HomeMy WebLinkAboutItem 4.06 Fallon Gateway DAG~~~ OF U~~~
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DATE:
TO:
FROM:
SUBJECT:
STAFF REPORT C I T Y C L E R K
DUBLIN CITY COUNCIL File # ^~~~-~~
September 21, 2010
Honorable Mayor and City Councilmembers
Joni Pattillo, City Manager
PA 08-034 Fallon Gateway: Development Agreement for the Fallon
Gateway Commercial Center
Report prepared by Mike Porto, Consulting Planner and Martha Aja,
Environmental Specialist
EXECUTIVE SUMMARY:
The Fallon Gateway Project is a commercial center which includes 379,053 square feet of retail
development, with the first three phases totaling 311,553 square feet of development. The
project site is located at the southwest corner of Dublin Boulevard and Fallon Road. The item
before the City Council for approval is the Project Development Agreement.
FINANCIAL IMPACT:
This project poses no financial impact to the City.
RECOMMENDATION:
Staff recommends that the City Council waive the reading and adopt an Ordinance approving a
Development Agreement for Fallon Gateway between the City of Dublin and Stanforth Holding
Company, L.L.C.
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S bmitted By
Community Development Director
COPIES TO: Applicant
Review y
Assistant City Manager
File f ' • /_
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Page 1 of 2
G:IPA#120081PA 08-034 Fallon Gateway (Target)ICity Council 9.21.10 Second ReadinglFallon Gateway Staff Report.doc
DESCRIPTION:
Background:
The 33.91 net acre project site is bounded to
the north across Dublin Boulevard by a
vacant property approved for General
Commercial uses; to the south by Interstate
580; to the west by a vacant property owned
by Kaiser Permanente approved for Campus
Office and anticipated to be developed with
medical offices and a hospital; and to the
east (across Fallon Road) by a vacant
property approved for General Commercial
land uses (refer to the Vicinity Map to the
flght~.
The Fallon Gateway project site is within
Area C of Dublin Ranch within the Eastern
Dublin Specific Plan Area. Area C covers
approximately 85 acres including the 33.91
acre Fallon Gateway project site.
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Ht)SPIT:11.
On September 7, 2010, the City Council waived the reading and introduced the Ordinance
approving a Development Agreement for Fallon Gateway. Please refer to the September 7,
2010 City Council Staff Report for a complete discussion of this Ordinance (Attachment 1). The
City Council is currently requested to waive the second reading and adopt the Ordinance
(Attachment 2).
ATTACHMENTS:
1) City Council Staff Report dated September 7, 2010 (without
attachments).
2) Ordinance approving a Development Agreement for Fallon
Gateway with the Development Agreement included as Exhibit
A.
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DATE: September 7, 2010
TO: Honorable Mayor and City Councilmembers
FROM: Joni Pattillo, City Manager
SUBJECT: PUBLIC HEARING - PA 08-034 Fallon Gateway Commercial Center,
Development Agreement for Fallon Gateway.
Reporf prepared by Mike Porto, Consulting Planner and Martha Aja,
Environmeratal Specialist
EXECUTIVE SUMMARY:
The Fallon Gateway Projeet is a commercial center which includes 379,Q53 square feet of retail
development, with the first three phases totaling 311,553 square feet of development. The
project site is located at the southwest corner of Dublin Boulevard and Falion Road. The item
before the City Council for approval is the Project Development Agreement.
FINANCIAL IMPACT:
This project poses no fi.nancial impact to the City.
RECOMMENDATION:
Staff recommends that the City Council: 1) Receive Staff presentation; 2) Open the Public
Hearing; 3) Take testimony from the Applicant and the public; 4) Close the public hearing and
deliberate; and 5) Waive the reading and introduce an Ordinance approving a Development
Agreement for Fallon Gateway.
S bmitted By Revie y
Community Development Director Assistant City Manager
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COPIES TO: Applicant
File
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Page 1 of 5
G:IPA#120081PA 08-034 Fallon Gateway (Target)ICity Council 9.7.101Fa!!on Gafeway Staff Report.doc
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Background:
The 33.91 net acre project site is bounded to the
north across Dublin Boulevard by a vacant property
approved for General Commercial uses; to the
south by Interstate 580; to the west by a vacant
property owned by Kaiser Permanente approved for
Campus Office and anticipated to be developed with
medical offices and a hospital; and to the east
(across Falion Road) by a vacant property approved
for General Commercial land uses (refer to the
Vicinity Map to the left).
The Fallon Gateway project site is within Area C of
Dublin Ranch within~ the Eastern Dublin Specific
Plan Area. Area C covers approximately 85 acres
including the 33.91 acre Fallon Gateway project
site.
Entitlement History:
The zoning requirements for Dublin Ranch Areas B-E (which includes the project site) were
established by Ordinance 24-97 dated December 2, 1997 establishing a Planned Development
Rezone, and by the City Council Resolution 141-97 dated November 18, 1997. The Planned
Development rezone for Areas B-E predates the Stage 1 and Stage 2 Development Plans
referenced in Chapter 8.32 (Planned Development Zoning District) of the City of Dublin's Zoning
Ordinance.
In April 2009, the Planning Commission held a public hearing and reviewed the Fallon Gateway
project. At that meeting, the Planning Commission approved a Resolution approving a Site
Development Review for Phases 1, 2 and 3 of the project (Resolution No. 09-18). The Site
Development Review included 4 major tenant spaces (Major A, Major B, Major C and Major D)
and 6 smaller retail buildings (Shops 5- 10) fior a total of 311,553 square feet of development.
Additionally, the Planning Commission recommended that the City Council adopt an Ordinance
approving an amendment to the Planned Development (PD) District for Dublin Ranch Area C to
establish architectural and landscape design criteria, specific parking standards and the
permitted, conditional and temporary uses for the entire Fallon Gateway project site (Phase 1, 2,
3 and 4). Because this project was approved under the. existing Area B-E Planned
Development, it was appropriate to amend the PD document to modify the design criteria,
parking standards and the permitted conditional and temporary uses.
In June 2009, the City Council adopted an Ordinance approving an amendment to the PD
District for Dublin Ranch Area C, specifically for the Fallon Gateway site, to establish
architectural and landscape design criteria, parking standards, permitted, conditional and
temporary uses (Ordinance No. 9-09). The amendment to the PD District of Dublin Ranch Area
C applies to all phases of development for the Fallon Gateway Commercial Center.
In March 2010, the Applicant, in finalizing their agreement with Target Stores, became aware of
concerns that Target had with the approved building layout and the multiple exterior building
materials that were approved for the Target farade. Target requested that some minor
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DESCRIPTION:
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modifications be made to the floor plan and exterior elevations to eliminate the garden center
and to reduce the number of exterior building materials. Staff worked with the Applicant and the
Target representatives to modify the Target building. Section 8.104.040. A.,13. "Minor Fa~ade
Modifications" of the Zoning Ordinance designates the Community Development Director as
review authority for modifications such as but not limited to .....building materials, architectural
details or a combination of improvements which would typically require a Site Development
Review Waiver if constructed separately. On May 18, 2010, pursuant to Section 8.104.040, the
Community Development Director approved the minor revisions.
Subsequently, the Planning Commission did review the Development Agreement and Fallon
Gateway for overall minor revisions for the entire center relating to the Target modifications in
order to keep the center consistent architecturally on August 10, 2010. Details of the Planning
Commission's review are included on page 5 of this Staff Report.
Current Proposal:
The application before the City Council consists of a Development Agreement between the City
of Dublin and the Applicant, Stanforth Holding Company, L.L.C.
ANALYSIS:
Development Agreement
Projects within the Eastern Dublin Specific Plan (EDSP) require a Development Agreement
befinreen the City and the Developer. California 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 obtain certain commitments and establish certain
development rights for the property. The Development Agreement must be approved prior to
issuance of building permits for the development of the property.
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 period of 5 years and would terminate in
2015. The City also benefits from entering into the Development Agreement with the property
owner. This document is a contract that establishes obligations for meeting the goals of the
EDSP and guarantees timing for construction of public infrastructure and facilities for the project
area. Additionally, it ensures that dedications of property and easements are made, project
phasing is followed, the appropriate fees are paid for the development, and any additional terms
of the agreement are carried out as development proceeds. The proposed Development
Agreement also would be consistent with the preceding development agreements.
In return, the Developer agrees to comply with the Conditions of Approval and, in some cases,
make commitments for which the City might otherwise have no authority to compel the
Developers to perform. Specifically, the Development Agreement augments the City's standard
development regulations; defines the precise financial responsibilities of the developer; ensures
timely provision of adequate public facilities for each project; and provides terms for the
Developer to advance funds for specific facilities which have community or area-wide benefit or
for reimbursement from future development, as appropriate. Since the Development Agreement
runs with the land, the rights thereunder can be assigned.
The Development Agreement proposed is a standard Development Agreement. There are no
unique or special provisions. A City Council Ordinance approving the Development Agreement
is included as Attachment 1, with the Development Agreement attached as Exhibit A.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
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In accordance with State law, a Public Notice was mailed to all property owners and occupants
within 300 feet of the proposed Project. A Public Notice was also published in the Valley Times
and posted at several locations throughout the City.
ENVIRONMENTAL REi/IEW:
On May 10, 1993, the Dublin City Council adopted Resolution No. 51-93, certifying an
Environmental Impact Report (EIR) for the Eastern Dublin General Plan Amendment and
Eastern Dublin Specific Plan (Eastern Dublin EIR, SCH #91103064). The certified EIR consisted
of a Draft EIR and Responses to Comments bound volumes, as well as ~an Addendum dated
May 4, 1993, assessing a reduced development alternative. The City Council adopted
Resolution No. 53-93 approving a General Plan Amendment and a Specific Plan for the reduced
area alternative on May 10, 1993. On August 22, 1994, the City Council adopted a second
Addendum updating wastewater disposal plans for Eastern Dublin. For identified impacts that
could not be mitigated to a less than significant level, the City Council adopted a Statement of
Overriding Considerations for cumulative traffic, extension of certain community facilities
(natural gas, electric and telephone service), regional air quality, noise, and other impacts.
The Eastern Dublin Specific Plan was adopted by the City to encourage orderly growth of the
Eastern Dublin area. Because the Eastern Dublin project proposed urbanization of the almost
completely undeveloped Eastern Dublin area, the Eastern Dublin EIR also analyzed conversion
of agricultural and open space lands to urban uses. These impacts together with visual and
other impacts from urbanization were also determined to be significant and unavoidable. Where
the Eastern Dublin EIR identified impacts that could be mitigated, the previously adopted
mitigation measures continue to apply to implementing projects such as Fallon Gateway, as
appropriate.
The Eastern Dublin EIR was a Program EIR and evaluated the potential environmental effects
of urbanizing Eastern Dublin over a 20 to 30 year period. As such, the Eastern Dublin EIR
addressed the cumulative effects of developing in agricultural and open space areas and the
basic policy considerations accompanying the change in character from undeveloped to
developed lands.
In 1997, the Dublin City Council approved a Negative Declaration (Resolution No. 140-97) for
the Planned Development Rezoning of Dublin Ranch Areas B-E, which includes the Fallon
Gateway project site. After completing an Initial Study, it was determined that the rezoning
would not have any significant environmental impacts which were not already adequately
described and analyzed in the Program EIR. The project as proposed does not exceed the
thresholds identified in the Negative Declaration.
No further environmental document is needed because the environmental impacts of this project
were fully addressed and within the scope of the Final EIR for the Eastern Dublin General Plan
Amendment, Specific Plan and subsequent Addendum and the 1997 Negative Declaration.
Planning Commission Action:
On August 10, 2010, the Planning Commission held a public hearing to review the Fallon
Gateway Project. At the public hearing, the Planning Commission discussed access points to
the site, truck movements through the site, the longevity of the pedestals in the medians, the
pedestrian friendly elements of the center and the Development Agreement. The Planning
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Commission Agenda Statement is included as Attachment 2 and the draft minutes of th~
Planning Commission meeting are included as Attachment 3.
The Commission deliberated and approved the following resolutions by a 5-0 vote:
• Resolution 10-32, approving a Conditional Use Permit for a Minor Amendment to the
Planned Development Zoning District and Site Development Review amendments for
Fallon Gateway (Attachment 4); and
• Resolution 10-33, recommending that the City Council adopt an Ordinance approving a
Development Agreement for the Fallon Gateway Project (Attachment 5).
ATTACHMENTS:
1) Ordinance approving a Development Agreement for Fallon
Gateway with the Development Agreement included as Exhibit
A.
2) Planning Commission Agenda Statement, August 10, 2010
(without Attachments).
3) Draft Planning Commission meeting minutes, August 10, 2010.
4) Planning Commission Resolution 10-32 approving a Conditional
Use Permit for a Minor Amendment to the Planned Development
Zoning District and Site Development Review amendments for
Fallon Gateway.
5) Planning Commission Resolution 10-33 recommending that the
City Council adopt an Ordinance approving a Development
Agreement.
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ORDINANCE NO. XX - 10
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*************
APPROVING A DEVELOPMENT AGREEMENT FOR FALLON GATEWAY BETWEEN THE
CITY OF DUBLIN AND STANFORTH HOLDING COMPANY, L.L.C.
APN: 985-0027-009-03
PA 08-034
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The proposed Fallon Gateway ("Project") 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 General
CommerciaL
B. The project is located within the Eastern Dublin Specific Plan area, which was the
subject of an Environmental Impact Report (EIR) for the General Plan Amendment and Eastern
Dublin Specific Plan (SCH #91103064), certified by City Council Resolution 51-93 on May 10,
1003, with two addenda approved on May 4, 1993 and August 22, 1994. In 1997, a Negative
Declaration for the Planned Development Rezoning of Dublin Ranch Areas B-E was approved
by Resolution No. 140-97 of the City Council. After completion of an tnitial Study, it was
determined that the rezoning would not have significant environmental impacts which where not
already adequately described and analyzed in the Program EIR. No further environmental
review is needed for the current application because the environmental impacts of this project
were fully addressed and within the scope of the final EIR for the Eastern Dublin General Plan
Amendment, Specific Plan and subsequent Addenda and the 1997 Negative Declaration.
C. A public hearing on the proposed Development Agreement was held before the
Planning Commission on August 10, 2010, for which public notice was given as provided by law.
D. The Planning Commission has made its recommendation to the City Council for
approval of the Development Agreement.
F. A public hearing on the proposed Development Agreement was held before the
City Council on September 7, 2010 for which public notice was given as provided by law.
G. The City Council has considered the recommendation of the Planning Commission
who considered the item at its August 10, 2010 meeting, including the Planning Commission's
reasons for its recommendation, the Staff Report, all comments received in writing and all
testimony received at the public hearing.
Page 1 of 3
ATTACHMENT 2
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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, (d) the Eastern Dublin
EIR, (e) the Agenda Statement, and on the basis of the specific conclusions set forth below, the
City Council finds and determines that:
1. The Project is consistent with the objectives, policies, land uses and programs
specified and contained in the City's General Plan and Eastern Dublin Specific Plan in that (a)
the project includes a Planned Development Rezone and Site Development Review application
for the Fallon Gateway project to establish architectural and landscape design criteria, parking
standards and uses for the Fallon Gateway project, (b) the proposed project is consistent with
the existing General Commercial land use designation of the project site, (c) the project is
consistent with the fiscal policies in relation to provision of infrastructure and public services of
the City's Eastern Dublin Specific Plan/General Plan; and (d) the Fallon Gateway Development
Agreement includes provisions relating to vesting of development rights, and similar provisions
set forth in the Specific Plan.
2. The Fallon Gateway Development Agreement is compatible with the uses
authorized in, and the regulations prescribed for, the land use districts in which the real property
is located in that the project approvals include Planned Development Rezone and Site
Development Review application for the Fallon Gateway project site.
3. The Fallon Gateway Development Agreement is in conformity with public
convenience, general welfare and good land use policies in that the project will implement land
use guidelines set forth in the General Plan and the Eastern Dublin Specific Plan which have
planned for commercial uses at this location.
4. The Fallon Gateway Development Agreement will not be detrimental to the health,
safety and general welfare in that the project will proceed in accordance with all the programs
and policies of the Eastern Dublin Specific Plan.
5. The Fallon Gateway 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 (Exhibit A) and
authorizes the Mayor to execute it.
Section 4. RECORDATION
Within ten (10) days after the Development Agreement is fully executed by all parties, the
City Clerk shall submit the Agreement to the County Recorder for recordation.
Page 2 of 3
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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, APPROVED AND ADOPTED BY the City Council of the City of Dublin, on this
21 St day of September 2010 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
G:\PA#\2008\PA 08-034 Fallon Gateway (Target)\City Council 9.21.10 Second Reading\CC Ordinance DA.DOC
Page 3 of 3
RECORDING REQUESTED BY:
CITY OF DUBLIN
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waived per GC 27383
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Space above this line for Recorder's use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
STANFORTH HOLDING COMPANY, L.L.C.
FOR THE FALLON GATEWAY PROJECT
EXHIBIT A TO
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THIS DEVELOPMENT AGREEMENT (this "Agreement" or this
"Development Agreement") is made and entered in the City of Dublin on this 21St
day of September, 2010, by and between the CITY OF DUBLIN, a Municipal
Corporation (hereafter "City") and Stanforth Holding Company, L.L.C., a
Delaware limited liability company (hereafter "Developer") pursuant to the
authority of §§ 65864 et seq. of the California Government Code and Dublin
Municipal Code, Chapter 8.56. City and Developer are, from time-to-time,
individually referred to in this Agreement as a"Party," and are collectively
referred to as "Parties."
RECITALS
A. California Government Code §§65864 et seq. ("Development
Agreement Statute") and Chapter 8.56 of the Dublin Municipal Code (hereafter
"Chapter 8.56") authorize the City to enter into a Development 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.
B. Developer intends to purchase, desires to develop, and holds an
equitable interest in certain real property consisting of approximately 33.9 acres
of land, located in the City of Dublin, County of Alameda, State of California,
which is more particularly described in Exhibit A attached hereto and
incorporated herein by this reference, and which real property is hereafter called
the "Property."
C. The City Council adopted the Eastern Dublin Specific Plan by
Resolution No. 53-93 which Plan is applicable to the Property. The Eastern
Dublin Specific Plan requires Developer to enter into a development agreement
as a condition of the development of the Property.
D. The Property is within Area C, which is subject to a Master
Development Agreement between the City of Dublin and the Lins dated June 29,
1999 and recorded in Official Records Alameda County on July 8, 1999 as
Instrument No. 99251790, and a Supplemental Development Agreement
befinreen the City of Dublin and the Lins dated April 18, 2000 and recorded in
Official Records of Alameda County on November 13, 2000 as Instrument No.
200335772.
E. Developer proposes the development of the Property, and
Developer proposes to develop 3 initial phases of the project on approximately
27.33 net acres, consisting of 10 structures totaling approximately 311,553
square feet ("the Initial Phase"). At a later date, Developer will develop the
remaining portions of the Property. The Initial Phase and the remaining phase or
phases of the development are collectively referred to as "the Project."
Dublin/Stanforth Holding Company, L.L.C. Development Agreement Page 2 of 16
for the Fallon Gateway Project
1~~ ~(
F. Developer, or its predecessor in interest, has applied for, and City
has approved or is processing, various land use approvals in connection with the
development of the Project, including, without limitation, the Stage 1 and Stage 2
Development Plan for Area C(Ord. No. 24-97, as amended by Ord. No. 9-09 and
by Planning Commission Reso. No. 09-18); and Site Development Review for the
Initial Phase (Planning Commission Reso. No. 09-18). All such approvals
collectively, together with any approvals or permits now or hereafter issued with
respect to the Project are referred to as the "Project Approvals."
G. 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.
It is specifically anticipated that the Project will require additional site
development review approval for the phases in the shopping center following the
Initial Phase.
H. City desires the timely, efficient, orderly and proper development of
the Project.
I. 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
the Development Agreement Statute and Chapter 8.56.
J. City 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.
K. The Fallon Gateway site is subject to the Eastern Dublin Specific
Plan, for which an Environmental Impact Report (EIR, SCH 91103064) was
certified by the City Council in Resolution No 51-93 on May 10, 1993 and
Addenda dated May 4, 1994 and August 22, 1994. The EIR is a Program EIR
which anticipated several subsequent actions related to future development in
Eastern Dublin. Upon approval of the Specific Plan, the City adopted a Statement
of Overriding Considerations and a Mitigation Monitoring Program which included
numerous measures intended to reduce impacts from the development of the
Eastern Dublin area. In 1997, the City Council approved a Negative Declaration
through Resolution No. 140-97 for the Planned Development Rezoning of Dublin
Ranch Areas B-E, which includes the Fallon Gateway site. The Negative
Declaration concluded that the rezoning would not have any significant
environmental impacts which were not already adequately described and
analyzed in the Program EIR. The Fallon Gateway project as proposed does not
exceed the thresholds identified in the Negative Declaration. No further
environmental review is needed for the Development Agreement because the
environmental impacts of development at Fallon Gateway were fully addressed
and are within the scope of the Eastern Dublin Specific Plan EIR and subsequent
Addenda, and the 1997 Negative Declaration, and the proposed project is
Dublin/Stanforth Holding Company, L.L.C. DevelopmentAgreement Page 3 of 16
for the Fallon Gateway Project
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subject to all applicable mitigation measures and the related Mitigation
Monitoring Program.
L. On September 21, 2010, the City Council of the City of Dublin
adopted Ordinance No. approving this Development Agreement ("the
Approving Ordinance"). The Approving Ordinance will take effect on October 21,
2010 ("the Approval Date").
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein
contained, City and Developer agree as follows:
AGREEMENT
Description of Property.
The Property that is the subject of this Agreement is described in Exhibit A
attached hereto.
2. Interest of Developer.
The Developer has a legal or equitable interest in the Property in that it is
the owner of the property.
3. Relationship of Citv and Developer.
It is understood that this Agreement is a contract that has been negotiated and
voluntarily entered into by the City and Developer and that the Developer is not
an agent of the City. The City 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 and Developer joint venturers or partners.
4. Effective Date and Term.
4.1 Effective Date. The effective date of this Agreement shall be the
Approval Date ("the Effective Date").
4.2 Term. The term of this 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.
5. Use of the Propert~
5.1 Riqht to Develoq. Developer shall have the vested right to develop
the Project on the Property in accordance with the terms and conditions of this
Agreement, the Project Approvals (as and when issued), and any amendments
to any of them as shall, from time to time, be approved pursuant to this
Agreement (such amendments once effective shall become part of the law
Dublin/Stanforth Holding Company, L. L.C. Development Agreement Page 4 of 16
for the Fallon Gateway Project
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Developer is vested into without an additional amendment of this Agreement).
Notwithstanding the foregoing or anything to the contrary herein, any amendment
to the General Plan, Specific Plan and PD zoning applicable to the Property and
in effect on the Effective Date shall not become part of the law Developer is
vested into under this Agreement unless an additional amendment of this
Agreement is voluntarily entered into between Developer and City in accordance
with State and City laws.
5.2 Permitted Uses. The permitted uses of the Property, the density
and intensity of use, the maximum height, bulk and size of proposed buildings,
provisions for reservation or dedication of land for public purposes and location
and maintenance of on-site and off-site improvements, location of public utilities
(operated by the City) and other terms and conditions of development applicable
to the Property, shall be those set forth in this Agreement, the Project Approvals
and any amendments to this Agreement or the Project Approvals (subject to the
provisions of Section 5.1).
5.3 Additional Conditions. Provisions for the following ("Additional
Conditions") are set forth in Exhibit B attached hereto and incorporated herein by
reference.
5.3.1 Subsequent Discretionarv Approvals. Conditions, terms,
restrictions, and requirements for subsequent discretionary actions. (These
conditions do not affect Developer's responsibility to obtain all other land use
approvals required by the ordinances of the City of Dublin other approvals from
regulatory agencies.)
See Exhibit B
5.3.2 Mitiqation Conditions. Additional or modified conditions
agreed upon by the parties in order to eliminate or mitigate adverse
environmental impacts of the Project or otherwise relating to development of the
Project.
See Exhibit B
5.3.3 Phasinq, Timing. Provisions that the Project be constructed
in specified phases, that construction shall commence within a specified time,
and that the Project or any phase thereof be completed within a specified time.
See Exhibit B
5.3.4 Financinq Plan. Financial plans which identify necessary
capital improvements such as streets and utilities and sources of funding.
See Exhibit B
Dublin/Stanforth Holding Company, L.L.C. DevelopmentAgreement Page 5 of 16
for the Fallon Gateway Project
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5.3.5 Fees, Dedications. Terms relating to payment of fees or
dedication of property.
See Exhibit B
5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.3.7 Miscellaneous. Miscellaneous terms.
Not applicable.
6. Applicable Rules. Reaulations and Official Policies.
6.1 Rules Reqardinq Permitted Uses. For the term of this Agreement,
the City's ordinances, resolutions, rules, regulations and official policies
governing the permitted uses of the Property, governing density and intensity of
use of the Property and the maximum height, bulk and size of proposed buildings
shall be those in force and effect on the Effective Date of the Agreement.
6.2 Rules Regarding Design and Construction. Unless otherwise
expressly provided in Paragraph 5 of this Agreement, the ordinances,
resolutions, rules, regulations and official policies governing design, improvement
and construction standards and specifications applicable to the Project shall be
those in force and effect at the time of the applicable discretionary approval,
whether the date of that approval is prior to or after the date of this Agreement.
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 discretionary approval, whether date of approval is
prior to or after the date of this Agreement.
6.3 Uniform Codes Applicable. 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, encroachment, or other construction permits for the Project.
7. Subsequently Enacted Rules and Requlations.
7.1 New Rules and Requlations. During the term of this Agreement,
the City may apply new or modified ordinances, resolutions, rules, regulations
and official policies of the City to the Property which were not in force and effect
on the Effective Date of this Agreement and which are not in conflict with those
applicable to the Property as set forth in this Agreement if: (a) the application of
such new or modified ordinances, resolutions, rules, regulations or official
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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 ordinances, resolutions, rules, regulations or
official policies have general applicability.
7.2 Approval of Application. Nothing in this Agreement shall prevent
the City from denying or conditionally approving any subsequent land use permit
or authorization for the Project on the basis of such new or modified ordinances,
resolutions, rules, regulations and policies except that such subsequent actions
shall be subject to any conditions, terms, restrictions, and requirements 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 the City, by initiative, referendum, or otherwise,
that imposes a building moratorium, a limit on the rate of development or a voter-
approval requirement which affects the Project on all or any part of the Property,
the 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. Subsequentlv Enacted or Revised Fees, Assessments and Taxes.
8.1 Fees, Exactions, Dedications The City and Developer agree that
the fees payable and exactions required in connection with the development of
the Project for purposes of mitigating environmental and other impacts of the
Project, providing infrastructure for the Project and complying with the Specific
Plan shall be those set forth in 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 increase or accelerate existing fees, dedications of land or construction
of public improvements, or impose other exactions 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 only; and (3) the
application of such fees would not prevent, impose a substantial financial burden
on, or materially delay development in accordance with this Agreement.
8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply
to the Project provided that: (1) the application of such taxes to the Property is
prospective; and (2) the application of such taxes would not prevent development
in accordance with this Agreement.
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8.4 Assessments. Nothing herein shall be construed to relieve the
Property from assessments levied against it by the City pursuant to any statutory
procedure for the assessment of property to pay for infrastructure and/or services
which benefit the Property.
8.5 Vote on Future Assessments and Fees. In the event that any
assessment, fee or charge which is applicable to the Property is subject to Article
XIIID of the Constitution and Developer does not return its ballot, Developer
agrees, on behalf of itself and its successors, that the 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 subject to
approval by the City Council in accordance with Chapter 8.56.
9.2 Amendment by Mutual Consent. This Agreement may be amended
in writing from time to time by mutual consent of the parties hereto and in
accordance with the procedures of State law and Chapter 8.56.
9.3 Insubstantial Amendments. 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 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; (fl 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. The City's Public
Works Director shall determine whether a reservation or dedication is
"significant".
9.4 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 the City.
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10. Term of Proiect Approvals
Pursuant to California Government Code Section 66452.6(a), the term of
any vesting tentative map described above shall automatically be extended for
the term of this Agreement. The term of any other Project Approval shall be
extended only if so provided in Exhibit B.
11. Annual Review.
11.1 Review Date. The annual review date for this Agreement shall be
between July 15 and August 15, 2011 and thereafter between each July 15 and
August 15 during the Term.
11.2 Initiation of Review. The City's Community Development Director
shall initiate the annual review, as required under Section 8.56.140 of Chapter
8.56, by giving to Developer thirty (30) days' written notice that the City intends to
undertake such review. Developer shall provide evidence to the Community
Development Director prior to the hearing on the annual review, as and when
reasonably determined necessary by the Community Development Director, to
demonstrate good faith compliance with the provisions of the Agreement. The
burden of proof by substantial evidence of compliance is upon the Developer.
11.3 Staff Reports. To the extent practical, the City shall deposit in the
mail and fax to Developer a copy of all staff reports, and related exhibits
concerning contract performance at least five (5) days prior to any annual review.
11.4 Costs. Costs reasonably incurred by the City in connection with the
annual review shall be paid by Developer in accordance with the Gity'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 the City's regulations
governing development agreements, expressly including the remedy of specific
perFormance of this Agreement.
12.2 Notice and Cure. Upon the occurrence of an event of default by
either party, the nondefaulting party shall serve written notice of such default
upon the defaulting party. If the default is not cured by the defaulting party within
thirty (30) days after service of such notice of default, the nondefaulting party
may then commence any legal or equitable action to enforce its rights under this
Agreement; provided, however, that if 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.
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12.3 No Damaqes Aqainst Citv. Notwithstanding anything to the
contrary contained herein, in no event shall damages be awarded against the
City upon an event of default or upon termination of this Agreement.
13. Estoppel Certificate.
Either party may, at any time, and from time to time, request 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 the 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 are true, and any party may
rely on such deemed certification.
14. Mortqaqee Protection; Certain Riqhts of Cure.
14.1 Mortgaqee Protection. This Agreement shall be superior and
senior to any lien placed upon the Property, or any portion thereof after the date
of recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat,
render invalid, diminish or impair the lien of any Mortgage made in good faith and
for value, but all the terms and conditions contained in this Agreement shall be
binding upon and effective against any person or entity, including any deed of
trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or
any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or
otherwise.
14.2 Mortgaqee Not Obliqated. Notwithstanding the provisions of
Section 14.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to
construct or complete the construction of improvements, or to guarantee such
construction of improvements, or to guarantee such construction or completion,
or to pay, perform or provide any fee, dedication, improvements or other exaction
or imposition; provided, however, that a Mortgagee shall not be entitled to devote
the Property to any uses or to construct any improvements thereon other than
those uses or improvements provided for or authorized by the Project Approvals
or by this Agreement.
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14.3 Notice of Default to Mortqaqee and Extension of Riqht to Cure. If
the City receives notice from a Mortgagee requesting a copy of any notice of
default given Developer hereunder and specifying the address for service
thereof, then the City shall deliver to such Mortgagee, concurrently with service
thereon to Developer, any notice given to Developer with respect to any claim by
the City that Developer has committed an event of default. Each Mortgagee shall
have the right during the same period available to Developer to cure or remedy,
or to commence to cure or remedy, the event of default claimed set forth in the
City's notice. The City, through its City Manager, may extend the thirty-day cure
period provided in paragraph 12.2 for not more than an additional sixty (60) days
upon request of Developer or a Mortgagee.
15. Severability.
The unenforceability, invalidity or illegality of any provisions, covenant,
condition or term of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
16. Attorneys' Fees and Costs.
If the City or Developer initiates any action at law or in equity to enforce or
interpret the terms and conditions of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs in addition to any other
relief to which it may otherwise be entitled. If any person or entity not a party to
this Agreement initiates an action at law or in equity to challenge the validity of
any provision of this Agreement or the Project Approvals, the parties shall
cooperate in defending such action. Developer shall bear its own costs of
defense as a real party in interest in any such action, and shall reimburse the
City for all reasonable court costs and attorneys' fees expended by the City in
defense of any such action or other proceeding.
17. Transfers and Assiqnments.
17.1 Riqht to Assiqn. Developer may wish to sell, transfer or assign all
or portions of its Property to other developers (each such other developer is
referred to as a"Transferee"). In connection with any such sale, transfer or
assignment to a Transferee, Developer may sell, transfer or assign to such
Transferee any or all rights, interests and obligations of Developer arising
hereunder and that pertain to the portion of the Property being sold or
transferred, to such Transferee, provided, however, that: no such transfer, sale or
assignment of Developer's rights, interests and obligations hereunder shall occur
without prior written notice to City and approval by the City Manager, which
approval shall not be unreasonably withheld or delayed.
17.2 Approval and Notice of Sale, Transfer or Assiqnment. The City
Manager shall consider and decide on any transfer, sale or assignment within ten
(10) days after Developer's notice, provided all necessary documents,
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certifications and other information are provided to the City Manager to enable
the City Manager to determine whether the proposed Transferee can perform the
Developer's obligations hereunder. Notice of any such approved sale, transfer or
assignment (which includes a description of all rights, interests and obligations
that have been transferred and those which have been retained by Developer)
shall be recorded in the official records of Alameda County, in a form acceptable
to the City Manager, concurrently with such sale, transfer or assignment.
17.3 Release Upon Transfer. Upon the transfer, sale, or assignment of
all of Developer's rights, interests and obligations hereunder pursuant to
Paragraph 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 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.
17.4 Developer's Riqht to Retain Specified Riqhts or Obliqations.
Notwithstanding Paragraphs 17.1 and 17.2 and Paragraph 18, Developer may
withhold from a sale, transfer or assignment of this Agreement certain rights,
interests and/or obligations which Developer shall retain, provided that Developer
specifies such rights, interests and/or obligations in a written document to be
appended to this Agreement and recorded with the Alameda County Recorder
prior to the sale, transfer or assignment of the Property. Developer's purchaser,
transferee or assignee shall then have no interest or obligations for such rights,
interests and obligations and this Agreement shall remain applicable to
Developer with respect to such retained rights, interests and/or obligations.
17.5 Termination of Aqreement Upon Sale of Individual Lots to Public.
Notwithstanding any provisions of this Agreement to the contrary, the burdens of
this Agreement shall terminate as to any lot which has been finally subdivided
and individually (and not in "bulk") leased (for a period of longer than one year) or
sold to the purchaser or user thereof and thereupon and without the execution or
recordation of any further document or instrument such lot shall be released from
and no longer be subject to or burdened by the provisions of this Agreement;
provided, however, that the benefits of this Agreement shall continue to run as to
any such lot until a building is constructed on such lot, or until the termination of
this Agreement, if earlier, at which time this Agreement shall terminate as to such
lot.
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18. Aareement Runs with the Land
All of the provisions, rights, terms, covenants, and obligations contained in
this Agreement shall be binding upon the Parties and their respective heirs,
successors and assignees, representatives, lessees, and all other persons
acquiring the Property, or any portion thereof, or any interest therein, whether by
operation of law or in any manner whatsoever. All of the provisions of this
Agreement shall be enforceable as equitable servitudes and shall constitute
covenants running with the land pursuant to applicable laws, including, but not
limited to, Section 1468 of the Civil Code of the State of California. Each
covenant to do, or refrain from doing, some act on the Property hereunder, or
with respect to any owned property, (a) is for the benefit of such properties and is
a burden upon such properties, (b) runs with such properties, and (c) is binding
upon each party and each successive owner during its ownership of such
properties or any portion thereof, and shall be a benefit to and a burden upon
each party and its property hereunder and each other person succeeding to an
interest in such properties.
19. Bankruptcy.
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
20. Indemnification.
Developer agrees to indemnify, defend and hold harmless the City, and its
elected and appointed councils, boards, commissions, officers, agents,
employees, and representatives from any and all claims, costs (including legal
fees and costs) and liability for any personal injury or property damage which
may arise directly or indirectly as a result of any actions or inactions by the
Developer, or any actions or inactions of Developer's contractors,
subcontractors, agents, or employees in connection 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 the 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 (ezcept
as provided in an improvement agreement or maintenance bond). If City is
named as a party to any legal action, City shall cooperate with Developer, shall
appear in such action and shall not unreasonably withhold approval of a
settlement otherwise acceptable to Developer.
21. Insurance.
21.1 Public Liabilitv and Property Damage Insurance. During the term of
this Agreement, Developer shall maintain in effect a policy of comprehensive
general liability insurance with a per-occurrence combined single limit of not less
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than one million dollars ($1,000,000.00) with a One Hundred Thousand Dollar
($100,000) self insurance retention per claim. The policy so maintained by
Developer shall name the City as an additional insured and shall include either a
severability of interest clause or cross-liability endorsement.
21.2 Workers Compensation Insurance. During the term of this
Agreement Developer shall maintain Worker's Compensation insurance for all
persons employed by Developer for work at the Project site. Developer shall
require each contractor and subcontractor similarly to provide Worker's
Compensation insurance for its respective employees. Developer 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 City Council approval of this
Agreement, Developer shall furnish the City satisfactory evidence of the
insurance required in Sections 21.1 and 21.2 and evidence that the carrier is
required to give the City at least fifteen days prior written notice of the
cancellation or reduction in coverage of a policy. The insurance shall 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 the City.
23. Notices.
All notices required or provided for under this Agreement shall be in
writing. Notices required to be given to the City shall be addressed as follows:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
FAX No. (925) 833-6651
Notices required to be given to Developer shall be addressed as follows:
Stanforth Holding Company, LLC
4690 Chabot Drive, Su,ite 100
Pleasanton, CA 94588
Attn: James Tong
Fax No. (925) 463-1861
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.
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Notices shall be deemed given and received upon personal delivery, or if mailed,
upon the expiration of 48 hours after being deposited in the United States Mail.
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. Aqreement is Entire Understandinq.
This Agreement constitutes the entire understanding and agreement of the
parties.
24. Limited Liability Company Authoritv
If Developer is a limited liability company, each individual executing this
Agreement on behalf of that company represents and warrants that:
(a) The individual executing this Agreement on behalf of the company has
full power and authority under the company's governing documents to execute
and deliver this Agreement in the name of and on behalf of the company and to
cause the company to perform its obligations under this Agreement;
(b) The company is a limited liability company duly organized and validly
existing under the laws of the State of Delaware and is duly qualified and validly
existing as a foreign limited liability company in California; and
(c) The company has the power and authority under applicable law and its
governing documents to execute and deliver this Agreement and to perform its
obligations under this Agreement.
25. 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
26. Counterparts.
This Agreement is executed in three (3) duplicate originals, each of which
is deemed to be an original.
27. Recordation.
The City shall record a copy of this Agreement within ten (10) days
following execution by all parties.
[Execution Page Follows]
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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:
Joni Pattillo, City Manager
Attest:
DEVELOPER
Stanforth Hol~ng Company, L.L.C.,
a Delav,~ar~ li ited liability company
By:
J~me~~ng
Its: M er
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
1475135.3
(NOTARIZATION ATTACHED)
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ACKNOWLEDGMENT
State of California
County of ~Ai,~M~;~~ )
On TuL~ ai .~~~ before me, i~,1~~-~C~~ T~,,,l~ ~v,~~~;,,/ p~~3,~t C.~
(insert name and title of the offi er)
personally appeared _ ~~n~~ 'C~NI.-~
who proved to me on the basis of satisfactory evidence to be the persor~whose name~s/
subscri ed to the within instrument and acknowledged to me that he/s~h~e~executed the sam~
his/ r/~r authorized capacity i , and that by his/ly~f~ signature~n the instrument the
person~or the entity upon behalf of which the person acted, executed the, instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal. ~~++~~
Comm~tlat #- 1771 P49
~ potory'ubHC - CaNtanlo ~
Atom~da County
Signature (Seal) ~"~~"~~`„~~,~`~~~
~~J~~~~ ~ ~
Exhibit A
Legal Description of Property
Parcels 1, 2, 3, 4, and 5 as shown on that certain map entitled "Parcel Map 9827"
recorded in Book 315 of Parcel Maps at Pages 20 through 23, Alameda County
Records.
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EXHIBIT B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
Paragraph 5.3 above.
Subparaqraph 5.3.1 - SubseQUent Discretionary Approvals
Site development review approval will be required for development on the
remaining phase of the project, which is referred to as Phase 4.
Subparaqraph 5.3.2 - Mitiqation Conditions
Subsection a. Infrastructure Sequencinq Proqram
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of
dedication) identified in the Community Development Director Resolution No. 09-
07 approving tentative parcel map 9827 (the "VTM Resolution") and the Planning
Commission Resolution No. 09-18 approving Site Development Review for the
Initial Phase (the "SDR Resolution") shall be completed by Developer to the
satisfaction and requirements of the Public Works Director at the times and in the
manner specified in the VTM Resolution and SDR Resolution unless otherwise
provided below.
(ii) Sewer:
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with 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 map conditions of approval to the satisfaction and requirements of the
City's fire department.
All potable water system components to serve the project site shall
be completed in accordance with the DSRSD requirements.
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Recycled water lines shall be installed in accordance with the
tentative map conditions of approval.
(iv) Storm Drainage:
The storm drainage systems off-site, as well as on-site drainage
systems for the areas to be occupied, shall be improved consistent with the
tentative map conditions of approval and to the satisfaction and requirements of
the Dublin Public Works Department applying the 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. Pursuant to Alameda County's National Pollution
Discharge Elimination Permit (NPDES) No. CAS0029831 with the California
Regional Water Quality Control Board, or pursuant to subsequent permits
adopted by the Board, all grading, construction and development activities within
the City of Dublin must comply with the provisions of the Clean Water Act.
Proper erosion control measures must be installed at development sites within
the City during construction, and all activities shall adhere to Best Management
Practices.
(v) Other Utilities (e.q. qas, electricitv, cable televisions,
telephone):
Construction shall be completed by phase prior to issuance
of the first Certificate of Occupancy for any building within that specific phase of
occupancy for the Project.
Subsection b. Miscellaneous
(i) Completion Mav Be Deferred.
Notwithstanding the foregoing, the 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 to defer completion of discrete portions of any public improvements for
the Project if the Public Works Director determines that to do so would not
jeopardize the public health, safety or welfare.
Subparaqraph 5.3.3 - Phasinq, Timinq
This Agreement contains no requirements that Developer must initiate or
complete development of the Project within any period of time set by the 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.
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Subparaqraph 5.3.4 - Financina Plan
Developer will install all improvements necessary for the Project at its own
cost (subject to credits for any improvements which qualify for credits 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. If so required by Dublin San Ramon Services District,
Developer will enter 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.
Subparaqraph 5.3.5 - Fees, Dedications
Notwithstanding anything to the contrary in this Subparagraph 5.3.5 or this
Development Agreement, Developer shall pay any fees required by Subsections
a-g at the time such fees are due under the resolutions and/or ordinances
establishing and/or amending such fees.
Subsection a. Traffic Impact Fees.
Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF")
established by Resolution No. 40-10, including any amendments to such fee that
may be in effect at the time of issuance of building permits. Developer will pay
such fees no later than the time of issuance of building permits and in the amount
of the impact fee in effect at time of building permit issuance.
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for
Freewav Interchanqes.
Developer shall pay the Eastern Dublin I-580 Interchange Fee in the
amounts and at the times set forth in Resolution No. 155-98 and by any
resolution which revises such Fee that may be in effect at the time of issuance of
building permits. Developer will pay such fees no later than the time of issuance
of building permits.
Subsection c. Public Facilities Fees.
Developer shall pay a Public Facilities Fee established by City of Dublin
Resolution No. 214-02, including any amendments to such fee that may be in
effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits.
Subsection d. Noise Mitiqation Fee.
Dublin/Stanforth Holding Company, L.L.C. Development Agreement Page 3 of 5
for the Fallon Gateway Project-Exhibit B
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Developer shall pay a Noise Mitigation Fee established by City of Dublin
Resolution No. 33-96, including any amendments to such fee that may be in
effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits.
Subsection e. School Impact Fees.
School impact fees shall be paid by Developer in accordance with
Government Code section 53080 and the agreement between Developer or its
predecessor in interest and the Dublin Unified School District regarding payment
of school mitigation fees.
Subsection f.
Fire Facilities Fees.
Developer shall pay a fire facilities fee established by City of Dublin
Resolution No. 12-03 including any amendments to such fee that may be in
effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits.
Subsection q. Tri-Vallev 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
resolution which revises such fee. Developer will pay such fees no later than the
time of issuance of building permits and in the amount of the impact fee in effect
at time of building permit issuance.
Subparaqraph 5.3.6 - Reimbursement
Subsection a. Traffic Impact Fee Improvements - Credit
The City shall provide a credit aga~nst Eastern Dublin Traffic Impact Fees
to Developer for 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. All aspects of the credit shall be governed
by the TIF Guidelines.
Subsection b. Traffic Impact Fee Riqht-of-Wav Dedications -
Credit
The City shall provide a credit against Eastern Dublin Traffic Impact Fees
to Developer for any TIF area right-of-way to be dedicated by Developerto the
City which is required for improvements which are described in the resolution
establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits
shall be governed by the TIF Guidelines.
Dublin/Stanforth Holding Company, L.L.C. Development Agreement Page 4 of 5
for the Fallon Gateway Project-Exhibit B
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Subparaqraph 5.3.7 - Miscellaneous
None.
Dublin/Stanforth Holding Company, L.L.C. Development Agreement Page 5 of 5
for the Fallon Gateway Project-Exhibit B