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CITY CLERK
File # n~[Q]~-~1Q]
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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: May 14, 1996
SUBJECT:
EXIllBITS ATTACHED:
RECOMMENDATION:
~.
..~. FINANCIAL STATEMENT:
BACKGROUND:
PUBLIC HEARING Annual Review of Development Agreement
Santa Rita Commercial Center (Tri Valley Crossings)
(Report Prepared by Jeri Ram, Associate Planner~
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 recorded April 10, 1995.
1) Open Public Hearing
2) Receive Staff Presentation and Public Testimony
3) Close Public HeBrlng
4) Deliberate
5) Make motion that developers have complied in good faith with
the terms and provisions of the Development Agreement and
conclude the Annual Review
The fiscal impacts of~s project were addressed as part ofa fiscal
analysis performed for the approved project. The City Council
reviewed the fiscal analysis as part of the PD Rezone and
Development Agreement applications in January of 1995. In
summary, the fiscal analysis concluded that this project is consistent
with the fiscal policies in relation to provision of infrastructure and
public services of the City's General Plan and the EDSP and General
Plan Amendment.
On January 23, 1995, the City Council approved a Mitigated Negative Declaration for the Project. On
January 31, 1995, the City Council approved the P.D..Rezone and Development Agreement. (The
Development Agreement was entered into between the Alameda Surplus Property Authority, Homart
Development Co., and the City of Dublin, see Attachment 1). On May 17, 1995, the Planning Director
approved a tentative parcel map. On August 22, 1995, the City Council approved the Site Development
Review for the project. On March 26, 1996, the City Council approved a modification to the original
sjte plan for the project.
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COPIES TO:
Developers Diversified
Alameda County
In House Distribution
ITEM NO.iJ. '7
ANNUAL REVIEW:
The Annual Review of Development Agreements is required by State law and the City's Municipal Code.
During the review period the City Council has the opportunity to review the compliance of the parties of
the Agreement and either determine the parties are in compliance and conclude the review; or, if the City ." -~ .
Council determines that parties have not complied in good faith, the City Council may modify or .
terminate the Agreement. The burden of proof of good faith compliance is on the developer.
The development provided for by the Agreement has not yet commenced. All the items required by the
Agreement will be implemented when development occurs. There has been no indication from either
Alameda County or Developers Diversified of any problems regarding future compliance with the
Agreement. .
Therefore, staff recommends that the City Council conduct a public hearing, deliberate, and make a
determination that the Developers have complied in good faith with the terms and conditions of the
Agreement during the past year and conclude the period of review.
G:\PA96-013\5-14SR
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1995
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, Recorded in Official Records, Alameda County
. Patrick O'Connell, Clerk-Recorder
1111111"n"~lm No Fee
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005 26014756 26 31
A15 44 7.00 129.00 0.00 0.00 0.00 0.00 0.00
City of Dublin
Recording Requested by;
When Recorded Mail To;
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
HOMART DEVELOPMENT CO.
AND
SURPLUS PROPERTY AUTHORITY OF THE COUNTY. OF ALAMEDA
FOR THE TRI-VALLEY CROSSINGS PROJECT/SANTA RITA
COMMERCIAL CENTER
February 6, 1995
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INDEX
RECITALS
AGREEMENT
1. Description of Property.
2. Interest of Developer.
3. Relationship of City, County and Developer.
4. Effective Date and Term.
4.1 Effective Date
4.2 Term
5. Use of the Property
5.1 Right to Develop
5.2 Permitted Uses
5.3 Additional Conditions
5.3.1
Conditions, terms, restrictions, and
requirements for subsequent
discretionary actions. . . . . .
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. . . .
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.' . . .
5.3.4
Financial plans which identify
necessary capital improvements such
as streets and utilities and sources
of funding. ...........
5.3.5
Terms relating to subsequent
reimbursement over time for
financing of necessary public
.
1
2
2
3
3
3
3
3
4
4
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4
5
5
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7.
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95075853
facilities.
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5.3.6
Terms relating to payment of fees.
5.3.7.
Miscellaneous terms.
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
Subsequently Enacted Rules and Regulations.
7.1 New Rules and Regulations
7.2 Moratorium Not Applicable.
Subsequently Enacted or Revised Fees,
Assessments and Taxes.
8.1 New Fees
8.2 Construction of Off-Site Traffic
Improvements . . . .
9.
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10.
11.
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.
9.5 Cancellation by Mutual Consent.
Term of Project Approvals.
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
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11.1 Review Date
11.2 Initiation of Review
11.3 Staff Reports
11.4 Costs
12. Default.
12.1 Other Remedies Available
12.2 Notice and Cure.
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10
10
13. Estoppel Certificate. 10
10
14.1 Mortgagee Protection.
14. Mortgagee Protectionj Certain Rights of Cure. 11
14.2 Mortgagee Not Obligated
15.
14.3 Notice of Default to Mortgagee
Severability.
16. Attorneys' Fees and Costs.
17. Transfers and Assignments.
11
11
11
11
12
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.
19. Bankruptcy.
20. Indemnification.
21. Insurance.
21.1 Public Liability and Property Damage
Insurance. .........
21.2 Workers Compensation Insurance.
21.3 Evidence of Insurance.
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13
13
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14
14
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THIS DEVELOPMENT AGREEMENT is made and entered in
the City of Dublin on this 31st day of January, 1995, by and
between the CITY OF DUBLIN, a Municipal Corporation
(hereafter IICITY"), the SURPLUS PROPERTY AUTHORITY of the
County of Alameda, a public corporation (hereafter
IICOUNTY"), and HOMART DEVELOPMENT CO., a Delaware
Corporation (hereafter IIDEVELOPER"), 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
IIChapter 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
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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-l and A-2
attached hereto and incorporated herein by this reference,
and which real property is hereafter called the "Propertyll;
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 IIprojectll); 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
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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. 2-95), 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
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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 31, 1995, the City Council of the
City of Dublin adopted Ordinance No. 3-95 approving this
Development Agreement. The ordinance took effect on March
2, 1995.
NOW, THEREFORE, with reference to the foregoing
recitals and in consideration of the mutua~ promises,
obligations and covenants herein contained, CITY, COUNTY and
DEVELOPER agree as follows:
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AGREEMENT
1. Descriotion of Prooerty.
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-1 hereto ("Property"). 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 DeveloDer.
The DEVELOPER has a legal or equitable interest in
the Property in that it has an option to purchase the
Property in fee simple which 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 .
Relationshio of City, Countv and DeveloDer.
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 exe~uted 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 DEv~LOPER 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
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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 PrODertv.
5.1 Riaht to DeveloD. DEVELOPER and/or COUNTY
shall have the vested right to develop the Project on the
Property in accordance with the terms and conditions of this
Agreement, the Project Approvals (as and when issued), and
any amendments to any of them as shall, from time to time,
be approved pursuant to this Agreement.
5.2 Permitted Uses. The permitted uses of the
Property, the density and intensity of use, the maximum
height, bulk and size of proposed buildings, provisions for
reservation or dedication of land for public purposes and
location and maintenance of on-site and off-site
improvements, location of public utilities 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 (l'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.
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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 B.
5.3.6 Terms relating to payment of fees.
See Exhibit B.
5.3.7. Miscellaneous terms.
See Exhibit B.
5.4 Subseauent Approvals. 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
su~sequent discretionary approval (including conditions of
such approval) e?ch 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. Applicable Rules. Reaulations 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
.
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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 Aoolicable. 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. Subseauentlv Enacted Rules and Reaulations.
7.1 New Rules and Reaulations. 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, {f 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 Annlicable. 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 s 8558.
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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.2-95 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. 2-95 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
improve~ents, 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 Prop~rty is prospective;
and (3) the application of such fees would not prevent
development in accordance with this Agreement.
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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.
.
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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 by Mutual Consent.
This Agreement may be amended in writing
from time to time by mutual consent of the parties hereto
and in accordance with the procedures of State law and
Dublin Ordinance No. 8-91.
9.3 Insubstantial Amendments.
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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 Agreement,
including Exhibit B, shall not, except to the extent
otherwise required by law, require notice or public hearing
before the parties may execute an amendment hereto.
9.4 Amendments of Proiect Aoorovals.
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 by Mutual Consent.
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Exceot as otherwise permitted herein, this
Agreement may be cancelled in whole or in part only by the
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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 Aoorovals.
Pursuant to California Government Code
Section 66452.677B(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 1, 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 COUNTY 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 Reoorts. 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
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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
Agreementi 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. EstoDDel 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.
.
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14. Mortaaaee Protection; Certain Riahts of CUre.
14.1 MortaaGee 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 ("Mortgageell) who acquires title to
the Property, or any portion thereof, by foreclosure,
trustee's sale, deed in lieu of foreclosure, or otherwise.
14.2 Mortaaaee Not Obliaated. '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 completion; 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 Mortaaaee. 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 tq
.. such Mortgagee, concurrently with service the!eon 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. Severability.
The unenforceability, invalidity qr 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
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conditions of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs in
addition to any other relief to which it may otherwise be
entitled. If any person or entity not a party to this
Agreement initiates an action at law or in equity to
challenge the validity of any provision of this Agreement or
the Project Approvals, the parties shall cooperate in
defending such action. DEVELOPER shall bear its own costs
of defense as a real party in interest in any such action,
and shall reimburse CITY for all reasonable court costs and
attorneys' fees expended by CITY in defense of any such
action or other proceeding.
17. Transfers and Assianments.
17.1
Riaht to Assian proiect 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 assignment.
17.2
Release UDon Transfer.
.
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 resp~ct 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
February 6, 2995
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95075863
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.
l7.3
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
l or phase 2 and no such sale shall require approval from
CITY pursuant to this Agreement.
18. Aareement Runs with the Land.
All of the provisions, rights, terms, covenants,
and obligations contained in this Agreement shall be binding
upon the parties and their respective heirs, successors and
assignees, representatives, lessees, and all other persons
acquiring the 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. BankruDtcv.
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
February 6, 1995
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a result of any actions or inactions by the DEVELOPER and/or
COUNTY, respectively, or any actions or inactions of
DEVELOPER's and/or COUNTY's respective contractors,
subcontractors, agents, or employees in connection with the
construction, improvement, 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 Liabilitv and ProDertv Damaoe
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 ($1,000,000) and
a deductible of not more than ten thousand dollars ($10,000)
per claim. The policy so maintained by DEVELOPER shall name
the CITY and COUNTY as additional insureds and shall includ~
either a severability of interest clause or cross-liability
endorsement.
21.2
Workers Comnensation 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. D~VELOPER 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.
Evidence of Insurance.
21.3
.
Prior to City Council approval of this
Agreement, DEVELOPER shall furnish CITY satisfactory
February 6, 1995
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95075853
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
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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. Aareement is Entire Understandinq.
This Agreement is executed in three duplicate
originals, each of whi~h 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. Meanina of "DEVELOPER and/or COUNTY".
DEVELOPER and COUNTY will provide CITY with a
memorandum signed by both partiesUspecifying 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.
.
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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 1, which shall occur within ten days
after CITY executes this Agreement.
30. Counteroarts. 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.
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HO~~T DEVELOPMENT CO. a Delaware
Corporation
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(NOTARIZATION ATTACHED)
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95075863
~//./(.\ (. "c: I :)
State of ~Iornla 4It
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County of _ ' Q
On :~.0\.-l-u:tx..-'\..i d~.lqq~efore me, a Notary Public,
personally appeared ~a/ L. C~/l.''''''''''
personally known to me ~c= to ~g on the-basis-Gi
-$.;::> r.; c::fac.t.o.q....ev..i...d.en.CB.). to be the person {-st. whose name {~
is~ subscribed to the within instrument and acknowledged
to me that hefsh~ey- executed the same in his/he~,Lt.~r
authorized capacity (~, and that by hisf-hel/Lllt:Ir-
signature~ on the instrument the person {s+, or the entity
upon behalf of which the personf~)' acted, executed the
instrument.
WITNESS my hand and official seal.
-. ;11 " /) '7 I
c.Y!4:>l6VlZ.^. ?tJ[a,(.~';
NOTARY PUBLIC
"OFFICIAL SEAL"
THERESA R. ZUKOV\'SKI
NOTARY PUBLIC, STATE OF ILl!NO:S
MY COMM!SSION EXPIRES 1/7/93
February 6, 1995
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State of California
ss.
County of Alameda
On
{J9 -
/ :rbefore me, a Notary Public,
(oJ'lproved to me on the basis of
personally appeared
personally known to me
satisfactory evidence) to be the personJ,Sl whose name yf)
is/~ subscribed to the within instrument and acknowledged
to me that he/~~Y executed the same in his/pef~
authorized capacitY~), and that by his/~/~r
signaturetsr on the instrument the personJ51, or the entity
upon behalf of which the personJs1 acted, executed the
instrument.
.:
WITNESS my hand and official seal.
c1{auat: c-L
NOT~, ljLJ.C '-
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::~y ~1'~
Mayo
APPROVED AS TO FORM:
-2~/~ At: ~~
Cit'y Attorney
Attest:
daA:J(fLL
Ci t~Cl~rk ~
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SURPLUS PROPERTY A UTHORlTY
OF THE COUNTY OF ALAM:EDA
By:
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President Gail Steele
APPROVED AS TO FORM:
~
I hereby certify un~er penalty of perjury that the President
of the Surplus Property Authority of the Coun!)' of Alameda
was dul)' authorized to execute this document:
A TTEST: WILLIAM MEHRWEIN, Clerk, Board of Supervisors,
Coun!)' of Alameda, State oi California.
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By: / ~~h,i-~u., ) f ,/) i~
Deputy ,/
{SEAL]
February 6, 1995
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EXHIBIT A-2
Legal Description of the Property
February 6, 1995
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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. Suboaraoraoh 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 1,
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 m~n~mum 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-oi-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,
'.
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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 m~n~mum of 102
foot right-of-way or 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), 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
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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 Bridae:
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 ~astbound 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
.
26
February 6. ~995
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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 betwe~n 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
Drawina DeDictinq 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.
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(ii) Sewer
The Dublin San Ramon Services District has prepared
a report (IIEastern Dublin Facilities Plan Final Reportll
dated December, 1993, prepared by C. S. Dodson & Associates
(the "DSRSD Reportll) 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 I,
trunk line sanitary sewer improvements to serve the
property as well as la~erals hooked up to the buildings to
be occupied shall be complete to the satisfaction and
recruirements 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 I,
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 I,
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 I, security in a form and amount
satisfactory to the District shall be provided to District
by DEVELOPER and/or COUNTY to secure such obligation.
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(iv) Storm Drainaoe
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COUNTY has retained a consultant (Brian Kangas
Fo~lk) 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
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 applying CITY's and Zone 7 (Alameda
County Flood Control and Water Conservation District, Zone
7) standards and policies which are in force and effect at
the time of issuance of the permit for the proposed
improvements and shall be consistent with the Drainage Plan.
The site shall also be protected from storm flow from off
site and shall have erosion control measures in place to
protect downstream facilities and properties from erosion
and unclean storm water consistent with the Drainage Plan.
(v) Other Utilities (e.cr. cras, 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
.
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(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") 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 consisterit 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.
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(iv) Storm Drainaoe
.
COUNTY has retained a consultant (Brian Kangas
Fo6lk) 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
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 applying CITY's and Zone 7 (Alameda
County Flood Control and Water Conservation District, Zone
7) standards and policies which are in force and effect at
the time of issuance of the permit for the proposed
improvements and shall be consistent with the Drainage Plan.
The site shall also be protected from storm flow from off
site and shall have erosion control measures in place to
protect downstream facilities and properties from erosion
and unclean storm water consistent with the Drainage Plan.
(v) Other Utilities (e.o. oas. electricitv)
.
Prior to occupancy.
Subsection b. Miscellaneous
(i) Completion 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) Improvement Aoreement
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
":.
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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. SubDaraqraDh 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. Suboaraqraoh 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
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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. Suboaraqraph 5.3.5:
COUNTY and/or DEVELOPER may construct Oversized
Imorovements 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 1, 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 $2,140 per lineal foot not constructed and not offered to
be dedicated. For those Oversized Improvements not
constructed (or right-af-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. Suboaraoraoh 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 Fe~ for Eastern Dublin (Resolution No. 1-95, adopted
by the Council on January 9, 1995) on a maximum building
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square footage for the Project of 800,000 square feet as set
forth in PD Ord. No. 2-95, 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 Fee ("TIF") 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 amoun~ 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.) TIF
$
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 issuedr 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 TIF of $5[162[719
divided by the maximum Project square footage of 800[000
square feet to arrive at the TIF for such building.
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95075863
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 COUNTY 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 Imoact Fee to
Reimburse Pleasanton for Freeway
Interchanaes.
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
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applicable to DEVELOPER and shall not be released pursuant
to Paragraph 17.2.
Subsection c. Reaional 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
BP~T 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-of-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 "Draft 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
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95075863
all such public facilities, CITY will refund the difference
to COUNTY within 30 days of a request for a refund.
.
COUNTY may, at its option to be exercised prior to
the time the Fee is payable, 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
Fee, 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 resolution, provided that in no event
will DEVELOPER be required to pay more than $3,000. For
purposes of calculating DEVELOPER's proportionate fee, CITY
will use 270 trips per day which is the number of trips on
Tassajara Road which are attributable to the Project, 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 time, no fee shall be
payable. .
Subsection f. School ImDact Fees and Fire Impact
Fees.
Any school impact fees shall be paid by DEVELOPER
in accordance with Government Code section 53080.
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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. SubDaraqraph 5.3.7:
Subsection a.
Creek ImDrovementS.
.
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, 6B, 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
.
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to COUNTY and CITY. COUNTY's obligation in this subsection
(c) shall not be released pursuant to Paragraph 17.2.
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Subsection d. Future Sewer. Water. Recycled Water
and Storm Drainaoe 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
.
.
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