HomeMy WebLinkAboutItem 6.1 CommerceOne DACITY CLERK FILE # 600-60
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: February 20, 2001
SUBJECT:
PUBLIC HEARING PA 00-015 Commerce One Corporate
Headquarters Development Agreement (2nd Reading)
(Report Prepared by: Eddie Peabody, Jr., Community Development
Director)
ATTACHMENTS:
City Council Ordinance approving a Development Agreement
between Commerce One, Alameda County Surplus Property
Authority and the City of Dublin with the Development Agreement
attached as Exhibit A.
RECOMMENDATION:
2.
3.
4.
5.
6.
Hear Staff Presentation
Open Public Hearing
Hear Applicant's Presentation
Question Staff, Applicant and the Public
Close Public Hearing & Deliberate
Waive reading and adopt an Ordinance (Attachment 1 ) approving a
Development Agreement between the City of Dublin, Commerce
One and the Alameda County Surplus Property Authority
PROJECT DESCRIPTION:
An Ordinance approving a Development Agreement between Commerce One, Alameda County Surplus
Property Authority and the City of Dublin is required by the Eastern Dublin Specific Plan. Items 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.
BACKGROUND
Commerce One is proposing an office building complex to be located on a 27.4 acre site located at the
East/West Connector and Hacienda Drive, Interstate 580 and Arnold Road within the Eastern Dublin
Specific Plan area. The Specific Plan was adopted by the City of Dublin in January of 1994, for the
purpose of guiding future growth in the eastern portions of the City and established land use designations
for approximately 3,300 acres of land east of the Camp Parks Military Reserve. The project site was
given a land use designation of "Campus Office" in the Specific Plan.
COPIES TO:
The Applicant
The Property Owner
In House Distribution
ITEM NO. _~
The property is located in an area previously know as the Santa Rita Property, a 600-acre property
declared surplus by Alameda County. This area is currently being developed with a mix of retail,
commercial, office and residential uses.
Planning Commission Action:
On January 23, 2001, the Planning Commission adopted a Resolution recommending that the City
Council adopt an Ordinance approving a DeVelopment Agreement with Commerce One, Alameda County
Surplus Property Authority and the City of Dublin for the Commerce One project.
City Council Action:
At the Public Hearing of February 6, 2001, the City Council heard a presentation from Staff, took public
testimony and waived the first reading of the Ordinance adopting a Development Agreement with
Commerce One, Alameda County Surplus Property Authority and the City of Dublin for the Commerce
One project.
RECOMMENDATION:
Staff recommends that the City Council open the public hearing, deliberate and adopt an Ordinance
(Attachment 1 ) approving a Development Agreement between the City of Dublin, Commerce One, and
the Alameda County Surplus Property Authority.
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DUBLIN
APPROVING THE DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF DUBLIN,
COMMERCE ONE (PA 00-015), and
ALAMEDA COUNTY SURPLUS PROPERTY AUTHORITY
FOR THE COMMERCE ONE CORPORATE HEADQUARTERS FACILITY PROJECT
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1: RECITALS
A. The proposed Commerce One Headquarters project (PA 00-015) 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 and the Eastern Dublin Specific Plan Land Use Map as Campus Office.
An application has been filed to change the 27.4-acres site of the Santa Rita Properties to Planned
Development (PD).
B. This project is within the scope of the Eastern Dublin Specific Plan and General Plan, for
which a Program EIR was certified (SCH 91103064). An initial study has been prepared for the
Commerce One project. That initial study together with the Program EIR adequately describes the total
project for the purposes of CEQA. The analysis indicated that no new effects could occur and no new
mitigation measures are required for the Commerce One Headquarters project that were not addressed in
the FEIR as certified by the City Council (Resolution 51-93) and Addenda dated May 4, 1993 and August
22, 1994. Further, that analysis found that the project is in conformity with the Eastern Dublin Specific
Plan/General 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. Commerce One has filed an application requesting approval of a development agreement
for the Commerce One Corporate Headquarters project.
E. A Development Agreement between the City of Dublin, Commerce One and the Alameda
County Surplus Property Authority has been presented to the City Council, a copy of which is attached as
Exhibit A.
F. A public hearing on the proposed Development Agreement was held before the Planning
Commission on January 23, 2001, for which public notice was given as provided by law.
Agreement.
The Planning Commission has made its recommendation for approval of the Development
H. A public heating on the proposed Development Agreement was held before the City
Council on Februm'y 6, and February 20, 2001, for which public notice was given as provided by law.
J. The City Council has considered the recommendation of the Planning Commission atthe
February 6, 2001, 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.
ATTACHMENT 1
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 Specific Plan Amendment, (d) the Eastern Dublin Specific
Plan, (e) the EIR, (f) the Agenda Statement, and on the basis of specific conclusions set forth below, the
City Council finds and determines that:
1. The Development Agreement is consistent with the objectives, policies, general plan 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
for the site is currently Campus Office, which allows development of the Commerce One Corporate
Headquarters Facility complex. The proposed project is consistent with the amended land use designation
of Campus Office, (b) the project is consistent with the fiscal policies of the General Plan and Specific
Plan .with respect to provision of infrastructure and public services, and (c) the Development Agreement
includes provisions relating to financing, construction and maintenance of public facilities and similar
provisions set forth in the Specific Plan.
2. The Development Agreement is compatible with the uses authorized in, and the regulations
prescribed for, the land use district in which the real property is located in that project approvals include a
Planned Development Rezoning/Stage 1 & 2 Development Plan, Site Development Review, and Parcel
Map adopted specifically for the Commerce One project.
3. The Development Agreement is in conformity with public convenience, general welfare
and good land use policies in that the Commerce One project will implement land use guidelines set forth
in the Specific Plan and General Plan.
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 program and policies of the Eastern
Dublin Specific Plan.
5. The Development Agreement will not adversely affect the orderly development of property
or the preservation of property values in that the project will be consistent with the General Plan and
specific Plan.
Section 3: APPROVAL
The City Council hereby approved the Development Agreement (Attachment 2 to the Staff
Report) and authorizes the Mayor to sign it.
Section 4: RECORDATION
Within ten (10) days after the Development Agreement is executed by the Mayor, the City Clerk
shall submit the Agreement to the County Recorder for recordation.
Section 5: EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of its
passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in. at least three (3)
public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State
of California.
PASSED AND ADOPTED BY the City Council of Dublin, on the 20th day of February 2001.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Mayor
City Clerk
City of Dublin.
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
BETWEEN THE '
CITY OF DUBLIN
AND
COMMERCE ONE, INC
AND
THE SURPLUS PROPERTY AUTHORITY
OF THE COUNTY OF ALAMEDA
FOR THE COMMERCE ONE PROJECT
THIS DEVELOPMENT AGREEMENT is made and entered in. the 'City of
Dublin On this ... th day of June, 2001, by and between the CITY OF ·DUBLIN, a
Municipal Corporation (hereafter "CITY"), Commerce One, Inc., a Delaware
corporation) (hereafter "DEVELOPER") and the Surplus Property Authority of Alameda
County, a public corporation (hereafter "COUNTY") pursuant to the authority of
§§65864 etseq. of the California Government Code and Dublin Municipal Code,
Chapter 8.56.
RECITALS'
A. Califomia Government Code §§65864 et seq. and Chapter 8.56 of the
Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CITY to enter into an
Agreement for the development of real property with any person having a legal or
equitable interest in such property in order to establish certain development rights in
such property; and :
B. The City Council adopted the Eastern Dublin Specific Plan by
Resolution No: 53-93 which Plan is applicable to the Property; and
C. The Eastem Dublin Specific Plan requires DEVELOPER to enter into
a development agreement; and
D. DEVELOPER desires to develop and holds legal interest in certain
real property consisting of approximately. 27.44 acres of land, located in the City of
Dublin, County of Alameda, State Of California, which is more particularly described in
Exhibit A attaehed hereto and incorporated herein. by this reference, and which real
property is hereafter called the "Property"; and
E. DEVELOPER acquired, or will acquire, its interest in the Property from
COUNTY pursuant to a purchase and sale agreement which allocates rights ~and
obligations as between COUNTY and DEVELOPER. COUNTY is a party to this
Agreement because COUNTY will dedicate certain land and construct certain
improvements that relate to 'the development of the Property; and
F. DEVELOPER proposes the development of the Property for a
corporate center, including four office buildings, and a commons building and a parking
structure (the "Project"); and
G. DEVELOPER has applied for, and CITY has approved,or is
processing, various land use approvals in.connection with the development of the ·'
Project, including PD District rezoning (including Stage 1 and 2 Development Plan)
(Ordinance No. ), parcel map (Community DevelOpment Director Resolution
No. ) and Site Development Review (Planning Commission Resolution No. 00-
70), (collectively, together with any approvals or permits now or hereafter issued with
'Development Agreement Between City of Dublin
And Commerce One, Inc.
· Page 1 of '17
January 12, 2001
respect to the Project, the "Project Approvals"); and
H. Development of the Property ~by DEVELOPER may be subject to
certain future discretionary approvals, which, if granted, shall automatically become part
of the Project Approvals as each such approval becomes effective; and
I: CITY desires the timely, .efficient, orderly and proper development of
said Project; and
J. The City Council has found that, among other things, this
Development Agreement is consistent with its General Plan and the Eastern Dublin
Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56;
and
K. CITY, COUNTY and DEVELOPER'have reached agreement and
desire to express herein a Development Agreement that will facilitate 'development of
the Project Subject to conditions set forth herein; and
L.. Pursuant to the California Environmental Quality Act '(CEQA) the City
has found,' pursuant to CEQA Guidelines section 15182, that the Project is.within the
Scope of the Final Environmental Impact Report for the EaStern Dublin General Plan
Amendment and SpeCific Plan (SCH 91103064). which was certified by the Council by
Resolution No. 51-93, the Addenda dated May 4, 1993, and August 22., 199_4 and the'
Mitigated Negative Declaration for the Santa Rita Specific Plan Amendment (SCH
86082092); and
M. On " ,2001, the 'City Council of the City of Dublin
adopted Ordinance No. __ approving this Development Agreement. The ordinance
will take effect on ,2001. ~
NOW, THEREFORE'; with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained,
CITY, COUNTY and DEVELOPER agree as follows:
AGREEMENT
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
2. Interest of Developer.
The DEVELOPER has a legal .or equitable interest in the Property.
Development Agreement Between City of Dublin
And Commerce One, Inc.
Page 2 of 17
January 12, 2001
3. Relationship of CITY; COUNTY and DEVELOPER.
It is understood that this Agreement is a contract that has' been
negotiated and voluntarily entered into by CITY, COUNTY and DEVELOPER and that
neither the DEVELOPER nor COUNTY is an agent'of CITY. The CITY, COUNTY and
DEVELOPER hereby renounce the existence of any form of joint venture or partnership
between them, and agree that nothing contained herein or in any document executed in
connection herewith shall be construed as making the CITY, COUNTY and
DEVELOPER joint ventu.rers or partners.
4. Effective Date and Term.
4.1 Effective Date. The effective date of this Agreement shall be
the date upon which this Agreement is signed by CITY.
4.2 Term. The term of this Development Agreement shall
commence on the Effective Date and extend five (5) years thereafter, unless said term
is otherwise terminated or modified by circumstances set forth in this Agreement.
4.3 Termination. Upon Issuance of Certificate of Occupancy.
Upon issuance of the final certificate of Occupancy for the Project, this Development
Agreement shall terminate with respect to DEVELOPER only. The agreement-shall
continue in effect with respect to the COUNTY until terminated pursuant to Section 4.2.
4.4. Optional Extensions,_ Prior to the termination of this
Development Agreement, as provided in Section 4.2, DEVELOPER may extend the
term of the Development Agreement. To 'do so, DEVELOPER shall give City written
notice at least 90 days prior to the termination date of the Development Agreement. At
the time DEVELOPER provides such notice, DEVELOPER shall make a contribution to
CITY. in. the amount of One Hundred 'Thousand Dollars ($100;000), which monies will
be used by CITY to reduce the existing Public Facilities Fee deficiency.. Upon receipt of
the notice and the contribution, the City Manager shall notify the DEVELOPER and the
COUNTY that the term of the Development Agreement has .been extended for a one-
year period. The DEVELOPER may exercise its option to extend the Development
Agreement no more than three times, for a maximum total term of the Development
Agreement of eight years. The total contribution for the maximum extension of three
years will be $300,000.
5. Use of the Property.
5.1 Right to Develop. DEVELOPER 'shall have the vested right
to develop the Project on the Property in accordance with the terms and conditions of
this Agreement, the Project Approvals (as and when-issued), and any amendments to
Development Agreement Between City of Dublin
And Commerce One, Inc,
Page 3 of 17
.January 12, 2001
any of.them as shal;!,. from time to time;.: be appmved pursuantto this 'Agreement..
~'~': !:~!~ .:.. :,~i~ !~!:: , !' :: ~::.: " :i.:"':' .... '~ .: ' :.' ":! ~ ' '!! "~::.:
5.2 Permitted Uses~!.:.::Thepermitted uses of the Property, the
density and intensity of use, the maximum height, bulk and size of proposed buildings,
provisions for reservation:or. dedication Iof !and for.,:public purposes and location and
maintenance of On-site and off-site impre:.vementS~:!:,location of public utilities (operated.
by CITY) and other terms and conditions of development applicable to 'the Property,
shall be those set forth in {his Agreements.the .P.~jectApprovais:~and .any amendments
to this Agreement or the Project Approvals.
5.:3... ....Additional ,Conditions. Provisions for:the following...
CAdditional,Conditions") are!set fo. rth in Exhibit B attached.. hemto .and,incorporated ·
hereinby re:femnee. :. ~; ....... ! ..... '
:.!:" ..~:; · :..: .'::. . ., ?.:
· 5.3.1 '. Subsequent Discreiionarv Approvals. Conditions,
· terms, restrictions, and requirements fo..r sU:bseqgeq~diScmtionary actions. (These
conditions: do not affect DEVELOPER's responsibili~to obtain, a!! other/and use
· appr. ovais mqUired by the ordinanCes of the City.Of Dublin; and any permits required by
regulatory agencies ) '
Not Applic ble
· ':. , a ,.:, ..... !~-. ....':!.
' ';:' ~ ':: ' !.ditional or. modified:
5.3.2 MitieJation~Conditiens. Ad
conditions agreed upon by the parties in order to eliminate or mitigate
adverse ,environmental impacts of .theProject~or otherwise rei~iting to
.,!.i develepmenti.,ef the ProjeCt;:.-. -:- ~:!~ :
: see:~Exhibit B ~ :: . !. i ..,...;. -.~
5.3.3 Phasing, Timin.q. Provisions that the Project: be
constructed in specified phases, that construction shall commence
withi.n aspeci~ed time~:.::a~d!~hat.:the Project or any phase thi~reof be
· completed-withina specified time,. .. .:
: .' :5.3:~4: :~:EinanGin~:::Plan. Financial plans which :id>entify ':
necessary capital improvements such as streets and. utilities and ·
sources of funding.
See Exhibit B: .' :::
5;3,5 ·
~fe.es or .dedication of prO~; ~,.::,.; .
· ,,. ,,. See-:~hibitB
Fees,. Dedications · ~erms relating to payment of
Develdpm~rit Ag'r~k~nt Between city. of DUblin .': '
And Commerce One, !nG~, '.
· ~:~ Page. 4of 17; ;,
January 12, 2001
· -5.3.6 Reimbursement. Terms relating to subsequent
· reimbursement over time for financing of necessary public facilities.
See Exhibit B
.5.3.7
Miscellaneous. Miscellaneous terms.
See Exhibit B
6. Applicable Rules, Regulations and Official Policies,
6.1 Rules re Permitted Uses. For the'term of this Agreement,
· the City's ordinances, resolutions, roles, regulationsand official policies governing the
permitted uses of the.Property, governing density and intensity of use of the Property
and the maximum height, bulk and Size of proposed buildings shall be those in force
and effect on the effective date of this Agreement.
6.2' Rules re Design and Construction. Unless otherwise
expressly provided in Paragraph 5 of this Agreement, 'the ordinances, resolutions, rules,
regulations and official policies governing design, impro~Zement and construction
standards and specifications applicable to the Projectshall be those in force;and effect
at the time of the applicable discretionary Project Approval. in the event of a co.n~ict
between such ordinances, resolutions, rules, regulations and official policies and the
Project Approvals, the Project Approvals shall prevail.
Ordinances, resolutions, rules, regulations and official policies
governing design, improvement and construction standards and specifications
applicable to public improvementsto be constructed by Developer shall be those in
force and effect at the time of the applicable permit approval for the public
improvement,'
6.3 Uniform Codes Applicable. Unless expressly pro~/ided in
Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the
provisions of the'Uniform Building, Mechanical Plumbing, Electrical and Fire Codes
and Title 24 of the California Code of Regulations, relating to Building Standards, in
effect at the time of approval of the appropriate building, grading, or other construction
permits for the Project.
7. Subsequently-Enacted Rules and Re.aulations.
7.1 New Rules and Regulations. Dudng the term of this
Agreement, the CITY may apply new or modified ordinances, resolutions, rules,'
regulations and official policies of the CITY to the Property which were not in force and
effect on the effective date of this Agreement and which are not in conflict with those
applicable to the Property as set forth in this Agreement and the Project Approvals if:
(a) the application of such new or modified ordinances, resolutions, rules, regulations or
Development Agreement Between City of Dublin
And Commerce One, Inc.
Page 5 of 17
January 12; 2001
official policies would not prevent, impose a substantial financial burden on, or
materially delay development of the Property as contemplated by this Agreement and
the Project Approvals and (b) if such ordinanc, es~ resolutions, rules, regulations or
official policies have general applicability:
7.2 .Approval of Application· Nothing in this Agreement shall
prevent the CITY from denying or conditionally approving any subsequent land use.
permit or authorization for the Project on 'the basis of such new or modified ordinances,
resolutions, rules, regulations and policies except that such subsequent actions .shall be
subject to any conditions, terms, restrictions, and requirements expressly set forth
herein.
7.3 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein,, in the event an ordinance, resolution or other measure is
enacted; whether by action of CITY, by initiative, referendum, or otherwise, that
imposes a building moratorium which affects the Project on all or any part of the
Property, CITY agrees that such ordinance, resolution or other measure shall not apply
to the Project~ the Property, this Agreement or the Project Approvals unless the building
moratorium is imposed as part of a declaration of a local emergency or state of
emergency as defined in Government COde §8558.
8~ · SubsecluentiV Enacted or Revised Fees, Assessments and Taxes.
8.1 .Fees, Exactions, Dedications. CITY and DEVELOPER
agree. that the fees payable and exactions required in connection with the development
of the Project Approvals for purposes of mitigating environmental and other impacts of
the Project, providing infrastructurefor the Project and complying with the Specific Plan
shall be those set forth in the Project Approvals 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 increas~ or
accelerate existing fees, dedications of land or construction of public improvements, in
connection with any subsequent discretionary approval for the Property, except as set
forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph.
5:3.5).
8.2 Revised-Application Fees. Any existing application, ..
processIng and inspection fees that are revised during the term of this Agreement shall
apply to the Project provided that (1) such fees have general applicability; (2) the
application of such fees to the Property is .prospective; and (3) the application of such
fees would not prevent developmeht in accordance with this .Agreement. By so
agreeing,-DEVELOPER does not waive its rights to challenge the legality of any such
application, processing and/or inspection fees.
8.3
.New Taxes. Any subsequently enacted city-wide taxes shall
Development Agreement Between City of Dublin
And .Commerce One, Inc.
Page 6 of 17
January 12, 2001
apply to the Project provided that: (1) the application of such taxes to the Property iS
prospective; and (2) the application of such taxes would not prevent development in
accordance with this Agreement. By so agreeing. DEVELOPER does not waive its
rights to challenge the legality of any such taxes.
8.4 Assessments. Nothing herein shall be construed to relieve
the Property from assessments levied against it by CITY pursuant to any statutory
procedure for the assessment of property to. pay for 'infrastructure and/or services which
benefit the Property.
8.5 Vote on Future Assessments and Fees. In the event that
any assessment, fee or charge which is applicable to the Property is subject to Article
XIIID of the Constitution and DEVELOPER does not retum its ballot, DEVELOPER
agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's
-ballot as affirmatively voting in favor of such assessment, fee or charge.
9. Amendment or Cancellation.
9.1 Modification Because of Conflict with State or Federal Laws.
in the event that state or federal laws or regulations enacted after the effective date of
this Agreement prevent or preclude compliance with one or more provisions of this
Agreement or require changes in plans, maps or permits approved by the CITY, the.
parties shall meet and confer in good faith in a reasonable attempt to modify this
Agreement to comply with such federal or state law or regulation. Any such
amendment or suspension of the Agreement shall be approved by the City Council in
accordance with. Chapter 8.56.
9.2 Amendment by Mutual Consent. This Agreement may be
amended in writing from time to-time by mutual consept of the parties hereto ,and 'in
accordance with the procedures of State law and Chapter 8.56.
9.3 Insubstantial Amendments. Notwithstanding the provisions
of the preceding section 9.2, any amendments to this Agreement which 'do not relate to
(a) the term of the Agreement as provided in section 4.2; (b) the permitted uses of the
Property as provided in section 5.2; (c) provisions for "significant" reservation or
dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or
requirements for subsequent discretionary actions; (e) the density or intensity of use of
the Project; (f) the maximum height or size 'of proposed buildings; or (g) monetary
contributions by DEVELOPER as provided in this Agreement, shall not, except to the
extent otherwise required by law, require notice or public hearing before either the
Planning Commission or the City Council before the parties may execute an
amendment hereto. CITY's Public Works Director shall determine whether a.
reservation or dedication is "significant". · ·
Development Agreement Between City of Dublin
And Commerce One, Inc.
Page 7 of 17
January 12, 2001
9.4 Amendment of Project Approvals. Any amendment of
Project Approvals relating to: (a)the permitted use of the Property; (b) provision'for
reservation or dedication of land; (c) conditions, terms, restrictions or requirements for
subsequent discretionary -actions; (d) the density or intensity of use of the Project; (e)
the maximum height or size of proposed buildings; (f) monetary contributions by the
DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall
require an amendment of this Agreement. Such amendment shall be limited to those
provisions of this Agreement which are implicated by the amendment of the Project
Approval. Any other amendment of the Project Approvals, or any of them, shall 'not
require amendment of this Agreement unless the amendment of the Project Approval(s)
relates specifically to some provision of this Agreement.
'9.5 Cancellation by Mutual Consent. Except as otherwise.
permitted herein, this Agreement may be canceled in whole or in part only by the
mutual consent of the parties or their successors in interest, in accordance with the '
provisions .of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of
this Agreement prior to the date of cancellation shall be retained bY CITY.
10. Term of Project Approvals.
Pursuant to Califomia Government Code Section 66452.6(a), the term
of the parcel map described in Recital G above shall automatically be extended for the
term of this Agreement. The term of any other Project Approval shall be extended only
if so provided in Exhibit .B.
11. Annual Review.
1,1.1 ·Review Date. The annual review date for this Agreement
shall be August 15, 2002 and each August 15 thereafter.
11.2 Initiation of Review. The CITY's Community Development .
Director shall initiate the annual review, as required under Section 8.56.140 of Chapter
'8.56, by giving to DEVELOPER twenty (20) days' wdtten notice that the CITY intends to
undertake such review. DEVELOPER shall provide evidence to the Community
Development Director pdor to the headrig on the annual review; as and when
reasonably determined necessary by the Community Development Director, to
demonstrate good faith compliance with the provisions of the Development Agreement.
The burden of proof by .substantial evidence of.compliance is upon the DEVELOPER.
11.3 Staff Reports. CITY shall deposit in the mail and fax to
DEVELOPER a copy of all staff reports, and related exhibits concerning contract
performance at least three (3) days pdor to any annual'review and shall make every
effort to fax copies five (5) days in advance.
Development Agreement Between City of Dublin
And Commerce One, inc.
Page 8 of 17
January 12. 2001
11.4 Costs. Costs reasonably incurred by CITY in connection
with the annual review shall be paid by DEVELOPER in accordance with the City's
schedule of fees in effect at the time of review.
12. 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' s~rve written notice of such default
upon the defaulting party. If the default is not cured by the defaulting party within
twenty .(20)_days after service of such .notice of default, the nondefaulting party may
then commence any legal or equitable action to enforce its dghts under this Agreement;
provided, however, that if the.default cannot be cured within such thirty (30) day period,.
the nondefaulting party' shall refrain from any such legal or equitable action so long as
the defaulting party begins to cure such default within such thirty (30) day period and
diligently pursues such cure to completion~ Failure to give notice shall not constitute a
waiver of any default. An event of default by .COUNTY or DEVELOPER shall not be
deemed a default by the other party.
1'2.3 No Damages A.clainst CITY. In no event shall damages be
awarded against CITY upon an event of default or'upon termination of this Agreement.
13. EstoDDel Certificate.
Any party may, at any time, and from time to time, request ~vritten
notice from the other party requesting such' party to certify in writing that; (a) this
Agreement is in full force and effect and a binding' obligation of the parties, (b) this
Agreement has not been amended or modified either orally or in wdting, 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 defa-ult, to describe therein the nature and amount of any such
defaults." A party. receiving a request hereunder shall execute and returrt 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 or COUNTY. 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 statemounts in clauses (a) through (c) of this section
are true, and any party may rely on such deemed certification.
Development Agreement Between City of Dublin
And COmmerce One, tnc,
Page 9 of 17
January 12, 2001
equity to enforce or interpret the terms and conditions of this Agreement: the prevailing
party shall be entitled to recover reasonable attomeys' 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' and
appear in defending such action. DEVELOPER and COUNTY shall jointly bear their
own costs of defense as a real. party, in interest in any such action, and DEVELOPER
and COUNTY shall reimburse CITY on an equal basis for all reasonable court costs
and attorneys' fees expended by CITY in defense of any such action or other
proceeding unless the action is based on an obligation of either COUNTY or
DEVELOPER in which case that party shall be wholly obligated to reimburse CITY.
17. Transfers and Assignments. '
17.1 DEVELOPER's Right to Assign. All of DEVELOPER'S
rights, interests and obligations hereunder may be transferred, sold or assigned in
conjunction with the transfer, sale, or assignment of the Property Subject hereto at any
· time during theterm of this Agreement, provided that no transfe[, sale or assignment of
DEVELOPER's rights, interests and obligations hereunder shall occur without the pdor
written ..notice to CITY and approval' by the City Manager, which approval shall not be
.unreasonably withheld or delayed. The City Manager shall consider and decide the
matter within 10 working days after DEVELOPER's notice provided and receipt by City
Manager of all necessary documents, certifications and otherinfo~a.~Qn recl~imd. by.
. city Manager to decide the matter. In considering the request, the City Manager shall
base the decision upon~ the. proposed assignee's reputation, experience, financial -
resources and access to credit and capability to successfully carry out the development
of the .Property completion. The City Manager's approval shall be for the purposes of:
a) providing notice to CITY; b) assuring that all obligations of DEVELOPER are
allocated as between DEVELOPER and the proposed purchaser, transferee or
assignee; and c) assuring CITY that the proposed purchaser, transferee or a~signee is
capable of performing the DEVELOPER's obligations hereunder not withheld by
DEVELOPER pursuant to section 17.3. Notwithstanding the foregoing, provided notice'
is given as .specified in Section 23,-no CITY approval shall 'be required for any transfer,
sale, or assignment of this Agreement to: 1) any entity which. is an affiliate or subsidiary
of DEVELOPER; 2) any Mortgagee; or 3) any transferee of a Mortgagee.
17.2 Release Upon Transfer. Upon the transfer, sale, or
assignment of all of DEVELOPER's rights, interests and obligations hereunder pursuant
to section 17.1 of this Agreement, DEVELOPER shall be released from the obligations
under this Agreement, with respect to the Property transferred, sold, or assigned,'
arising subsequent to the date of City Manager approval of such transfer, sale, or
assignment; provided, however, that if any transferee, purchaser, or assignee approved
by the City Manager expressly assumes all of the 'rights, interests and obligations of
DEVELOPER under this Agreement,' DEVELOPER shall be released with respect to all
'Development Agreement Between City of Dublin
And Cornmemo One, inc.
Page 11 of.17
January 12~ 2001
such rights, interests and assumed obligations. In any event, the transferee, purchaser,
or assignee shall be subject to all the provisions hereof and shall provide all necessary
documents, certifications and .other necessary information prior.to City Manager
approval.
17.3 Developer's Rifiht to' Retain Specified Ri.clhts or Obligations.
Notwithstanding sections 17.1 and 17.2 and section 18, DEVELOPER may withhold
from a sale, transfer or assignment of this Agreement certain rights, interests and/or
obligations which DEVELOPER shall retain, provided that DEVELOPER specifies such
dghts, interests and/or obligations in a written document to be appended to this
Agreement and recorded With the Alameda County Recorder prior to the sale, transfer
or assignment 'of the Property. DEVELOPER's purchaser, transferee or assignee shall
then have no interest or obligations for such rights, interests and obligations and this
Agreement shall remain applicable to DEVELOPER with respectto such retained rights,
interests and/or obligations..
18.
Agreement Runs with the Land.
All of the 'provisions, ~'ights, 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 tbereof~ and shall be a benefit to and a burden upor; each
party and its property hereunder and each other' perso. n succeeding. to an interest in
such properties.
19. Bankruptcy.
bankruptcy.
The obligations of this Agreement shall not be dischargeable in
20.
Indemnification.
DEVELOPER agrees to indemnify, .defend and hold harmless' CITY,'
and its elected and appointed. councils, boards, commissions, officers, agents,
employees, and representatives from any and all claims, costs (including legal fees and
costs) and liability for any personal injury or property damage which may arise directly
Development Agreement Between City of Dublin
And Commerce' One, Inc.
Page 12 of 17
January 12, 2001
or indirectly as a result of any actions or inactions by the DEVELOPER, or any actions
or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in'
connection with the construction, improvement, operation, or maintenance of the :
Project? provided. that DEVELOPER shall have no indemnification obligation with
respect to negligence or wrongful conduct of CITY, its contractors, subcontractors,
agents or employees or with respect to the maintenance, use or condition of any
improvement after the time it has been dedicated to and .accepted by'the CITY or
another public entity (except as provided in an improvement agreement or maintenance
bond). If CITY is named as a party to any legal action, CITY will cooperate with
DEVELOPER, will appear in such action and will not unreasonably withhold. approval of
a settlement otherwise acceptable to DEVELOPER. If CITY is named as a party to any
legal action, CITY will cooperate with. DEVELOPER, will appear in 'such action and will
not unreasonably withhold approval of a settlement otherwise acceptable to
DEVELOPER.
COUNTY agrees to indemnify, defend and hold harmless CITY, and its
elected and appointed councils, boards, commissions., officers, agents, employees, and
representatives from any and all claims, costs (including legal fees and costs) and
liability for any personal injury or property damage which may arise directly or indirectly
as a result of any actions or inactions by the COUNTY, or any 'actions or inactions of
COUNTY's contractors, subcontractors, agents, or employees in connection with the
construction, improvement, operation, or maintenance of the Project, provided that
COUNTY shall have no indemnification obligation with respect to negligence or
wrongful conduct of CITY, its contractors, subcontract0rs, agents or employees. or with
respect'to the maintenance, use or condition of any improvement after the time it has
beer dedicated to and accepted by the CI'FY or another public entity (except as
provided in an improvement agreement or, maintenance bond). if CITY is named as a
partyt0 any legal action, CITY will cooperate'with COUNTY, will appear in such action
and will not unreasonably withhold approval of a settlement otherwise accept.able to
COUNTY.
-:
2i. Insurance:
21.1 Public Liability and PropertV Dama.cle Insurance. At all times
that DEVELOPER is constructing any improvements that will become public
improvements, 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~iiability endorsement.
Development Agreement Between City of Dublin
And Commerce One, Inc,
Page 13 of 17'
January 12, 2001
21.2 Workers Compensation Insurance. At all times that
DEVELOPER is constructing any improvements that will become public improvementS,
DEVELOPER shale maintain Worker's Compensation insurance for all persons
employed by DEVELOPER for work at the Project site. DEVELOPER shall require
each contractor and subcontractor similarly to provide Worker's Compensation'
insurance.for its respective employees. DEVELOPER agrees to indemnify the. City for
any damage resulting from DEVELOPER's failure to maintain any such insurance.
21.3 Evidence of Insurance. Prior to commencement of
construction of any improvements which will become public improvements,
DEVELOPER shall furnish CITY satisfactory evidence of the' insurance required in
Sections 21.1 and 21.2 and evidence that the carder is required to give the CITY at
least fifteen days prior written notice of the cancellation or reduction in coverage of a
policy. The insurance shall extend to the CITY, .its elective and appointive boards,
commissions, officers, agents, employees and representatives and to DEVELOPER
performing work on the Project.
22. Sewer and Water.
DEVELOPER acknowledges that it must obtain water and sewer
permits from the Dublin San Ramon Services District ("DSRSD") which is another public
agency not within the control of CITY.
23. Notices.
All notices required or provided for under this Agreement shall be in
writing. Notices required to be given to CITY shall be addressed as follows:
City Manager
City 'of Dublin
P.O. Box 2340
Dublin, CA 94568
Notices required to be given to COUNTY shall be addressed as follows:
Patdck Cashman
Project Director
Surplus Property Authority of Alameda County
225 W. Winton.Avenue, Room 151
Hayward, CA 94544
Development Agreement Between' City' of Dublin
And Commerce One, Inc.
Page! 4 of 17
January 12, 2001
Notice required to be given to DEVEEOPER shall be addressed as follows:
Commerce One, inc.
4440 RoseWood Drive.
Pleasanton, CA 94588
Attention: Peter Pervere, Senior Vice President
With copy to:
Commerce One
4440 Rosewood Drive
Pleasanton, CA 94588
Attention: General Counsel.
A party may change address by giving notice in Wdting to 'the other party and thereafter
all .notices shall be addressed and transmitted to the new address. Notices shall be
deerned given and received upon personal delivery, or if mailed, upon the expiration of
48 hours after being:deposited in the United States Mail. Notices may also be given by
overnight courier which shall be deemed given the following day or by facsimile
transmission which shall be deemed given ,upon. verification of receipt.
24. Recitals.
The foregoing Recitals are true and correct and are made a part
hereof.
25.
Agreement is Entire Understanding.
This Agreement constitutes the en{ire understanding and agreement
of the parties.
26. Exhibits:
The. following documents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
· Exhibit A Legal Description of Property
Exhibit B Additional Conditions
27. Counterparts.
This Agreement is executed in three (3) duplicate ·originals, each of
which is deemed to be an original.
Development Agreement Between City of Dublin
And Commerce One, Inc.
Page 15 of 17.
January 12, 2001
28. Recordation.
~CITY shall record a copy of this Agreement within ten days following
execution by all parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year first above written.
CITY OF DUBLIN:
By:
Mayor
Attest:
By:
· City Clerk
Approved as to Form:
Date:
Date:
City Attorney
SURPLUS PROPERTY AUTHORITY
OF ALAMEDA COUNTY:
Adolph Martinelli
Its Manager
Date:
Approved as to Form:
Attorney. for Surplus Property
Authority of the County of Alameda
Development Agreement Between City of Dublin
And Commerce One, Inc.
Page 16 of 17
January 12, 2001
COMMERCE ONE, INC., a Delaware Corporation
Peter Pen/ere
Senior Vice President and Chief Financial Officer
J:\wpd~nrsw\114~98~AGREE~commercel_dev-agr_011201 .d0c
Development Agreement Between City of Dublin
And Commerce One, Inc.
Page 17 of 17
January 12, 2001
EXHIBIT A
LEGAL DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE STATE OF CALIFORNIA, COUNTY
OF ALAMEDA, CITY OF DUBLIN DESCRIBED AS FOLLOWS:
BEING A PORTION OF PARCEL FOUR AS SHOWN ON THAT CERTAIN PARCEL MAP
NUMBER 7233, FILED FOR RECORD ON JUNE 26, 1998 IN BOOK 236 OF PARCEL MAPS
AT PAGES 7 THROUGH 13, ALAMEDA COUNTY RECORDS AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTH WEST CORNER OF SAID PARCEL FOUR, THENCE
ALONG THE SOUTHERLY LINE OF SAID PARCEL FOUR, SOUTH 88° 26' 44" EAST 66.00
FEET TO THE POINT OF BEGINNING OF THIS DESCRIPTION.
THENCE LEAVING. SAID POINT OF BEGINNING AND ALONG THE SOUTHERLY,
SOUTHEASTERLY AND EASTERLY LINES OF SAID PARCEL FOUR THE FOLLOWING
ELEVEN COURSES:
THENCE SOUTH 88° 26' 44" EAST, 0.11 FEET;
THENCE SOUTH 88° 48' 14" EAST, 178.75 FEET;
THENCE NORTH 86° 22' 10" EAST 310.74 FEET;
THENCE NORTH 87° 41' 26" EAST, 448.55 FEET;
THENCE EASTERLY ALONG THE ARC OF A NON TANGENT 2937.29 FOOT RADIUS
CURVE TO THE LEFT, WHOSE CENTER POINT BEARS, NORTH 2° 45' 35" WEST,
THROUGH A CENTRAL ANGLE OF 3° 40' 41", FOR AN ARC DISTANCE OF 188.56 FEET TO
A POINT OF COMPOUND CURVATURE;
THENCE ALONG THE ARC OF 200.02 FOOT RADIUS CURVE TO THE LEFT, THROUGH A
CENTRAL ANGLE OF 24° 58' 14", FOR AN ARC DISTANCE OF 86.17 FEET TO A POINT OF
COMPOUND CURVATURE;
THENCE ALONG THE ARC OF A 352.03 FOOT RADIUS CURVE TO THE LEFT, THROUGH
A CENTRAL ANGLE OF 49° 53' 50", FOR AN ARC DISTANCE OF 306.57 FEET;
THENCE NORTH 8° 41' 40" EAST, 128.06 FEET;
THENCE NORTH 39° 52' 47" WEST, 22.58 FEET;
THENCE NORTH 8° 41' 51" EAST, 161.46 FEET;
THENCE NORTH 1° 11' 51" EAST, 229.20 FEET;
THENCE DEPARTING LAST SAID LINE, NORTH 43° 52' 49" WEST, 50.92 FEET'
Development Agreement Between City of Dublin
And Commerce One, Inc.- Exhibit A
Page 1 of 2
January 12, 2001
THENCE NORTH 88° 16' 05" WEST, 658.23 FEET;
THENCE SOUTH 1° 43' 55" WEST, 6.00 FEET'
THENCE NORTH 88° 16' 05" WEST, 649.68 FEET'
THENCE SOUTH 51° 51' 19" WEST, 28.66 FEET
THENCE SOUTH 1° 23' 35" WEST, 30.52 FEET;
THENCE SOUTH 3° 33' 24" WEST, 236.51 FEET;
THENCE NORTH 86° 48' 24" WEST, 9.09 FEET;
THENCE SOUTH 1° 23' 35" WEST, 643.75 FEET TO THE POINT OF BEGINNING.
CONTAINING 1,195,341 SQUARE FEET MORE OR LESS.
Development Agreement Between City of Dublin
And Commerce One, Inc. - Exhibit A
Page 2 of 2
January 12, 2001
EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3
above.
Subparagraph 5.3.1 -- Subsequent Discretionary Approvals
None.
Subparagraph 5.3.2 -- Mitigation Conditions
Subsection a. Infrastructure Sequencing Program
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of dedication)
described below and those identified in Resolution No. 00-70of the Planning
Commission Approving Site Development Review shall be completed by DEVELOPER
to the satisfaction of the Public Works Director at the times and in the manner specified
in Resolution No. 00-70 unless otherwise provided below. All such roadway
improvements shall be constructed to the satisfaction and requirements of CITY's
Public Works Director.
The obligations of Condition Nos. 76 and 83 of Resolution No. 00-70 and
any. other conditions of such resolution which are to be completed "as specified by the
Director of Public Works" or "when determined necessary by the Public Works Director"
("The Deferred Conditions") shall be of no force or effect until DEVELOPER records a
final map or receives a building permit (whichever comes first) for the Project. Once
effective, such obligations shall survive termination of this Agreement as to the
COUNTY.
COUNTY shall provide CITY with security for COUNTY's fair share as
determined by CITY for the costs of design and construction of The Deferred
Conditions as follows:
· Condition 83 [Dublin Boulevard/Dougherty Road Intersection
Improvement]
A payment to CITY in cash in the amount of the deficiency, if any,
between funds available to CITY for CIP Project #9689 [Dougherty
Road/Dublin Blvd. Intersection] and the cost of such project, such
Development Agreement Between City of Dublin
And Commerce One, Inc. - Exhibit B
Page 1 of 6
January 12, 2001
payment to be made within 30 days of written notice from the
Public Works Director to be given following bid opening;
· Condition 76 [I-580 Eastbound Offramp at Santa Rita/Tassajara Road
Exit.
A payment to CITY in cash in the amount of the deficiency, if any,
between funds available to CITY to construct the improvements at
the eastbound offramp at Santa Rita/Tassajara Road exit (one
exclusive through lane and 2 left-turn lanes; modification to signal
to provide protected left-turn phasing on east and west legs) and
the cost of such project, such payment to be made within 30 days
of written notice from the Public Works Director to be given
following bid opening;
(ii) Sewer
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with the tentative
subdivision map and DSRSD requirements.
(iii) Water
An all weather roadway and an approved hydrant and water supply
system shall be available and in service at the site in accordance with the tentative
subdivision map to the satisfaction and requirements of the CITY's fire department.
All potable water system components to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with the tentative
subdivision map and DSRSD requirements.
Recycled water lines shall be installed in accordance with the tentative
subdivision map.
(iv) Storm Drainage
Prior to issuance of the first Certificate of Occupancy for any building
which is part of the Project, the storm drainage systems off site, as well as on site
drainage systems to the areas to be occupied, shall be improved to the satisfaction and
requirements of the Dublin Public Works Department applying CITY's and Zone 7
(Alameda County Flood Control and Water Conservation District, Zone 7) standards
and policies which are in force and effect at the time of issuance of the permit for the
proposed improvements and shall be consistent with the Drainage Plan. The site shall
also be protected from storm flow from off site and shall have erosion control measures
Development Agreement Between City of Dublin
And Commerce One, Inc. - Exhibit B
Page 2 of 6
January 12, 2001
in place to protect downstream facilities and properties from erosion and unclean storm
water consistent with the Drainage Plan. As used herein, "Drainage Plan" shall refer to
CITY's master drainage plan.
(v) Other Utilities (e.g. gas, electricity, cable televisions, telephone)
Construction of other utilities shall be complete by phase prior to
issuance of the first Certificate of Occupancy for any building within that specific phase
of development.
Subsection b. Miscellaneous
(i) Completion May be Deferred.
Notwithstanding the foregoing, CITY's Public Works Director may, in his
or her sole discretion and upon receipt of documentation in a form satisfactory to the
Public Works Director that assures completion, allow DEVELOPER or COUNTY to
defer completion of discrete portions of any of the public improvements required for the
Project until after issuance of Certificate of Occupancy for the first building for the
Project if the Public Works Director determines that to do so would not jeopardize the
public health, safety or welfare.
Subparagraph 5.3.3 -- Phasing, Timing
With the exception of. the road improvements described in Subparagraph
5.3.2(a)(i), this Agreement contains no requirements that DEVELOPER must initiate or
complete development of the Project within any period of time set by CITY. It is the
intention of this provision that DEVELOPER be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
Subparagraph 5.3.4 -- Financing Plan
DEVELOPER will install all street improvements necessary for the Project at
its own cost (subject to credits for certain improvements as provided in Subparagraph
5.3.6 below).
Other infrastructure necessary to provide sewer, potable water, and recycled
water services to the Project will be made available by the Dublin San Ramon Services
District. COUNTY has entered into an "Area Wide Facilities Agreement" with the Dublin
San Ramon Services District to pay for the cost of extending such services to the
Project. Such services shall be provided as Set forth in Subparagraph 5.3.2(a)(ii) and
(iii) above.
Development Agreement Between City of Dublin
And Commerce One, Inc. - Exhibit B
Page 3 of 6
January 12, 2001
Subparagraph 5.3.5 -- Fees, Dedications
Subsection a. Traffic Impact Fees.
DEVELOPER shall pay all traffic impact fees applicable to the Project which
are in effect at the time of issuance of any building permit for the Project in the amounts
and at the times set forth in the implementing resolution. Such fees include the Traffic
Impact Fee for Eastern Dublin established by Resolution No. 225-99, including any
future amendments to such fee.
DEVELOPER, COUNTY and CITY acknowledge that COUNTY is entitled to
certain credits ("1991 Credits") against payment of the Traffic Impact Fee for Eastern
Dublin by separate agreements previously entered into between COUNTY and CITY in
1991 (as such agreements have been amended). COUNTY is also entitled to certain
other credits ("Prior Agreement Credits") against payment of the Traffic Impact Fee for
Eastern Dublin by other development agreements entered into between COUNTY and
CITY. COUNTY agrees that, notwithstanding its entitlement to such 1991 Credits, its
1991 Credits cannot be applied against payment of the "Section 2" portion of the Traffic
Impact Fee for Eastern Dublin for the Project. DEVELOPER (and its assignee) will,
rather, pay the "Section 2" portion of the fee in cash.
COUNTY further agrees that it (and its assignee) will use the 1991 Credits
and/or Prior Agreement Credits against at least one-half (1/2) of the "Section 1" portion
of the Traffic Impact Fee for Eastern Dublin for the Project provided that it has sufficient
such credits. CITY shall determine which of the 1991 Credits and/or Prior Agreement
Credits shall be used pursuant to this paragraph.
Notwithstanding anything herein to the contrary, DEVELOPER further agrees
that it (and its assignee) 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 Freeway
Interchanges.
DEVELOPER shall pay a Eastern Dublin 1-580 Interchange Fee in the
amounts and at the times set forth in City of Dublin Resolution No. 155-98, or in the
amounts and at the times set forth in any resolution revising the amount of the Eastern
Dublin 1-580 Interchange 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. 60-99,. or in the amounts and at the
times set forth in any resolution revising the amount of the Public Facilities Fee.
Development Agreement Between City of Dublin
And Commerce One, Inc. - Exhibit B
Page 4 of 6
January 12, 2001
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, or in the amounts and at the
times set forth in any resolution revising the amount of the Noise Mitigation Fee.
Subsection e. School Impact Fees.
School impact fees shall be paid by DEVELOPER in accordance with
Government Code section 53080 and the existing agreement between COUNTY 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. 208-00 or in the amounts and at the times set forth
in any resolution revising the amount of such fee.
Subsection g. Tri-Valley Transportation Development Fee.
DEVELOPER shall pay the Tri-Valley Transportation Development Fee in the
amount and at the times set forth in City of Dublin Resolution No. 89-98, or in the
amounts and at the times set forth in any resolution revising the amount of such fee.
COUNTY agrees that its 1991 Credits and Prior Agreement Credits cannot be applied
against payment of this fee.
Subparagraph 5.3.6 -- Credit
Subsection a. Traffic Impact Fee Improvements Credit
CITY shall provide a credit to COUNTY for the those improvements described
in the resolution establishing the Eastern Dublin Traffic Impact Fee if such
improvements are constructed by the DEVELOPER in their ultimate location pursuant
this Agreement. All aspects of credits shall be governed by CITY's Administrative
Guidelines regarding credits (Resolution No. 23-99).
Subsection b. Traffic Impact Fee Right-of-Way Dedications Credit
CITY shall provide a credit to COUNTY for any TIF area right-of-way
dedicated by COUNTY to CITY which is required for improvements which are described
in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of
credits shall be governed by CITY's Administrative Guidelines regarding credits
(Resolution No. 23-99).
Development Agreement Between City of Dublin
And Commerce One, Inc. - Exhibit B
Page 5 of 6
January 12, 2001
Subsection c. Use of Excess Credits
In the event that credits referred to in Subsections (a) to (b) of this
Subparagraph 5.3.6 are in excess of the amount of credits which can be applied
against the traffic impact fee payable pursuant to Subsection (a) of Subparagraph 5.3.5
(i.e., one-half of the "Section 1" portion of the Traffic Impact Fee for Eastern Dublin, less
7% of the "Section 1" portion), COUNTY shall be entitled to "bank" such credits
(referred to as "Excess Credits") and may use them as provided in CITY's
Administrative Guidelines for Credits and Reimbursements (Resolution No. 23-99).
Subparagraph 5.3.7 -- Miscellaneous
Subsection a. Landscaping Maintenance Along Streets and Creek
CITY has formed a landscape maintenance district known as the "Landscape
Maintenance Assessment District No. 97-1 (Santa Rita Area)" pursuant to a petition
from COUNTY, and imposed an assessment against the Property to pay for street and
creek landscape maintenance. In addition, on September 24, 1996, COUNTY recorded
a Declaration of Covenants, Conditions and Restrictions which covers the Property,
whereby COUNTY, on behalf of itself and its successors (including DEVELOPER), has
covenanted to pay a "Deed Assessment" to CITY for maintenance of street and creek
landscaping.
J :\WP D\M N RSV%A114\098%AGREE\COM M ERCE 1 _DEV-AGR_EX B_011201. DOC
Development Agreement Between City of Dublin
And Commerce One, Inc. - Exhibit B
Page 6 of 6
January 12, 2001