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Home My WebLink About00-013 Amndmt Transit Ctr MDA AGENDA STATEMENT PLANNING COMMISSION MEETING DATE: August 23, 2005 SUBJECT: ATTACHMENTS: 1. RECOMMENDATION: 1. 2. 3. 4. PROJECT DESCRIPTION: PUBLIC HEARING PA 00-013 Amendment to Transit Center Master Development Agreement IJ--\¡<-Á' (Report prepared by: Jeri Ram, Planning Manager) ~ 2. Draft Resolution recommending that the City Council adopt an Ordinance amending the Master Development Agreement between the City of Dublin and Alameda County Surplus Property Authority for the Transit Center with draft Amendment to Master Development Agreement as Exhibit A Master Development Agreement Receive Staff Presentation Open Public Hearing Close Public Hearing and Deliberate Adopt Resolution (Attachment I) recommending City Council adopt an Ordinance approving an Amendment to the Master Development Agreement between the City of Dublin and Alameda County Surplus Property Authority for the Dublin Transit Center. The Dublin Transit Center project area is located generally within the area of the Iron Horse Trail to the West, Dublin Boulevard to the North, Arnold Road to the East, and the 1-580 Freeway to the South. The Dublin/Pleasanton Bay Area Rapid Transit (BART) Station is located within the Transit Center project area along the north side ofI-580. In December 2002, the City Council adopted Resolution 216-02 approving a General Plan/Eastern Dublin Specific Plan Amendment which added the Transit Center project area to the Eastern Dublin Specific Plan area and established the approved land uses for the future development. The project also included Stage I Planned Development Zoning approved by Ordinance 21-02 and Tentative Parcel Map No. 7892 approved by Planning Commission Resolution 02- 40. Project approval was accompanied by a Master Development Agreement adopted by Ordinance 05- 03 in May 2003. The Dublin Transit Center project area allows for the future development of 1,500 residential units on Sites A, B and C; 2-million square feet of campus office on Sites D and E; and 70,000 square feet of ancillary retail uses to be permitted at street level on Sites B through E. Open space will be provided in the form of a 12.20 gross acre park located on Site F and a I-acre Village Green located between Sites B and C. The Transit Center project area also includes 8.65 gross acres of publici semi-public uses including the future BART parking garage, Pacific Gas & Electric (PG&E) substation, and surface BART parking. COPIES TO: The Applicant The Property Owner P A File ITEM NO. ~ g:lpa#\2000100-0J 3 transit centcrldalpcsr 8-23-05.doc The Stage I Development Plan breaks up Sites D and E into D-l, D-2, E-l and E-2. It provides that Site E-l could contain up to 300,000 square feet of campus office uses and Site D-l could contain up to 190,000 square feet of campus office uses. Implementation of this "flex zoning" would increase the residential unit count of the Transit Center by 300 units to 1800 residential units and decrease the amount of Campus Office by 300,000 square feet. An Ordinance approving a Master Development Agreement between the City of Dublin and Alameda County Surplus Property Authority (ACSP A) for the Transit Center Development is required by state law. The Ordinance was adopted on May 6, 2003. Items in the original Development Agreement include, but are not limited to, vesting approvals for the ability to receive approvals for 1500 residential dwelling units, the financing and timing of infrastructure; affordable housing and a public art contribution. Alameda County Surplus Property Authority (ACSPA) has submitted an application with D.R. Horton to exercise the flex zoning on Site E-l of the Transit Center. As a result of that request, the Master Development Agreement would need to be amended to increase the total available residential unit count and adjust the agreements between the parties accordingly. ANALYSIS: The Master Development Agreement between the City of Dublin and Alameda County Surplus Property Authority is attached as Exhibit A to Attachment I to this staff report. The following discussion is a summary of what items are included in that Agreement. The Master Agreement: The Master Development Agreement sets forth the agreement between the parties in relation to many items, including, but not limited to, infrastructure construction and phasing, affordable housing, public art contribution and conveyance of park land. The Master Development Agreement is effective for a term of five years. The Master Development Agreement runs with the land and the rights thereunder can be assigned. The main points of the original Master Development Agreement are highlighted below: · The development agreement vests the approved land uses for five years, with the right to ten optional extensions, for a cost of $1 00,000 per year. · It specified the timing of construction of certain infrastructure, which will assure that the entire site functions well. · It required construction of 15% of the units to be affordable and provides the developer with a credit for any affordable units in excess of 15%. It also allows the clustering of the low- and very low-income units on Site A-2. The moderate units will be constructed on the other sites. · It addressed maintenance of street landscaping and lighting. · It included a $250,000 contribution for public art for the residential phase. · Finally, it included the developer's commitment to convey the remaining lands needed for completion of Emerald Glen Park. Amendment to Master Development Agreement: 2 The existing Master Development Agreement contains the agreement between ACSP A and the City of Dublin based on a certain mix of development as noted above. The additional 300 units was not considered when the Master Development Agreement was reviewed and approved by the City Council. Therefore, the Development Agreement is silent when it addresses how these additional units will meet their Inclusionary Zoning Requirements. The City's Inclusionary Zoning Ordinance requires projects that contain 20 or more units to provide 12.5 percent Inclusionary Units. The developer can either build all 12.5 percent or, at a minimum, build 7.5 percent and pay in-lieu fees for the remaining 5 percent. In addition, the Ordinance requires a certain mix of units as follows: 50 percent moderate, 30 percent very low and 20 percent low. The City Council has the ability to modify these requirements under the code. The Transit Center project as approved with 1,500 units provided 15 percent Inclusionary Units (225 units) with no in-lieu fees. This represents 2-1l2percent more than is required under the Inclusionary Zoning Ordinance. The mix of units conforms to the requirements of the Inclusionary Zoning Ordinance. ACSPA's request for the new 300 units would change the percent and mix; however, it would provide for other benefits that would help the City achieve affordable housing and transportation goals. The City Attorney has prepared the Amended Master Development Agreement with input from Staff and ACSP A. Under the Amended Master Development Agreement, the majority ofthe provisions of the existing Development Agreement (Exhibit A to Attachment I) would remain the same. The main modifications to the Agreement as result of these units are as follows: · If the developer elects a flex zoning option on site E-l and the City approves such a project, the additional units, for example, 300 units would pay full in lieu fees. It should be noted that even with this option being exercised, the total amount of Inclusionary Units at the Transit Center would still be 13.9% which is more than the City's minimum under the Inclusionary Zoning Ordinance of 12.5%. · The Developer agrees to construct 10 percent affordable units on sites A-I, A-3, Band C. · The Developer would make a 4.5 million contribution to the bond reserve fund for the proposed West Dublin BART Station. Should BART not issue the bonds within 2 years, the City could elect to have the obligation continued or could require a payment of 2 million dollars to the City's In-lieu Affordable Housing Fund or for another community benefit. City procedure and state law requires that there be three public hearings on Development Agreements. The purpose for the hearing before the Planning Commission is to recommend approval of the Development Agreements to the City Council. ENVIRONMENTAL REVIEW: The City of Dublin, as the Lead Agency, has prepared an Environmental Impact Report and Mitigation Monitoring Program for the above-referenced proposed project. The Draft Environmental Impact Report was available for public review from July 6, 2001 to August 21, 2001 and the City subsequently 3 recirculated an analysis of additional impacts for a 45 day public review period from July 16, 2002 to August 30, 2002. The Environmental Impact report was certified by the City Council on December 3, 2002. CONCLUSIONS: Approval of this Amendment to the Master Development Agreement is consistent with both the General Plan and the Specific Plan. RECOMMENDATION: Staffrecommends the Planning Commission open the Public Hearing, deliberate and Adopt Resolution (Attachment I) recommending City Council adopt an Ordinance approving a Master Development Agreements for the Dublin Transit Center. 4 GENERAL INFORMATION APPLICANT: OWNER: LOCATION: ASSESSOR PARCEL: EXISTING ZONING AND LAND USE: Alameda County Surplus Property Authority 224 W. Winton Avenue, Room 110 Hayward, California Same South of Dublin Boulevard North ofI-580 East of Iron Horse trail West of Arnold Road extension Planned Development 5 RESOLUTION NO. 05- A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN AMENDMENT TO THE MASTER DEVELOPMENT AGREEMENT FOR PA 00-013 DUBLIN TRANSIT CENTER WHEREAS, Pat Cashman on behalf of Alameda County Surplus Property Authority has requested approval of an Amendment to the Master Development Agreement for the Dublin Transit Center North ofI-580, West of Amold Road extension, East of Iron Horse Trail, and South of Dublin Boulevard and Parks RFT, and WHEREAS, the Development Agreement is required as an implementing measure of the Eastern Dublin Specific Plan; and WHEREAS, this project is within the scope of the Eastern Dublin Specific Plan and General Plan Amendment, for which a Program EIR was certified (SCH 91103064). The City of Dublin, as the lead agency has prepared an Environmental Impact Report and Mitigation Monitoring Program for the above referenced proposed project. The Draft Environmental Impact Report was available for public review from July 6, 200 I to August 21, 2001 and the City subsequently recirculated an analysis of additional impacts for a 45-day public review period from July 16, 2002 to August 30, 2002. The Environmental Impact report was certified by the City Council on December 3, 2002. WHEREAS, the text of the Draft Amendment to the Master Development Agreement is attached to this resolution as Exhibit A; and WHEREAS, the Planning Commission did hold a public hearing on said application on August 23,2005; 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 Master 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 Planning Commission does hereby make the following findings and determinations regarding said proposed Amendment to the Master 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 ATTACHMENT / Dublin Specific Plan/General Plan land use designation for the subject site is proposed to be Planned Development and that the Dublin Transit Center is consistent with that designation; b) the projects are 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 Developer 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 project approvals include a Planned Development Rezone, General Plan/Specific Plan Amendments and Site Development Review. 3. Said Agreement is in conformity with public convenience, general welfare and good land use practice in that the Dublin Transit Center 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 Agreements 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 Amendment to the Master Development Agreement between Alameda County Surplus Property Authority and the City of Dublin for P A 00-013 Dublin Transit Center. PASSED, APPROVED AND ADOPTED this 23rd day of August 2005 AYES: NOES: ABSENT: ABSTAIN: Planning Commission Chairperson ATTEST: Planning Manager G:\PA#\200Q\OO-OI3 Transit Center\da\PC reso Amd dev agr8-23-05.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 FIRST AMENDMENT TO MASTER DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY FOR THE DUBLIN TRANSIT CENTER PROJECT ""=XHIBIT ,~ THIS AMENDMENT is made and entered in the City of Dublin on this _ day of _' _, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and SURPLUS PROPERTY AUTHORITY OF THE COUNTY OF ALAMEDA, a Public Corporation (hereafter "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. Developer and City are parties to that certain Master Development Agreement Between the City of Dublin and Surplus Property Authority of Alameda County for the Dublin Transit Center Project, dated May 6, 2003 ("the Agreement"), which was entered into pursuant to California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56"); and B. Developer, pursuant to the Agreement, proposes the development of the Dublin Transit Center Property with a mixed use project to include a village green, approximately 1,500 high-density residential units (referred to as Sites A, B and C), approximately two million square feet of campus office ranging in height from eight to ten stories (referred to as Sites D-1, D-2, E-1, and E-2), a neighborhood park (Site F), approximately 8.65 acres of public/semi public uses including a parking garage for the adjacent BART station and public roads (DeMarcus Boulevard, Iron Horse Parkway, Campus Drive and Altamirano Road) (together, the "Dublin Transit Center Project"); and C. City granted various land use approvals in connection with the development of the Dublin Transit Center Project, including a Planned Development Rezoning and Stage 1 Development Plan (Ordinance 21-02), which allow Developer to propose development of up to 300 additional residential units on certain property within the Transit Center Project designated "Campus Office" under the Eastern Dublin Specific Plan (known as Site D-1 and Site E-1), in accordance with Policy 4-4 of the Eastern Dublin Specific Plan. D. The Agreement requires that the project comply with the City's inclusionary zoning ordinance in effect at the time of Site Development Review, and requires that 15% of the residential units be Inclusionary Units, even though the Inclusionary Zoning Regulations only require that 12.5% of the units be Inclusionary Units and permit up to 40% of that obligation (or 5% of the total number of units in the Project as a whole) to be satisfied by the payment of a fee in-lieu of construction of the Inclusionary Units; and E. Under the approvals, the 300 units may be constructed on Sites D and E, or all may be constructed on either Site D-1 or E-1. If those units were all constructed on Site E-1, the maximum square footage of campus office on Sites D and E would be reduced by 300,000 square feet; and First Amendment to Development Agreement Between City of Dublin Surplus Property Authority for the Transit Center v 5 revisions 10 MDA amendment.DOC;114.140 Page 1 of 5 August 18, 2005 F. Developer desires to amend the Agreement to provide that if it applies for and receives final approvals to construct 300 residential units on Site E-1 (a) instead of constructing the required inclusionary units in Site E-1 Project it may make a payment to the City equal to the amount of the City's then-current in-lieu fee under the Inclusionary Zoning Regulations and (b) 10% of the units on Sites A-1 and A-3 will be moderate income units, which would result in an additional 25 moderate income units on the residential Sites A, B, and C; and G. The City is amenable to Developer's proposed amendments because the proposal would still meet or exceed the requirements under the Inclusionary Zoning Regulations for the Dublin Transit Center Project as a whole; and H. Developer and City are negotiating with BART regarding funding towards construction of the proposed West Dublin BART station. Developer has agreed to provide certain funding towards construction of the proposed West Dublin BART station and City desires to see that station constructed. Developer's commitment is a result of its development of a garage at the East Dublin BART station and future development of Site C, as well as its desire to see regional transportation improvements. 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 Chapter 8.56; and J. On October _, 2005, the City Council of the City of Dublin adopted Ordinance No. _-_ approving this Amendment to the Agreement. The ordinance took effect on 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: AMENDMENT TO AGREEMENT Section 1. Amendment to Section 12 of the Aqreement. Section 12 of the Agreement is hereby amended in its entirety to read as follows: "Section 12. Affordable Housinq. a. DEVELOPER shall comply with the provisions of CITY's Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68) in effect at the time of approval of Site Development Review. b. All required low income and very-low income units for the entire Dublin Transit Center Project may be located on Site A-2, a portion of Site A. First Amendment to Development Agreement Between City of Dublin Surplus Property Authority for the Transit Center v 5 revisions to MDA amendment.DOC;114.140 Page 2 of 5 August 18,2005 c. All required moderate units for the entire Dublin Transit Center Project may be located on Sites A-1, A-3, B, and C. City shall require ten percent (10%) of the units on ::?ites A-1, A-3, B, and C to be moderate units. CITY shall use the definition in Dublin Municipal Code §8.68.020.D [80% to 120% of median income, as adjusted] for "moderate income." d. A minimum of 15% of the total units constructed on the Dublin Transit Center Property shall be lnclusionary Units consistent with the Inclusionary Zoning Ordinance. e. Notwithstanding the foregoing, if Developer receives final entitlements to construct 300 residential units on Site E-1, the requirement under Subsection 12.d that 15% of the units be Inclusionary Units shall not apply to the units constructed on Site E-1 if DEVELOPER makes a payment to CITY prior to the issuance of first building permit for a residential unit within Site E-1 equal to the number of lnclusionary Units that would otherwise be required to be constructed pursuant to Subsection 12.d multiplied by the amount of the then-current in-lieu fee under the Inclusionary Zoning Regulations. Pursuant to Resolution No. 56-02, the current amount of the in-lieu fee is $84,198 per Inclusionary Unit. (i). By way of example, if DEVELOPER received final entitlements to construct 300 units on Site E-1, prior to issuance of first building permit, it could elect to make a payment to the City equal to $3,788,910.00, assuming the current in-lieu fee amount. If this payment were made, DEVELOPER would not be obligated to construct 45 Inclusionary Units on Site E-1, as would otherwise be required by Subsection 12.d. f. DEVELOPER shall enter into an affordable housing agreement, as required by the Inclusionary Zoning Ordinance, for each project within the Dublin Transit Center. Each project on Sites A-1, A-3, B and C shall include a minimum often percent (10%) moderate units. The affordable housing agreement shall assure that construction of the inclusionary units occurs contemporaneously with construction of the market rate units on Sites A-1, A-3, Band C. No building permit for any building on Sites A-1 or C shall be issued unless the building permits for all low income and very-low income units on Site A-2 have been issued and construction of such units has commenced. g. This section shall survive termination of this agreement." First Amendment to Development Agreement Between City of Dublin Surplus Property Authority for the Transit Center v 5 revisions to MDA amendment.DOC;114.140 Page 3 of 5 August 18, 2005 Section 2. Addition of Section 35 to the Aqreement. Section 35 is added to the Agreement to read as follows: "Section 35. Contribution to West Dublin BART Station. Developer will make a contribution of $4.5 million to the bond reserve fund for the proposed West Dublin BART station. The contribution will be made at the same time and be subject to the same terms as the proposed anticipated contribution that City will make to the bond reserve fund for such station, to be used by BART for debt service on the bonds if the fare revenues from the station are not adequate to pay the debt service. The parties anticipate that the Developer's contribution will be made as follows: $2.25 million will be paid when BART issues bonds for construction of the station and $2.25 million will be paid when construction is completed. When such events occur, Developer will pay said monies to BART and will immediately provide City with a copy of such payment. In the event that (a) BART does not issue bonds within two years of the effective date of this amendment, (b) Developer is released by BART from its obligation to make a contribution of $4.5 million to the West Dublin BART reserve fund and (c) City agrees that Developer's $4.5 million contribution will no longer be required for the West Dublin BART station, Developer will make an additional inclusionary zoning in-lieu fee payment to City of $2 million (two million dollars) or a payment of $2 million (two million dollars) to City for community uses. This section shall survive termination of this agreement." Section 3. Counterparts. This Agreement may executed in two (2) duplicate originals, each of which is deemed to be an original. Section 4. Recordation. CITY shall record a copy of this Agreement within ten days following execution by all parties. First Amendment to Development Agreement Between City of Dublin Surplus Property Authority for the Transit Center v 5 revisions to MDA amendment.DOC;114.140 Page 4 of 5 August 18,2005 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: Date: Janet Lockhart, Mayor ATTEST: By: Date: Kay Keck, City Clerk Approved as to Form: Elizabeth H. Silver, City Attorney SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY: Date: James Sorensen Its Manager First Amendment to Development Agreement Between City of Dublin Surplus Property Authority for the Transit Center v 5 revisions to MDA amendment.DOC;114.140 Page 5 of 5 August 18,2005 ¡ , .} RECORDING REQUESTED i'/: . AND MAIL TO ./ . City of Dublin When Recorded Mail To: Y t\ City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 26 PG5 -.----..---/ RECE!VED gUt; 1 9 ZDO] CITY 01:; DUBLIN Space above this line for Recorder's Use MASTER DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY FOR THE DUBLIN TRANSIT CENTER PROJECT ATTACHMENT 2- , . . ,. THIS DEVELOPMENT AGßFEME;tfT is macJe and entered in the City of Dublin on this 6th day of May, 2003, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "City"), and SURPLUS PROPERTY AUTHORITY OF THE COUNTY OF ALAMEDA, a Public Corporation (hereafter "Developer"), pursuant to the authority of §§ 65864 et seq. of the Califomla Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A. California Govemment 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 located in the City of Dublin, County of Alameda, State of Califomia, consisting of approximately 77 aCreS, which property together with approximately 14 acres of public right-of-way is more particularly described in Exhibit A attached hereto and incorporated herein by this reference and which real property is hereafter called the "Dublin Transit Center Property"; and C. DEVELOPER proposes the development of the Dublin Transit Center Property with a mixed use project to include a village green, approximately 1,500 high- density residential units (referred to as Sites A, B and C), approximately two million square feet of campus office ranging in height from eight to ten stories (referred to as Sites D-1, D-2, E-1, and E-2), a neighborhood park (Site F), approximately 8.65 acreS of public/semi public uses including a parking garage for the adjacent BART station and public roads (DeMarcus Boulevard, Iron Horse Parkway, Campus Drive and Altamirano ROad) (together, the "Dublin Transit Center Project"); and D. DEVELOPER has applied for, and CITY has approved, various land use approvals in connection with the development of the Dublin Transit Center Project, including: 1) a general plan amendment (Resolution No, 216-02); 2) an amendment to the Eastem Dublin Specific Plan to add the Dublin Transit Center Property to the specific plan area (Resolution No. 216-02); 3) tentative parcel map 7892 to divide 35.1 acres west of Amold Road into five parcels (Planning Commission Resolution 02-40); and 4) a PD District rezoning including a Stage 1 Development Plan (Ordinance No. 21- 02) (collectively the "Dublin Transit Center Project Approvals"); and E. Development of the Dublin Transit Center Property by DEVELOPER is subject to certain future discretionary approvals including Stage 2 Development Plans, and site development review; and Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 1 of 20 626294 F. DEVELOPER has requested a development agreement in advance of the time when a development agreement will be required by CITY for the Dublin Transit Center Property to comply with Chapter 11 of the Eastern Dublin Specific Plan and CITY has agreed to enter into this agreement on the condition that a further development agreement or agreements will be required at the times described hereinafter in Section 6; and G. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated In accordance with Chapter 8.56; and H. CITY and DEVELOPER have reached agreement and desire to express . herein a Development Agreement that will facilitate development of the Dublin Transit Center Project subject to conditions set forth herein; and I. Pursuant to the California Environmental Quality Act (CEQA) the City certified an Environmental Impact Report ("EIR") for the Dublin Transit Center Project by Resolution 215-02 and has found that the EIR Is adequate for this Agreement; and J. On May 6,2003, the City Council of the City of Dublin adopted Ordinance No. 05-03 approving this Development Agreement. The ordinance took effect on June 5, 2003. NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY and DEVELOPER agr'ee as follows: AGREEMENT Section 1, Description of Property. The property which is the subject of this Development Agreement is described in Exhibit A attached hereto (the "Dublin Transit Center Property"). Section 2. Interest of Developer. The DEVELOPER has a legal or equitable interest in the Dublin Transit Center Property in that, with the exception of public rights-of-way and a portion of the property owned by the Bay Area Rapid Transit District, it owns the Dublin Transit Center Property in fee simple. Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 2 of 20 626294 Section 3. Relationship of Citvand 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. Section 4. Effective Date and Term. Section 4,1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreement is signed by CITY, Section 4.2 Term. The term of this Development Agreement shall commence on the effective date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. Notwithstanding the preceding sentence, this agreement shall not be applicable to any portion of the Dublin Transit Center Property following the effective date of a Specific Plan Development Agreement. as defined and described in Section 6. Section 4.3 Optional Extension. Prior to the termination of this Development Agreement. as provided in Section 4.2, DEVELOPER may extend the term of the Development Agreement. To do so, DEVELOPER shall give CITY written notice at least 90 days prior to the termination date of the Development Agreement. At the time DEVELOPER provides such notice, DEVELOPER shall make a contribution to CITY in the amount of One Hundred Thousand Dollars ($100,000). Upon receipt of the notice and the contribution, the City Manager shall approve the extension and shall notify the DEVELOPER in writing that the term of the Development Agreement has been automatically extended for an additional one-year period. commencing on the date the Development Agreement would otherwise have terminated. The DEVELOPER may exercise its option to extend the Development Agreement no more than ten times, for a maximum total term of the Development Agreement of fifteen years. The total contribution for the maximum extension of ten years will be One Million Dollars ($1,000.000). Section 5. Use of the Dublin Transit Center Prooortv, Section 5.1 Riaht to Develop. Developer shall have the vested right to develop the Dublin Transit Center Project on the Dublin Transit Center Property in accordance with the terms and conditions of this Agreement, the Dublin Transit Center Project Approvals, and any amendments to any ofthem as shall, from time to time, be approved pursuant to this Agreement. Section 5.2 permitted Uses: The permitted uses of the Dublin Transit Center Property, the density and intensity of use, the height, bulk and size of proposed Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 3 of 20 626294 ., ..;~ buildings, general provisions for reservation or dedication of land for public pU!1)oses and general location and maintenance of on-site and off-site improvements, general location of public utilities (operated by CITY) and other terms and conditions of development applicable to the Dublin Transit Center Property, shall be those set forth in this Agreement, the Dublin Transit Center Project Approvals and any amendments to this Agreement or the Dublin Transit Center Project Approvals. Section 6. Future DeveloDment Aareementls) Reauired. Notwithstanding any other provision of this Development Agreement to the contrary, DEVELOPER shall not be able to develop the Dublin Transit Center Property, or any portions thereof, until it has entered into another development agreement or agreements with CITY, applicable to the portions of the Dublin Transit Center Property, which DEVELOPER proposes to develop as required by Chapter 11 of the Eastern Dublin Specific Plan (a "Specific Plan Development Agreemenf). The purpose of the "Specific Plan Development Agreement" shall be to comply with the requirement of Chapter 11. The "Specific Plan Development Agreemenf for Sites A, Band C will include affordable housing provisions consistent with Section 12 of this agreement. As used. herein, "develop" shall mean recordation of a final subdivision map, a final parcel map for a commercial or office use, a final map for medium, medium high or high density residential use or issuance of a conditional use permit, site development review or a building permit. Section 7. ADDllcable Rules. Reaulations and Official Policies. Section 7.1 Rules re Permitted Uses. Unless otherwise expressly provided in Paragraph 5 of this Agreement, for the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies goveming the permitted and conditional permitted uses of the Dublin Transit Center Property, governing density and intensity of use of the Dublin Transit Center Property and the maximum height, bulk and size of proposed buildings shall be those In force and effect on the effective date of this Agreement. Section 7.2 Rules re Desian and Construction of Public ImDrovements. The ordinances, resolutions,· rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to public improvements to be constructed by Developer shall be those In force and effect at the time of the applicable permit approval for the public improvement. Section 7.3 Uniform Codes ADDlicable. Unless expressly provided in Paragraph 5 of this Agreement, the Dublin Transit Center Project shall be constructed in accordance with the provisions of the City's adopted Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the Califomia Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 4 of 20 626294 building, grading, or other constru(jion permits for the Dublin Transit Center Project. . . .~~¡; ;:~);~' Section 8. Moratorium Not Aoolicable. 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 Dublin Transit Center Project on all or any part of the Dublin Transit Center Property, CITY agrees that such ordinance, resolution or other measure shall not apply to the Dublin Transit Center Project, the Dublin Transit Center Property, this Agreement or the Dublin Transit Center Project Approvals unless the building imposed by CITY as part of a declaration of a local emergency (including a moratorium due to lack of sewer or water capacity) or state of emergency as defined in Government Code § 8558. Section 9. ADolicable Fees and Dedications: Time of Pavment. The Dublin Transit Center Property shall be subject to those development impact fees, dedications and other fees applicable to new development required by CITY's adopted ordinances, resolutions and policies which are in effect at the time of approval of the last discretionary approval. All applicable development impact fees for the Dublin Transit Center Property will be paid by DEVELOPER at the time of issuance of building permits and in the then- current amount of the impact fee. DEVELOPER has requested CITY consider amending its Eastern Dublin Traffic Impact Fee ("TIF") to include the Dublin Transit Center Property within such fee and to determine whether certain infrastructure improvements required by the parcel map conditions and the proposed BART parking garage are needed by development within the Eastem Dublin area and should be included as improvements to be funded by the fee. These improvements consist of (1) improvements to the DublinlDougherty intersection including Dougherty Road from the intersection to 1-580; (2) Scarlett Drive extension; (3) Hacienda Drive/I-580 Interchange; and (4) parking spaces in the proposed BART parking garage estimated to cost $6,000,000. CITY agrees to consider such amendments to its TIF as expeditiously as possible. Section 10. Subseauentlv Enacted or Revised Fees. Assessments and Taxes. Section 10.1 Fees. Exactions. Dedications. CITY and DEVELOPER agree that the fees payable and exactions required in connection with the development of the Dublin Transit Center Project for purposes of mitigating environmental and other impacts of the Dublin Transit Center Project, providing infrastructure for the Dublin Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 5 of 20 626294 " . :'< (" ~:..';;) Transit Center Project and complying with the Specific Plan shall be determined at the time of future discretionary approVals.. . Section 10.2 Revì~ AD"6((ðation ~~~s. AWÇ existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Dublin Transit Center Project provided that (1) such fees have general applicability; and (2) the application of such fees to the Dublin Transit Center Property is prospective. Section 10.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Dublin Transit Center Project provided that the application of such taxes to the Dublin Transit Center Property is prospective. Section 10.4 Assessments. Nothing herein shall be construed to relieve the Dublin Transit Center 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 Dublin Transit Center Property. Section 10.5 Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Dublin Transit Center Property is subject to Article XIIID of the Califomia 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. Section 11. Infrastructure. Certain infrastructure improvements will be required for the Dublin Transit Center Project. Notwithstanding anything to the contrary In the Dublin Transit Center Project Approvals or this agreement, DEVELOPER will construct, or cause to be constructed, the following infrastructure improvements at the times indicated below. All infrastructure improvements shall be constructed to the satisfaction and requirements of the CITY's Public Works Director. All other infrastructure for the Dublin Transit Center Project will be provided as required by the Dublin Transit Center Project Approvals or future approvals. Section 11.1 Altamirano Road and Arnold Road to Dublin Boulevard. Altamirano Road and Arnold Road north to Dublin Boulevard shall be constructed to provide a second access to the BART garage generally as shown on the diagram attached as Exhibit B-1. The Altamirano Road improvements shall, at a minimum, consist of the southern curb and gutter and a minimum 24-foot wide pavement with a temporary 4-foot wide rock shoulder on the north frontage, The Arnold Road improvements shall consist of median curbs with 12- foot wide pavements in each direction and a temporary 4-foot wide rock shoulder on each frontage. Lightin.g will be required. Landscaping will not be Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 6 of 20 626294 required with this phase of construction. . _ :':'~,"~<~ '~~~ia-'iJ':'" - _ _ "::'_"', -,_:c': - . The DEVELOPER..shall è.ntèr into an agreement for construction of the Improvements and a right-of-enuyto cõÎ1'Struct the improvements within CITY right-of- way, DEVELOPER shall complete construction of the improvements and offer them to CITY for dedication no later than commencement of public use of the BART parking garage to be constructed to accommodate approximately 1,700 spaces in the area shown as Public/Semi-Public in the General Plan. Construction of such improvements shall be at DEVELOPER's sole cost and expense. Section 11.2 Martinellì Way (also known as Digital Drive) from Iron Horse Parkwav to Arnold Road. Martinellì Way (Digital Drive) shall be constructed to provide access from Iron Horse Parkway tc) Arnold Road generally as shown on the diagram attached as Exhibit B-2. The improvements shall consist of median curbs with 12- foot wide pavement in each direction and a temporary 4-foot wide rock shoulder on each frontage. Lighting will be required. Landscaping will not be required with this phase of construction. The DEVELOPER shall enter into an agreement for construction of the improvements and a rlght-of-entry to construct the improvements within CITY right-of- way. DEVELOPER shall complete construction of the improvements and offer them to CITY for dedication no later than issuance of a certificate of occupancy for the first residential building on Site C. Construction of such improvements shall be at DEVELOPER's sole cost and expense. Section 11.3 Dublin/DouahertY Intersection Improvements. Within 60 days of notice from CITY, DEVELOPER will advance to CITY monies for acquisition of right-of-way needed for the improvements planned for the intersection of Dublin Boulevard and Dougherty Road and for construction of such improvements. The amount of money requested by CITY will be based on the DEVELOPER's fair share of the deficit (spread over those projects which are required to make up the deficit) between funds available to CITY from Category 2 Eastem Dublin Traffic Impact Fee funds and the estimated cost of acquiring the right-of-way and constructing the improvements. The City will request advances in increments as monies are needed, proVided that the amount of money to be advanced shall not exceed Two Million Dollars ($2,000,000). CITY shall proVide a credit to DEVELOPER for any advance of monies made pursuant to this section. The credit shall be for Category 2 of the Eastem Dublin Traffic Impact Fee. AU aspects of the credit shall be governed by CITY's Administrative Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 7 of 20 626294 Guidelines for Eastern Dublin Traffic Impact Fees (Resolution No. 23-99) ("TIF Guidelines"). ."-'/< Section 11.4 Scarlett Drive Riaht-of-Wav. DEVELOPER will recommend to the County of Alameda ("COUNTY") that, upon request by City to acquire any of the land owned by the County of Alameda adjacent to the former Southem Pacific Railroad . right-of-way between Dublin Boulevard and Dougherty Road, for construction of a road known as Scarlett Drive, COUNTY will agree that the value of the portion of such property to be so acquired shall be the then-current "fair market value," provided in no event shall the "fair market value" exceed the land value used by CITY in calculating its then-current Eastern Dublin Traffic Impact Fee. COUNTY agrees that it will sell such land to CITY when requested by CITY. CITY will use such land for construction of a new road, to be called Scarlett Drive, and will relocate any portions ofthe existing Iron Horse Trail required to be relocated as part of such construction at CITY's expense. ThiS section shall survive termination of this Agreement. Section 12. Affordable Housina. DEVELOPER shall comply with the provisions of CITY's Inclusionary Zoning Ordinance (Dublin Municipal Code Chapter 8.68) in effect at the time of approval of Site Development Review. All required low income and very-low income units for the entire Dublin Transit Center Project may be located on Site A-2. a portion of Site A. All required moderate units for the entire Dublin Transit Center Project may be located on Sites A-1, Band C. City shall require ten percent (10%) of the units on Sites Band C to be moderate units, With remaining moderate units to be located on Site A-1. CITY shall use the definition in Dublin Municipal Code §8.68.020.D [80% to 120% of median income, as adjusted] for "moderate income." A minimum of 15% of the total units constructed on the Dublin Transit Center Property shall be inclusionary units consistent with the Inclusionary Zoning Ordinance. The CITY will provide credits to DEVELOPER for any inclusionary units constructed in excess of 15% as provided in the Inclusionary Zoning Ordinance. DEVELOPER shall enter into an affordable housing agreement, as required by the Inclusionary Zoning Ordinance, for each project within the Dublin Transit Center. Each project on Sites Band C shall include a minimum often percent (10%) moderate units. The affordable housing agreement shall assure that construction of the inclusionary units occurs contemporaneously with construction of the market rate units on Sites A-1, Band C. No building permit for any building on Sites A-1 or C shall be issued unless the building permits for all low income and very-low income units on Site A-2 have been issued and construction of such units has commenced. Devetopment Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 8 of 20 626294 Thili liection lihall surviv~X~i'mTffªtion of this agrèêrrient. Section 13. Maintenance of LaridscaPlna and Street Liahtina. The City will maintain improvements within the public right-of-way which have been dedicated to and accepted by CITY, provided that frontage improvements consisting of sidewalkli and landscaping located behind the street curb or extension of the curb will be maintained by DEVELOPER. DEVELOPER has asked CITY to form an assessment district pursuant to the Lighting and Landscaping Act of 1972 to pay for street lighting in order to satisfy DEVELOPER's obligation to pay for street lighting in the Dublin Transit Center Property. . DEVELOPER will not protest the formation of, or annexation to, such an assessment district or the levy of an assessment. Furthermore, DEVELOPER agrees to record a declaration of covenants, conditions and restrictions or a similar document against the Dublin Transit Center Property before issuance of a Certificate of Occupancy for any structure on such property, which declaration will covenant DEVELOPER, on behalf of Itself and its successors, to pay a "deed assessment" to CITY for the costs of street lighting and street light maintenance in the event that the assessment for street light costs and maintenance is not levied against the Dublin Transit Center Property, or any portion of it, In any year. In the event the assessment district is not formed and assessments are not levied for the costs of such street light maintenance prior to such costs accruing, DEVELOPER will pay CITY for such costs directly. Section 14. Public Art Contribution. Section 14.1 Residential Phase. DEVELOPER agrees to contribute Two Hundred Fifty Thousand Dollars ($250,000) to CITY for use by CITY for construction of public art within the residential phase of the Dublin Transit Center Project (Sites A, B, C. the Village Green and adjacent to the BART parking garage). DEVELOPER will pay $125,000 to CITY prior to issuance of the first building permit for a residential building or unit on Site B. DEVELOPER will pay $125,000 to CITY prior to issuance of the first building permit for a residential building or unit on Site C, or prior to public use of the BART parking garage, whichever is first. CITY will consult with DEVELOPER regarding the selection of public art to be purchased with such monies. Section 14.2 Camous Office Phase. DEVELOPER shall be subject to the CITY's public art policy or requirement in effect at the time of tlie last discretionary approval of any projects on Sites D-1, D-2. E-1, or E-2. Development Agreement Between City of Dublin SurPlus Property Authority and Transit Center May 6, 2003 Page 9 of 20 626294 Section 15. Part< Land. Section 15.1 Convevance of Land for Emerald Glen Part<. By grant deed, DEVELOPER shall convey to CITY in fee simple and free of any assessments the remaining land needed by CITY for completion of Emerald Glen Part< located north of Central Parkway, west of Tassajara Road and south of Gleason Drive in Dublin ("Remaining Emerald Glen Part< Acreage"). The amount of land required is 18.177+/- acres. The exact location of the "Remaining Emerald Glen Part< Acreage" shall be determined by CITY. DEVELOPER shall provide City with all documentation available to DEVELOPER that the "Remaining Emerald Glen Part< Acreage" and underlying groundwater are free of hazardous substances, including any Phase I or Phase \I environmental assessments performed for DEVELOPER. CITY may enter such property for the purpose of performing its own testing to determine if the "Remaining Emerald Glen Part< Average" is suitable for part< usages. DEVELOPER will remove all debris and/or hazardous matérials left on the property during the preceding three years from use of the property as a construction yard. Section 15.2 Tlmlno of Convevance. The "Remaining Emerald Glen Part< Acreage" shall be conveyed to CITY within 10 days of the Effective Date of this agreement. Section 15.3 Credit for Convevance. DEVELOPER shall be entitled to a credit for conveyance of the "Remaining Emerald Glen Part< Acreage" at the time the deed is accepted by CITY. The credit shall be for community part< land, provided the DEVELOPER may use the credit against its obligation for neighborhood part< land for the Dublin Transit Center Project by using its community park land credit equaling .8029 acres of neighborhood part< land. For example, if the DEVELOPER's obligation for neighborhood part< land for the Dublin Transit Center is 4.5 acres, DEVELOPER may use 5.6 acres of community part< land credits to satisfy the 4.5 acre neighborhood part< land obligation (4.5 acres / 0.8029 = 5.6046). DEVELOPER may use its credit for conveyance ofthe "Remaining Emerald Glen Park Acreage" to satisfy its obligation under Dublin Municipal Code Chapter 9.28 (City's "Quimby Act" ordinance) for community part< land or neighborhood part< land (with one community part< land credit equaling .8029 acres of neighborhood park land), for any residential project on the Dublin Transit Center Property or in Eastern Dublin. All other aspects of use of the credit shall be as provided in CITY's Public Facilities Fee Administrative Guidelines (Resolution 195-99) ("Public Facilities Fee Guidelines"). Section 15.4 Possible Comoensation for "Remainìno Emerald Glen Park Acreaae". In the event that the total "Quimby Act:' community park land dedication requirement for the Dublin Transit Center Property and other land owned by DEVELOPER in Dublin is less than the "Remaining Emerald Glen Park Acreage" and provided there are sufficient Public Facilities Fee monies for the Community Part< Land "component" of the Fee available, CITY shall compensate DEVELOPER for the Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 10 of 20 626294 difference between the "Quimby Acf' ordinance dedication requirement and the "Remaining Emerald Glen Park Acreage" ("the Difference"). In such event. DEVELOPER agrees that CITYwill pay DEVELOPER for the "Difference" at the then- current "fair market value (based on DEVELOPER's estimation)," provided in no event shall the "fair market value" exceed the community park land value used by CITY in calculating its then-current Public Facilities Fee. The payment to DEVELOPER shall occur upon issuance of the last building permit for construction of a building on the Santa Rita Property, provided that if there are insufficient Public Facilities Fee monies at such time, the amount of the payment shall become a right to reimbursement, to be paid pursuant to adopted guidelines from Fee monies only. As used in this Section, ''then current" means the date of an agreement to purchase or the "valuation date", as defined in the Eminent Domain Law and "Santa Rita Property" means all lands west of Tassajara Road which are or were owned by DEVELOPER and generally bounded by 1- 580 on the south, the Iron Horse Trail on the west and Gleason Drive on the north. Section 15.5 Illustrative Examcle. The following example illustrates the provisions of Section 15.4: Assume that the "Quimby Act" dedication requirement for all of the Dublin Transit Center Property and other lands owned by DEVELOPER within the Santa Rita Property Is 10.5 acres. DEVELOPER conveys 18.2 acres and receives a credit for 18.2 acres. DEVELOPER's "Quimby Act" dedication requirement of 10.50 acres is subtracted from 18.2 acres for a total of 7.7 acres for which CITY must compensate DEVELOPER. At the time of the conveyance, the "fair market value" of the 7.7 acres (based on DEVELOPER's estimation) is $600,000 an acre and the community park land value used by CITY in its then-current Public Facilities Fee is $538,000 an acre. CITY shall pay DEVELOPER the sum of $4,142.600 (7.7 x $538,000). Alternatively, if the "fair market value" (based on DEVELOPER's estimation) is $500,000 an acre, CITY shall pay DEVELOPER $3,850,000. Section 15.6 Payment of Public Facilities Fee. DEVELOPER will be subject to CITY's Public Facilities Fee for all development within the Dublin Transit Center Project. Section 16. Timina. With the exception of the infrastructure improvements described in Section 11, this Agreement contains no requirements that DEVELOPER must initiate or complete development of the Dublin Transit Center Project within any period of time set by CITY. ltis the intention of this provision that DEVELOPER be able to develop the Dublin Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 11 of 20 626294 ... Transit Center Property in accordance with its own time schedules and the Dublin Transit Center Project Approvals;. Section 17. Amendment or Cancellation. Section 17.1 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. Section 17.2 Amendment bv 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. Section 17.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 17.2, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in Section 4; (b) the permitted uses of the Dublin Transit Center Property as provided in Section 5.2; (c) provisions for "significant" reservation or dedication of land; (d) conditions. terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Dublin Transit Center Project; (f) the maximum height or size of proposed buildings; (g) monetary contributions by DEVELOPER as provided in this Agreement; or (h) the Dublin Transit Center Property shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. CITY's Public Works Director shall determine whether a reservation or dedication is ·significant". Section 17.4 Amendment of Dublin Transit Center Proiect Approvals. Any amendment of Dublin Transit Center Project Approvals relating to: (a) the permitted use of the Dublin Transit Center 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; (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. Any other amendment of the Dublin Transit Center Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Dublin Transit Center Project Approval(s) relates specifically to some provision of this Agreement. Section 17.5 Cancellation bv 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 and/or land dedicated pursuant to this Agreement prior Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 12 of 20 626294 to the date of cancellation shall be retained by CITY. Section 18. Annual Review. Section 18.1 Review Date. The annual review date for this Agreement shall be July 15, 2004 and each July 15 thereafter. Section 18,2 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 detennined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement as provided in Government Code §§65684 et seq. The burden of proof by substantial evidence of compliance IS upon the DEVELOPER. Section 18,3 Staff Reoorts. 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 perfonnance at least five (5) days prior to any annual review. Section 18.4 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, Section 19. Default. Section 19,1 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 perfonnance of this Agreement. Section 19.2 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. Section 19.3 No Damaaes Aaainst CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6. 2003 Page 13 of 20 626294 ..,. '" Section 20. Estoooel Certificate. ···:>.;.~v,-,·.· ;'.,P.:'''','.'''. . .. :..:'.,:...,;"." "'~~f""':"'" . .. . Either party may, at any timè, arid 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. Section 21. Mortaaaee Protection: Certain Riahts of CUre. Section 21.1 Mortaaaee Protection. This Agreement shall be superior and senior. to any lien placed upon the Dublin Transit Center 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 Dublin Transit Center Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. . Section 21.2 Mortaaaee Not Obliaated. Notwithstanding the provisions of Section 21.1 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 Dublin Transit Center Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Dublin Transit Center Project Approvals or by this Agreement. Section 21.3 Notice of Default to Mortaaaee and Extension of Richt 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 Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 . Page 14 of 20 626294 ~.-~ -;.,-~ DEVELOPER has committed an event of def;::¡ult. 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 defàlllt claimed set forth in the CITY's notice. CITY, through its City Manager, may extend the thirty-day cure period provided in Section 19.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee. Section 22. Severabilitv. 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. Section 23. Attornevs' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing 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, the Dublin Transit Center Project Approvals, or CITY's actions pursuant to this agreement, 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 attomeys' fees expended by CITY In defense of any such action or other proceeding and for any attorney's fees and costs awarded to a party to be paid by CITY. Section 24. Transfers and Assianments. Section 24.1 Riaht to Assian. DEVELOPER may sell, transfer or assign all of the Property to another developer ("Transferee"). In connection with any such sale, transfer or assignment to a Transferee, DEVELOPER may sell, transfer or assign to such Transferee all rights, interests and obligations of DEVELOPER arising hereunder 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 shall be for the purpose of assuring CITY that the proposed transferee can perform DEVELOPER's obligations hereunder), which approval shall not be unreasonably withheld or delayed. Section 24.2 ADDroval and Notice of Sale. Transfer or Assianment. The City Manger shall consider and decide on any transfer, sale or assignment within ten (10) working days after DEVELOPER's notice, provided all necessary documents, certifications and other information showing the proposed transferee can perform DEVELOPER's obligations are first provided to the City Manager. Notice of any such Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 15 of 20 626294 t;:..-"'~ ~.::.r~ :'í-'..>,}; j~~.':;-!t approved sale, transfer or assignment shall be recorded in the official records of Alamèda County, in a form accept¡¡ble to the City Manager, concurrently with such sale, transfer or assignment. Section 24.3 . Effect of Sale, Transfer or Assianment. DEVELOPER shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to subparagraph 24.1 of this Agreement, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to subparagraph 24.1 of this Agreement; and b) such obligations are expressly assumed by Transferee; provided that 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 pursuanUo subparagraph 24.1 of this Agreement. Section 24.4 Permitted Transfer. Purchase or Assianment. The sale or other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to the exercise of any right or remedy under a deed of trust encumbering DEVELOPER'S interest In the Property shall not require City Manager approval pursuant to the provision of paragraph 24.1. Any subsequent transfer, sale or assignment by the Purchaser to a subsequent transferee, purchaser, or assignee shall be subject to the provisions of paragraph 24.1. Section 24.5 Sale of a Portion of Property. The sale or transfer of a portion of the Dublin Transit Center Property shall not require approval by the City Manager but the new owner shall enter into a Specific Plan Development Agreement pursuant to Section 6, which Agreement will include any of the infrastructure obligations of Section 11 which DEVELOPER may wish to assign to a new owner. Section 25. Aoreement 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 Dublin Transit Center 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 Dublin Transit Center 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. Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 16 of 20 626294 Section 26. BankruDtcv. .',:-'.~ , ;,-,. ',:- ' '- ", , ' . -' ,::;~',~''''\ The obligations of this Agreemènt shall nôtbe díschargeable in bankruptcy. Section 27. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly 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 Dublin Transit Center 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). . Section 28. Insurance. Section 28.1 Public Liabilitv and ProDertv Damaae Insurance. At all times that DEVELOPER is constructing any improvements that will become public improvements, DEVELOPER shall maintain in effect a policy of comprehensive general . liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) and a deductible of not more than ten thousand dollars ($10,000.00) per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. Section 28.2 Workers ComDensation Insurance. At all times that DEVELOPER is constructing any improvements that will becOme public improvements DEVELOPER shall maintain Worker's Compensation insurance for all persons employed by DEVELOPER for work at the Dublin Transit Center Project site or for work performed pursuant to this Agreement. 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. Section 28.3 Evidence of Insurance. Prior to commencement of construction of any Improvements which will become public improvements, DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in Sections 28.1 and 28.2 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, Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 17 of 20 626294 "..-. Þ."':'O·i Commissions, officers, agents, employees and representatives and to DEVELOPER performing ~ork on the Dublin Transit Center Property and pursuant to this Agreement. DEVELOPER may satisfy the requirements of this Section by providing a Certificate of self insurance. . Section 29. Sewer and Water. DEVELOPER acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of CITY. Section' 30. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin P.O. Box 2340 Dublin, CA 94568 Notices required to be given to DEVELOPER shall be addressed as follows: Project Manager Surplus Property Authority of Alameda County 224 W. Winton Avenue, Suite 110 Hayward. CA 94544 A party may change address by giving notice in writing to the other party and thereafter àll 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 ovemight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. Section 31. Aoreement is Entire Understandina. This Agreement constitutes the entire understanding and agreement of the parties. . Section 32. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Development Agreement Between City of [)ublin Surplus Property Authority and Transit Center May 6, 2003 Page 18 of 20 626294 ;~ Exhibit A Legal Description of Dublin Transit Center Property Exhibit B-1 Loca66n Map (Altamirano Road and Amold Road north to Dublin Boulevard) Exhibit B-2 Location Map (Martinelli Way [Digital Drive] from Iron Horse part<wayto Amold Road) Exhibit C Sites A-1 and A-2 Section 33. Counterparts. This Agreement is executed in two (2) duplicate originals, each of which Is deemed to be an original. Section 34. Recordation. CITY shall record a copy of this Agreement within ten days following execution by all parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN: &/;5/1),3 ATTEST: Date: /P/;ð 10-3 Approved as to Form: ~~)¿ ~C Elizabeth H. Silver, City Attorney Development Agreement-Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 19 of 20 626294 SURPLUS PROPERTY AUTHORITY OF ALAMEDA COUNTY: ~ ~.. Date: Æ.Ir' ~ 't1l1l-3ß Adolph Martinelli Its Manager , Development Agreement Between City of Dublin Surplus Property Authority and Transit Center May 6, 2003 Page 20 of 20 626294 ., CALIFORNIA ALL.PURPOSEACKNOWLEDGMENT On (p/;ðlo~ I date }ss. , before me,l(Áy r ELI!" ¡{orltI<Y ø.ß¿ I ~-" VANE:¡ r:ÕëK fÎÄf¿rDoe.N ~Publ") , Name(s) of Signer(s) . State of californ~17 _ ' County of ~ personally appeared ~~---~;~t--~ .-e Cornmlssion.I211JD69. ¡¡; :$ NoIay Public - CcIIIforna ~ !: Alameda county - ~ _ _ _ _My_~~~~~f ~ personally known to me o proved to me on the basis of satisfactory evidence to be the person.íSí whose nam~ is¿.aFe subscribed to the within instrument and acknowledged to me that Ae1she/~ executed the same in j)i61her/1Reir authorized capacityüaeY. and that by ÞiS1her/tA6l"r signature~on the instrument the person.\Sf. or the entity upon behalf of which the perso~ acted, executed the instrument. . Place Notary $881 Above OPTIONAL Th9ugh the information below -is not required by Jaw, ff may prove valuable to persons relying on the document and could prevent fraudulent removal and reaffaehmenf of this form to another document. Document Date: Description of Attached Documen Tille or Type of Document: Capaclty(ies) Claimed by Signer Signer's Name: o Individual o Corporate Officer - Title(s): o Partner - 0 Limited 0 General o Attorney in Fact o Trustee o Guardian or Conservator o Other: RIGHT THUMBPRINT Of SIGNER Top of thumb here Signer Is Representing: Prod. tkI. ð9Q7 ~eordor;CalIToIl-Ft1I8H00-87&-6827 Cl1999Natlonal NotaryAsaocialloo· 9350 DeSoto"",., P.O. Box2402·~,CA91~13-2402 O'f{MV.tIaIIonaJnotary.ag ,( ALL· PURPoSE ACKNOWLEDGEMENT . State of California }ss. County of -ß.Ja. mnl fA On \-(.fA.\ C( ;)..00 '3 before me, Lu.-U1GL 'P [= 1- t , t. (OATF-) (NOfARY) personally appeared f\c.1o \ph t-1úd- \ Y\ e-llï SIGNER(S) I)Ì personally known to me - OR - o proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their ; ~ 'LAURA "Art '1 signatures(s) on the instrument the person(s), or the entity upon behalf of which the - Comm. #1228303 U! person(s) acted, executed the instrument. () NOTARY PUBLIC· CAUFORNJA - Alameda County ... ~ My Comm. Expires Juiy 10. 2003 T WITNESS my hand and official seal. ¡J#Ã/7JA p /lCit:I- NOTARY'S SIGNATURE OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgement to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT o INDIVIDUAL o CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TI11.E(S) o PARTNER(S) o ATIORNEY-IN-FACT NUMBER OF PAGES o TRUSTEE(S) o GUARDIAN/CONSERVATOR DATE OF DOCUMENT o aTHER: aTHER i SIGNER IS REPRESENTING: RIGHT THUMBPRINT c ~ NAME OF PERSON(S) OR ENTfTY{lES) ~ OF i SIGNER õ ~ APA5199 VALLEY-SIERRA, 800-362-3369 ,. . Exhibit A Legal Description Dublin Transit Center Property BEING THOSE CERTAIN PARCELS OF LAND DESIGNATED AS PARCELS 1, 2,3,4. A & C OF PARCEL MAP 7395 AS FILED ON THE 31sT DAY OF . OCTOBER, 2000, RECORDER SERIES NO. 2000323901, IN BOOK 254 OF PARCEL MAPS AT PAGES 28 THROUGH 34 ALAMEDA COUNTY RECORDS. CALIFORNIA. APNs: 986-0001-006-00 986-0001-009-00 986-0001-010-00 986-0001-011 -DO 986-0001-012-00 986-0001-013-02 · "^""'v<.""""" <C - .- .c .- J: >< W .. i " i i y ¡ t;nt'OH G1ØNW '" i ..,'" I~ w~ I ':' N L1. t).,... .I! Ir:l w C m < i . ~ ... .I! ¡! It. '" m ~~ !! 1r:::E <a. '^""'........ 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