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HomeMy WebLinkAboutOrd 07-11 Avalon Bay DA.~'_ -;°~,- . ORDINANCE NO. 7 -11 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN ***~~***** APPROVING A DEVELOPMENT AGREEMENT AND FINDING THE PROJECT EXEMPT UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT FOR DUBLIN STATION, SITE C, DUBLIN TRANSlT CENTER BETWEEN THE C1TY OF DUBLIN AND AVALON BAY COMMUNITIES PA 06-060 THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. The proposed project known as Dublin Station, Site C, Dublin Transit Center is located within the boundaries of the Eastern Dublin Specific Plan, and is included in the approval for Planned Development under PA 06-060. B. A Development Agreement for Dublin Station, Site C, Dublin Transit Center between the City of Dublin and Avalon Bay Communities ("Developer") has been presented to the City Council, Exhibit A, attached hereto. C. Pursuant to the California Environmental Quality Act (CEQA), development of the Dublin Station, Site C, Dublin Transit Center property has been analyzed in the Final Environmental Impact Report for the Dublin Transit Center General Plan and Specific Plan amendment, which was certified by the City Council by Resolution No. 215-02 dated November 19, 2002 (hereafter "Dublin Transit Center" Environmental Impact Report or EIR [SCH 2001120395]). The proposed project is exempt from further CEQA review pursuant to Government Code section 65457 for residential projects consistent with a specific plan for which an EIR was certified. D. A public hearing on the proposed Development Agreement was held before the Planning Commission on March 22, 2Q11 for which public notice was given as provided by law. E. The Planning Commission has made its recommendation to the City Council for approval of the Development Agreement by Resolution 11 - 11. F. A public hearing on the proposed Development Agreement was held before the City Council on May 17, 2011 for which public notice was given as provided by law. G. The City Council has considered the recommendation of the Planning Commission, including the Planning Commission's reasons for its recommendation, the certified Dublin Transit Center ~IR, the Agenda Statement, all comments received in writing, and all testimony received at the public hearing. Page 1 of 3 Section 2. FINDINGS AND DETERMINATIONS Therefore, on the basis of (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin General Plan, (c) the Eastern Dublin Specific Plan, (d) the Dublin Transit Center Environmental Impact Report (EIR), (e) the Agenda Statement; and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. The Project is exempt from CEQA under Government Code section 65457 and CEQA Guidelines section 15182 as a residential project that is consistent with a Specific Plan for which an EIR has been certified. The Project is a residential projec~ consistent with the Eastern Dublin Specific Plan Amendment for the Transit Center Project (Specific Plan} and implements the Specific Plan. The City previously certified an Environmental Impact Report for the Specific Plan by City Council Resolution No. 215-02 dated November 19, 2002 - Final Environmental Impact Report for the Dublin Transit Center General Plan Amendment; Eastern Dublin Specific Plan Amendment, Stage 1 Planned Development Zoning, Tentative Parcel Map, and Development Agreement (SCH 2O01120395): None of the standards under Public Resources Code Section 21166 or CEQA Guidelines Sections 15162 or 15163 for preparation of a subsequent or supplement EIR have occurred or are met for the Project. No further environmental review is required. The evidence to support this finding is set forth in the record as a whole, inciuding the staff report and the attachments thereto. 2. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City's General Plan, as amended by the Dublin Transit Center General Plan Amendment, and in the Specific Plan in that: (a) the General Plan and Specific Plan land use designation for the site is High Density Residential, (b) the proposed project is consistent with the designated land use, (c) the project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to the provision of infrastructure and public services, and (d) the Development Agreement includes provisions relating to vesting of development rights, and similar provisions set forth in the Specific Plan. 3. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located in that the project approvals include, Stage 1 Development Plan Amendment and Stage 2 Development Plan, Site Development Review, and Vesting Tentative Map. 4. The Development Agreement is in conformity with public convenience, general welfare, and good land use policies in that the Developer's project will implement fand use guidelines set forth in the Specific Plan and the General Plan which have planned for High Density Residential, and infrastructure uses at this location. 5. The Development Agreement will not be detrimental to the health, safety and general welfare in that the Developer's project will proceed in accordance with all the programs and policies of the Eastern Dublin Specific Plan. 6. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the Generaf Plan and with the Eastern Dublin Specific Plan. Page 2 or 3 Section 3. APPROVAL The City Council hereby approves the Development Agreement (Exhibit A to the Ordinance) and authorizes the Mayor to execute it. Section 4. RECORDATION Within ten (10) days after the Development Agreement is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED APPROVED AND ADOPTED on this 7th day of June 2011 by the following vote: AYES: Councilmembers Biddle, Hart, Swalwell, and Mayor Sbranti NOES: None ABSENT: Councilmember Hildenbrand ABSTAIN: None ~ ~~~~~ Mayor ATTEST: / ~~ ~`~'1 City C{erk Ord No. 7-11, Adopted 6-7-11, Item 4.2 Page 3 of 3 ~Qp~ 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, lNC. FOR THE DUBLIN TRANSIT CENTER S1TE 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 C1TY ~F DUBLIN, a Municipal Corporation (hereafter "Gity") and Avalon Bay Communities, Inc., a Maryland corporation (hereafter "Developer") pursuant to the authority of §§ 65864 ef seq. of the Caiifornia 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 collectivefy referred to as "Parties." RECITALS A. California Government Code §§65864 et seq. ("Development Agreement Statute"} and Chapter 8.56 of the Dublin Municipal Code (herea~ter "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 describec! in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereaf#er callec! 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 Spec~c Plan by Resolution No. 53-93 which Plan is applicable to the Property. The Eastern Dublin Specific Plan requires Developer to enter irtto a development agreement as a condi#ion of the development of the Property. D. The Praperty 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 specifc plan amendment to add the area to the Eastern Dublin Specific Plan, a master tentative map to create master parce(s 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 Dublin/Avalon Bay Communities, Inc. Development Agreement Page 2 of 16 for the Dublin Transit Center Site C Project Project, including, without fimita#ion, a General Plan Amendment (City Council Resalution No. 216-02}, an amendment to the Eastern Dublin Specific Plan to add the Dublin Transit Center Property to the specific plan area (City Councii Resolution NQ. 216-02), a Master Tentative Parcel Map {Tract 7892) (Planning Commission Resolution 02-40); a Planned Development District Rezoning including a St~ge 1 Development Plan (Ord. No. 21-Q2); vesting tentative parcel map 7893 that would create the parcels on which the Praject 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. ~~~`~~;~ . All such approvals collectivefy, ~ogether 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 Develaper 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. I. The City Council has found that, among other things, this Development Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance with the Development Agreement Statute and Chapter 8.56. J. City and Develaper have reached agreement and desire to express herein a Devefopment 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 prajecfs that are consistent with a Specific Plan for which an EIR was certified. L. On x~~~"`"~~~ti~, the City Council of #he City of Dublin adopted ~3~.- . ~rdinance No ~.~~~~ approving this Development Agreemenf ("the Approving Ordinance"). The Approving Ordinance will take effect on J~~~ k~~f~~~ ("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 Dublin/Avalon Bay Communities, Inc. Development Agreement Page 3 of 16 for the Dublin Transit Center Site C Project 1. Description of Propertv. The Property that is the subject of this Agreement is described in Exhibit A attached hereto. 2. Interes# of Develnoer. 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 nego#iated and voluntarily entered into by the City and Developer and that the Developer is not an agent af 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 Da#e. The effective date of this Agreement shall be the date ("the Effective Date") upon which a grant de~d conveying the Property from COUNTY to DEVELOPER is recorded in the Officiai Records of Alameda County. DEVELOPER shall submit to CITY in writing proof of recardation 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 fram 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 shaq have the vested right to develop the Projeci on the Property in accordance with the terms and conditions of this Agreemen#, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be appraved pursuant to this , Agreement. Such amendments, such as to Site Development Review or Dublin/Avalon Bay Communities, Inc. Development Agreement Page 4 of 16 for the Dublin Transit Center Site C Project Tentative Map project approvals, once effective shall become part of the faw 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 af 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, shal( 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 approvafs required by the ardinances of the City of Dublin other approvals from regulatory agencies.) See Exhibit B 5.3.2 Mitic~ation Conditions. Additiona! 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, Timinq_. 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 comp(eted 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 DublinlAvalon Bay Communities, Inc. Development Agreement Page 5 of 16 for the Dublin Transit Center Site C Project 5.3.5 Fees, Dedications. Terms relating to payment of fees or dedication o# property. See Exhibit B 5.3.6 Reimbursement. Terms relating to subsequent reimbursement aver time for financing of necessary public facilities. See Exhibit B 5.3.7 Miscellaneous. Miscellaneous terms. See ~xhibit B 6. Applicable Rules, Requl_ations and Official Policies 6.1 Rules Re_c at rdinQ 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 Prope~ty and the maximum height, bulk and size of proposed buildings shal( be those in force and effect on the Approval Date of the Agreement. 6.2 Rules Re ardinq Desiqn and Canstruction. 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 appiicable discretionary approval, whether date of approval is prior to or after the date of this Agreement. 6.3 Uniform Codes ApQlicable. The Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Titie 24 of the Cafifornia Code of Regulations, relating to Building Standards, in effect at the tirne 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 Requlations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the Effective Date of this Agreement and the Project Approvals and which are not in conflict with those applicable to the Prope-ty as set forth in this Agreement DublinlAvalon Bay Communities, Inc. Development Agreement Page 6 of 16 for the Dublin Transit Center Site C Project 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 expressfy 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 affec#s 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 no# increase or accelerate existing fees, dedications of land or construction of public improvements, or impose other exactioris in connection with any Dublin/Avalon Bay Communities, Inc. Development Agreement Page 7 of 16 for the Dublin Transit Center Site C Project 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 developme~t 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 shalf be construed to relieve the Property from assessments levied against it by the City pursuan# to any statutory procedure for the assessment of property ta 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 XlIID of the Constitution anc! 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 camply 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 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 !aw 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 Praperty 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 DublinlAvalon Bay Communities, Inc. Development Agreement Page 8 of 16 for the Dublin Transit Center Site C Project or intensity of use of the Project; (fl the maximum height or size of proposed buildings; or (g) monetary contributions by Developer as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commissian or the City Council befare 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 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 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 rnap 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 Sec#ion 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 gaod 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 O#her Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are Dublin/Avalon Bay Communities, Inc. Development Agreement Page 9 of 16 for the Dublin Transit Center Site C Project 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 defauiting party. !f 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 DamaQes Aqainst Citv. Notwithstanding anything to the contrary contained herein, in no event shall damages be awarded against the City upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. Either party may, at any time, and from time to time, request written notice from the other party requesting such party #o 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 modi~ed 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 pertormance 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 certifcate within thirty (30) days following the receipt thereof, or such Ionger 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 tnat the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mortqaqee Protection; Certain Riahts of Cure. 14.1 Mortqaqee 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 Dublin/Avalon Bay Communities, Inc. Development Agreement Page 10 of 16 for the Dublin 7ransit Center Site C Project trust beneficiary or mortgagee (NMortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortqagee Not Obligated. Noiwithstanding 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 Mortqaqee 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 thereo#, 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 Devefoper has committed an event af 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 farth 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. Severabilitv. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the ather 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 prevaiiing party shall be entitled to ~ecover reasonable attorneys' fees and costs in addition to any other relief to which it may othenrvise be entitled. !f any person or entity not a party to this Agreement initiates an action at law or in equity to chailenge 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. Dubiin/Avalon Bay Communities, Inc. Development Agreement Page 19 of 16 for the Dublin Transit Center Site C Project 17. Transfers and Assianmenfs. 17.1 Riqht to Assign. Developer may wish to sell, transfer or assign all or portions of its Property to other developers (each such other developer is referred to as a"Transferee"). In connection with any such sale, transfer or assignment to a Transferee, Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer arising hereunder and that pertain to the portion of the Property being sold or transferred, to such Transferee, provided, however, that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur without prior written notice to City and approval by the City Manager, which approval shall not be unreasonably withheld ar deiayed. 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 #o 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 Devefoper) shall be recorded in the officia! records of Alameda County, in a form acceptable to the City Manager, concurrently wifh such sale, transfer or assignment. 17.3 Release Upon Transfer. Upon the transfer, sale, or assignment of all of Developer's rights, interests and obliga#ions 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 reieased with respect to a!I such rights, interests and assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject #o all the provisions hereof and shall provide all necessary documents, ce~tifications and other necessary information prior to City Manager approval. 17.4 Developer's Ric~ht to Retain Specified Riqhts or Obliqations. 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 Dublin/Avalon Bay Communities, Inc. Development Agreement Page 12 of 16 for the Qublin Transit Center Site C Project 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 Agresment shall remain applicable to Developer with respect.to such retained rights, interests and/or obligations. 17.5 Termination of Aqreement Upon Sale of lndividual 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 thereo# 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, fhat 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 praperties 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. Bankruptcv. 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 Dublin/Avalon Bay Communities, Inc. Development Agreement Page 13 of 16 for the Dublin Transit Center Site C Project 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 sha!! cooperate with Developer, shall appear in such action and shall not unreasonably withhold approval of a settlement atherwise acceptable to Developer. 21. Insurance. 21.1 Public Liabilitv and Property Damaqe 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 shaN include either a severability of interest clause or cross-liability endorsement. 21.2 Workers Com ensation Insu~ance. During the term of this Agreement Developer shall maintain Worker's Compensation insurance for all persons employed by Developer for work a# the Project site. Devefoper 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 extertd 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. Nvtices required to be given to the City shafl 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 104 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 #he expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Aqreement is Entire Understandinq. This Agreement constitutes the entire understanding and agreement of the parties. 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 Desc~iption 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. Dublin/Avalon Bay Communities, Inc. Development Agreement Page 15 of 16 for the Dublin Transit Center Site C Project [Execution Page Follows] Dubkin/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 By: Joni Pattillo, City Manager DEVELOPER Avalon Bay Communities, lnc., a Maryland Corporation ~'~ .~ Attest: By: Stephen W. Wilson Its: Executive Vice President Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney 1476969.10 {NOTARIZATION ATTACHED} DublinlAvalon Bay Communities, Inc. Development Agreement Page 17 of 16 for the Dublin Transit Center Site C Project CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACI~NOWLEDGMENT State of California county of SPr)Y"(v4 ~+~'~- On 3` Z` ~~ before me, personally appeared 't~ l~~ ~ • ~ ~ *~ S 0 !lJ who proved to me on the basis of satisfactory evidence to be the person(s) whose name~s)~are subscribed to the within instrument and knowledged to me tha~she/they executed the same ii~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 ri-we and coirect: ~+~++~+.~~+++++..----- ] ,,,,, . STACEY M. ESTRADA~ SS my hand and of~icial seal. ~•r~ _~ COMM. ~1742690 m ~ ria~y w~c~torr,~ ± SANTA qJIRA COUNTY M Comm, E~ , Ma 25,.2011 (Notary Seal) Signamre of Natary Public ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or descaiption of attached document continued) Number of Pages Document Date (AddiUonal information) CAPACITY CLAIMED BY THE SIGNER O Individual (s) O Corporate O~cer (Tide) ^ Partner(s) D Attomey-in-Fact O Trustee(s) ^ Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknawledgmerst completed in CaliJornia must contain verbiage ~+cactly as appears above in the nofary section or a separate acknowledgment form must be properly completed and attached ta that document. The only exceptian rs if n dacument is to be recorded outside of Calrfornia. In such instances, arry alternatrve acknowledgrnent ve~biage as may lie pnnted on such a'dociuneri('so ~an'g as the verbiage daes not requrre rhe notary ta do samethtng that is illegal for a notary in California (r.e. cert~ing the authorized capacity of the slgnerJ. Please check the docmnent carefully for proper notaria! wordrng and attach rhis jorn~ ijrequired. • Stnte and County information must be the State and County where the document signer(s) pessonally appaared beforc the notary public for acknowledgment • Date of notarization must be the date that the signer(s) petaonally appeared which must also be the samo date the acknowledgment is completed . The notary public must print his or ha nama as it appears within his or her commission followed by a comma and fhen your title (notary public). • Print the name(s) of documeait signer(s) who personally appear at the lime of notazi7ation. • Indicace the cortect singular or plural focros by crossing off incorrect fosms (i.e. he/shdE~;- is /are ) or circling the correct forms. Failucz to coaecfly indicate this infotmation may lead to rejection of document recording. • The notary sea) impression must be elear and photographically reproducible. Impression must not cover tead or lines. If seal impression smudgav, re-seal if a sufficient azw pennits, otherwise complete a different aclmowledgment form. • Signatnre of the notary public must match the signature on fde with the office of the county clerk. . Additional information is not rcquircd but could 6elp to rnsure. this acknowledgment is not misuaed or attached to a diflerent document . Indicate tido or type of aftached document, number of pages and dafe. . Indicate the capacity claimed by the signer. If the claimed capacity is a corporate offica, indicate the tiUe (i.e. CEO, CFO, Secretary). • Securely attach this dociunent to the signed documerit 2008VersionCAPAv1210.07800-873-9865 www.NotazyClasses.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 7HROUGH 67, ALAMEDA COUNTY RECORDS. CALIFORNIA EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparaqraph 5.3.1 - Subseauent Discretionarv Approvals None. Subparaqrauh 5.3.2 - Mitiqation Conditions Subsection a. Infrastructure Sequencinq Proqram The lnfrastructure 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") shali 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: AI! 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. Afl potable water system components to serve the project site sha(I 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 Drainaq~: Dublin/Avalon Bay Communities, Inc. Development Agreement Page 1 oi 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, sha11 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 Contral and Wate~ Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the perrnit for the proposed improvements. Pursuant to Alameda County's National Pollution Discharge E{imina#ion Permit (NPDES} No. CAS0029831 with the California Regional Water Quality Control Board, or pursuant to subsequent permits adopted by the Board, all grading, construction and development activities within the City of Dublin must comply with the provisions of the Clean Water Act. Proper erosion control measures must be installed at development sites within the City during construction, and all activities shall adhere to Best Management Practices. (v} Other Utilities (e.q. qas, electricitv, cable televisions, telephonel: Construction shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy for the Project. Subsection b. Miscellaneous (i) Completion Mav Be Deferred. Notwithstanding the foregoing, the City's Public Warks Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow Developer to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subparaqraph 5.3.3 - Phasinq, 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 devefop 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 Subnaraaranh 5.3.4 - Financina Plan Developer will install all improvements necessary for the Project at ifs 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 wilf enter into an "Area Wide Facilities Agreement" with the Dubfin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Subparaqraph 5.3.5 -- Fees, Dedications Notwithstanding anything ta the contrary in this Subparagraph 5.3.5 or this Development Agreement, Developer shall pay any fees required by Subsections a-g at the time such fees are due under the resolutions and/or ordinances establishing and/or amending such fees. Subsection a. Traffic Impact Fees. Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 40-10, including any amendments to such fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freewav lo~terchanqes. Developer shall pay the Eastern Dublin I-580 Interchange Fee in the amounts and at the times set forth in Resolution No. 155-98 and by any resolution which revises such Fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits. Subsection c. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any amendments to such fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits. Subsection d. Noise Mitiqation Fee. DublinlAvalon Bay Communities, Inc. Development Agreement Page 3 of 5 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 wi#h Governmenf Code section 53080 and the agreement befinreen 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 ta such fee that may be in effect at the time of issuance of building permits. Developer wi(I pay such fees no later than the time of issuance of building permits. Subsection q. Tri-Vallev Transportation Deveiopment Fee. Developer shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any resolution which revises such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subparaqraph 5.3.6 -- Reimbursement Subsection a. Traffic Impact ~ee 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 Imnact Fee Riqht-of-Wav Dedications - Credit The City shall provide a credit against Eastern Dubiin Traffic Impact Fees to Devefoper for any T!F 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. Dublin/Avalon Bay Communities, Inc. Development Agreement Page 4 of 5 for the Dublin Transit Center Site C Project-Exhibit B Subparaaraph 5.3.7 - Miscellaneous Subsection a. Compliance with Inclusionary Zoninq Requlations. 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 #fie affordability of the restricted units {"the rent-restriction requirement") and that res#ricts 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 #hat 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 ta 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 Projsct and approves the alternate method of compliance proposed by Developer. ~ Dublin/Avalon Bay Communities, Inc. Development Agreement Page 5 of 5 for the Dublin Transit Center Site C Project-Exhibit B