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HomeMy WebLinkAbout6.4 Micro Dental Labs, AGMT " . CITY CLERK File # D~[Q][Q]-[?a][Q] AGENDA STATEMENT CITY COUNCIL MEETING DATE: April 20, 1999 SUBJECT: ATTACHMENTS: RECOMMENDATION: ~W' FINANCIAL STATEMENT: . DESCRIPTION: BACKGROUND: PUBLIC HEARING P A 98-055 Micro Dental Labs, Inc., Development Agreement (Prepared by Eddie Peabody, Jr., Community Development Director) 1. Development Agreement for Micro Dental Labs, Inc. 2. Ordinance adopting Development Agreement for Micro Dental Labs, Inc. 1. Open Public Hearing. 2. Receive Staff presentation and receive public testimony. 3. Question Staff and the public 4. Close Public Hearing and deliberate. 5. Waive reading and introduce Ordinance _-99 (Attachment 2) approving the Development Agreement. No fmancial impact anticipated. An Ordinance approving a Development Agreement between the City of Dublin, Micro Dental Labs, and Alameda County Surplus Property Authority. The Development Agreement is required by the Eastern Dublin Specific Plan. Items included in the Development Agreement include, but are not limited to, the financing and timing of infrastructure; payment of traffic, noise and public facilities impact fees; oversizing of roads and general provisions. The City Council approved an Amendment to the Eastern Dublin Specific Plan for the entire Santa Rita area (primarily o'WIled by the Alameda County Surplus Property Authority) in October 1996. As a part of that action, this site was given a new Specific Plan and General Plan Land Use Designation of "Industrial/Campus Office (I1CO)". On March 17, 1998, on the Planning Commission's recommendation, the City Council approved a Planned Development Rezone for the Site. Tentative Parcel Map 7233, creating Parcel One on which this project is proposed, was approved on June 2, 1998, by the Community Development Director. ------------------------------------------------------------------------------------------------------------- . COPIES TO: Micro Dental Lab., Inc. Alameda County Surplus Property Authority In House Distribution ITEM NO. 6.~ ~ ANALYSIS: Procedural Background: One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into Development Agreements with developers in the plan area. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project for a specified period oftime. Additionally, it is a mechanism for the City to obtain commitments from the developer that the City might not otherwise be able to obtain. The Development Agreement is one means the City has to assure that the Specific Plan goal, that new development fund the costs of infrastructure and service, is met. . City procedure requires that there be three public hearings on Development Agreements. The purpose for the hearing before the Planning Commission is to recommend the approval for the Agreement to the City Council. The first Public Hearing before the City Council is to introduce the Ordinance and the second public hearing is to adopt the Ordinance. The Ordinance will become effective 30 days after the second reading. The Planning Commission heard the Development Agreement at their April 13, 1999 meeting and recommended that the City Council adopt the attached ordinance. Development Agreement: Attached to this Staff Report is a Development Agreement (Attachment 1) between the City of Dublin, Micro Dental Labs, Inc. and the Surplus Property Authority of the County of Alameda (Alameda County). This Development Agreement is based on the standard Development Agreement developed by the City Attorney and adopted by the City Council for Eastern Dublin Projects. In general, the Agreements reflect . what has been determined to be the infrastructure needs for the specific project. These needs are determined based on submittal of engineering studies and plans. The Agreement: The City Attorney drafted the proposed Development Agreement with input from City staff, Micro Dental Labs, Inc. Alameda County Surplus Property Staff and their attorneys. The Development Agreement sets forth the agreements between the parties in relation to many items, including, but not limited to, infrastructure construction and phasing, and the payment of various required impact fees. The Development Agreement becomes effective for a term of five years from the date it is recorded. The Development Agreement runs with the land and the rights thereunder can be assigned. The main points of the Development Agreement can be found in Exhibit B of Attachment 1 of the Development Agreement and are highlighted below: Infrastructure Construction and Traffic Impact Fees: The City requires that Developers in Eastern Dublin pay traffic impact fees for certain City wide improvements to the circulation system. Additionally, fees are charged for certain circulation improvements specific to Eastern Dublin. Developers are also required to make certain improvements to the circulation system that are required as a result of their project. The City determines the direct project impact through a traffic study that is conducted. Based on the traffic study conducted for the Micro Dental Labs, Inc. project, it was determined that . certain improvements were required to the circulation system as a result of the projected future traffic from the project. These improvements include improving some roadways, widening some roads, the improvement of certain intersections in Dublin and Eastern Dublin, the ultimate construction of the Tassajara Road/Santa Rita Road/I-S80 interchange. ,- ...;.- . Other improvements that were identified could be phased and put in as required by traffic warrants or when other projects come on line. The Agreement sets forth the City and Alameda County's understanding in relation to the phasing of infrastructure construction. . RECOMMENDATION: Staff recommends that the City Council open the Public Hearing, take testimony from Staff and the public, deliberate, waive the first reading and introduce the Ordinance adopting a Development Agreement for the Microdental Laboratories project. G:98055 ccsrapril20da . . -3- -:~: .' . . . City of Dublin laD s r 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 BET\VEEN THE CITY OF DUBLIN AND HHH SUPPLY AND INVESTMENT AND . THE SURPLUS PROPERTY AUTHORITY OFTHECOUNTYOF~EDA FOR THE MICRO DENTAL PROJECT ATTACHMENT 1 ' ;< IIj :3 V TABLE OF CONTENTS . 1. Descri!1tion of Property. ., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,) 2. Interest of Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. Relationship of City and Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. Effective Date and Term. ........................................ 3 4.1 Effective Date. ........................................... 3 4.2 -Term.. . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . .4: J. Use of the Property. ........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5.1 Right to Develop ......................................... 4: -? P . dU .i :>..... ermltte ses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. A 5.3 Additional Conditions ..................................... 4 6. Applicable Rules. ReVllations and Official Policies .................... 5 6.1 Rules re Permitted Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6.2 Rules re DesiV1 and Construction ............................ 5 . 6.3 Uniform Codes Applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7. Subsequently Enacted Rules and ReVllations . . . . . . . . . . . . . . . . . . . . . . . . . 6 7.1 New Rules and Re,ry.lations ................................. 6 7.2 Approval of Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 7.3 Moratorium Not Applicable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . 6 8. Subsequently Enacted or Revised Fees. Assessments and Taxes. . . . . . . . . . . 6 8.1 Fees. Exactions. Dedications ................................ 6 8.2 Revised Application Fees ................................... 7 8.3 New Taxes .............................................. 7 8.4 Ac;sessments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8 .5 Vote on Future Ac;sessments and Fees ..;............... ~ . . . . . . 7 9. Amendment or Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.1 Modification Because of Conflict ,"vith State or Federal Laws ....... 8 9.2 Amendment by Mutual Consent ............................. 8 Dublinl.AJameda Development Agreement for the Micro Dental Project Table of Contents - Page i of iii . March 30, 1999 . . . 343f 9.3 Insubstantial Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.4 Amendment of Project A!"provals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.5 Cancellation by Mutual Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 10. Term of Project Approvals ................................... - . . . 9 11. Annual Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 11.1 Review Date . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . ... . . . . . . . . . . . . . 9 11.2 Initiation of Reviev,' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 11.3 Staff Reports ............................................ 9 II. 4 Costs ........................................... - . . . . . . 9 12. Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . 10 12.1 Oth er Rem edi es Avail ab 1 e ................................. 1 0. 12.2 Notice and Cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . 10 12.3 No Dama~es A~ainst CITY .............. - . . . . . . . . . . . . . . . . . 10 13. Estop!"el Certificate ........................................... 10 14. Mon~a~ee Protection: Cenain Rig-hts of Cure .......... - . . . . . . . . . . . . 11 14.1 Mortg-a~ee Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . . 11 14.2 lv1ortga~ee Not Obli~ated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II 14.3 Notice of Default to Mort~a~ee and E).'tension of Ri~ht to Cure .... II 15. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II 16. Attorneys' Fees and Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 17. Transfers and A.ssi ~ments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 12 17.1 DEVELOPER's Right to Ac;si~ ............................. 12 17.2 Release Upon Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12 17.3 Developer's Right to Retain Sflecified Rights or Obligations ..... - . 13 17.4 Pennitted Transfer. Purchase or Ac;si~ment .............. . . . . . 13 17.5 COUNTY's Right to Ac;sign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 18. A~eement Runs with the Land .............................. - . . . 13 19. Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; . . . . . . . - . . . . 14 . Dublinl.AJarneda Development Agreement for the Micro Dental Project Table of Contents - Page ii of iii March 30, 1999 Y-'d 8Y 20. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 21. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 . 21.1 Public Liability and Property Dama~e In~;urance .... . . . . . . . . . . . . 15 21.2 \'Yorkers Compensation Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 21.3 Evidence of Insurance .............................. _ . . . . . 15 22. Sev\rer and \'Vater ............................................. 15 23. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ?- _J. Agreement is Entire Understanding ........................ _ . . . . . . 17 26. Exhibits ................................................ _ . . . 17 27. CounteTTlarrs ................................................ 17 28. Recordation ................................................. 17 . DublinUuameda Development Agreement for the Micro Dental Project Table of Contents - Page ill of iii March 30. 1999 . . . . .5 ~ 3'-/ THIS DE\lELOPMENT AGREEMENT is made and entered in the Citv of " Dublin on this 4th day of May, 1999, by and between the CITY OF DUBLIN, a .Municipal Corporation (hereafter "CITY"), the Surplus Propeny Authority of .Alameda County, a public corporation (hereafter "COUNTY"), and HHH Supply and Investment, a general partnership (hereinafter "DE\lELOPER") pursuant to the authority of Ss 65864 et seq. of the California Government Code and Dublin I\1unicipal Code, Chapter 8.56. RECTT ALS A California Government Code ss 65864 et seq. and Chapter 8.56 of the Dublin :Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an Agreement for the development of real property 'with any person having a legal or equitable interest in such property in order to .establish certain development rights in such property; and B. The City Cotmcil adopted the Eastern Dublin Specific Plan by Resolution No. 53.93 'ivhich Plan is applicable to the Property; and C. The Eastern Dublin Specific Plan requires DEVELOPER to enter into a development agreement; and D. DEVELOPER desires to develop and holds legal interest in cenain real property consisting of approximately 11.47 acres of land, located in the City of Dublin, County of Alameda, State of California, which is more particularly desaibed in Exhibit A attached hereto and incorporated herein by this reference, and which real propeny is hereafter called the "Property"; and E. DE\lELOPER acquired its interest in the Property from Opus ''Vest Corporation v"hich acquired the Property from COUNTY pursuant to a purchase and sale agreement entitled "Surplus Property Authority as Seller, Opus Vvest Corporation as Buyer Purchase and Sale Agreement dated November 18, 1997" which allocates rights and obligations as between COUNTY and DEVELOPER. COUNTY is a pany to this Agreement because COUNTY 'will perform certain obligations and receive certain credits; F. DEVELOPER proposes the development of the Propeny for office uses consisting of two 4-story office buildings totaling approximately 249,860 square feet (the "Project"); and Dublin/Alameda Development Agreement for the Micro Dental Project Page 1 of 18 March 30. 1999 606j~ G. DEVELOPER has applied for, and CITY has approved or is processing, various land use approvals in connection with the development of the . Project, induding a PD District rezoning (Ordinance No. 5-98), general provisions for the PD District rezoning induding the Land Use and Development Plan (Res. No. 30-98), tentative parcel map (Community Development Director Resolution No. .:!- 98), and site development review (Planning Commission Resolution No. 99-03) (collectively, together Vvith any approvals or permits nuw or hereafter issued with respect to the J-'roject, the "Project Approvals"); and H. DEVELOPER presently contemplates constructing tiVO 4-story structures on the Property, to be used for office and light industrial uses, including a dental laboratory and supply company, a permitted use under the PD District rezoning; and 1. Development of the Property by DEVELOPER may be subject to certain future discretionary approvals including site development revie,'V, which, if granted, shall automatically become part of the Project Approvals as each such approval becomes effective; and J. CITY desires the timely, efficient, orderly and proper development of said Project; and . K. The City Council has found that, among other things, this Development Agreement is consistent 'with its General Plan and the EasteGl Duhli:1 Specific Plan and has been reviewed and evaluated in accordance "rith Chapter 8.56; and 1. CITY, COUNTY and DEVELOPER have reached agreement and desire to eA-press herein a Developm€nt Agreement that will facilitate development of the Project subject to conditions set forth herein; and M. Pursuant to the California Environmental Quality Act (CEQA) the City has found, pursuant to CEQA Guidelines section 15182, that the Project is within the scope of the Final Environmental Impact Report for the Eastern Dublin General Plan Amendment and Specific Plan which was certified by the Council by Resolution No. 51~93 and the Addenda dated May 4. 1993 and August 22, 1994 (the "ErR") and the Mitigated Negative Declaration for the Santa Rita Business Center Project and found that the ErR and Mitigated Negative Declaration were adequate for this Agreement; and Dublin/Alameda Development Agreement for the Micro Dental Project PaC1e 2 of 18 o March 30, 1999 . . . . /} ~ :3 ( N. On adopted Ordinance No. ordinance took effect on , 1999, the City Council of the City of Dublin appraving this Development Agreement. The ,1999. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, .obligati.ons and covenants herein contained, CITY, COUNTY and DEVELOPER agree as fo11o-ws: AGREE!vfENT 1. Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Propeny"). 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Propeny in that it oV\'I1S the Property in fee simple. 3. Relatianship .of City and DeveloT'er. It is understaad that this Agreement is a contract that has been negotiated and voluntarily entered into by Cln'", COUNIT and DEVELOPER 2.~'d that neither the DEVELOPER nor COUNTY is an agent of CITY. The CITY, DEVELOPER and COUNTY hereby renounce the e:>d.stence .of any form of joint venture or partnership bet\'i'een them, and agree that nothing contained herein or in any document executed in connectian herewith shall be construed as malcing the CITY, DEVELOPER and COUNTY joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which the Agreement has been executed by an autharized official of CITY, by a general partner of DEVELOPER and by an autharized official .of COUNTY. .Although, the signature of authorized parties may be campleted in counterparts, the effective date 'will not be established until all three parties to the agreement have singed the agreement. The party ".ho is signing third shall fax copies of the signature pages ta the other patties on the date of execution. Dublin/Alameda Development Agreement for the Micro Dental Project Page 3 of IS March 30, 1999 S at 3i.( 4.2 Term. The tem of this Development Agreement shall commence on the Effective Date and e>...'tend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set fonh in this Agreement. . 5. Use of the Property. 5.1 Ri~ht to Develop. DEVELOPER shall have the vested light to develop the Project on the Property in a'ccordance with the terms and conditions of this Agreement, the Project Approvals (as and ,,,hen 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 Propeny, the density and intensity of use, the maximum height, bulk and size of proposed buildings, pro,isions for reservation or dedication of land for public purposes and location and maintenance of onpsite and off-site improvements, location of public utilities (operated by CITI) and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Project Approyals and any amendments to this Agreement or the Proj~ct Approyals. 5.3 Additional Conditions. Provisions for the follo'wing ("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated herein by reference. . 5.3.1 Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect DEVELOPER's responsibility to obtain all other land use approyals required by the ordinances of the City of Dublin.) Not Applicable 5.3.2 Mitigation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmental impacts of the Project or othell\ise relating to development of the Project. See Exhibit B 5.3.3 Phasin~. Timing. Provisions that the Project be constructed in specified phases, that construction shall commence Dublin/.Alameda Development Agreement for the Micro Dental Project Page 4 of IS March 30. 1999 . . . . 'I cf '3 'I within a specified time, and that the Project or any phase thereof be completed vvithin a specified time. See Exhibit B 5.3.4 Financin~ Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B 5.3.5 Fees. Dedications. Tem1s relating to payrnent of fees or dedication of property. See Exhibit B 5.3.6 Reimbursement. Tem1s relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B 5.3.7 1\1iscelIaneous. 1\1iscellaneous terms. See Exhibit B 6. Applicable Rules. Re~lations and Official Policies. 6.1 Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies gove!Tling -::.he permitted uses of the Property, governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the effective date of this Agreement. 6.2 Rules re Desi~ and Construction. Unless otherwise o.-pressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary Project Approval. Ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable permit approval. 6.3 Uniform Codes Applicable. Unless eJ..-pressly provided in Dublin/Alameda Development Agreement for the Micro Dental Project Page 5 of 18 March 30. 1999 /0 co~;I Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. . 7. Subsequently Enacted Rules and Re~lations. 7.1 New Rules and ReP)llations. During the tenn of this Agreement, the CITY may apply new or modified ordinances, resolutions, rules, regulations and official policies of the CITY to the Property which were not in force and effect on the effective date of this Agreement and ,vhich are not in conflict "ith those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Propeny as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2 ApDroya] of Application. Nothing in this Agreement shall prevent the CITY from denying or conditionally approving any subsequent land use . permit or authorization for the Project on the basis of sUG.1. new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, tern1S, restrictions, and requirements eJ...pressly set forth herein. 7.3 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of CITY, by initiative, referendum, or otherwise, that imposes a building moratorium which affects the Project on all or any part of the Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code ~ 8558. 8. Subsequently Enacted or Revised Fees. Ac;sessments and Ta.xes. 8.1 Fees. Exactions. Dedications. CITY and DEVELOPER agree that the fees payable and exactions required in connection with the Dublin/Alameda Development Agreement for the Micro Dental Project Page 6 of 18 March 30, 1999 . . . . j;'~ :Sf development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying ,,,ith the Specific Plan shall be those set fonh in Ordinance No. 5.98, Resolution No. 30- 98, and the tentative parcel map (Community Development Director Resolution No. 2-98) and in this Agreement (including Exhibit B). The CITY shall not impose or require payment of any other fees, dedications of land, or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, in connecIion with any subsequent discretionary approval for the Propeny, except as set fonh in Ordinance No. 5-98, Resolution No. 30-98, and the tentative parcel map and this Agreement (induding Exhibit B, subparagraph 5.3.5). 8.2 Revised Application Fees. Any e.xisting application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (l) such fees have general applicability; (2) the application of such fees to the Propeny is prospecIive; and (3) the application of such fees would not prevent development in accordance 'ivith this Agreement. By so agreeing, DEVELOPER does not waive its rights to challenge the legality of any such applicaIion, processing and/or inspection fees. 8.3 New Taxes. luly subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application of such taxes to the Propeny is prospective; and (2) the application of such taxes would not prevent development in accordance wiu~ this Agreement. By so agreeing. DEVELOPER does not waive its rights to challenge the legality of any such taxes. 8.4 A,>sessments. 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 propeny to pay for infrastructure and/or services which benefit the Property. 8.5 Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to .Article XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's ballot as affirmatively voting in favor of such assessment, fee or charge. Dublin/Alameda Development Agreement for the Micro Dental Project Page 7 of 18 March 30, 1999 /,;{ ct 51. 9. .Amendment or Cancellation. . 9.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the effective date of this Agreement prevent or preclude compliance '\\ith one or more provisions of this Agreement or require changes in plans, maps or pemlits approved by the CITI, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply'\\ith such federal or state law or regulation. Any such. amendment or suspension of the Agreement shall be approved by the City Council in accordance with Chapter 8.56. 9.2 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parries hereto and in accordance "ith the procedures of State law and Chapter 8.56. 9.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "significant" reservation or dedication ofland 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 mmrnum height or size of proposed buildings; or (g) monetary contributions by DEVELOPER as provided in this A.greement, shall not, except to the e)..'tent otherwise required by law, require no,-lce or public hearing before either the Planning Conunission or the City Council before the parties may execute an amendment hereto. CIITs Public \Vorles Director shall determine whether a reservation or dedication is "significant". 9.4 Amendment of Project Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discre1;ionary actions; (d) the density or intensity of use of the Project; (e) the mmmum height or size of proposed buildings; (f) monetary contributions by the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall require an amendment of this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. .Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project ApproYal(s) relates spedfically to some provision of this Agreement. Dublin/.A.lameda Development Agreement for the -Micro Dental Project Page 8 of 18 March 30. 1999 . . . . I!; c6 :3Y 9.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of the parries or their successors in interest, in accordance \vith the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by crn". 10. Term of Project Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the tentative map described in Recital G above shall automatically be e..\."tended for the term of this Agreement. The term of any other Project Approval shall be eA"tended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review Date. The annual review date for this Agreement shall be August IS, 1999 and each August IS thereafter. 11.2 Initiation of Reviev,'. The CrTYs Community Development Director shall initiate the annual revie'i",', as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER thirty (30) days' 'written notice that the crn intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior t9 the hearing on the annual revie'w, as and ,...hen reasonably detem1ined necessary by t..~e Community Development Director, to demonstrate good faith compliance i",rith the prO\risions of the Development Agreement. The burden of proof by substantial eiridence of compliance is upon the DEVELOPER. 11.3 Staff Reports. To the eA"tent practical, CrTY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports., and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 Costs. Costs reasonably incurred by CrTY in connection with the annual re,riew shall be paid by DEVELOPER in accordance with the City's schedule of fees in effect at the time of review. Dublin/Alameda Development Agreement for the Micro Dental Project Page 9 of 18 March 30. 1999 1'1 t7{ :5Y 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, eA-pressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event or default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting parry viithin thirty (30) days after service of such notice of default, the nondefaulting parry may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, th~t if the default cannot be cured within such thin::y (30) day period, the nondefaulting parry shall refrain from any such legal 01; equitable action so long as the defaulting party begins to cure such default i'lithin such thin::y (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a v\.aiver of any default. 12.3 No Dama~es A~ainst CIIT. In no event shall damages be a".arded against CITY upon an event of default or upon termination of this ~~greennent. . 13 1:' 1 C .,.... . .......stoppe ernDcate. Either party may, at any time, .and from time to time, request 'Written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate 'within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall be authorized to execute any certificate requested by DEVELOPER. Should the party receiving the request not execute and return such certificate 'within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section Dublinl.AJarneda Development Agreement for the Micro Dental Project Page 10 of 18 . March 30, 1999 . . . /5 ~ :3;/ are true, and any party may rely on such deemed certification. 14. Mort~agee Protection: Certain Rights of Cure. 14.1 i\10rtga~ee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the dale of recording this Agreement, including the lien for any deed of trus~ 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 yalue, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 i\10rtga~ee Not Obli~ated. Nomithstanding the provisions of Section 14.1 above, no J\10rtgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvementS, or to guarantee such construction or completion, or to pay, perfOlTI1 or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3 Notice of Default to Mortp-ap-ee and EA'tension of Rip-ht TO Cure. If CITY receives notice from a Mortgagee req~esting a copy of any noti;e 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 notic~ given to DEVELOPER with respect to any claim by CrTI' that DEVELOPER has corrunitted an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to corrunence to cure or remedy, the event of default claimed set fonh in the CrITs notice. CITY, through its City Manager, may o.'tend the thirty-day cure period provided in paragraph 12.2 for not more than an additional siA'ty (60) days upon request of DEVELOPER or a Mortgagee. 15. Severability. The unenforceability, invalidity or illegality of any provisions, Dublin/Alameda Development Agreement for the Micro Dental Project Page 11 of 1 S March 30, 1999 16 '7f j.cj covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. . 16. Attorneys' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing pany shall be entitled to reco\'er 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 parry 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 OIVI1 costs of defense as a real party in interest in any such action, and shall reimburse CITY for all reasonable coun _ costs and attorneys' fees e:>...-pended by CITY in defense of any such action or oth~r proceeding. 17. Transfers and Ac;;si ~ments. 17.1 DEVELOPER's Ri~ht to Ac;;sign. i>JI of DEVELOPER'S rights, interests and obligations hereunder may be transferred, sold or assigned in conjunction ,vith the transfer, sale, or assignment of all of the Property subject hereto . at any time during the term of this Agreement, provided that no uansfer, sale or assignment of DEVELOPER's rights, interests and obligations hereunder shall occur ,\ithout the prior written notice to CITY and approval by the City !\1.anager, v\'hic~1 approval shall not be unreasonably V\ithheld or delayed. The City Manager shall consider and decide the matter within 10 days after DEVELOPER's notice, prO\ided all necessary documents, certifications and other information are prO\ided to the City :Manager. 17.2 Release Upon Transfer. Upon the transfer, sale, or assignment of all of DEVELOPER's rights, interests and obligations hereunder pursuant to subparagraph 17.1 of this Agreement, DEVELOPER shall be released from the obligations under this Agreement, \\ith respect to the Property transferred, sold, or assigned, arising subsequent to the date of City Manager approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or assignee approved by the City Manager e:>...-pressly assumes all of the rights, interests and obligations of DEVELOPER under this Agreement, DEVELOPER shall be released \\ith respect to all such rights, interests and assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions Dublin/Alameda Development Agreement for the Micro Dental Project Page 12 of IS March 30, 1999 . . . . /1 ~ 3 'i hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval. 17.3 Developer's Right to Retain Specified Ri~hts or Obli~ations. Notll\rithstanding subparagraphs 17.1 and 17.2 and paragraph 18, DEVELOPER may withhold from a sale, transfer or assignment of this Agreement certain rights, interests and/or obligations which DEVELOPER shall retain, prmided that DEVELOPER specifies such rights, interests and/or obligations' in a written document to be appended to this Agreement and recorded 'with the /\lameda Counl.Y Recorder prior to the sale, transfer or assignment of the Property. DEVELOPER's purchaser, transferee or assignee shall then have no interest or obligations for such rights, interests and obligations and this Agreement shall remain applicable to DEVELOPER \1\rith respect to such retained rights, interests and/or obligations. 17.4 Permitted Transfer. Purchase or Ao:;signment. The sale or other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to the exercise of any right or remedy under a deed of trust encumbering DEVELOPER'S interest in the Property shall not require City Manager appro,.a1 pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 17.1. 17.5 COUNTY's Ri~ht to Assign. COUNTI shall not assign its rights interests or obligations hereunder. 18. A~eement Runs ~rith 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 '\I\rith 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 Propeny hereunder, or V\rith respect. to any owned property, (a) is for the benefit of such propenies and is a burden upon such properties, (b) runs ,,\rim Dublin/Alameda Devdopmem Agreement for the Micro Dental Project Page 13 of 1 S March 30. 1999 /Fct3;! such propenies, and (c) is binding upon each party and each successive ovvner during its ownership of such properties or any portion thereof, and shall be a benefit to and a . burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. . Bankruptcy. The obligatfons of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CIIY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or propeny damage whiG.~ may arise directly or indirectly as a result of any actions or inactions by the DEVELOPER, or any actions or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in connection "dth the construction, improvement, operation, or maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation with respect to negligence or wrongful conduct of CIIY, . its contractors, subcontractors, agents or employees or ,;\.riu~ r~'"'Pect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (e..xcept as prmided in an improvement agreement or maintenance bond). COUNTY agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the COUNTY, or any actions or inactions of COUNTY's contractors, subcontractors, agents, or employees in connection 'with the construction, improvement, operation, or maintenance of the Project, provided that COUNTY shall have no indemnification obligation ,,,,,ith respect to negligence or 'Wrongful conduct of CITY, its contractors, subcontractors, agents or employees or vd,th respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the CITY or another public entity (except as provided in an improvement agreement or maintenance bond). Dublin/Alameda Development Agreement for the Micro Dental Project Page 14 of 18 March 30, 1999 . . . . /1cr6 :3'1 21. Insurance. 21.1 Public Liability and Property Dama~e Insurance. During the term of this Agreement, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance 'with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) and a deductible of not more than ten thousand dollars ($10,000.00) per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2 \V orkers Compensation Insurance. During the term of this Agreement DEVELOPER shall maintain \t\Torker'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 VV orker's Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 E\idence of Insurance. Prior to City Council apprO\'al of this Agreement, DEVELOPER shall furnish CIrr satisfactory evidence of me insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the CITY at least fifteen days prior vvritten notice of the cancellation or reduction in coverage of a policy. The insurance shall eA"tend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and represent2ti",::s and to DEVELOPER performing work on the Project. 22. Sewer and \Vater. DEVELOPER acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of CITY. 23. Notices. .All notices required or prO'\ided for under this Agreement shall be in vi'liting. Notices required to be given to CITY shall be addressed as follows: Dublin/Alameda Development Agreement for the Micro Dental Project Page 15 of 18 March 30. 1999 ~o at :3( City Manager City of Dublin P.O. Box 2340 Dublin, CA 94568 . Notices required to be given to COUNTY shall be addressed as follows: Patrick, Cashman Project Director Surplus Property Authority of Alameda County 225 W. VvintonAvenue, Room 151 Hayward, CA 94544 and Adolph l\1artinelli Director of Plarming County of Nameda 399 Elmhurst Street Hayward, CA 94544 Notice required to be given to DEVELOPER shall be addressed as follows: . Andres Hites George Hites HHH Supply and Investment 6665 Amador Plaza Road Dublin, CA 94568 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given" and received upon personal delivery, or if mailed, upon the o."piration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Recitals. The foregoing Recitals are true and correct and are made a part hereof. Dublin/i\lameda Development Agreement for the Micro Dental Project Page 16 of 18 March 30, 1999 . . . . ..:z/ot3i 25. A~eement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 26. Exhibits. The folloiving documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Properry Exhibit B Additional Conditions ?- _I. Coun terpans. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. 28. Recordation. CITY shall record a copy of this Agreement within ten days follmving exerution by all parties. IN WITNESS ''\THEREOF, the palLies hereto have caused this Agreement to be executed as of the date and year first above ViTItten. CITY OF DUBLIN: Date: Attest: By: City Clerk Date: Dublinl}J.arneda Development Agreement for the Micro Dental Project Page 17 of 18 March 30. 1999 Approved as to Form: City Attorney SURPLUS PROPERTY AUTHORlTI OF AlAMEDA COUNTI: Adolph Martinelli Its Manager Approved as to Form: Attorney for Surplus Property Authority of the County of Alameda HHH SUPPLY.AND INVESTMENT, , . a general pannership By: General Partner Date: ;<J- c3 :3 Y Date: (NOT.ARlZATION ATTACHED) EHS:rja J :\''I'PD\..\1J'..TR5V\'\114\12 4\A.GREE\MI eRO DA.330 DublinlAlameda Development Agreement for the Micro Dental Project Page 18 of 18 March 30, 1999 . . . ;?3 cr: 3( . State of California ) ) 55. County of Alameda ) On before me, a Notary Public, personally appeared personally knOVirrl to me (or proved to me on the basis of satisfactory e,idence) to be the person(s) ,vhose name(s) is/are subscribed to the ,vithin instrument and acknowledged to me that he/she/they exernted the same in his/her/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed . the insuument. VvITNESS my hand and official seal. NOTARY PUBLIC . :?51~:3Y . EXHIBIT B Additional Conditions . The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparagraph 5.3.1 -- Subsequent Discretionary Appro,'als None. Subparagraph 5.3.2 -- l\1itigation Conditions Subsection a. Infrastructure Seouencint:r Prop"ram ... -- The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project.specific road\\Tay improvementS (and offers of dedication) described below and those identified in Planning Commission Resolution No. 99-03 . Approving Site Development Review shall be completed by DEVELOPER to the satisfaction of the Public "\IV orles Director at the times and in the manner specified in Resolution No. 99-03 unless otherwise provided below or unless perforrned by others. AIl such roadway improvements shall be constructed to the satisfaction and requirements of CITY's Public 'IV orks Director. A. I-580 at Santa Rita RoadfTassajara Road Eastbound Off Ramp Condition Nos. 23 and 24 of Resolution No. 99-03 shall be revised to read as follows: "The Public Vv orks Director shall determine when the eastbound off-ramp from I-S80 at the Santa RitatTassajara Road ojt shall be widened and restriped to provide one exclusive through lane and rNO left-turn lanes (with the existing free right- Dublin/Alameda Development Agreement for the Micro Dental Project - Exhibit B Page 1 of 8 March 30. 1999 . . . . ;{5 rt.3 'I turn lane remaining). In conjunction 'with this improvement, the traffic signal shall be modified to provide protected left-turn phasing on the east and west legs (removing the existing split phasing). The Public \Vorks Director shall also determine when the westbound approach on Pimlico Drive will need to provide a second left turn lane. VVithin one year of notification by the Public \Vorks Director, unless otherwise constructed by others and provided consent from Caltrans and the City of Pleasanton, if necessary, has been obtained, COUNTI shall design and construct these improvements to the satisfaction of the Public \Varks Director ",dth input from the City of Pleasanton where applicable. To the e),."tent practical, the notice shall be timed so that the 'work shall be completed immediately prior to the point where Level of Service E occurs." B. Miscellaneous The obligation of subsection (A) above shall be of no force or effect until DEVELOPER obtains the first building permit for the Project. Once effective, such obligation shall sunrive termination of this Agreement. Vvithin sb.:ty (60) days of the Effective Date, COUNTY shall prO'\ride CITY ~rith security for the costs of design and construction of the improvements described in subsection (A) above in an amount satisfactory to the Public \V orks Director. The security may consist of a document, satisfactory to the City Attorney, pledging COUNTY'S existing credits against payment of the traffic impact fees as security. The security required by the preceding sentences is not a substitute for the Improvement Agreement and bonds required by Subparagraph 5.3.2, subsection (b) (ii) and (iii) below. DublinlPJameda Development Agreement for the Micro Dental Project ~ Exhibit B Page 2 of 8 March 30, 1999 ;2.6 4 3 Y DEVELOPER and COUNTY shall be responsible for uansitioning e..tisting improvements to match improvements required by this Agreement, induding dedications, to the satisfaction of the CITY's Public "Vorles Director. . (ii) Sewer }J1 sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance vlith the tentathre subdivision map and DSRSD requirements. (iii) Water .An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance Vi'ith the tentatiye subdivision map to the satisfaction and requirements of the elrrs fire depanment. Nl potable v,'ater system components to serve the project site (or any recorded phase of the Project) shall be completed in accordance viith the tentative subdivision map and DSRSD requirements. Recycled ,\l\.ater lines shall be installed in accordance ,vith the tentative . subdivision map. (iv) Storm Drainage Prior to issuance of the first Certificate of Occupancy for any building ,,-hich is part of the Project, the storm drainage systems off site, as well a~ on site drainage systems to the areas to be occupied, shall be improved to the satisfaction and requirements of the Dublin Public Vvorks Department applying CITYs 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 vvith the Drainage Plan. As used herein, "Drainage Plan" shall refer to CITY's master drainage plan. Dublin/.A.lameda Development .'\,oreement for the Micro Dental Project. Exhibit B Page 3 of 8 March 30. 1999 . . . . ~I}ct 31 (v) Other Utilities (e.g. gas. electricity. cable televisions. telephone) Construction shall be complete by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy. Subsection b. Miscellaneous (i) Completion-May be Deferred. Notwithstanding the foregoing, CITY's Public ,Vorks Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public "Vorks Director that assures completion, allow DEVELOPER or COUNTY to defer completion of discrete portions of any of the public improvements required for the Project until after issuance of Certificate of Occupancy for the first building' for the Project if the Public '\-Vorks Director determines that to do so would not jeopardize the public health, safety or i"i'elfare. (ii) Improvement Agreement Prior to consuucting the Improvements described in Subparagraph 5.3.2(a)(i) above, COUNTY (or its assignee) shall submit plans and specifications to CITY's Public V" orks Director for review and approval and shall enter into an improvement agreement i'\'ith CITY for construction and dedication of the public facilities. lvl such improvements shall be construcred in accorda...."1ce i'\ith Chis standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. (iii) Bonds Prior to execution of the Improvement Agreement, COUNTY (or its assignee) shall provide a cash monwnent bond, a performance bond and labor and materials bond or other adequate security to insure that the Improvements described in Subparagraph 5.3.2(a)(i) above will be constructed prior to the times specified above. The performance bond or other security shall be in an amount equal to 100% of the engineer's estimate of the cost to construct the improvements (induding design, engineering, administration, and inspection) and the labor and materials bond shall be in an amount equal to 50% of the engineer's estimate. The bonds shall be written by a surety licensed to conduct business in the State of California and approved by CITIs City Manager. Dublirv'}Jameda Development Agreement for the Micro Dental Project - Exhibit B Page 4 of 8 March 30. 1999 .~ g cD :3 Y . (iv) Right to Construct Additional Road Improvements . Vvith the prior written consent of CITY's Public ,,yorks Director, COUNTY or DEVELOPER may construct roadway improvements which are not described in this Exhibit B if such improvements are described in the resolution establishing the Eastern Dublin Traffic Impact Fee and if such improvements are constructed in their ultimate location. COUNTY (or its assignee) shall be required to enter into an Improvement Agreement and provide bonds for such improvements, as provided in Subsection (b )(ii) and (iii) above, prior to construction. CITY shall provide a credit to COUNTY for the cost of such improvements in the manner a...T1d subject to tlle conditions provided in Subparagraph 5.3.6, Subs~ctions (a), (b) and (c). Subparagraph 5.3.3 -- Phasing. Timing "'-lith the exception of the road improvements described i: 5.3.2(a)(i) this Agreement contains no requirements that DEV or complete development of the Project within any period of Ii the intention of this provision that DEVELOPER be able to dE accordance vvith its own time schedules and the Project Approy ~. 3ubparagr~ . ~ :~OPER mt.: ~ set by C1 lop the Pr: :. initiate Y. It is envin ... . Subparagraph 5.3.4 -- Financing Plan COUNTY'I\'i11 install all street improvements necessary for ::::: Project at :~: own cost (subject to credits for certain irnproyements as prO\'ided in ~ _~'?aragra;. ~:3.6 below). Other infrastructure necessary to F :-D\ide sewer, potable w: '- water services to the Project will be mac::: 2\.ailable by the Dut Services District. COUNTY has entere: ~:-'.:a an "Area ''\Tide F. with the Dublin San Ramon Services D: .:t to pay for the co~ services to the Project. Such services sr"(: provided as set fa:' 5.3.2(a)(ii) and (iii) above. mdre.:- _:1 Ram. , ~s Agree :-:tendin - Subpar. -j c't" :.:~ :Jh . Dublin/Alameda Development Agreement for the Micro Dental Project - Exhibit B Mar; 5 of 8 1999 . . . ,(' .., 1/ "J ""/~ ~' ./ 1 (7' '-'I.) Subparagraph 5.3.5 -- Fees. Dedications Subsection 3. Traffic Impact Fees. DEVELOPER shall pay all traffic impact fees applicable to the Project . which are in effect at the time of issuance of any building permit for the Project. Such fees inc;lude the Eastern Dublin Traffic Impact Fee ("TIFt>) established by Resolution No. 41.96, induding any future amendments to such fee. DEVELOPER 'i'iill pay such fees no later than the time of issuance of building permits and in the then-current amount of the impact fee. DEVELOPER, COUNTY and CITY ackno'ivledge that COUNTY is entitled to certain credits ("1991 Credits") against payment of the Traffic Impact Fee for Eastern Dublin by separate agreements previously entered into between COUNTY and CITY in 1991. COUNTI is also entitled to certain other credits ("Prior Agreement Credits") against payment of the Traffic Impact Fee for Eastern Dublin by other development agreements entered into between COUNTY and CITY. COUNTY agrees that, notvdthstanding its entitlement to such 1991 Credits, its 1991 Credits cannot be applied against payment of the "Seaion 2" ponion of the Traffic Impact Fee for Eastern Dublin for the Project. DEVELOPER and/or COUNTY (and its assignee) will, rather, pay the "Section 2" portion of the fee in cash. COUNTY further agrees that it (and its assignee) "ill use the 1991 Credit.s and/or Prior Agreement Credits against at least one-half (lh) of the "Section 1" ponion of the Traffic Impact Fee for Eastern Dublin for the Project provided that it has sufficient such credits. CITI shall determine which of the 1991 Credits and/or Prior Agreement Credits shall be used pursuant to this paragraph. Notwithstanding anything herein to the contrary, DEVELOPER funher agrees that it will pay at least seven percent (7%) of the "Section 1" portion of the Traffic Impact Fee for Eastern Dublin in cash. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Free,,"ay Interchanges. DEVELOPER shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155-98 and by any subsequent resolution which revises such Fee. DEVELOPER'i'\'ill Dublin/Alameda Development Agreement for the Micro Dental Project. Exhibit B Page 6 of 8 March 30, 1999 . -p ~u' 3D ~ ../ / pay such fees no later than the time of issuance of building permits and in the then- current amount of the impact fee. . Subsection c. Public Facilities Fees. DEVELOPER shall pay a Public Facilities Fee in the amounts and at the times set forth in City of Dublin Resolution No. 32-96, adopted by the City Council on March 26, 1996, or in the amounts and at the times set forth in any resolution revising the amount of the Public Facilities Fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the then-current amount of the impact fee. Subsection d. Noise Mitigation Fee. DEVELOPER shall pay a Noise Mitigation Fee in the amounts and at the times set forth in City of Dublin Resolution No. 33-96, adopted by the City Council on March 26, 1996, and any amendments thereto. DEVELOPER 'will pay such fees no later than the time of issuance of building permits and in the then-current amount of the impact fee. Subsection e. School Impact Fees. . School impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080 and the rnsting agreement ben1'\reen CO UNIT, 2.$ DEVELOPER's predecessor in interest, and the Dublin Unified School District. Subsection f. Fire Impact Fees. DEVELOPER shall pay a fire facilities fee in the amounts and at the times set forth in City of Dublin Resolution No. 37-97 or any subsequent resolution v\rhich revises such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the then-current amount of the impact fee. Subsection g. Tn-VaIIey Transportation Development Fee. DEVELOPER shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. DEVELOPER will pay such fees no later than the time of issuance of building permits and in the then-current amount of Dublin/Alameda Development Agreement for the Micro Dental Project - Exhibit B Page 7 of 8 March 30, 1999 . . . . 3/ c6 :3! the impact fee. Subparagraph 5.3.6 ~~ Credit All aspects of use of credits shall be governed by CI1Ys Administrative Guidelines governing traffic fee credits and reimbursements (Resolution No. 23-99.) Subparagraph 5.3. 7" ~~ ~1isceIIaneous Subsection a. Landscaping ~1aintenance Along Streets and Creek CITI' has formed a landscape maintenance district knmvn as the "Landscape !\1aintenance Assessment District No. 97-1 (Santa Rita .Area)" pursuant to a petition from DEVELOPER, and imposed an assessment against the Propeny to pay for street and creek landscape maintenance. In addition, on September 24, 1996, COUNTY recorded a Declaration of Covenants, Conditions and Restrictions v,.hich covers the Propeny, whereby COUNTY, on behalf of itself and its successors, has covenanted to pay a "Deed i\ssessment" to CITY for maintenance of street and creek landscaping. J :\\VPD\MNRSVV\114\124\'\GREE\MICROEXB.330 EHS:rja Dublinl.A.lameda Development Agreement for the Micro Dent.al Project - Exhibit B Page 8 of 8 March 30, 1999 9). ~ 'Jr ORDINANCE NO. AN ORDINANCE OF THE CITY OF DUBLIN APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN, HHH SUPPLY AND INVESTMENT (P A 98-055) and ALAMEDA COUNTY SURPLUS PROPERTY AUTHORITY FOR MICRO DENTAL LABORATORIES . THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLO'VS: Section 1. RECITALS A. The proposed Microdental Laboratories Project (P A 98-055) is located within the boundaries of the Eastern Dublin Specific Plan ("Specific Plan") in an area which is designated on the General Plan Land Use Element Map and Eastern Dublin Specific Plan Land Use Map as Industrial (I) and Campus Office (CO) uses. B. This project is within the scope of the Eastern Dublin Specific Plan and General Plan Amendment, for which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration (SCH 86082092) has been approved for the Santa Rita Specific Plan Amendment of which this project is a part. That Mitigated Negative Declaration together with the Program ErR adequately describes the total project for the purposes ofCEQA. The analysis indicated that no new effects could occur and no new mitigation measures would be required for the Microdental Laboratories Project that were not addressed . in the FEIR or 1\1itigated Negative Declaration. Further, that analysis found that the project is in conformity with the Eastern Dublin Specific Plan. C. Implementing actions of the Specific Plan, including Chapter 11 thereof, require that all projects within the Specific Plan area enter into development agreements with the City. D. HHH Supply and Investment has filed an application requesting approval of a development agreement for the Microdental Laboratories project. E. A Development Agreement between the City of Dublin, HHH Supply and Investment, and Alameda County Surplus Property Authority has been presented to the City Council, a copy of which is attached to the Staff Report as Attachment 1. F. A public hearing on the proposed Development Agreement was held before the Planning Commission on April 13, 1999, for which public notice was given as provided by law. G. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreement. H. A public hearing on the proposed Development Agreement was held before the City . Council on April 20, 1999, for which public notice was given as provided by law. ATTACHMENT 2 3:3 ~ 3<1 J. The City Council has considered the recommendation of the Planning Commission at the April 20, 1999 meeting, including the Planning Commission's reasons for its recommendation, the . Agenda Statement, all comments received in writing and all testimony received at the public hearing. Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin's General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the Specific Plan, (e) the EIR, (f) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City's General Plan, as amended by the Eastern Dublin General Plan Amendment, and in the Specific Plan in that (a) the General Plan and Specific Plan land use designation for the site is Industrial (I) and Campus Office (CO) uses and the proposed project is an office development project consistent with that land use, (b) the project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to provision of infrastructure and public services, and (c) the Development Agreement includes provisions relating to financing, construction and maintenance of public facilities, and similar provisions set forth in the Specific Plan. ? The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located in that the project approvals include a Planned Development Rezoning and Site Design Review adopted specifically for the . Microdental Laboratories Project. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies in that the MicrodentaI Laboratories Project will implement land use guidelines set forth in the Specific Plan and the General Plan which have planned for office uses at this location. 4. The Development Agreement will not be detrimental to the health, safety and general welfare in that the project will proceed in accordance with all the programs and policies of the Eastern Dublin Specific Plan. S. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan and with the Specific Plan. Section 3. APPROVAL The City Council hereby approves the Development Agreement (Attachment 1 to the Staff Report) and authorizes the Mayor to sign it. Section 4. RECORDATION . Within ten (10) days after the Development Agreement is executed by the Mayor, the City Clerk shall submit the Agreement to the County Recorder for recordation. 3;/ 03 :31 Section S. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council ofthe City of Dublin, on this _ day of May, 1999, by the following votes: AYES: NOES: ABSENT: ABSTAIN: MAYOR ATTEST: CITY CLERK G:PA 98-063 Ord DA . . .