HomeMy WebLinkAbout8.1 Attch 8 Exh B Dev AgmtCOPY
RECORDING REQUESTED BY:
CITY OF DUBLIN
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waived per GC 27383
Space above this line for Recorder's use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
AVALON BAY COMMUNITIES, INC.
FOR THE DUBLIN TRANSIT CENTER SITE C PROJECT
EXHIBIT B TO
ATTACHMENT 8
THIS DEVELOPMENT AGREEMENT (this "Agreement" or this
"Development Agreement") is made and entered in the City of Dublin on this
day of , 2011, by and between the CITY OF DUBLIN, a Municipal
Corporation (hereafter "City") and Avalon Bay Communities, Inc., a Maryland
corporation (hereafter "Developer") pursuant to the authority of §§ 65864 et seq.
of the California Government Code and Dublin Municipal Code, Chapter 8.56.
City and Developer are, from time-to-time, individually referred to in this
Agreement as a "Party," and are collectively referred to as "Parties."
RECITALS
A. California Government Code §§65864 et seq. ("Development
Agreement Statute") and Chapter 8.56 of the Dublin Municipal Code (hereafter
"Chapter 8.56") authorize the City to enter into a Development Agreement for the
development of real property with any person having a legal or equitable interest
in such property in order to establish certain development rights in such property.
B. Developer intends to purchase, desires to develop, and holds an
equitable interest in, in that it has the right to purchase under that certain
Agreement for Purchase and Sale of Real Property and Escrow Instructions,
dated August 4, 2006, between the Surplus Property Authority of Alameda
County and Developer ("the Purchase and Sale Agreement', as thereafter
amended), certain real property consisting of approximately 7.2 gross acres of
land, located in the City of Dublin, County of Alameda, State of California, which
is more particularly described in Exhibit A attached hereto and incorporated
herein by this reference, and which real property is hereafter called the
"Property." The Alameda County Surplus Property Authority ("COUNTY")
presently is the fee owner of the Property.
C. The City Council adopted the Eastern Dublin Specific Plan by
Resolution No. 53-93 which Plan is applicable to the Property. The Eastern
Dublin Specific Plan requires Developer to enter into a development agreement
as a condition of the development of the Property.
D. The Property is within an approximately 91-acre master-planned
area ("the Transit Center Property') that was the subject in 2002 of a General
Plan Amendment, a specific plan amendment to add the area to the Eastern
Dublin Specific Plan, a master tentative map to create master parcels for
development, and a master development agreement ("the Transit Center
Approvals").
E. Developer proposes the development of the Property as a multi-
family residential project of a maximum of 505 units ("the Project').
F. DEVELOPER has applied for, and CITY has approved or is
processing, various land use approvals in connection with the development of the
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Project, including, without limitation, a General Plan Amendment (City Council
Resolution No. 216-02), an amendment to the Eastern Dublin Specific Plan to
add the Dublin Transit Center Property to the specific plan area (City Council
Resolution No. 216-02), a Master Tentative Parcel Map (Tract 7892) (Planning
Commission Resolution 02-40); a Planned Development District Rezoning
including a Stage 1 Development Plan (Ord. No. 21-02); vesting tentative parcel
map 7893 that would create the parcels on which the Project would be
constructed (Planning Commission Resolution 04-65); a Stage 2 Development
Plan (Ord. No. 02-05); and Site Development Review and vesting tentative map
7929 (Planning Commission Resolution No AM. All such approvals
collectively, together with any approvals or permits now or hereafter issued with
respect to the Project are referred to as the "Project Approvals."
G. Development of the Property by Developer may be subject to
certain future discretionary approvals, which, if granted, shall automatically
become part of the Project Approvals as each such approval becomes effective.
H. City desires the timely, efficient, orderly and proper development of
the Project.
1. The City Council has found that, among other things, this
Development Agreement is consistent with its General Plan and the Eastern
Dublin Specific Plan and has been reviewed and evaluated in accordance with
the Development Agreement Statute and Chapter 8.56.
J. City and Developer have reached agreement and desire to express
herein a Development Agreement that will facilitate development of the Project
subject to conditions set forth herein.
. K. The City Council finds pursuant to the California Environmental
Quality Act(CEQA) that the Project is exempt from CEQA pursuant to
Government Code Section 65457 for residential projects that are consistent with
a Specific Plan for which an EIR was certified.
v
L. On s?, the City Council of the City of Dublin adopted
Ordinance No approving this Development Agreement ("the Approving
Ordinance"). The Approving Ordinance will take effect ("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
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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
has the right to purchase the Property under the Purchase and Sale Agreement.
3. Relationship of City and Developer.
It is understood that this Agreement is a contract that has been negotiated and
voluntarily entered into by the City and Developer and that the Developer is not
an agent of the City. The City and Developer hereby renounce the existence of
any form of joint venture or partnership between them, and agree that nothing
contained herein or in any document executed in connection herewith shall be
construed as making the City and Developer joint venturers or partners.
4. Effective Date and Term.
4.1 Effective Date. The effective date of this Agreement
shall be the date ("the Effective Date") upon which a grant deed conveying the
Property from COUNTY to DEVELOPER is recorded in the Official Records of
Alameda County. DEVELOPER shall submit to CITY in writing proof of
recordation within 30 days of the recording date. This Agreement shall
automatically terminate without any further action of the Parties upon the
happening of either of the following:
(a) If a grant deed conveying the Property from
COUNTY to DEVELOPER is not recorded within 12 months of the Approval
Date: or
(b) If the Purchase and Sale Agreement is terminated
for any reason (and upon DEVELOPER's providing satisfactory of evidence of
such fact to CITY).
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. Such amendments, such as to Site Development Review or
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Tentative Map project approvals, once effective shall become part of the law
Developer is vested into without an additional amendment of this Agreement).
Notwithstanding the foregoing or anything to the contrary herein, any amendment
to the General Plan, Specific Plan and PD zoning applicable to the Property and
in effect on the Effective Date shall not become part of the law Developer is
vested into under this Agreement unless an additional amendment of this
Agreement is voluntarily entered into between Developer and City in accordance
with State and City laws.
5.2 Permitted Uses. The permitted uses of the Property, the density
and intensity of use, the maximum height, bulk and size of proposed buildings,
provisions for reservation or dedication of land for public purposes and location
and maintenance of on-site and off-site improvements, location of public utilities
(operated by the City) and other terms and conditions of development applicable
to the Property, shall be those set forth in this Agreement, the Project Approvals
and any amendments to this Agreement or the Project Approvals (subject to the
provisions of Section 5.1).
5.3 Additional Conditions. Provisions for the following ("Additional
Conditions") are set forth in Exhibit B attached hereto and incorporated herein by
reference.
5.3.1 Subsequent 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.)
See Exhibit B
5.3.2 Mitigation Conditions. Additional or modified conditions
agreed upon by the parties in order to eliminate or mitigate adverse
environmental impacts of the Project or otherwise relating to development of the
Project.
See Exhibit B
5.3.3 Phasing, Timing. Provisions that the Project be constructed
in specified phases, that construction shall commence within a specified time,
and that the Project or any phase thereof be completed within a specified time.
See Exhibit B
5.3.4 Financinq Plan. Financial plans which identify necessary
capital improvements such as streets and utilities and sources of funding.
See Exhibit B
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5.3.5 Fees, Dedications. Terms relating to payment of fees or
dedication of property.
See Exhibit B
5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.3.7 Miscellaneous. Miscellaneous terms.
See Exhibit B
6. Applicable Rules, Regulations and Official Policies.
6.1 Rules Regarding 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 Approval Date of the Agreement.
6.2 Rules Regarding Design and Construction. Unless otherwise
expressly provided in Paragraph 5 of this Agreement, the ordinances,
resolutions, rules, regulations and official policies governing design, improvement
and construction standards and specifications applicable to the Project shall be
those in force and effect at the time of the applicable discretionary approval,
whether the date of that approval is prior to or after the date of this Agreement.
Ordinances, resolutions, rules, regulations and official policies governing design,
improvement and construction standards and specifications applicable to public
improvements to be constructed by Developer shall be those in force and effect
at the time of the applicable discretionary approval, whether date of approval is
prior to or after the date of this Agreement.
6.3 Uniform Codes Applicable. The Project shall be constructed in
accordance with the provisions of the Uniform Building, Mechanical, Plumbing,
Electrical and Fire Codes and Title 24 of the California Code of Regulations,
relating to Building Standards, in effect at the time the Developer submits its
application for the appropriate building, grading, encroachment, or other
construction permits for the Project.
7. Subsequently Enacted Rules and Regulations.
7.1 New Rules and Regulations. 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 the Project Approvals and which are
not in conflict with those applicable to the Property as set forth in this Agreement
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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. Consistent with
Government Code Section 66498.2 (applicable to vesting tentative maps), in the
event City subsequently changes its ordinances, policies or standards during the
term of this Agreement, such changed ordinances, policies, or standards shall
automatically apply to secure the vested right for Developer to proceed with the
Project under such changes, provided Developer notifies City in writing that it
elects to apply such changes and clearly specifies such changes to the City's
ordinances, policies and standards.
7.2 Approval of Application. Nothing in this Agreement shall prevent
the City from denying or conditionally approving any subsequent land use permit
or authorization for the Project on the basis of such new or modified ordinances,
resolutions, rules, regulations and policies except that such subsequent actions
shall be subject to any conditions, terms, restrictions, and requirements expressly
set forth herein.
7.3 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, in the event an ordinance, resolution or other measure
is enacted, whether by action of the City, by initiative, referendum, or otherwise,
that imposes a building moratorium, a limit on the rate of development or a voter-
approval requirement which affects the Project on all or any part of the Property,
the City agrees that such ordinance, resolution or other measure shall not apply
to the Project, the Property, this Agreement or the Project Approvals unless the
building moratorium is imposed as part of a declaration of a local emergency or
state of emergency as defined in Government Code § 8558.
7.4 Rights under Vesting Tentative Map. Notwithstanding anything to
the contrary contained herein, this Agreement shall not supersede any rights
Developer may obtain pursuant to City's approval of the vesting tentative map for
the Project.
8. Subsequently Enacted or Revised Fees. Assessments and Taxes.
8.1 Fees, Exactions. Dedications. The City and Developer agree that
the fees payable and exactions required in connection with the development of
the Project for purposes of mitigating environmental and other impacts of the
Project, providing infrastructure for the Project and complying with the Specific
Plan shall be those set forth in the Project Approvals and in this Agreement
(including Exhibit B). The City shall not impose or require payment of any other
fees, dedications of land, or construction of any public improvement or facilities,
shall not increase or accelerate existing fees, dedications of land or construction
of public improvements, or impose other exactions in connection with any
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subsequent discretionary approval for the Property, except as set forth in the
Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5).
8.2 Revised Application Fees. Any existing application, processing and
inspection fees that are revised during the term of this Agreement shall apply to
the Project provided that (1) such fees have general applicability; (2) the
application of such fees to the Property is prospective only; and (3) the
application of such fees would not prevent, impose a substantial financial burden
on, or materially delay development in accordance with this Agreement.
8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply
to the Project provided that: (1) the application of such taxes to the Property is
prospective; and (2) the application of such taxes would not prevent development
in accordance with this Agreement.
8.4 Assessments. Nothing herein shall be construed to relieve the
Property from assessments levied against it by the City pursuant to any statutory
procedure for the assessment of property to pay for infrastructure and/or services
which benefit the Property.
8.5 Vote on Future Assessments and Fees. In the event that any
assessment, fee or charge which is applicable to the Property is subject to Article
XIIID of the Constitution and Developer does not return its ballot, Developer
agrees, on behalf of itself and its successors, that the City may count
Developer's ballot as affirmatively voting in favor of such assessment, fee or
charge.
9. Amendment or Cancellation.
9.1 Modification Because of Conflict with State or Federal Laws. In the
event that state or federal laws or regulations enacted after the Effective Date of
this Agreement prevent or preclude compliance with one or more provisions of
this Agreement or require changes in plans, maps or permits approved by the
City, the parties shall meet and confer in good faith in a reasonable attempt to
modify this Agreement to comply with such federal or state law or regulation.
Any such amendment or suspension of the Agreement shall be subject to
approval by the City Council in accordance with Chapter 8.56.
9.2 Amendment by Mutual Consent. This Agreement may be amended
in writing from time to time by mutual consent of the parties hereto and in
accordance with the procedures of State law and Chapter 8.56.
9.3 Insubstantial Amendments. Notwithstanding the provisions of the
preceding paragraph 9.2, any amendments to this Agreement which do not relate
to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted
uses of the Property as provided in paragraph 5.2; (c) provisions for "significant"
reservation or dedication of land as provided in Exhibit B; (d) conditions, terms,
restrictions or requirements for subsequent discretionary actions; (e) the density
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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. The City's Public
Works Director shall determine whether a reservation or dedication is
"significant".
9.4 Cancellation by Mutual Consent. Except as otherwise permitted
herein, this Agreement may be canceled in whole or in part only by the mutual
consent of the parties or their successors in interest, in accordance with the
provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit
B of this Agreement prior to the date of cancellation shall be retained by the City.
10. Term of Project Approvals.
Pursuant to California Government Code Section 66452.6(a), the term of
any vesting tentative map described above shall automatically be extended for
the term of this Agreement. The term of any other Project Approval shall be
extended only if so provided in Exhibit B.
11. Annual Review.
11.1 Review Date. The annual review date for this Agreement shall be
between July 15 and August 15, 2011 and thereafter between each July 15 and
August 15 during the Term.
11.2 Initiation of Review. The City's Community Development Director
shall initiate the annual review, as required under Section 8.56.140 of Chapter
8.56, by giving to Developer thirty (30) days' written notice that the City intends to
undertake such review. Developer shall provide evidence to the Community
Development Director prior to the hearing on the annual review, as and when
reasonably determined necessary by the Community Development Director, to
demonstrate good faith compliance with the provisions of the Agreement. The
burden of proof by substantial evidence of compliance is upon the Developer.
11.3 Staff Reports. To the extent practical, the City shall deposit in the
mail and fax to Developer a copy of all staff reports, and related exhibits
concerning contract performance at least five (5) days prior to any annual review.
11.4 Costs. Costs reasonably incurred by the City in connection with the
annual review shall be paid by Developer in accordance with the 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
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not otherwise provided for in this Agreement or in the City's regulations
governing development agreements, expressly including the remedy of specific
performance of this Agreement.
12.2 Notice and Cure. Upon the occurrence of an event of default by
either party, the nondefaulting party shall serve written notice of such default
upon the defaulting party. If the default is not cured by the defaulting party within
thirty (30) days after service of such notice of default, the nondefaulting party
may then commence any legal or equitable action to enforce its rights under this
Agreement; provided, however, that if the default cannot be cured within such
thirty (30) day period, the nondefaulting party shall refrain from any such legal or
equitable action so long as the defaulting party begins to cure such default within
such thirty (30) day period and diligently pursues such cure to completion.
Failure to give notice shall not constitute a waiver of any default.
12.3 No Damages Against City. Notwithstanding anything to the
contrary contained herein, in no event shall damages be awarded against the
City upon an event of default or upon termination of this Agreement.
13. Estoppel Certificate.
Either party may, at any time, and from time to time, request written notice
from the other party requesting such party to certify in writing that, (a) this
Agreement is in full force and effect and a binding obligation of the parties,
(b) this Agreement has not been amended or modified either orally or in writing,
or if so amended, identifying the amendments, and (c) to the knowledge of the
certifying party the requesting party is not in default in the performance of its
obligations under this Agreement, or if in default, to describe therein the nature
and amount of any such defaults. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days following the receipt
thereof, or such longer period as may reasonably be agreed to by the parties.
City Manager of the City shall be authorized to execute any certificate requested
by Developer. Should the party receiving the request not execute and return
such certificate within the applicable period, this shall not be deemed to be a
default, provided that such party shall be deemed to have certified that the
statements in clauses (a) through (c) of this section are true, and any party may
rely on such deemed certification.
14. Mortgagee 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
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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 Mortgagee and Extension of Right to Cure. If
the City receives notice from a Mortgagee requesting a copy of any notice of
default given Developer hereunder and specifying the address for service
thereof, then the City shall deliver to such Mortgagee, concurrently with service
thereon to Developer, any notice given to Developer with respect to any claim by
the City that Developer has committed an event of default. Each Mortgagee shall
have the right during the same period available to Developer to cure or remedy,
or to commence to cure or remedy, the event of default claimed set forth in the
City's notice. The City, through its City Manager, may extend the thirty-day cure
period provided in paragraph 12.2 for not more than an additional sixty (60) days
upon request of Developer or a Mortgagee.
15. Severability.
The unenforceability, invalidity or illegality of any provisions, covenant,
condition or term of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
16. Attorneys' Fees and Costs.
If the City or Developer initiates any action at law or in equity to enforce or
interpret the terms and conditions of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs in addition to any other
relief to which it may otherwise be entitled. If any person or entity not a party to
this Agreement initiates an action at law or in equity to challenge the validity of
any provision of this Agreement or the Project Approvals, the parties shall
cooperate in defending such action. Developer shall bear its own costs of
defense as a real party in interest in any such action, and shall reimburse the
City for all reasonable court costs and attorneys' fees expended by the City in
defense of any such action or other proceeding.
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17. Transfers and Assianments
17.1 Right 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. Notwithstanding the
foregoing, provided notice is given as specified above, no City approval shall be
required for any transfer, sale, or assignment of this Agreement to: 1) any entity
which is an affiliate or subsidiary of Developer; 2) any Mortgagee; or 3) any
transferee of a Mortgagee.
17.2 Approval and Notice of Sale, Transfer or Assignment. 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 Release Upon Transfer. Upon the transfer, sale, or assignment of
all of Developer's rights, interests and obligations hereunder pursuant to
Paragraph 17.1 of this Agreement, Developer shall be released from the
obligations under this Agreement, with respect to the Property transferred, sold,
or assigned, arising subsequent to the date of City Manager approval of such
transfer, sale, or assignment; provided, however, that if any transferee,
purchaser, or assignee approved by the City Manager expressly assumes all of
the rights, interests and obligations of Developer under this Agreement,
Developer shall be released with respect to all such rights, interests and
assumed obligations. In any event, the transferee, purchaser, or assignee shall
be subject to all the provisions hereof and shall provide all necessary documents,
certifications and other necessary information prior to City Manager approval.
17.4 Developer's Right to Retain Specified Rights or Obligations.
Notwithstanding Paragraphs 17.1, 17.2 and 17.3 and Paragraph 18, Developer
may withhold from a sale, transfer or assignment of this Agreement certain rights,
interests and/or obligations which Developer shall retain, provided that Developer
specifies such rights, interests and/or obligations in a written document to be
appended to this Agreement and recorded with the Alameda County Recorder
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prior to the sale, transfer or assignment of the Property. Developer's purchaser,
transferee or assignee shall then have no interest or obligations for such rights,
interests and obligations and this Agreement shall remain applicable to
Developer with respect to such retained rights, interests and/or obligations.
17.5 Termination of Agreement Upon Sale of Individual Lots to Public.
Notwithstanding any provisions of this Agreement to the contrary, the burdens of
this Agreement shall terminate as to any lot which has been finally subdivided
and individually (and not in "bulk") leased (for a period of longer than one year) or
sold to the purchaser or user thereof and thereupon and without the execution or
recordation of any further document or instrument such lot shall be released from
and no longer be subject to or burdened by the provisions of this Agreement;
provided, however, that the benefits of this Agreement shall continue to run as to
any such lot until a building is constructed on such lot, or until the termination of
this Agreement, if earlier, at which time this Agreement shall terminate as to such
lot.
18. Aareement Runs with the Land.
All of the provisions, rights, terms, covenants, and obligations contained in
this Agreement shall be binding upon the Parties and their respective heirs,
successors and assignees, representatives, lessees, and all other persons
acquiring the Property, or any portion thereof, or any interest therein, whether by
operation of law or in any manner whatsoever. All of the provisions of this
Agreement shall be enforceable as equitable servitudes and shall constitute
covenants running with the land pursuant to applicable laws, including, but not
limited to, Section 1468 of the Civil Code of the State of California. Each
covenant to do, or refrain from doing, some act on the Property hereunder, or
with respect to any owned property, (a) is for the benefit of such properties and is
a burden upon such properties, (b) runs with such properties, and (c) is binding
upon each party and each successive owner during its ownership of such
properties or any portion thereof, and shall be a benefit to and a burden upon
each party and its property hereunder and each other person succeeding to an
interest in such properties.
19. Bankruptcy.
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
20. Indemnification.
Developer agrees to indemnify, defend and hold harmless the City, and its
elected and appointed councils, boards, commissions, officers, agents,
employees, and representatives from any and all claims, costs (including legal
fees and costs) and liability for any personal injury or property damage which
may arise directly or indirectly as a result of any actions or inactions by the
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Developer, or any actions or inactions of Developer's contractors,
subcontractors, agents, or employees in connection with the construction,
improvement, operation, or maintenance of the Project, provided that Developer
shall have no indemnification obligation with respect to negligence or wrongful
conduct of the City, its contractors, subcontractors, agents or employees or with
respect to the maintenance, use or condition of any improvement after the time it
has been dedicated to and accepted by the City or another public entity (except
as provided in an improvement agreement or maintenance bond). If City is
named as a party to any legal action, City shall cooperate with Developer, shall
appear in such action and shall not unreasonably withhold approval of a
settlement otherwise acceptable to Developer.
21. Insurance.
21.1 Public Liability and Property Damage Insurance. During the term of
this Agreement, Developer shall maintain in effect a policy of comprehensive
general liability insurance with a per-occurrence combined single limit of not less
than one million dollars ($1,000,000.00) with a One Hundred Thousand Dollar
($100,000) self insurance retention per claim. The policy so maintained by
Developer shall name the City as an additional insured and shall include either a
severability of interest clause or cross-liability endorsement.
21.2 Workers Compensation Insurance. During the term of this
Agreement Developer shall maintain Worker's Compensation insurance for all
persons employed by Developer for work at the Project site. Developer shall
require each contractor and subcontractor similarly to provide Worker's
Compensation insurance for its respective employees. Developer agrees to
indemnify the City for any damage resulting from Developer's failure to maintain
any such insurance.
21.3 Evidence of Insurance. Prior to City Council approval of this
Agreement, Developer shall furnish the City satisfactory evidence of the
insurance required in Sections 21.1 and 21.2 and evidence that the carrier is
required to give the City at least fifteen days prior written notice of the
cancellation or reduction in coverage of a policy. The insurance shall extend to
the City, its elective and appointive boards, commissions, officers, agents,
employees and representatives and to Developer performing work on the Project.
22. Sewer and Water.
Developer acknowledges that it must obtain water and sewer permits from
the Dublin San Ramon Services District ("DSRSD") which is another public
agency not within the control of the City.
23. Notices.
All notices required or provided for under this Agreement shall be in
writing. Notices required to be given to the City shall be addressed as follows:
Dublin/Avalon Bay Communities, Inc. Development Agreement Page 14 of 16
for the Dublin Transit Center Site C Project
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:
Avalon Bay Communities, Inc.
Stephen W. Wilson
Executive Vice President
Avalon Bay Communities, Inc.
400 Race Street, Suite 200
San Jose, CA 95126
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 Additional Conditions
26. Counterparts.
This Agreement is executed in three (3) duplicate originals, each of which
is deemed to be an original.
27. Recordation.
CITY shall record a copy of this Agreement within ten days of
DEVELOPER providing CITY notice that a grant deed conveying the Property
from COUNTY to DEVELOPER is recorded in the Official Records of Alameda
County.
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for the Dublin Transit Center Site C Project
[Execution Page Follows]
Dublin/Avalon Bay Communities, Inc. Development Agreement Page 16 of 16
for the Dublin Transit Center Site C Project
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
Bv:
Joni Pattillo, City Manager
DEVELOPER
Avalon Bay Communities, Inc.,
a Maryland Corporation
Attest:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
1476969.10
By:
Stephen W. Wilson
Its: Executive Vice President
(NOTARIZATION ATTACHED)
Dublin/Avalon Bay Communities, Inc. Development Agreement Page 17 of 16
for the Dublin Transit Center Site C Project
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of sO`Y' (A &d eA-
On 3 ` Z If before me,
m, fS?it2l?#
(Here insert name and title of the officer)
)P Z/--% Lt ). 1,)I I So
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name s)Qare subscribed to
the within instrument and knowledged to me that?she/they executed the same i s/her/their authorized
capacity(ies), and that by is er/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
STACEY M.ESTRADA?
yalN,ESS my hand and official seal. w N M #1774426690 M Public-Callfodia y
i . SANTA CLARA COUNTY
M Comm. Ez , Ma 25,.2011
(Notary Seal)
Signature of Notary Public
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or description of attached document continued)
Number of Pages Document Date
(Additional information)
CAPACITY CLAIMED BY THE SIGNER
? Individual (s)
? Corporate Officer
(Title)
? Partner(s)
? Attorney-in-Fact
? Trustee(s)
? Other
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
appears above in the notary section or a separate acknowledgment form must be
properly completed and attached to that document. The only exception is if a
document is to be recorded outside of California. In such instances, any alternative
acknowledgment verbiage as may be printed on such a document . so, long as the
verbiage does not require the notary to do something that is illegal for a notary in
California (i.e. certifying the authorized capacity of the signer). Please check the
document carefullyfor proper notarial wording and attach this form if required
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title (notary public).
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i.e.
he/sheldwy- is /ere ) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges, re-seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
• Additional information is not required but could help to ensure. this
acknowledgment is not misused or attached to a different document.
Indicate title or type of attached document, number of pages and date.
Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
• Securely attach this document to the signed document
2008 Version CAPAvl2.10.07800-873-9865 www.NoLuyClasses.com
Exhibit A
Legal Description of Property
PARCELS 2 AND 3 OF PARCEL MAP 7893 AS FILED FOR RECORD ON AUGUST 1, 2008, RECORDER'S SERIES
NUMBER 2008233401 IN BOOK 308 OF PARCEL MAPS AT PAGES 64 THROUGH 67, ALAMEDA COUNTY
RECORDS, CALIFORNIA
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: Sidewalk and Landscape Improvements
The project-specific sidewalk and landscape improvements
identified in Commission Resolution No. approving Site Development
Review and vesting tentative map 7929 (the "SDR Resolution") shall be
completed by Developer to the satisfaction and requirements of the Public Works
Director at the times and in the manner specified in the SDR Resolution unless
otherwise provided below.
(ii) Sewer:
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with DSRSD
requirements.
(iii) Water:
An all weather roadway and an approved hydrant and water supply
system shall be available and in service at the site in accordance with the
tentative map conditions of approval to the satisfaction and requirements of the
City's fire department.
All potable water system components to serve the project site shall
be completed in accordance with the DSRSD requirements.
Recycled water lines shall be installed in accordance with the
tentative map conditions of approval.
(iv) Storm Drainage:
Dublin/Avalon Bay Communities, Inc. Development Agreement Page 1 of 5
for the Dublin Transit Center Site C Project-Exhibit B
The storm drainage systems off-site, as well as on-site drainage
systems for the areas to be occupied, shall be improved consistent with the
tentative map conditions of approval and to the satisfaction and requirements of
the Dublin Public Works Department applying the City's and Zone 7 (Alameda
County Flood Control and Water Conservation District, Zone 7) standards and
policies which are in force and effect at the time of issuance of the permit for the
proposed improvements. Pursuant to Alameda County's National Pollution
Discharge Elimination Permit (NPDES) No. CAS0029831 with the California
Regional Water Quality Control Board, or pursuant to subsequent permits
adopted by the Board, all grading, construction and development activities within
the City of Dublin must comply with the provisions of the Clean Water Act.
Proper erosion control measures must be installed at development sites within
the City during construction, and all activities shall adhere to Best Management
Practices.
telephone):
(v) Other Utilities (e.g. gas, electricity, cable televisions,
Construction shall be completed by phase prior to issuance
of the first Certificate of Occupancy for any building within that specific phase of
occupancy for the Project.
Subsection b.
Miscellaneous
(i) Completion May Be Deferred.
Notwithstanding the foregoing, the City's Public Works Director
may, in his or her sole discretion and upon receipt of documentation in a form
satisfactory to the Public Works Director that assures completion, allow
Developer to defer completion of discrete portions of any public improvements for
the Project if the Public Works Director determines that to do so would not
jeopardize the public health, safety or welfare.
Subparagraph 5.3.3 - Phasing, Timing
This Agreement contains no requirements that Developer must initiate or
complete development of the Project within any period of time set by the City. It
is the intention of this provision that Developer be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
Dublin/Avalon Bay Communities, Inc. Development Agreement Page 2 of 5
for the Dublin Transit Center Site C Project-Exhibit B
Subaaraaranh 5.3.4 - Financina Plan
Developer will install all improvements necessary for the Project at its own
cost (subject to credits for any improvements which qualify for credits as provided
in Subparagraph 5.3.6 below).
Other infrastructure necessary to provide sewer, potable water, and
recycled water services to the Project will be made available by the Dublin San
Ramon Services District. If so required by Dublin San Ramon Services District,
Developer will enter into an "Area Wide Facilities Agreement" with the Dublin San
Ramon Services District to pay for the cost of extending such services to the
Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii)
and (iii) above.
Subparagraph 5.3.5 - Fees. Dedications
Notwithstanding anything to the contrary in this Subparagraph 5.3.5 or this
Development Agreement, Developer shall pay any fees required by Subsections
a-g at the time such fees are due under the resolutions and/or ordinances
establishing and/or amending such fees.
Subsection a. Traffic Impact Fees.
Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF")
established by Resolution No. 40-10, including any amendments to such fee that
may be in effect at the time of issuance of building permits. Developer will pay
such fees no later than the time of issuance of building permits and in the amount
of the impact fee in effect at time of building permit issuance.
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for
Freeway Interchanges.
Developer shall pay the Eastern Dublin 1-580 Interchange Fee in the
amounts and at the times set forth in Resolution No. 155-98 and by any
resolution which revises such Fee that may be in effect at the time of issuance of
building permits. Developer will pay such fees no later than the time of issuance
of building permits.
Subsection c. Public Facilities Fees.
Developer shall pay a Public Facilities Fee established by City of Dublin
Resolution No. 214-02, including any amendments to such fee that may be in
effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits.
Subsection d. Noise Mitigation Fee.
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for the Dublin Transit Center Site C Project-Exhibit B
Developer shall pay a Noise Mitigation Fee established by City of Dublin
Resolution No. 33-96, including any amendments to such fee that may be in
effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits.
Subsection e. School Impact Fees.
School impact fees shall be paid by Developer in accordance with
Government Code section 53080 and the agreement between Developer or its
predecessor in interest and the Dublin Unified School District regarding payment
of school mitigation fees.
Subsection f. Fire Facilities Fees.
Developer shall pay a fire facilities fee established by City of Dublin
Resolution No. 12-03 including any amendments to such fee that may be in
effect at the time of issuance of building permits. Developer will pay such fees
no later than the time of issuance of building permits.
Subsection g. Tri-Valley Transportation Development Fee.
Developer shall pay the Tri-Valley Transportation Development Fee in the
amount and at the times set forth in City of Dublin Resolution No. 89-98 or any
resolution which revises such fee. Developer will pay such fees no later than the
time of issuance of building permits and in the amount of the impact fee in effect
at time of building permit issuance.
Subparagraph 5.3.6 - Reimbursement
Subsection a. Traffic Impact Fee Improvements - Credit
The City shall provide a credit against Eastern Dublin Traffic Impact Fees
to Developer for those improvements described in the resolution establishing the
Eastern Dublin Traffic Impact Fee if such improvements are constructed by the
Developer in their ultimate location. All aspects of the credit shall be governed
by the TIF Guidelines.
Subsection b. Traffic Impact Fee Right-of-Way Dedications -
Credit
The City shall provide a credit against Eastern Dublin Traffic Impact Fees
to Developer for any TIF area right-of-way to be dedicated by Developer to the
City which is required for improvements which are described in the resolution
establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits
shall be governed by the TIF Guidelines.
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for the Dublin Transit Center Site C Project-Exhibit B
Subparagraph 5.3.7 - Miscellaneous
Subsection a. Compliance with Inclusionary Zoning
Regulations.
The City's Inclusionary Zoning Regulations ("the Regulations") provide
that developers of 20 or more residential units are required to construct, subject
to certain exceptions, at least 12.5% of the units within the project as "affordable
units." The Regulations specify that units in rental projects are deemed
affordable when the developer has recorded a regulatory agreement that
establishes rent restrictions that ensure the affordability of the restricted units
("the rent-restriction requirement") and that restricts the occupancy of the
affordable units to, as the case may be, very low-, low-, and moderate-income
households ("the occupancy requirement"). The Transit Center Approvals
specified the manner in which the Transit Center as a whole would comply with
the Regulations and specified that the Project would be required to include 10%
moderate-income units. While the Project was being processed, Developer
asserted that Civil Code section 1954.52 prevents the City from enforcing the
rent-restriction requirement on the Project. The City does not agree with
Developer's assertion, but in order to avoid a dispute with Developer the City
agreed to refrain from enforcing the rent-restriction requirement on the Project.
Accordingly, the Project was conditioned to eliminate the rent-restriction
requirement, if the Council approves a waiver of the requirement under Section
8.68.040 E. of the Regulations. The City Council hereby finds pursuant to
Section 8.68.040.E of the Regulations that this alternate method of compliance
with the Regulations meets the purposes of the Regulations because the
occupancy requirement and market forces will effectively reduce the rents that
Developer will be able to charge for the affordable units in the Project to an
amount that is affordable to moderate-income households and because market
rents for units similar to the units in the Project are currently less than the
restricted rents for moderate-income units under the Regulations. Based on this
finding, the City Council hereby waives the rent-restriction requirement for the
Project and approves the alternate method of compliance proposed by
Developer.
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for the Dublin Transit Center Site C Project-Exhibit B