dublin Planning Department, are hereby adopted as the regulations for the future use, improvement, and maintenance of the property within this District. A map of the rezoning area is outlined below: ~; 3i ,.., O' "'. :.: o. ~\ ~- - :;;C- ~ Eft ~ CAMP PAAl<S ODD! " c=JCJCJ ODD III II r-:=' :>c ro. ~".J '! Cl.'SUN BLVD. "'" erty e :; ~ < ,.. DUBLIN ( "T ASSAJAAA : c:.:;E=;( . BRIDGE (; ,~ ~ _ iiCU I C )...- "--- -- ----y\,\",,- --- Q->-I ~:eNOA DR lYE \ \ '" "'" ove;:;C:=;OSSiNG f j; iEXHI 01 "" ! - J )~. ~ ~c "!1.iI~;C:: {7# 0"7; I. e e Section 2 This ordinance shall take effect and be enforced thirty (301 days from and after its passage. Before the expiration of fifteen (15) days after its passage, it shall be published once, with the names of the Councilmembers voting for and against same, in a local newspaper published in Alameda County and available in the City of Dublin. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 31 st day of January, 1995, by the following votes: AYES: NOES: ABSENT: Mayor ATTEST: City Clerk /940010rd e e RESOLUTION NO. . - 95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AND ESTABLISHING FINDINGS AND GENERAL PROVISIONS FOR A PD, PLANNED DEVELOPMENT REZONING CONCERNING P A 94-001 SANTA RITA COMMERCIAL CENTER WHEREAS, Homart Development Co., a Delaware Corporation, and the Surplus Property Authority of the County of Alameda (Applicants), are requesting a Planned Development Rezoning to establish General Provisions and Development Regulations for a 751:. acre portion of APN 946-15-1-4 (por) ; and WHEREAS, Homart Development Co., a Delaware Corporation, and the Surplus Property Authority of the County of Alameda (Applicants), have submitted a Land Use and Development Plan as required by Section 8.31-13 of the Zoning Ordinance which meets the requirements of said section; and WHEREAS, the Planning Commission did hold public hearings on said application on December 19, 1994; January 3, 1995; and January 17, 1995 and did adopt Resolution No. 95-01, recommending that the City Council certify the Mitigated Negative Declaration and adopt the Mitigation Monitoring Program; Resolution No. 95 -02, recommending that the City Council approve the Planned Development Rezoning request; Resolution No. 95 -03 recommending that the City Council approve the Development Agreement; and recommending further that the City Council support, in concept, the preparation of a Greenway Study along Tassajara Creek and further recommending that the City Council support continuing to work with the East Bay Regional Park District on trails consistent with the City's Parks and Recreation Master Plan and Eastern Dublin Specific Plan; and WHEREAS, proper notice of said public hearing was given in all respects as required by law; and 'VHEREAS, the application has been reviewed in accordance with the California Environmental Quality Act ("CEQA") and a Mitigated Negative Declaration (SCH 94113020) has been prepared; and WHEREAS, with the inclusion of mitigation measures and conditions of approval, it has been determined that the project will not have a significant effect on the environment; and 'VHEREAS, the Staff Report was submitted recommending that City Council approve the application subject to conditions prepared by Staff; and WHEREAS, the City Council did hear and use their independent judgment and consider all said reports, recommendations and testimony hereinabove set forth.. NOW, THEREFORE, BE IT RESOLVED THAT THE Dublin City Council does hereby find that: 1. The Planned Development Rezone will be appropriate for the subject property in tenns of providing a range of permitted and conditionally pennitted uses which will be compatible with existing vacant and proposed commercial, office and residential uses in the immediate vicinity, and which enhances development of the Specific Plan area; and 2. The Planned Development Rezoning will not have a substantial adverse affect on health or safety or be substantially detrimental to the public welfare or be injurious to property or public improvement as all applicable regulations will be met; and 3. The Planned Development Rezoning will not overburden public services as the Dublin San Ramon Services District has stated that public services are available; and 1 EXHIBIT ~ c:\planningljeri\9400 1 rs 1 e e 4. As demonstrated in the matrix attached and made a part of the Mitigated Negative Declaration, the Planned Development Rezoning will be consistent with the Dublin General Plan and the Eastern Dublin Specific Plan including all the policies therein; and 5. The Planned Development Rezoning will provide efficient use of the land that includes preservation of significant open areas and natural and topographic landscape features along Tassajara Creek with minimum alteration of natural land forms; and 6. The Planned Development Rezoning will provide an environment that will encourage the use of common open areas for neighborhood or community activities and other amenities through conditions of approval; and 7. The Planned Development Rezoning will create an attractive, efficient and safe environment through conditions of approval; and 8. The Planned Development Rezoning will benefit the public necessity, convenience and general welfare and is in conformance with Sections 8-31.0 to 8-31.19 of the Dublin Zoning Ordinance; and 9. The Planned Development Rezoning will be compatible with and enhance the general development of the area because it will be developed pursuant to conditions of approval and site development review; and 10. The Planned Development Rezoning will create attractive, efficient and safe development because it will be developed pursuant to conditions of approval and site development review. BE IT FURTHER RESOLVED THAT THE Dublin City Council does hereby approve PA 94-001, Santa Rita Commercial Center Planned Development, subject to the following General Provisions and Development Standards which constitute regulations for the use, improvement and maintenance of the 75:r. acre parcel 946-15-1- 4 (por). GENERAL PROVISIONS AND DEVELOPMENT STANDARDS 1. Intent: This approval is for Planned Development Rezone P A 94-001, Santa Rita Commercial Center. This Planned Development District is established to provide for and regulate the development of the Santa Rita Commercial Center. Development shall be generally consistent with the Land Use Development Plan which consists of the following submittals: A. Planned Development Rezone Application dated September 6, 1994; and B. The "Conceptual Site Plan" dated September 23, 1994 which supersedes the document entitled "Conceptual Site Plan" in the September 6, 1994 application. 2. The following principal uses are permitted in the PD District A. Retail commercial establishments, including, but not limited to, the following: 1. General Merchandise Store 2. DiscountlWarehouse Retail Store 3. ClothinglFashion Store 4. Shoe Store 5. Home Furnishing Store 6. Office Supply Store 7. Home AppliancefElectronics Store 8. Home Improvement Store 9. Music Store c:\planning\j eri\9400 I IS I 2 e e 10. Hobby/Special Interest Store 11. Gifts/Specialty Store 12. Jewelry and Cosmetic Store 13. Drug Store 14. Auto Parts Store 15. Toy Store 16. Book Store 17. Pet Supplies Store (including in-store veterinary clinic) 18. Sporting Goods Store 19. Grocery/Food Store 20. Automobile Service and similar uses that sell goods based on price and quality. B. Eating, drinking and entertainment establishments, including, but not limited to, the following: 1. Restaurant 2. Wine or liquor bar with on-sale liquor license 3. Micro-brevvery 4. Nightclub 5. Indoor movie theater 6. Delicatessen 7. Specialty Food 8. Bakery 9. Ice Cream Shop 10. Sandwich Shop 11. Video Arcade/Rentals 12. Drive-through Facilities, including restaurants C. Office and service establishments including, but not limited to: 1. Bank/Savings and Loan 2. Real Estate/Title Office 3. Travel Agent 4. Legal 5. Accounting 6. Medical and Dental 7. Optometrist 8. Architect 9. Employment Agency 10. Hair/Beauty Salon 11. Cleaner and Dryer 12. Shoe Repair 13. Key Shop 14. Tailor 15. Athletic Club 16. Formal Wear/Rental 17. Other Administrative and Professional Office 18. Technology Access Center 19. T ele-Commuting Center 3. The following are conditional uses in the PD District and shall be permitted only if approved by the Planning Commission: 1. Community, religious and charitable institutional facilities c:\planningljeri\9400 1 rs 1 3 e . 2. Public Facilities and uses 3 . Veterinary Office 4. Recycling Center 5. In-patient and out-patient health facilities as licensed by the State Department of Health Services 6. Gas Station 7. Outdoor food vendors 8. Automobile sales 9. Hotel/Motel 4. Any structure, circulation, parking, landscaping and signage shall be subject to Site Development Review (pursuant to Section 8-95 of the Zoning Ordinance) unless zoning approval is granted upon the determination that the construction constitutes a minor project and that the Building Permit plans are in accord with the intent and objectives of the Site Development Review procedures. 5. Setbacks and Yards A. Minimum Setbacks: The minimum perimeter setbacks for buildings, accessory structures, parking areas, driveways and loading areas shall be as follows: 1. Along Interstate 580: 20 feet from right-of-way. 2. Along Dublin Boulevard: 20 feet from right-of-way. 3. Along Tassajara Creek: A minimum 100 foot setback from the top of bank will be maintained along Tassajara Creek. The setback zones shall be fully landscaped with both hardscape (private sidewalks and other hard surfaced areas) and softscape (trees, shrubs, ground cover, etc.). B. Exceptions to the above setback requirements are the following: 1. Architectural projections (such as eaves, columns, balconies, arcades, awnings, steps and decks) which may encroach up to a maximum of 10 feet into a required setback, with a minimum setback of 10 feet from a street right-of-way. 2. Freestanding signage: As permitted in the Master Sign Program. C. Minimum Yards: The required setback between all buildings within the project for all yards is 0 feet. 6. Building and other structures will be limited to a maximum height of75 feet in this District. 7. The overall maximum floor area ratio for this district will be .25 permitting a total of approximately 800,000:l: square feet of Gross Leasable Area (GLA) on 75 acres. 8. Parking and loading: A. Parking and Loading Spaces. There shall be provided and maintained in accordance with these standards, off-street automobile parking and loading spaces for every building and use. No building or structure shall be erected or use established and no existing building shall be structurally altered, unless there is already in existence, or unless provision therefore is made concurrently with such erection or structural alteration or new use, the number of parking spaces and loading spaces necessary to meet the minimum requirements hereinafter set forth. c:\planning\jeri\9400 1 IS I 4 e e B. Continuing Character of Obligation. The maintenance of the parking and loading spaces required shall be a continuing obligation of the owner of the real property upon which the building or structure is located as long as the building or structure exists and the use requiring such space continues. It shall be unlawful for an owner of a building or structure affected by these requirements to discontinue, change or dispense with or to cause the discontinuance, sale or transfer of such building or structure, without establishing alternative spaces which conform to those requirements; or for any person, firm, or corporation to use such building or structure without providing such required parking or loading spaces, in compliance with these standards. C. Parking Spaces: Accessibility. These standards are intended to provide off-street spaces for the parking of the automobiles of tenants of the premises and for clients, customers, employees, and callers. They are required to be kept accessible for the purposes continuously, and the use of any such required space or spaces other than these specified, shall constitute discontinuance thereof in violation of Section 8-63.1. D. Parking Spaces: Size and Location. A standard. parking stall shall be a minimum of nine (9) feet wide by nineteen (19) feet in length. Compact stalls shall be a minimum of eight (8) feet wide by a minimum of seventeen (17) feet in length. Compact parking spaces may comprise up to 25% of the required parking spaces. Where parking spaces abut sidewalks or landscape areas the length of a parking stall may be reduced by two feet. Minor adjustments to parking space size and location may be made through the Site Development Review process. E. Loading Spaces: Size and Location. Required loading space for buildings with an aggregate floor area less than forty-thousand (40,000) s.f shall be not less than ten (10) feet in width and twenty (20) feet in length. Required loading spaces at buildings with an aggregate floor area over forty-thousand (40,000) s.[ shall be not less than ten (10) feet in width and sixty (60) feet in length. Every required loading space shall be clear to a height of not less than fourteen (14) feet. Every required loading space shall be on the same lot as the structure it serves or on an abutting lot and shall be continuously accessible from the street. No loading space shall occupy any part of a required parking space, or any required street side yard of a corner lot. F. Parking and Loading Spaces: Approval of Plan. A site plan showing the location of the existing and proposed building or buildings and other improvements, the location of all required parking and loading spaces, and all provisions for maneuvering space and access thereto from a public right-of-way including proposed curb cuts, shall be submitted and approved as being convenient and functional prior to the issuance of Building Permit. No approval of occupancy shall be issued upon completion of a building or structural alteration of a building or for any land use when no buildings are erected or altered, unless and until all such spaces as required and as shown upon approved plans and made a part of the Building Permit are in place and ready for use. G. Parking and Loading Spaces: Maintenance. All parking and loading spaces, access driveways, and maneuvering areas required shall be graded and well drained and shall be maintained with all weather dust-free surfacing. Lighting of parking and loading spaces shall be so arranged as to be directed downward and away from any residential area. H. Collective Action Permitted. Nothing herein shall be construed to prevent the joint use of parking or loading space for two (2) or more buildings or uses if the total of such spaces provided is not less than the sum of the requirements for the individual uses computed separately in accordance with these standards. 1. Number of Spaces Required. The number of parking and/or loading spaces required shall be calculated based on gross floor area for retail and office uses, and customer service c:\planningljeri\9400 1 IS 1 5 e e area for restaurant uses. When the calculation results in a fractional number, any fraction up to and including one-half (~) shall be disregarded and any fraction over one-half (~) shall be adjusted to the next higher whole number. J. Parking Spaces Required: The number of parking spaces required shall be not less than specified in the following table: USE Parking Required Retail Restaurant Theater Office 4.5/1000 sq. ft. 7/1000 sq. ft. 115 seats 4/1000 sq. ft. Exception: Where an attested copy of a contract between the parties concerned is filed with the Application for Building Permit, which contract sets forth a valid agreement for joint use of parking spaces for the life of the buildings or uses concerned and a parking study has been approved by the Zoning Administrator demonstrating that a lesser number of parking spaces would be appropriate for the proposed use, through shared use of parking, then the number of required parking spaces shall be reduced in accordance with the number indicated in the approved parking study. K. Loading Spaces Required: Every allowable use which has an aggregate gross floor area of fifteen-thousand (15,000) square feet or more, shall provide loading spaces in accordance with the following: AQQregate Gross floor Area (sq. ft) Number of Loading Spaces required 15,000 - 40,000 over 40,000 - 100,000 over 100,000 - 160,000 over 160,000 1 2 3 3 plus 1 for each full 80,000 square feet in excess of 160,000 L. Minimum Aisle Widths: Parking aisles with two-way traffic shall have a minimum width of twenty-two (22) feet for parking angles of 0, 30, 45 and 60 degrees. Parking aisles with two-way traffic shall have a minimum width of twenty-five (25) feet for 90 degree parking angle. Parking aisles with one-way traffic shall have minimum widths as follows: a) 15 feet for parking angles of 0, 30, and 45 degrees. b) 18 feet for a parking angle of 60 degrees. c) 25 feet for a parking angle of 90 degrees. Minor adjustments to aisle width standards may be made through the Site Development Review process. M. Bicycle Facilities: Bicycle parking facilities shall be provided, at the minimum, at a ratio of one space per 150 required automobile spaces. These facilities, which would provide for convenient parking and locking of bicycles shall be located adjacent to the fronts of buildings and dispersed throughout the shopping center. 9. The Master Sign Program will be submitted for review with the Site Development Review package. c:\planning\jeri\9400 1 IS 1 6 e e 10. A minimum ratio of twenty percent (20%)ofthe gross land area will be provided in open space, which shall include landscape, entry, plaza and sidewalk areas. The minimum ratio of landscape to gross land area shall be as follows: Perimeter site areas: Parking areas: Ten (10%) percent Five (5%) percent BE IT FURTHER RESOLVED THAT THE Dublin City Council does hereby approve P A 94-001 Planned Development Rezoning subject to the following conditions: CONDITIONS OF APPROVAL: Unless stated otherwise. all Conditions of Approval shall be complied with prior to final occupancv of any building. and shall be subiect to Planning Department review and approval. The following codes represent those departments/agencies responsible for monitoring compliance of the conditions of approval. [PL] Planning. [B] Building. [PO] Police. [PW] Public Works. rADMJ Administration/City Attorney. [FIN] Finance. [F] Dougherty Regional Fire Authority. (DSRl Dublin San Ramon Services District. (CO] Alameda County Flood Control & Water Conservation District (Zone 7). 11. Developer shall work with LA VT A to establish the need, routes and bus schedule for this project prior to Site Development Review (SDR). [PW] 12. Developer shall design bus turnouts, transit shelters and pedestrian paths (sidewalks) to match proposed LA VT A routes and stops and to the City of Dublin's requirements and standards prior to issuance of the building permit. Construction shall be undertaken as part of the street improvement work. [PW] 13. Alameda County shall enter into a development agreement with the City of Dublin that, in addition to other provisions, provides that when the property to the east of the Santa Rita Commercial Center project develops, all the action measures of the Eastern Dublin Specific Plan and Mitigation Measures of the Eastern Dublin FEIR pertaining to T~ssajara Creek adjacent to this project will be activated and completed or guaranteed for completion. [PL] 14. Prior to obtaining building permits, the applicant must receive Site Development Review (SDR) approval from the City of Dublin City Council for P A 94-001. Said application for SDR approval shall include a visual survey to insure scenic vistas as identified in the Eastern Dublin Specific Plan and FEIR. are not blocked. [PL] 15. Homart Development Co., Alameda County and the City of Dublin shall enter into a development agreement which shall contain provisions for sequencing of infrastructure, any financing plans, payment of traffic, noise and public facilities impact fees and other provisions deemed appropriate by the parties. [PL] 16. Bicycle parking facilities shall be provided at the Santa Rita Commercial Center in accordance with the Planned Development Rezone general provisions and development standards filed with the Planning D~art~~.[PW . 17. The location and siting of project specific wastewater, storm drain and potable water system infrastructure shall be consistent with the resource management policies of the Eastern Dublin Specific Plan. [PL, PW] 18. Any proposed modifications or alterations to Tassajara Creek shall be approved by the City of Dublin and any required permitting agencies and shall be consistent with the policies of Eastern Dublin Specific Plan and FEIR... [pW, PL] c:\planning\jeri\9400 1 rs 1 7 e e 19. Developer shall pay a Traffic Impact Fee (TIF) based on the adopted Eastern Dublin TIF. The TIF must be paid prior to issuance of any building permit. [B, PW] 20. Developer shall participate in the BAAQMD's Traffic Systems Management Program and provide a funding mechanism to LA VT A for free bus passes for employees prior to occupancy of any buildings. [PW] 21. Prior to any combustible construction, fire facilities shall be in place to serve the project to the satisfaction of the Dougherty Regional Fire Authority. [DSR, F, B] 22. Prior to receiving a building permit, applicant shall pay school fees to the satisfaction of the Dublin Unified School District. [B] 23. The refuse collection areas within the project shall be reviewed by the garbage service provider to ensure that adequate space is provided to accommodate collection and sorting of petrucible solid waste as well as source-separated recyclable materials generated by the commercial businesses within the Homart project. 24. Prior to issuance of building permit, applicants shall provide written documentation that adequate electric, gas, telephone and landfill capacity is available. [PW] 25. Developer shall submit plans for the water and sewer systems to service this development acceptable to DSRSD, pay fees required by DSRSD and receive DSRSD's approval prior to issuance of any building permit. Developer shall construct these facilities prior to occupancy. [B, PW] 26. Developer shall provide a "will serve" letter from DSRSD prior to issuance of the grading permit which states that the Homart project can be served by DSRSD for water and sewer prior to occupancy. [B, PW] 27. Developer shall provide a recycled water system for the landscaping per City of Dublin, Zone 7 and DSRSD requirements. The landscaping areas must meet City of Dublin Water Efficient Landscape Ordinance requirements. [PW] 28. Developer shall provide Public Utility Easements per requirements of the City of Dublin and/or public utility companies as necessary to serve this area with utility services. [PW] 29 Developer shall participate, along with other Eastern Dublin developers who shall benefit, in financing construction of needed new chlorination-fluoridation stations at the proposed Zone 7 turnouts in the Eastern Dublin area. The details of this requirement are to be developed as part of the DSRSD reviews and approvals. [PW] 30. Developer shall meet City of Dublin requirements for Dublin's Urban Runoff Program and shall apply for and obtain a permit from the Regional Water Quality Board. All grading shall be perfonned during the non-rainy season (April 15th to October 1st), or provide erosion control measures as part of the project to keep mud and silt out of the storm drain system. [PW] 31. A preconstruction survey shall be submitted to the City that is prepared within 60 days prior to any habitat modification to verify the presence of sensitive species, especially the San Joaquin Kit Fox, nesting raptors, the red-legged frog, the Western Pond Turtle, the California Tiger Salamander, the Tri- Colored Blackbird, and other species of special concern. Said survey shall be prepared by a biologist and shall be subject to Planning Department review and approval. [PL] 32. Prior to issuance by the City of any building permit, all utility connection fees, plan checking fees, inspection fees, permit fees and fees associated with a wastewater discharge permit shall be paid to DSRSD in accordance with the rates and schedules established in the DSRSD Code. [pW, B] . c:\planningljeri\9400 I rsl 8 e e 33. All businesses will be required to secure a City of Dublin business license prior to opening for business and provide the number, type and salary level of employees (on a form established by the City) for each business in order to implement the housing and employment monitoring system. 34. The Developer shall contact the Alameda County Agricultural Department and develop and distribute a handout to tenants regarding the safe use of roden tic ides and herbicides within the project area. This handout is to be developed, delivered to the City of Dublin for review, and approved by the City prior to the occupancy of any buildings. 35. Except as specifically modified by the provisions of this Planned Development (pA 94-001) this project shall be subject to the regulations of the C-2, General Commercial, District. 36. All items listed in the matrix attached and made a part of the Mitigated Negative Declaration that have not been made conditions of approval of this PD Rezone, will be required as conditions of approval on the discretionary action so indicated on the matrix. 37. Prior to the occupancy of any portion of phase 1, the storm drainage systems to the site as well as on site drainage systems to the areas to be occupied shall be complete to the satisfaction and requirements of the Dublin Public Works Department and shall be in conformity with the Master Drainage Plan. 38. Notwithstanding Sections 8-95.0 et.seq. of the City's Zoning Code and Section 8-95.060 in particular, the City Council shall be the approving body for the Site Development Review application for the Santa Rita Commercial Center Project (P A 94-001). The City Council shall consider the Site Development Review application at a public meeting and shall make the findings pursuant to Section 8-95.070. Notwithstanding Section 8-95.090 of the Zoning Code, the decision ofthe City Council on the Site Development Review application shall be effective immediately. Any waiver of Site Development Review shall be consistent with Section 8-95.100. Notwithstanding Section 8-95.110, any revision or modification of the Plan approved shall be heard and decided by the Planning Director. PASSED, APPROVED AND ADOPTED this 31st day of January, 1995. AYES: NOES: ABSENT: Mayor ATTEST: City Clerk (1994\P A94-00 1 Irespdrcc) c:lplanninglj eri\9400 1 rs 1 9 e e ORDINANCE NO. 95-___ AN ORDINANCE OF THE CITY OF DUBLIN APPROVING DEVELOPMENT AGREEMENT FOR THE SANTA RITA COMMERCIAL CENTER THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The proposed Santa Rita Commercial Center (PA 94-001) (lIprojectll) is located within the boundaries of the Eastern Dublin Specific Plan ("Specific Plan") in an area which is designated on the Land Use Map as "general commercial". B. A Program Environmental Impact Report ("EIR") was prepared for the Specific Plan and the Eastern Dublin General Plan Amendment and certified by the Council by Resolution No. 51- 93. 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. Homart Development Company and the Surplus Property Authority of Alameda County have filed an application requesting approval of a development agreement for the Santa Rita Commercial Center. E. A Development Agreement between the City of Dublin, Homart Development Company, and the Surplus Property Authority of the County of Alameda (IIDevelopment Agreement") has been presented to the City Council, a copy of which is attached hereto as Attachment 1. F. A public hearing on the proposed Development Agreement was held before the Planning Commission on January 17, 1995, 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 the Planning Commission's determinations with respect to the matters set forth in Section 8.12.080 of the Dublin Municipal Code. H. .A number of minor modifications to the Development Agreement have been made since the Planning Commission made its recommendation, which modifications the Council finds need not be referred back to the Planning Commission. was 1. held A public hearing on the proposed Development Agreement before the City counCil1on January 2~hi~ e e public notice was given as provided by law. Said public hearing was continued to January 31, 1995. J. The City Council has considered the recommendation of the Planning Commission (Planning Commission Resolution No. 95- 03)! including the Planning Commission's reasons for its recommendation, the Agenda ~tatement, all comments received in writing' and all testimony received at the public hearing. K. Pursuant to the California Environmental Quality Act, the City prepared a Mitigated Negative Declaration for the Santa Rita Commercial Center project, including the Development Agreement, and the City Council has adopted a resolution approving the Mitigated Negative Declaration. The Mitigated Negative Declaration included a Matrix showing how the project complies with the Specific Plan's programs and the mitigation measures contained in the EIR. 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 Mitigated Negative Declaration, (g) 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 designations for the site are "general commercial" and the project is a commercial development consistent with the "general commercial" designation, (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, payment of fees, timely provision of public facilities, reimbursement for oversizing infrastructure 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 Santa Rita Commercial Center Project. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies in that the Santa Rita Commercial Project will implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for commercial development at this location. 2 e e 4. The Development Agreement will not be detrimental to the health, safety and general welfare in that the project will proceed in accordance with the Mitigated Negative Declaration and the mitigation monitoring program for the project adopted by the City Council and will comply with all programs and policies of the 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 Specific Plan. Section 3. APPROVAL The City Council hereby approves the Development Agreement (Attachment 1) and authorizes the Mayor to sign it. Section 4. RECORDATION Within ten 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 this 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, APPROVED AND ADOPTED by the City Council of the City of Dublin on this ____ day of , 1995, by vote as follows: AYES: NOES: ABSENT: ABSTAIN: MAYOR ATTEST: CITY CLERK 114\ord\homart 3 e e Recording Requested by: City of Dublin When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublinl CA 94568 Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND HOMART DEVELOPMENT CO. AND SURPLUS PROPERTY AUTHORITY OF THE COUNTY OF ALAMEDA FOR THE TRI-VALLEY CROSSINGS PROJECT/SANTA RITA COMMERCIAL CENTER ATTACHMENT 1. January 25, 1995 114\agree\devlp52.agr e e INDEX RECITALS 1 AGREEMENT 2 1. Description of Property. 2 2. Interest of Developer. Relationship of City, County and Developer. Effective Date and Term. 3 3 3. 3 4. 4.1 Effective Date 3 4.2 Term 3 5. Use of the Property 4 5.1 Right to Develop 4 5.2 Permitted Uses 4 5.3 Additional Conditions 4 5.3.1 Conditions, terms, restrictions, and requirements for subsequent discretionary actions. . . . . . 4 5.3.2 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. 4 5.3.3 Provisions that the Project be constructed in specified phases, that construction shall commence within a specified timet and that the Project or any phase thereof be completed within a specified time. . 5 5.3.4 Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. ........... 5 5.3.5 Terms relating to subsequent reimbursement over time for financing of necessary public 9 . e e facilities. 5.3.6 Terms relating to payment of fees. 5.3.7. Miscellaneous terms. 6 . 5.4 Subsequent Approvals. . . Applicable Rules, Regulations and Official Policies. ......... 6.1 Rules re Permitted Uses. 6.2 Rules re Design and Construction 6.3 Uniform Codes Applicable 7. Subsequently Enacted Rules and Regulations. 7.1 New Rules and Regulations 7.2 Moratorium Not Applicable. 8 . Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1 New Fees 8.2 Construction of Off-Site Traffic Improvements . . . . 8.3 Revised Application Fees 8.4 New Taxes. 8.5 Assessments Amendment or Cancellation. - . . 9.1 Modification Because of Conflict with State or Federal Laws. 9.2 Amendment by Mutual Consent. 9.3 Insubstantial Amendments 9.4 Amendments of Project Approvals. 10. Term of Project Approvals. 9.5 Cancellation by Mutual Consent. 11. Annual Review. . . . 5 5 5 5 5 5 6 6 6 6 6 7 7 7 7 7 7 8 8 8 8 8 9 9 9 e e 11.1 Review Date. 9 11.2 Initiation of Review 9 11.3 Staff Reports. 9 11.4 Costs 10 12. Default. 10 12.1 Other Remedies Available 10 12.2 Notice and Cure. 10 13. Estoppel Certificate. 10 14. Mortgagee Protection; Certain Rights of Cure. 11 14.1 Mortgagee Protection. . . 11 14.2 Mortgagee Not Obligated 11 14.3 Notice of Default to Mortgagee 15. Severability. 11 11 16. Attorneys' Fees and Costs. 12 17. Transfers and Assignments. 12 17.1 Right to Assign Project as Whole or Either Phase . 12 17.2 Release Upon Transfer. 12 17.3 Sale of a Portion of Either Phase. 13 18. Agreement Runs with the Land. 13 19. Bankruptcy. 13 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 e e 22. Sewer and Water 23. Notices. 24. Agreement is Entire Understanding. 25. Meaning of "DEVELOPER and/or COUNTY" 26. Status. 27. Exhibits 28. Time of the Essence. 29. Recordation 30. Counterparts EXHIBIT A EXHIBIT B 15 15 16 16 16 17 17 17 17 21 22 e e THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this ____ day of January, 1995, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "CITY"), the SURPLUS PROPERTY AUTHORITY of the County of Alameda, a public corporation (hereafter "COUNTY"), and HOMART DEVELOPMENT CO., a Delaware Corporation (hereafter "DEVELOPER"), pursuant to the authority of ~~ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.12. RECITALS A. California Government Code ~~ 65864 et seq. and Chapter 8.12 of the Dublin Municipal Code (hereafter "Chapter 8.12") authorize the CITY to enter into a binding 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 and COUNTY desire to develop and Developer holds legal interest in certain real property consisting of approximately 75 acres of land, located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibit A-I and A-2 attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property"; and E. COUNTY is the owner of property in the City of Dublin consisting of approximately 620 acres of land, which includes the approximately 75 acres which DEVELOPER has option on rights to acquire; F. DEVELOPER and COUNTY propose the phased development of the Property with a 75-acre retail commercial development (the "project"); and G. CITY, COUNTY, and DEVELOPER acknowledge that development of the Project is a large scale undertaking, involving major investments by DEVELOPER and COUNTY, with development occurring in phases over several years. DEVELOPER and COUNTY are unwilling to incur the required January 25, 1995 114\agree\devlp52.agr 1 e e investment in development of the Project without assurance from CITY that all phases of the Project can be developed in accordance with the approvals granted by CITY. CITY, in turn, cannot be assured of realizing the benefits of development of the Project without granting assurance of continuity of CITY'S approvals to DEVELOPER and COUNTY; and H. DEVELOPER and COUNTY have applied for, and CITY has approved, various land use approvals in connection with the development of the Project, including a PD District rezoning (Ord. No. ), and intend to process a tentative parcel map and site development review (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and I. CITY desires the timely, efficient, orderly and proper development of said Project in accordance with this agreement; and J. The Master Development Agreement approved by CITY Resolution No. 109-94 was used as the format for negotiating this Agreement; 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 8.12; and L. 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. On January , 1995, the City Council of the City of Dublin adopted Ordinance No. approving this Development Agreement. The ordinance took effect on February ,1995. 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: January 25, 1995 114\agree\devlp52.agr 2 e e AGREEMENT 1. Description of Property. The Property which is the subject of this Development Agreement is a portion of Assessor's Parcel Number 946-15-1-4, consisting of approximately 75 acres at the southeast corner of Hacienda Drive and Dublin Boulevard in the City of Dublin as depicted on the map attached as Exhibit A-I hereto (nproperty"). The parties agree that a legal description of the Property will be attached hereto by CITY as Exhibit A-2 at the time of approval of the tentative parcel map and will become a part hereof without further action. 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Property in that it has an option to purchase the Property in fee simple wh~ch may be exercised in two phases. DEVELOPER shall incur no obligations hereunder unless and until it purchases the Property or any portion of it in fee simple. 3. Relationship of City, County and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by CITY, COUNTY and DEVELOPER and that neither the COUNTY nor the DEVELOPER is an agent of CITY. The CITY, COUNTY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY, COUNTY and DEVELOPER joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date when signed by all parties. 4.2 Term. Unless said term is otherwise terminated or modified by circumstances set forth in this Agreement or by mutual consent of the parties hereto by amendment of this Agreement, the term of this Development Agreement shall commence on the effective date and extend until the earlier of a) ten (10) years thereafter, or b) when DEVELOPER has completed its obligations under this Agreement for Phase 1 or Phase 2, and has completed development of Phase 1 or Phase 2, as the case may be, or c) when COUNTY has completed its obligations under this January 25, 1995 114\agree\devlp52.agr 3 e e Agreement for Phase 1 or Phase 2 and has completed development of Phase 1 or Phase 2, as the case may be. 5. Use of the Property. 5.1 Riaht to Develop. DEVELOPER and/or COUNTY shall have the vested right to develop the Project OD 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 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 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 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 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. January 25, 1995 114\agree\devlp52.agr 4 e e See Exhibit B. 5.3.4 Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B. 5.3.5 Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit S. 5.3.6 Terms relating to payment of fees. See Exhibit B. 5.3.7. Miscellaneous terms. See Exhibit B. 5.4 Subseauent Aoorovals. Development of the Property by DEVELOPER and/or COUNTY is subject to certain future discretionary approvals including, but not necessarily limited to, subdivision and site development review approval. Upon approval and issuance of any such subsequent discretionary approval (including conditions of such approval) each such approval shall automatically become part of the approvals which vest hereunder as each such approval becomes effective following final action by CITY, and DEVELOPER and/or COUNTY shall be entitled to develop in accordance with such approvals as provided in this Agreement as though such-approval existed upon the effective date of the Agreement and was initially incorporated herein. 6. Aoolicable Rules, Requlations and Official Policies. 6.1 Rules re Permitted Uses. Notwithstanding any future changes in the General Plan, Eastern Dublin Specific Plan, Zoning Ordinances or any future rules, regulations, or policies adopted by the CITY, including initiatives applicable to the Property, 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 January 25, 1995 114\agree\devlp52.agr 5 e e proposed buildings shall be those in force and effect on the effective date of this Agreement. 6.2 Rules re Desiqn and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable 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 and/or COUNTY 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, and Electrical 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. Subsequent Iv Enacted Rules and Requlations. 7.1 New Rules and Requlations. During the term of this Agreement, the CITY may apply new or modified ordinances, resolutions, rules, regulations and official policies of the CITY only if they were not in force and effect on the effective date of this Agreement, if they are not in conflict with those applicable to the Property as set forth in this Agreement and if the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent or materially delay development of the Property as contemplated by this Agreement and the Project Approvals. 7.2 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. January 25, 1995 114\agree\devlp52.agr 6 e e 8. Subseauentlv Enacted or Revised Fees, Assessments and Taxes. 8.1 New Fees. The CITY, DEVELOPER, and COUNTY agree that the fees payable and exactions required in connection with the development and buildout of the Project for the 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 PD Ord. No.____ or in this Agreement. The CITY shall not impose or require payment of any other fees, dedication of any land, or construction of any public improvements or facilities, in connection with any subsequent discretionary approval for the Property or any portion of it, except as set forth in PD Ord. No. and this Agreement. 8.2 Construction of Off-Site Traffic Improvements. The CITY, DEVELOPER, and COUNTY agree that DEVELOPER and/or COUNTY.S obligation to mitigate the traffic impacts of the project with respect to either constructing or contributing to the cost of any off-site improvements are limited to those set forth in this Agreement. No other off- site improvements, or contributions to off-site improvements, shall be required of DEVELOPER and/or COUNTY at any phase of development of the Project. 8.3 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. 8.4 New Taxes. Except as set forth below, 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. No excise tax on the privilege of developing property shall apply to the Project. 8.5 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. January 25, 1995 114\agree\devlp52.agr 7 e . 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 8.12. 9.2 Amendment bv Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in accordance with the procedures of State law and Dublin Ordinance No. 8-91. 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 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 and/or COUNTY as provided in this Agreementr including Exhibit B, shall not, except to the extent otherwise required by lawr require notice or public hearing before the parties may execute an amendment hereto. 9.4 Amendments of Proiect Aoprovals. No amendment of Project Approvals shall require an amendment of this Agreement. Instead, any such amendment automatically shall be deemed to apply to the Project and shall be subject to this Agreement. 9.5 Cancellation bv Mutual Consent. Except as otherwise permitted herein, this Agreement may be cancelled in whole or in part only by the January 25, 1995 114\agree\devlp52.agr 8 e e mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.12 of the Dublin Municipal Code. 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. Any credit due to COUNTY under paragraph 5.3.6 shall be carried over to future projects on COUNTY's remaining property. Upon completion of Phase 1 or Phase 2, the parties may agree in writing to cancellation of this Agreement as to Phase 1 or Phase 2, as the case may be, in accordance with the provision of Chapter 8.12 of the Dublin Municipal Code. 10. Term of Proiect Aoprovals. Pursuant to California Government Code Section 66452.6778(a), the term of the tentative parcel map described in Recital H 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. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be April I, 1996, and each April 1 thereafter. 11.2 Initiation of Review. The CITY's Planning Director shall initiate the annual review, as required under Section 8.12.140 of Chapter 8.12 of the Dublin Municipal Code, by giving to COu~TY and DEVELOPER thirty (30) days' written notice that the CITY intends to undertake such review. DEVELOPER and/or COUNTY shall provide evidence to the Planning Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Planning 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 and/or COUNTY. The review shall be for the purpose set forth in Government Code section 65865.1. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to COUNTY and DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least three (3) 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 January 25, 1995 114\agree\devlp52.agr 9 e e and/or COUNTY in accordance with the City's schedule of fees in effect at the time of review. 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by any party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 13. Estoppel Certificate. Any party, or prospective party or lender of any party hereto may, at any time, and from time to time, request written notice from the other parties hereto requesting such party to certify in writing that, to the knowledge of the certifying party, (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) the requesting party or the party about which information is requested 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 and/or COUNTY and County Administrator shall be authorized to execute any certificate for COUNTY. Failure to execute an estoppel certificate shall not be deemed a default. January 25, 1995 114\agree\devlp52.agr 10 e e 14. Mortqaqee Protection; Certain Riqhts of Cure. 14.1 Mortoaqee 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 for 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 Mortqaqee Not Obliqated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completioni 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 Mortgaqee. 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. 15. Severabilitv. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term.of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attornevs' Fees and Costs. If CITY, COUNTY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and January 25, 1995 114\agree\devlp52.agr 11 e . conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneysl 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. 17. Transfers and Assiqnments. 17.1 Rioht to Assign Project as Whole or Either Phase. In the event that DEVELOPER and/or COUNTY proposes to assign this Agreement in whole or as to the entirety of Phase 1 or Phase 2, (exclusive of any portions of Phase 1 or Phase 2 transferred pursuant to subparagraph 17.3) DEVELOPER and/or COUNTY shall give CITY ten (10) working days written notice of such proposed assignment and the right to review and comment on the proposed assignment document. DEVELOPER and/or COUNTY agree to give all reasonable consideration to CITY's comments but shall retain the right to assign this Agreement as herein stated without CITY's approval. Each successor in interest to the DEVELOPER and/or COUNTY shall be bound by all of the terms and provisions hereof after the effective date of the assignment of this Agreement, and DEVELOPER and/or COUNTY shall be relieved of any obligations, liabilities or the like incurred after the effective date of the as~ignment. Release Uoon Transfer. 17.2 Except as provided otherwise, upon the sale, transfer, or assignment of DEVELOPER'S and/or COUNTY'S rights and interests under this Agreement under subparagraph 17.1 , DEVELOPER and/or COUNTY shall be released from their obligations under this Agreement with respect to the portion of the Property and/or Project so transferred; provided however, that (i) DEVELOPER and/or COUNTY is not then in default beyond all applicable cure periods pursuant to written notice given under this Agreement; (ii) DEVELOPER and/or COUNTY have provided written notice of such transfer to CITY and (iii) subject to the exceptions stated herein below, the transferee executes and delivers to CITY a written Assumption Agreement in which (a) the name and January 25, 1995 114\agree\devlp52.agr 12 e e address of the transferee is set forth and (b) the transferee expressly and unconditionally assumes all of the obligations of the DEVELOPER and/or COUNTY under this Agreement with respect to the portion of the Property and/or Project transferred. 17.3 Sale of a Portion of Either Phase Neither DEVELOPER nor COUNTY shall be relieved of its respective obligations under this Agreement upon the sale of a portion of the Property comprising Phase 1 or Phase 2 and no such sale shall require approval from CITY pursuant to this Agreement. 18. Aqreement 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. Bankruptcv. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. In addition to the Processing Fee Agreement Form signed by DEVELOPER, which is incorporated herein, DEVELOPER and COUNTY each agrees to indemnify and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives- from any and all claims, costs and liability for any personal injury or property damage which may arise directly or indirectly as January 25, 1995 114\agree\devlp52.agr 13 e e a result of any actions or inactions by the DEVELOPER and/or COUNTY, respectivelYt or any actions or inactions of DEVELOPER's and/or COUNTY's respective contractors, subcontractors, agents, or employees in connection with the. construction, improvementt operation, or maintenance of the Project. No trustee shareholder, officer, director, employee, parent or subsidiary company, DEVELOPER affiliate or partner of DEVELOPER shall in any event at any time be personally liable for the payment or performance of any obligation under this Development Agreement. Nothing in this paragraph shall be construed to mean that DEVELOPER shall defend, indemnify or hold CITY or its elected or appointed representatives, officers, agents and employees harmless from any claims of personal injury, death or property damage arising from or alleged to have arisen from, the maintenance or repair by CITY of improvements that have been offered for dedication and accepted by CITY for maintenance or arising out of the negligence of CITY or its elected or appointed representatives, officers, agents and employees. 21. Insurance. Public Liability and Property Damaqe Insurance. 21.1 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 ($l,OOO,OOO) and a deductible of not more than ten thousand dollars ($10,OOO) per claim. The policy so maintained by DEVELOPER shall name the CITY and COUNTY as additional insureds 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 and/or COUNTY 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 and/or COUNTY, as the case may be, agree to indemnify the City for any damage resulting from DEVELOPER's and/or COUNTY'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 January 25, 1995 114\agree\devlp52.agr 14 e e evidence of the insurance required in Sections 21.1 and 21.2 in the form of a certificate of insurance 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 and each contractor and subcontractor performing work on the Project. 22. Sewer and Water. DEVELOPER and COUNTY acknowledge that water and sewer permits must be obtained 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 and delivered in person (by overnight mail) or sent by certified mail, postage prepaid. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin P.O. Box 2340 Dublin, CA 94568 Notices required to be given to DEVELOPER shall be addressed as follows: Homart Development Co. ATTN: Community Centers Counsel 55 West Monroe, Suite 2700 Chicago, IL 60603 with copy to Executive Vice President Notices required to be given to COUNTY shall be addressed as follows: County Administrator County of Alameda 1221 Oak Street, Room 555 Oakland, CA 94612 January 25, 1995 114\agree\devlp52.agr 15 e e with a copy to: Planning Director Alameda County 399 Elmhurst St. Hayward, CA 94544 A party may change address by giving notice in writing to the other parties 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. 24. Aqreement is Entire Understandinq. This Agreement is executed in three duplicate originals, each of which is deemed to be an original. This Agreement and all Exhibits attached hereto contain the sole and entire agreement between the parties concerning the Project. The parties acknowledge and agree that none of them has made any representations with respect to the subject matter of this Agreement or any representations inducing the execution and delivery hereof, except such representations as are specifically set forth herein, and each party acknowledges that it has relied on its own judgment in entering into this Agreement. 25. Meaninq of "DEVELOPER and/or COUNTY". DEVELOPER and COUNTY will provide CITY with a memorandum signed by both parties specifying which party will be obligated to perform the obligations herein. This memorandum will be provided prior to issuance of the first building permit for phase 1 and phase 2, respectively, and will be incorporated into this Agreement at such time. 26. Status Upon the request of DEVELOPER and/or COUNTY, CITY agrees that it shall certify to DEVELOPER and/or COUNTY, or to any prospective purchaser or lender of DEVELOPER's and/or COUNTY's interest in the Property, as to the status of the completion of any obligation to be performed by DEVELOPER and/or COUNTY under this Agreement. CITY shall respond to such a request within thirty (30) days following the receipt thereof. January 25, 1995 114\agree\devlp52.agr 16 e e 27. 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-I Map of Property Exhibit A-2 Legal Description of Property Exhibit B Additional Conditions 28. Time of the Essence. Time is of the essence in the performance of each and every covenant and obligation to be performed by the parties hereunder. 29. Recordation. CITY shall record this Agreement when the legal description (Exhibit A-2) is attached, as provided in paragraph I, which shall occur within ten days after CITY executes this Agreement. 30. Counterparts. This Agreement may be executed in three separate counterparts, each of which shall constitute an original. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. January 25, 1995 114\agree\devlp52.agr 17 e e HOMART DEVELOPMENT CO. a Delaware Corporation By: Name: Its: (NOTARIZATION ATTACHED) January 25, 1995 114\agree\devlp52.agr 18 Attest: e City Clerk CITY OF DUBLIN: By: e Mayor APPROVED AS TO FORM: City Attorney 19 January 25, 1995 114\agree\devlp52.agr e e SURPLUS PROPERTY AUTHORITY OF THE COUNTY OF ALAMEDA By: President APPROVED AS TO FORM: January 25, 1995 114\agree\devlp52.agr 20 1- --- , 1. - 200' I , "'~': ,;:=-, / ,j':J~~ \} . '." ~ \" ~,:. . _ .' . 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N " ~, ~I ~[ JIII:'I I. e e EXHIBIT A-I Page 2 - ~ - ~ Eft ~ VICINITY ~1AP (N.T.So) ) CAMP ?Ai1KS I ODD! ~".I OCJCJCJ ~ IDD 1111 r-:= , \ ~ 'J ;i' ~\ 0' 3: 0, . . _ i :~1. _ .~ "" ~ ~ :( ,.. c \\ \ \ ::w .'-' l~ ," Ie 12 )\ : \.: j 11! I)"r I ~ J I: 1)/ \l~ I 1\.. ~f. }~ / 1\ !I Ol.'Sl..!N 3t. YO. I~ ( ~'A~~~JMA \n : ~IDciE )\ ~ /~~ _~ Af1 ,15" Pi '1 ~~E SANTA ;:;i7A RO"'~ I ,....,-,,'" OVC::;C:':;Os.3,NG --,,11'/' .: 1 L)r ,,!-,.~ e e EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Section 1. Suboaraqraoh 5.3.1: None. Section 2. Suboaraqraoh 5.3.2: Subsection a. Infrastructure Seauencinq Proqram The Infrastructure Sequencing Program for the Project is set forth below. As used herein, "occupancy" shall mean the receipt from CITY of a "Certificate of Occupancy for Eastern Dublin Development" which shall be issued by CITY when the building is ready to be opened to the public. (i) Roads: A. Phase 1 Prior to occupancy of any portion of Phase I, the project-specific roadway improvements (and offers of dedication) identified in the Traffic Impact Analysis/Regional Discount Retail Center report dated November 1994 prepared for Homart Community Centers by Barton-Aschman Associates, Inc. (hereafter "Project Specific Traffic Report") shall be completed by DEVELOPER and/or COUNTY. Certain additional improvements (hereafter "Oversized Improvements") may be constructed by DEVELOPER and/or COUNTY as herein provided which, together with offers of dedication of the right-of way for the Oversized Improvements and the Project Specific Improvements, are collectively referred to below as "Full Improvements". Hacienda Drive between 1-580 and Dublin Boulevard: Total offer of dedication of a minimum of 94 foot right-of-way of which DEVELOPER and/or COUNTY is responsible for a minimum of 32 feet (adjacent to the property) and for 62 feet for oversizing the improvements for the Traffic Impact Fee (TIF). Additional right-of-way for turn lanes is required. Full Improvements include median (minimum 14 foot width, maximum 24 feet if two left- turn pockets required), two 12 foot southbound travel lanes, January 25, 1995 114\agree\devlp52.agr 22 e e three 12 foot north-bound travel or right turn lanes with 8 foot emergency'parking/bike lane, necessary right-turn lanes for project entrance and Dublin Boulevard (12 foot lane with 5 foot bike lane in place of 8 foot emergency parking/bike lane), 12 feet of parkway area which includes 8 feet of sidewalk, and left-turn pockets as required by the Dublin Public Works Director. Of the Full Improvements, the Project-Specific improvements include 10 foot of median improvements if two left-turn pockets are required, one 12 foot northbound travel lane with 8 feet of emergency parking/bike lane, necessary right-turn lanes for project entrance (12 foot lane with 5 foot bike lane in place of 8 foot emergency parking/bike lane), and 12 feet of parkway area which includes 8 feet of sidewalk. Of the Full Improvements, the Oversized Improvements include full improvement of the median (minimum 14 foot width, maximum 24 foot if two left-turn pockets are required), two 12 foot southbound and two 12 foot northbound travel lanes. DEVELOPER and/or COUNTY is responsible for adequate transition between existing improvements and proposed improvements to the satisfaction of the Dublin Public Works Director applying CITY'S standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements.. Dublin Boulevard between Hacienda Drive and Eastern-Most proiect Entrance: Total offer of dedication of a minimum of 102 foot right-of-way of which DEVELOPER and/or COUNTY is responsible for a minimum of 40 feet (adjacent to the property) and for 62 feet for oversizing the improvements for the Traffic Impact Fee (TIF). Additional right-of-way for turn lanes is required. Full Improvements include median (minimum 14 foot width, maximum 24 feet if two left- turn pockets required), two 12 foot westbound travel lanes, three 12 foot east-bound travel lanes with 8 foot emergency parking/bike lane, necessary right-turn lanes for project entrance (12 foot lane with 5 foot bike lane in place of 8 foot emergency parking/bike lane), 20 feet of parkway area (adjacent to the property) which includes 8 feet of sidewalk (20 foot parkway will be reduced to 15 feet when two left- turn pockets are required and to 12 feet when right-turn lanes are required) I and left-turn pockets as required by Dublin's Public Works Director. Of the Full Improvements, the Project-Specific Improvements include 10 foot of median improvement if two-left turn pockets are required, one 12 foot eastbound travel lane with an 8 foot emergency parking/bike lane, necessary right-turn lanes for project entrance (12 foot lane with 5 foot bike lane in place of 8 January 25, 1995 114\agree\devlp52.agr 23 e e foot emergency parking/bike lane), and 20 feet of parkway area (adjacent to the property) which includes 8 feet of sidewalk (20 foot parkway will be reduced to 15 feet when two left-turn pockets are required and to 12 feet when right-turn lanes are required). Of the Full Improvements, the Oversized Improvements include Full Improvement of the median (minimum 14 foot width, maximum 24 foot if two left- turn pockets are required), two 12 foot southbound and two 12 foot northbound travel lanes. DEVELOPER and/or COUNTY is responsible for adequate transition between existing improvements and proposed improvements to the satisfaction of the Dublin Public Works Director applying CITY's standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. B. Phase 2 Prior to occupancy of any portion of Phase 2, the Project Specific Improvements (and offers of dedication) set forth below shall be completed by DEVELOPER and/or COUNTY. In addition, the following Oversized Improvements (and offers of dedication) may be constructed by DEVELOPER and/or COUNTY as herein provided. Dublin Boulevard between Eastern-Most Proiect Entrance and Tassaiara Bridqe: Total offer of dedication of a minimum of 102 foot right-of-way of which DEVELOPER and/or COUNTY is responsible for a minimum of 40 feet (adjacent to the property) and for 62 feet for oversizing the improvements for the Traffic Impact Fee (TIF). Additional right-of-way for turn lanes is required. Full Improvements include median (minimum 14 foot width, maximum 24 feet if two left- turn pockets required), two 12 foot westbound travel lanes, three 12 foot eastbound travel lanes with 8 foot emergency parking/bike lane, necessary right-turn lanes for project entrance (12 foot lane with 5 foot bike lane in place of 8 foot emergency parking/bike lane), 20 feet of parkway area (adjacent to the property) which includes 8 feet of sidewalk (20-foot parkway will be reduced to 15 feet when two left- turn pockets are required and to 12 feet when right-turn lanes are required), and left-turn pockets as required by Dublin's Public Works Director. Of the Full Improvements, the Project-Specific Improvements include 10 foot of median improvement if two-left turn pockets are required, one 12 foot eastbound travel lane with an 8 foot emergency parking/bike lane, necessary right-turn lanes for project entrance (12 foot lane with 5 foot bike lane in place of 8 January 25, 1995 114\agree\devlp52.agr 24 e .e foot emergency parking/bike lane), and 20 feet of parkway area (adjacent to the property) which includes 8 feet of sidewalk (20 foot parkway will be reduced to 15 feet when two left-turn pockets are required and to 12 feet when right-turn lanes are required). Of the Full Improvements, the Oversized Improvements include Full Improvements of the median (minimum 14 foot width, maximum 24 feet if two left- turn pockets are required), two 12 foot southbound and two 12 foot northbound travel lanes. DEVELOPER and/or COUNTY is responsible for adequate transition between existing improvements and proposed improvements to the satisfaction of the Dublin Public Works Director applying CITY's standards and policies which are in force and effect at the .time of issuance of the permit for the proposed improvements. C. General Drawinq Depictinq Improvements A drawing signed by all parties and depicting the Project-Specific Improvements and the Oversized Improvements may be attached hereto as Exhibit C, in which event it shall replace the foregoing descriptions of the Project Specific Improvements and Oversized Improvements. Sianalization As provided in the Project Specific Traffic Report the DEVELOPER and/or the COUNTY shall install signals 1) at the intersections of Dublin Blvd/Hacienda Drive and Dublin Blvd/Tassajara Road and 2) at all driveways onto Hacienda Drive and Dublin Boulevard where access to the driveway would require median opening. The foregoing signals shall be installed prior to occupancy of Phase 1 provided the signals at driveways onto Dublin Boulevard shall be installed as part of Phase 1 or security in a form and amount satisfactory to CITY's Public Works Director shall be provided to CITY by DEVELOPER and/or COUNTY to secure such obligation. Maintenance CITY will maintain the Project-Specific Improvements and Oversized Improvements once they are completed and prior to formal acceptance thereof, provided that City's liability shall be limited to its negligent maintenance thereof until acceptance. January 25, 1995 114\agree\devlp52.agr 25 e . (ii) Sewer The Dublin San Ramon Services District has prepared a report ("Eastern Dublin Facilities Plan Final Report" dated December, 1993, prepared by C. S. Dodson & Associates (the "DSRSD Report It) which determined the sizes and approximate location of pipelines to provide potable water distribution, wastewater collection and recycled water distribution within the Eastern Dublin area at ultimate buildout. All references hereinafter to the DSRSD Report shall be to the report as periodically updated and in effect at the time of the applicable improvements and as such report is interpreted and applied by the-Dublin San Ramon Services District. Prior to occupancy of any portion of Phase 1, trunk line sanitary sewer improvements to serve the property as well as laterals hooked up to the buildings to be occupied shall be complete to the satisfaction and requirements of the Dublin San Ramon Services District applying the District's standards and shall be consistent with the DSRSD Report. (iii) Water Prior to combustible construction and/or storage of combustible materials on site, sufficient water storage and pressure shall be available at the site to the satisfaction and requirements of the Dougherty Regional Fire Authority applying the Authority's standards. Prior to occupancy of any portion of Phase 1, trunk line potable water system components to serve the property as well as laterals hooked up to the buildings to be occupied shall be complete and in working order to the satisfaction and requirements of the Dublin San Ramon Services District applying the District's standards and shall be consistent with the DSRSD Report. Prior to occupancy of any portion of Phase 1, recycled water lines shall be installed on site and within adjacent roadways to the satisfaction and requirements of the Dublin San Ramon Services District applying the District's standards and shall be consistent with the DSRSD Report. If such lines are not installed prior to occupancy of any portion of Phase 1, security in a form and amount satisfactory to the District shall be provided to District by DEVELOPER and/or COUNTY to secure such obligation. January 25, 1995 114\agree\devlp52.agr 26 e e (iv) Storm Drainage COUNTY has retained a consultant (Brian Kangas Foulk) to prepare a master drainage plan (the "Drainage Plan") showing the routes and sizes of major storm drainage facilities for all of COUNTY's approximate 620 acres. All references hereinafter to the Drainage Plan shall be to the plan as periodically updated and in effect at the time of the applicable improvements and as such report is interpreted and applied by CITY. Prior to the occupancy of any portion of Phase I, the storm drainage systems to the site as well as on site drainage systems to the areas to be occupied shall be . complete 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 tLe 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. (v) Other Utilities (e.q. qas, electricitv) Prior to occupancy. Subsection b. Miscellaneous (i) ComDletion Mav 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 and/or COUNTY to defer completion of discrete portions of any of the above public improvements until after occupancy if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. (ii) ImDrovement Aareement Prior to constructing the Project-Specific Improvements and the Oversized Improvements, DEVELOPER and/or 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 January 25, 1995 114\agree\devlp52.agr 27 e e 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 issuance of any building permit in Phase 1 or Phase 2, DEVELOPER and/or COUNTY shall provide a performance bond and labor and materials bond or other adequate security to insure that the Project-Specific Improvements and the Oversized Improvements (if to be constructed) will be constructed prior to occupancy. 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. Section 3. Suboaraqraoh 5.3.3: DEVELOPER and COUNTY intend to construct the Project in two phases. Phase 1 will consist of an approximately 50-acre retail center. Phase 2 will consist of approximately 25 acres of retail development which, if constructed, will be constructed to function in harmony with the Phase 1 retail center. This Agreement contains no requirements that DEVELOPER and/or COUNTY must initiate or complete development of either Phase 1 or Phase 2 or any portion of either phase within any period of time set by CITY. It is the intention of this provision that DEVELOPER and/or COUNTY be able to develop the Property in accordance with their own time schedules. Section 4. Suboaraaraoh 5.3.4: Except as provided in Section 2, subsection b(l) (Completion May Be Deferred), DEVELOPER and COUNTY will provide all infrastructure necessary and as set forth in this Agreement for the each phase of Project prior to occupancy by any tenant in such Phase of the Project. DEVELOPER and COUNTY intend to install all street improvements necessary for the Project at their own cost (subject to credits for any Oversized Improvements as provided in Section 5, subparagraph 5.3.5 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 January 25, 1995 114\agree\devlp52.agr 28 e e 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. Section 5. SuboaragraDh 5.3.5: COUNTY and/or DEVELOPER may construct Oversized Improvements on Dublin Boulevard and Hacienda Drive fronting the Project as described above. COUNTY shall be entitled to a credit against Traffic Impact Fees for the Project for construction of any such Oversized Improvements. The total value of the Oversized Improvements and right-of-way is $4,574,140 less $808,870 {which is the value of that part of the Oversized Improvements previously constructed by the City of Pleasanton} for a net credit of $3,765,270 (hereafter "Net Credit"). The Net Credit shall be given at the time DEVELOPER and/or COUNTY enter into an improvement agreement with CITY for construction of the Oversized Improvements. Although DEVELOPER and/or COUNTY currently contemplate constructing all of the Oversized Improvements as part of Phase I, it is possible that they may defer construction of a portion of the permanent Oversized Improvements to Phase 2. In that event, the amount of the Net Credit for Phase 1 shall be reduced in the following manner. For those Oversized Improvements not constructed (or right-of-way not offered to be dedicated,) as part of permanent Dublin Boulevard, the Net Credit shall be reduced by $1,140 per lineal foot not constructed and not offered to be dedicated. For those Oversized Improvements not constructed (or right-of-way not offered to be dedicated ) as part of permanent Hacienda Drive, the Net Credit shall be reduced by $942 per lineal foot not constructed and not offered to be dedicated. If the Net Credit is so reduced and the permanent Oversized Improvements are later constructed as part of Phase 2, DEVELOPER and\or COUNTY shall be entitled to the amount of the reduced Credit at that time. Section 6. SuboaraaraDh 5.3.6: Subsection a. Traffic Impact Fees. Except as hereinafter provided, DEVELOPER and/or COUNTY agree that the Project will be subject to Traffic Impact Fees in an amount not to exceed $5,162,719, to be paid by COUNTY. This amount is based on the City's Traffic Impact Fee for Eastern Dublin (Resolution No. 1-95, adopted by the Council on January 9, 1995) on a maximum building January 25, 1995 114\agree\devlp52.agr 29 e e square footage for the Project of 800,000 square feet as set forth in PD Ord. No. ____, and a trip generation rate for the Project as determined in the Project Specific Traffic Report, as follows: Section 1 Fee: Section 2 Fee: Section 3 Fee: $3,665,002 $ 969,111 $ 528,606 $5,162,719 Total: The total Traffic Impact Pee ("TIP") of $5,162,719 shall be reduced, however, by the Net Credit for Oversized Improvements provided in Subparagraph 5.3.5 for a net TIF due of $1,397,450 for the Project if the Oversized Improvements are constructed or guaranteed. For purposes of applying the Net Credit, the following shall apply: When a building permit is issued, CITY will calculate the square footage of the building. CITY will then calculate the amount of the credit to be used for such building by multiplying the square footage of the building by $6.4533987 which equals the total TIF of $5,162,719 divided by the maximum Project square footage of 800,000 square feet, to arrive at the credit for such building. The Net Credit will be reduced by the amount of the credit for such building. A sample calculation follows for illustrative purposes only: Total Net Credit $3,765,270 Building 1 (10,000 sq.ft.) TIF $ 64,534 Remaining Credit $3,700,736 Building 2 (15,000 sq.ft.) TIP $ 96,801 Remaining Credit $3,603,935 When the Net Credit has been exhausted or if the Oversized Improvements are not constructed or guaranteed, thereafter COUNTY will pay the applicable TIF in accordance with Resolution No. 1-95, as adopted January 9, 1995, as follows: When a building permit is issued,:CITY will calculate the square footage of the building. CITY will then calculate the amount of the TIF to be used for such building by multiplying the square footage of the building by $6.4533987, which equals the total TIP of $5,162,719 divided by the maximum Project square footage of 800,000 square feet to arrive at the TIP for such building. January 25, 1995 114\agree\devlp52.agr 30 . e e Payment of the TIF by COUNTY following exhaustion of the Net Credit will be made in cash or, with the approval of the City Manager, by use of credits towards the Eastern Dublin Traffic Impact Fee accumulated by the COUNT~ through prior agreements with CITY (Agreement Between City of Dublin, City of Pleasanton, the County of Alameda and the Surplus Property Authority Regarding Construction of Certain Roadway Improvements, as amended, and Agreement Between the City of Dublin, the City of Pleasanton, the County of Alameda and the Surplus Property Authority Regarding Construction of Certain Freeway Improvements) . Notwithstanding the foregoing, COUNTY may, if it constructs or guarantees the Oversized Improvements elect to defer application of all or a portion of the Net Credit and first pay all or a portion of the applicable TIF as hereinabove provided. In such event if COUNTY does not use all of the Net Credit for this Project, COUNTY shall be entitled to carryover the unused Net Credit to another project on its remaining property within the Eastern Dublin Specific Plan. Should the COUNTY elect this option, the TIF funds shall be used by CITY to repay BART the "short term loan" owed by CITY to BART and guaranteed by COUNTY. The TIF for the Project may be increased by the CITY to reflect increases to the Eastern Dublin TIF attributable solely to construction cost increases (including increases in right-of-way acquisition) and/or interest due on loan repayments to BART and/or Pleasanton. Such Project TIF increases shall only apply to building permits issued after adoption of a TIF increase by the CITY and shall not be retroactive. Subsection b. Possible Traffic Impact Fee to Reimburse Pleasanton for Freewav Interchanqes. In addition to the foregoing, if CITY amends the TIF, as adopted by Resolution No. 1-95, to include a fee to repay Pleasanton for Eastern Dublin's proportionate share of improvements to the Hopyard, Hacienda and Santa Rita Interchanges constructed by Pleasanton, COUNTY agrees that it will pay any such additional fee attributable to the Property even if building permits have already been pulled prior to the time CITY amends the TIF. COUNTY 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 negative declaration prepared for the project, the TIF as adopted by Resolution No. 1-95 or any other aspect of the development of the Property. The obligation set forth in this subsection (b) is not January 25, 1995 114\agree\devlp52.agr 31 e e applicable to DEVELOPER and shall not be released pursuant to Paragraph 17.2. Subsection c. Reqional Transportation Mitiaation. In addition to payment of the above Traffic Impact Fee, COUNTY shall enter into a binding commitment to convey 15 (plus/minus) acres of land adjacent to the Eastern Dublin BART station to the Bay Area Rapid Transit District for use as surface parking and related facilities. COUNTY shall also dedicate to CITY up to 2 acres of right-af-way deemed necessary by CITY for access to the BART station from Dublin Boulevard. COUNTY's obligation in this subsection (c) shall not be released pursuant to Paragraph 17.2 Subsection d. Public Facilities Fees. CITY has retained a consultant who prepared a draft report (November 11, 1994 Memorandum to Richard Ambrose from Recht Hausrath & Associates, hereafter the lIDraft Study") to calculate the amount of a Public Facilities Fee for funding the cost of new public facilities required for development in the Eastern Dublin area: (the Eastern Dublin General Plan Amendment and Specific Plan Areas). The Draft Study calculates the amount of a Public Facilities Fee for neighborhood parks, community parks, community facilities, libraries and buildout of the Civic Center (hereafter "public facilities"). It concludes that the amount of the Public Facilities Fee for retail development is $290 per 1,000 Building Square Feet. Except as provided in the next paragraph, COUNTY agrees that, prior to the issuance of each building permit as part of the Project, it will pay a Public Facilities Fee (hereafter "Fee") in the amount of $362.50 per 1,000 Square Feet of Building. The fee of $362.50 represents $290 per 1,000 Building Square Feet plus a 25% contingency. City has retained a consultant to prepare a more comprehensive report to determine the cost of the public facilities and how such cost should be apportioned among properties within the Eastern Dublin area. When CITY approves and adopts the comprehensive report, the amount of the Public Facilities Fee to be paid by COUNTY pursuant to the preceding paragraph shall thereafter be the amount included in such report for retail uses for all such public facilities, provided that in no event shall the Fee be more than $362.50 per 1000 Square Feet of Building. If the Fee paid by COUNTY pursuant to the preceding paragraph is more than the amount included in such report for retail uses for January 25, 1995 114\agree\devlp52.agr 32 e e all such public facilitiesl CITY will refund the difference to COUNTY within 30 days of a request for a refund. COUNTY maYI at its option to be exercised prior to the time the Fee is payable I dedicate land to CITY in fee simple in lieu of payment of the Fee provided that land may not be dedicated unless it is in excess of the amount of land which COUNTY will be required to dedicate pursuant to Dublin Municipal Code Chapter 9.28 (CITY's "Quimby Act Ordinance") when COUNTY subdivides the remainder of its approximately 600 acres for residential uses. If COUNTY exercises its option to dedicate land in lieu of paying the Feel the value of the land to be dedicated shall be calculated in the same manner as the value of land was calculated in the Draft Study and in any subsequent study prepared for CITY to calculate the Fee imposed by CITY. CITY shall not be obligated to accept any such land until CITY and COUNTY have agreed on the value of the land to be dedicated and CITY has determined that the land is appropriate for park and/or community facility uses. In no event shall the failure of CITY and COUNTY to agree on either the value of the land to be dedicated or the appropriateness of such land for park and/or community facility use be an impediment to the development of the Project. Subsection e. Noise Mitiqation Fee. When CITY adopts a resolution imposing noise mitigation fee pursuant to Mitigation Measure 3.10\7.0 of the Mitigation Monitoring Program for the purpose of mitigating noise on existing residences along Tassajara Road, DEVELOPER will pay its proportionate fee into the fund established by such resolutionl provided that in no event will DEVELOPER be required to pay more than $3/000. For purposes of calculating DEVELOPER's proportionate feel CITY will use 270 trips per day which is the number of trips on Tassajara Road which are attributable to the projectl as determined by the Project-Specific Traffic Report. Any fee to be paid by DEVELOPER pursuant to this paragraph shall be paid no later than issuance of a certificate of occupancy (or equivalent approval) for the last building in Phase 2. If no fee has been established by such timet no fee shall be payable. Subsection f. School Impact Fees and Fire Impact Fees. Any school impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080. January 25, 1995 114\agree\devlp52.agr 33 e e Any fire capital impact fees shall be paid by DEVELOPER in accordance with applicable requirements of the Dougherty Regional Fire Authority. COUNTY agrees it will pay fire capital impact fees to the Dougherty Regional Fire Authority in advance of issuance of a building permit or permits if requested to do so by CITY provided that CITY gives COUNTY twenty working days' advance written notice. Any fire capital impact fees paid in advance which are not required for the Project may be applied by COUNTY to other projects constructed on COUNTY's remaining lands within the Eastern Dublin Specific Plan. . Section 7. Suboaraqraph 5.3.7: Subsection a. Creek Improvements. When development occurs on property to the east of and directly adjacent to the Property, COUNTY will comply with all provisions of the Eastern Dublin Specific Plan and all mitigation measures of the Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan which relate to improvements of Tassajara Creek. Such provisions include but are not limited to Specific Plan Action Programs 5C, 6A, 6E, Mitigation Measures 3.3\16.0, 3.4\29.0 [reference to trail corridor], 3.4\36.0 [reference to stream corridors] and 3.7\13.0 [reference to dedication of land and improvements along both sides of stream corridors]. COUNTY's obligations in this subsection (a) shall not be released pursuant to Paragraph 17.2. Subsection b. Contractor Sub-Permits. DEVELOPER will include a provision in its notice to bidders requiring its contractor(s) to obtain a sub- permit(s) from the State Board of Equalization for the jobsite if the construction contract(s} is (are) in excess of $5,000,000 and shall use its best efforts to assure that its contractor(s) obtain such sub-permit(s). In no event, however, shall DEVELOPER be in default of this Agreement or be liable to CITY for damages as a result of the failure of a contractor to obtain a sub-permit. Subsection c. Fire Station Site. COUNTY will dedicate property for a site for a fire station when requested by the Dougherty Regional Fire Authority provided that COUNTY does not waive any claim to compensation for the fair market value of the land so dedicated and provided that the site is mutually agreeable January 25, 1995 114\agree\devlp52.agr 34 . e to COUNTY and CITY. COUNTY's obligation in this subsection (c) shall not be released pursuant to Paragraph 17.2. Subsection d. Future Sewer, Water, Recvcled Water and Storm Drainaqe Facilities County agrees that all trunk line sanitary sewer and potable water system improvements, all recycled water lines and all storm drainage systems to serve other projects on COUNTY's remaining lands within the Eastern Dublin Specific Plan shall be consistent with the DSRSD Report and the Drainage Plan, respectively. COUNTY's obligation in this subsection (d) shall not be released pursuant to Paragraph 17.2 January 25, 1995 114\agree\devlp52.agr 35 . . State of California ss. County of Alameda On before mef 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 January 25, 1995 114\agree\devlp52.agr i