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HomeMy WebLinkAbout99-064 Quarry Ln Schl DA AGENDA STATEMENT PLANNING COMMISSION MEETING DATE: April 26, 2005 SUBJECT: PUBLIC HEARING: PA 99-064 Dr. Sabri Arac - Quarry Lane School Development Agreement for Quarry Lane School Report Prepared by: Janet Harbin, Senior Planner ~ A TT ACHMENTS: 1. Resolution recommending City Council approve the Development Agreement between the City of Dublin and Dr. Sabri Arac (attached as Exhibit A) RECOMMENDATION: 1. Open Public Hearing and receive Staff presentation; 2. Take testimony from the Applicant and the Public; 3. Close the Public Hearing and deliberate; and, 4. Adopt the Resolution recommending City Council approve the Development Agreement (Attachment 1 with Development Agreement attached as Exhibit A) PROJECT DESCRIPTION The Applicant, Dr. Sabri Arac of Quarry Lane School, is requesting approval of a development agreement with the City to allow construction of Phase 2 of the privately owned school at 6363 Tassajara Road. Phase 2 of Quarry Lane School consists of 70,289 square feet of classroom facilities, a gymnasium, playing field, parking and landscaped areas to accommodate middle and high school grades. A Planned Development District rezoning and Site Development Review were previously approved for the project, and would be further implemented through the Development Agreement. The project site is located on the north of the northeast side of Tassajara Road, approximately 3 miles north ofI-S80 in the Eastern Dublin Specific Plan area. Additionally, the 3.7 acre site is located between the Dublin Ranch development to the south and the Silvera Ranch to the north. Background: On December 19,2000 the City Council adopted Ordinance No. 24-00 approving a Planned Development Rezoning and Stage 2 Development Plan, for Phase 2 of the Quarry Lane School, located within the Eastern Dublin Specific Plan area. In conjunction with the rezoning application, the property along with the adjacent Kobold property, was approved for annexation to the City. The first phase of the school development was approved and constructed under Alameda County's jurisdiction, prior to annexation to the City. Development Agreement One of the implementing measures of the Eastern Dublin Specific Plan is the requirement that the City enter into a Development Agreement with developers in the Plan area. The Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the ------------------------------------------------------------------------------------------------------------- COPIES TO: App1icant/Property Owner Developer In-House Distribution a '. ITEM NO.~ G:\PA#\1999\99-064 Quany Lane\Dev Agree\PCSR DA 4-26.doc project for a specified period oftime. The benefit to the City of entering into a Development Agreement with the property owner is that the document is a contract that ensures that the goals of the Eastern Dublin Specific Plan are met and the infrastructure facilities for the area are constructed with each development phase. 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 met as the development proceeds. Approval of development agreements is by adoption of an ordinance by the City Council upon a recommendation by the Planning Commission. The proposed Development Agreement between the City of Dublin and Dr. Sabri Arac for the Quarry Lane School Project (P A 99-064) is contained in Exhibit A of Attachment 1, the Resolution recommending City Council approval of the Development Agreement. The format and structure ofthe Development Agreement for Dr. Sabri Arac's project is based on the standard Development Agreement developed by the City Attorney and adopted by the City Council for Eastern Dublin Specific Plan projects. ANALYSIS The City Attorney drafted the proposed Development Agreement for Dr. Sabri Arac, chief administrator for Quarry Lane School, with input from City Staff, Dr. Arac's representatives, and his attorney, Patricia Curtin. The Development Agreement sets forth the agreement between the City and Dr. Arac in relation to many items, including, but not limited to, timing and phasing, project and off-site infrastructure, and payment, waiver or credit of fees. The Development Agreement runs with the land and the rights there under can be assigned. The main points of the Development Agreement can be found in Exhibit A of Attachment 1, and are highlighted below: Term Agreement & Phasing: The Development Agreement becomes effective for a term of five years from the date it is approved. All construction of the school's expanded facilities will take place in one phase. Infrastructure Construction and Traffic Impact Fees: The City requires that Developers in Eastern Dublin pay traffic impact fees for certain City wide improvements to the circulation system. Additionally, fees are charged for certain circulation improvements specific to Eastern Dublin. The City determines the direct project impact through a traffic study that has been conducted for the development. A traffic study was prepared in conjunction with the related annexation of the property in 2000 and approval of the Annexation Agreement. The project specific improvements and dedications are contained in the Site Development Review Conditions of Approval for the Quarry Lane School project, approved by Planning Commission Resolution No. 04-046, and referenced in the Development Agreement in Exhibit A to Attachment 1, Subsection 5.3.2(a)(i). Additionally, credits to impact fees are addressed in Subsection 5.3.6 of the Agreement. Other Fees: The Development Agreement also addresses the payment of the Public Facilities Fee, Noise Mitigation Fee, School Fees, Fire Impact Fees and the Tri-Valley Transportation Development Impact Fee required of developers in the Eastern Dublin Specific Plan area. (Refer to Subsection 5.3.5(a through f) of the Development Agreement in Attachment 1.) Other Infrastructure Improvements: The Development Agreement also provides for the construction of certain other improvements to serve the project site such as off-site sewer, water supply system and hydrants, storm drainage system and other utility services, such as gas and electric provision. (Refer to Subsections 5.3.2(a)(ii through v) of the Development Agreement in Attachment I.) 2 CONCLUSION: Approval of this Development Agreement will implement provisions of the Eastern Dublin Specific Plan, and the conditions of approval specific to the Quarry Lane School expansion project. The proposal is consistent with both the General Plan and the Specific Plan. ENVIRONMENTAL REVIEW The Eastern Dublin Specific Plan was adopted in 1994 and has a certified Program EIR (SCH No. 91- 103064). The City of Dublin, as the Lead Agency, prepared a focused Initial Study and Mitigated Negative Declaration for all applications related to the proposed project in 2000. The Mitigated Negative Declaration for PA 99-064 was adopted by the City Council on November 21,2000. RECOMMENDA TION: Staff recommends the Planning Commission: 1) Open Public Hearing and hear the Staff presentation; 2) Take testimony from the Applicant and the Public; 3) Close the Public Hearing and deliberate; and, 4) Adopt Resolution (Attachment 1 with Development Agreement attached as Exhibit A) recommending City Council adopt an Ordinance approving a Development Agreement between the City of Dublin and Dr. Sabri Arac for the Quarry Lane School. 3 GENERAL INFORMATION: APPLICANT/ PROPERTY OWNER(S) Dr. Sabri Arac, President Quarry Lane School 6363 Tassajara Road Dublin, CA 94568 LOCATION: 6363 Tassajara Road APN: 985-0002-006-01 EXISTING ZONING: Planned Development GENERAL PLAN DESIGNATIONS: Medium Density (6.1 to 14 dwelling units per acre) Residential Rural Residential/Agriculture (0.01 dwelling unit per acre) SPECIFIC PLAN DESIGNATION: Medium Density (6.1 to 14 dwelling units per acre) Residential Rural Residential/Agriculture (0.01 dwelling unit per acre) ENVIRONMENTAL REVIEW: The Eastern Dublin Specific Plan was adopted in 1994 and has a certified Program EIR (SCH No. 91-103064). The City of Dublin, as the Lead Agency, prepared a focused Initial Study and Mitigated Negative Declaration for all applications related to the proposed project in 2000. The Mitigated Negative Declaration for P A 99-064 was adopted by the City Council on November 21,2000. 4 RESOLUTION NO. 05- A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT A DEVELOPMENT AGREEMENT FOR P A 99-064 DR. SABRI ARAC FOR QUARRY LANE SCHOOL WHEREAS, the Applicant, Dr. Sabri Arac has requested approval of a Development Agreement for P A 99-064, Quarry Lane School for the construction of Phase 2 ofthe privately owned school at 6363 Tassajara Road to provide an additional 70,289 square feet of classroom facilities, a gymnasium, playing field, parking and landscaped areas located on the north of the northeast side of Tassajara Road, approximately 3 miles north ofI-580 within the Eastern Dublin Specific Plan; and WHEREAS, a Development Agreement is required as an implementing measure of the Eastern Dublin Specific Plan; and WHEREAS, the Eastern Dublin Specific Plan was adopted in 1994 and has a certified Program EIR (SCH No. 91-103064). The City of Dublin, as the Lead Agency, prepared a focused Initial Study and Mitigated Negative Declaration for all applications related to the Quarry Lane School project, including the Development Agreement, in 2000. The Mitigated Negative Declaration for PA 99-064 was adopted by the City Council on November 21, 2000; and WHEREAS, a draft Development Agreement is attached to this resolution as Exhibit A and addresses many items, including, but not limited to, timing and phasing, project and off-site infrastructure, and payment, waiver or credit of fees; and WHEREAS, the Planning Commission did hold a public hearing on said application on April 26, 2005; and WHEREAS, proper notice of said public hearing was given in all respects as required by law; and WHEREAS, the Staff Report was submitted recommending that the Planning Commission recommend that the City Council approve the Development Agreement; and WHEREAS, the Planning Commission did hear and use their independent judgment and considered all said reports, recommendations and testimony hereinabove set forth. NOW THEREFORE BE IT RESOLVED THAT THE Dublin Plamiing Commission does hereby make the following findings and determinations regarding said proposed Development Agreement: 1. Said Agreement is consistent with the objectives, policies, general land uses and programs specified in the Eastern Dublin Specific Plan/General Plan in that, a) the Eastern Dublin Specific Plan/General Plan land use designation for the subject site is Medium Density (6.1 to 14 dwelling units per acre) Residential and Rural Residential/Agriculture (0.01 to 0.06 dwelling units per acre), and that the proposed Quarry Lane School project is consistent with that designation which allows certain public/semi-public uses to serve residential development; b) 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; c) the Agreement sets forth the rules the ApplicantlDeveloper and City will be governed by during the development process which is required by the Eastern Dublin Specific Plan; and the Mitigation Monitoring Program of the Eastern Dublin Specific Plan. 2. Said Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located in that the previous project approvals include a Planned Development (PD) Zoning District, Stage 1 and 2 Development Plan, Site Development . " , ''''1'''·.1- r .' .~; n '...1 ¡ Review, Conditional Use Pennit, Mitigated Negative Declaration, Mitigation Monitoring Program and Annexation to the City of Dublin. 3. Said Agreement is in confonnance with public convenience, general welfare and good land use practice in that the proposed Quarry Lane School project will implement land use guidelines set forth in the Eastern Dublin Specific Plan/General Plan, as proposed. 4. Said Agreement will not be detrimental to the health, safety and general welfare in that the development will proceed in accordance with the Agreement and any Conditions of Approval for the Project; and 5. Said Agreement will not adversely affect the orderly development of the property or the preservation of property values in that the development will be consistent with the City of Dublin Eastern Dublin Specific Plan/General Plan. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning Commission does hereby recommend that the City Council approve the Development Agreement, in substantially the fonn attached as Exhibit A, between Dr. Sabri Arac and the City of Dublin for P A 99-064, the Quarry Lane School. PASSED, APPROVED AND ADOPTED this 26th day of April 2005. AYES: NOES: ABSENT: ABSTAIN: Planning Commission Chairperson ATTEST: Planning Manager g:\PA#\1999\99-064 Quany Lane\Dev Agree\PC Reso DA.doc 2 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 DR. SABRI ARAC FOR THE QUARRY LANE SCHOOL PROJECT (PA 99-064) E ~ ~1~ A THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered in the City of Dublin on this 17th day of May, 2005, by and between the City of Dublin, a Municipal Corporation (hereafter "City"), and Dr. Sabri Arac ("Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. 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 establish certain development rights in such property; and B. Developer desires to develop and holds legal interest in certain real property consisting of approximately 10 acres generally described as 6363 Tassajara Road within the Eastern Dublin Specific Plan area (APN: 985-0002- 006-01) and is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property"; and C. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and D. The Eastern Dublin Specific Plan requires Developer to enter into this development agreement; and E. Developer has applied for, and City has approved or is processing, various land use approvals in connection with the development of the Project, including Planned Development District Rezoning (City Council Ordinance No. 24-00), general provisions for the PD District Rezoning including the Development Plan (City Council Resolution No. 24-00), and Site Development Review (Planning Commission Resolution No. 04-046),(collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and F. 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 G. City desires the timely, efficient, orderly and proper development of said Project; and DublinlDr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 2 May 17,2005 H. The City Council has found that, among other things, this 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 \. 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; and J. On , the City Council of the City of Dublin adopted Ordinance No. _ approving this Agreement. The ordinance took effect on ("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 1 . 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 owns the Property in fee simple. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Developer and that the Developer is not an agent of 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. Dublin/Dr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 3 May 17, 2005 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 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 any of them as shall, from time to time, be approved pursuant to this Agreement. 5.2. Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by 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. 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 Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin other approvals from regulatory agencies.) Not Applicable 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. Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources offunding. Dublin/Dr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 4 May 17,2005 See Exhibit B 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. 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, 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 re 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 priorto or after the date of this Agreement. 6.3. Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, 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 Regulations. Dublin/Dr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 5 May 17, 2005 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 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 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, City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 8. Subsequently Enacted or Revised Fees. 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 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 Dublin/Dr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 6 May 17,2005 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. 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 return its ballot, Developer agrees, on behalf of itself and its successors, that City may count Developer's ballot as affirmatively voting in favor of such assessment, fee or charge. 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 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; (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 Dublin/Dr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 7 May 17,2005 Works Director shall determine whether a reservation or dedication is "significant" . 9.4. Amendment of Proiect 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 Proiect Approvals. 10.1. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described in Recital F 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, 2006 and each July 15 to 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 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, 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. Dublin/Dr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 8 May 17,2005 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 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. 12.3. No Damages Against City. In no event shall damages be awarded against City upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. 13.1. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the parties. City Manager of City shall be authorized to execute any certificate requested by Developer. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. Dublin/Dr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 9 May 17, 2005 14. Mortqagee Protection: Certain Rights of Cure. 14.1. Mortgagee 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. Mortgagee Not Obligated. 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. 14.3. Notice of Default to Mortgaqee and Extension of Right to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the City's notice. 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. 15.1. 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. 16.1. If City or Developer initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall DublinlDr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 10 May 17, 2005 be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. Developer shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse City for all reasonable court costs and attorneys' fees expended by City in defense of any such action or other proceeding. 17. Transfers and Assignments. 17.1. Riqht to Assign. 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, 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. Effect of Sale. Transfer or Assignment. Developer shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to subparagraph 17.1 of this Agreement, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to subparagraph 17.1 of this Agreement; and b) such obligations are expressly assumed by Transferee and provided that such Transferee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval pursuant to subparagraphs 17.1 and 17.2 of this Agreement. 17.4. Permitted Transfer, Purchase or Assignment. The sale or other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to the exercise of any right or remedy under a deed of trust encumbering DublinlDr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 11 May 17, 2005 Developer's interest in the Property shall not require City Manager approval pursuant to the provision of paragraph 17.1. Any subsequent transfer, sale or assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 17.1. 17.5. 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 al1d 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. 18. Agreement Runs with the Land. 18.1. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and ( c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. 19.1. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. 20.1. 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 Dublin/Dr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 12 May 17,2005 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 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). 21. Insurance. 21.1. Public Liability and Property Damage Insurance. During the term of this Agreement, Developer snail 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) with a Twenty Five Thousand Dollar ($25,000) 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 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. 22.1. Developer acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District (UDSRSD") which is another public agency not within the control of City. 23. Notices. 23.1. 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: DublinlDr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 13 May 17, 2005 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: Dr. Sabri Arac Quarry Lane School 6363 Tassajara Road Dublin, CA 94568 FAX No. (925) 829-4928 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the 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. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 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 AddffionalCondffions 26. Counterparts. This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. 27. Recordation. City shall record a copy of this Agreement within ten days following execution by all parties. Dublin/Dr. Sabri Arac Development Agreement for Quarry Lane School Project 725794.2 Page 14 May 17, 2005 1N WrrNESS WHERËÙF. the parth'$ hereto have caused this Agreement to be eKecuted 6S of the date and year first above written. CITY OF DUBLIN: By~ Mayòr ATIEST: By: crty Clerk APPROVED þ.$ TO FORM~ City Attorney DEVELOPER S""^ Dr. Sabñ Arac fk¿ Date: Date: Dalê: fl (. ({Þr (NOTARIZATION ATTACHED) DubllntDr. Sabri Å1aÇ Development Agreètnent for Qua1'l'y La"e SChool PrQJ6Ct I ~2 Page 15 May 17.2005 EXHIBIT A Property Description 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) identified in Resolution No. 04-046 of the City of Dublin Planning Commission approving Site Development Review for PA 99-064 (hereafter "SDR Resolution") shall be completed by Developer to the satisfaction of the Public Works Director at the times and in the manner specified in the SDR Resolution unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of City's Public Works Director. (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. 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 Drainage Plan and tentative map conditions of approval and 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. Pursuant to Alameda County's National Pollution Discharges Elimination Permit (NPDES) No. CAS0029831 with the California Regional Water Quality Control 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.g. gas. electricity. 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. 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 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. Subparagraph 5.3.3 -- Phasina. Timing 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. Subparaaraph 5.3.4 -- Financing 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. 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 (Hi) above. Subparaaraph 5.3.5 -- Fees. Dedications Subsection a. Traffic Impact Fees. Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 225-99, including any future amendments to 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. Developer further agrees that it will pay eleven percent (11 %) of the "Section 1/Category 1" portion of the TIF in cash. Developer also agrees that it will pay twenty-five percent (25%) of the "Section 2/Category 2" portion of the TIF in cash. If City amends its TIF fee and as a result the City's outstanding balance due on loans is less than 25% of total Section 2/Category 2 improvements, the Developer shall pay such reduced percentage of the "Section 2/Category 2" portion of the TI F in cash. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchanaes. Developer shall pay the Eastern Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155-98 and by any subsequent resolution which revises such Fee. Developer 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 c. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the then-current amount of the fee. Subsection d. Noise Mitigation Fee. Developer shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any future amendments to such fee. Developer will pay such fees no later than the time ot issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Subsection e. School Impact Fees. Unless the project is exempted by law from the payment of such fees, the Developer shall pay school impact tees imposed by the Dublin Unified School District. Subsection f. Fire Impact Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any future amendments to such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the fee in effect at time of building permit issuance. Subparagraph 5.3.6 -- Credit Subsection a. Traffic Impact Fee Improvements -- Credit City shall provide a credit to Developer for those improvements described in the resolution establishing the Eastern Dublin Traffic Impact Fee it such improvements are constructed by the Developer in their ultimate location. All aspects ot the credit shall be covered by City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99 ("TIF Guidelines"). City acknowledges that pursuant to the Annexation Agreement Between City of Dublin and Dr. Sabri Arac for the Quarry Lane School Project, dated November 21, 2000 ("the Annexation Agreement"), Developer is entitled, by virtue of its advance ot $409,500 towards the Tassajara Interchange project, to a credit in the amount of $409,500 to be used by Developer against payment of Category 1 TIF Fees, subject to the limitations set forth in the Annexation Agreement. Subsection b. Traffic Impact Fee Riaht-of-Way Dedications -- Credit City shall provide a credit to Developer for any TIF area right-ot-way to be dedicated by Developer to 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.