HomeMy WebLinkAboutReso 44-14 Sewer Capacity Regency Village RESOLUTION NO. 44-14
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE AGREEMENT PERMITTING RE-ALLOCATION
OF REGIONAL AND LOCAL SEWER CAPACITY RIGHTS WITH
REGENCY VILLAGE AT DUBLIN, LLC
WHEREAS, on May 4, 2010, the City Council of the City of Dublin adopted Resolution No. 53-
10 approving a Letter of Agreement with the Dublin San Ramon Services District (DSRSD) for the
administration of unused City of Dublin sewer capacity and the creation of a city-wide Sewer Capacity
Assistance Program; and
WHEREAS, the District's Board of Directors adopted Resolution No. 9-10 approving the
refunding of unused sewer capacity to the City in accordance with DSRSD Code Section 7.2.12.B,
and Resolution No. 14-10 approving and expanding the administrative procedure to reallocate
unused sewer capacity to the City as authorized by Resolution No. 9-10 to include residential units in
accordance with DSRSD Code Section 7.2.12.B; and
WHEREAS, on May 21, 2013, the City Council of the City of Dublin adopted Resolution No.
67-13 amending the City's Sewer Capacity Assistance Program and Establishing Criteria for Program
Implementation; and
WHEREAS, on March 18, 2014, the City Council of the City of Dublin adopted Resolution No.
33-14 amending the City's Sewer Capacity Assistance Program and Establishing Criteria for Program
Implementation; and
WHEREAS, the Program authorizes the City of Dublin to enter into agreements with property
owners and/or tenants, wherein the City agrees to re-allocate unused City sewer capacity to the
property owner and/or tenant; and
WHEREAS, at the June 5, 2012 City Council meeting, the City Council directed Staff to
prepare an Agreement Permitting Re-Allocation of Regional and Local Sewer Capacity Rights with
Regency Centers, a real estate development company that purchased a 14-acre site from the
Alameda County Surplus Property Authority at 5054 Hacienda Drive (APN 986-0033-007-00) for the
development of a 152,500 square foot retail shopping center ("Agreement"); and
WHEREAS, through the Program, the City will be able to assist Regency Village at Dublin,
LLC with the allocation of 15.02 Dwelling Unit Equivalents (DUEs) (value: approximately $242,258 in
DSRSD fees) of the 43.9 DUEs of excess sewer capacity that the City holds. The 15.02 DUEs is
25% of the 60.08 DUEs estimated by DSRSD and will be distributed as follows:
Page 1 of 3
Whole Foods 40,000 34.55 8.64 Parcel 2
Nordstrom Rack 35,000 7.95 1.99 Parcel 1
HomeGoods 22,000 5.00 1.25 Parcel 1
Restaurant A* 3,800 0.86 0.22 Parcel 4
Restaurant B* 2,200 0.50 0.12 Parcel 1
Restaurant C* 2,000 0.45 0.11 Parcel 1
Restaurant D* 5,500 1.25 0.31 Parcel 1
Retail A* 5,800 1.31 0.33 Parcel 3
Remainin• Retail 30,200 6.85 1.71 Parcels 1, 3, 4 & 5
Remainin• Restaurant 6,000 1.36 0.34 Parcels 1 & 3
*At the time of this contract, the lease was in negotiation so the name of the business could not be shared.
WHEREAS, but for the existence of this Agreement, Regency would not be able to develop the
retail center; and
WHEREAS, the City Council finds that it is in the public interest to enter into this Agreement
because the City and its residents will benefit from increased revenue received from both sales tax
revenue that it may not otherwise receive, and from the increase in property taxes resulting from an
increase in the value of the property attributable to the development of the retail center; and
WHEREAS, the City Council finds that it is in the public interest to enter into this Agreement
because the City and its residents will benefit from the aesthetic improvements of the Hacienda Dr.
and Dublin Blvd. area; and
WHEREAS, the City Council further finds that it is in the public interest to enter into this
Agreement because the City and its residents will also benefit from the creation of new jobs in the
City resulting from the development of this retail shopping center.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Dublin approves
the Sewer Capacity Agreement, attached hereto as Exhibit A, and titled "Agreement Permitting Re-
Allocation of Regional and Local Sewer Capacity between the City of Dublin, Dublin San Ramon
Services District and Regency Village at Dublin, LLC."
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Agreement
substantially in the form attached hereto and to undertake such further action as may be necessary
and desirable to carry out the intent of this Resolution.
Page 2 of 3
PASSED, APPROVED AND ADOPTED this 15th day of April, 2014 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
6\1,,,,_ zierz 6j,
Mayor
ATTES •
azt42
p ,_ rtl.'
Deputy City Clerk
I
Reso No.44-14,Adopted 4-15-14, Item 7.1 Page 3 of 3
AGREEMENT PERMITTING RE-ALLOCATION OF
REGIONAL AND LOCAL SEWER CAPACITY RIGHTS
This Agreement, made and entered into this day of April,2014, by and between
the DUBLIN SAN RAMON SERVICES DISTRICT, a public agency in the Counties of
Alameda and Contra Costa, California("District"),CITY OF DUBLIN,a general law city in the
County of Alameda ("City"), and REGENCY VILLAGE AT DUBLIN, LLC, a Delaware
Limited Liability Company as both the Project Owner ("Owner") and the Project Applicant
("Applicant").
WITNESSETH:
WHEREAS,on May 4,2010,the City Council of the City of Dublin adopted Resolution
No. 53-10 approving a Letter of Agreement with the District for the administration of unused
City of Dublin sewer capacity and the creation of a city-wide Sewer Capacity Assistance
Program;and
WHEREAS, the District's Board of Directors adopted Resolution No. 9-10 approving
refunding unused sewer capacity to the City in accordance with District Code Section 7.2.12.B,
and Resolution No. 14-10 approving and expanding the administrative procedure to reallocate
unused sewer capacity to the City as authorized by Resolution No. 9-10 to include residential
units in accordance with District Code Section 7.2.12.B;and
WHEREAS, on May 21, 2013, the City Council of the City of Dublin adopted
Resolution No. 67-13 amending the City's Sewer Capacity Assistance Program and Establishing
Criteria for Program Implementation;and
WHEREAS, on March 18, 2014, the City Council of the City of Dublin adopted
Resolution No. 33-14 amending the City's Sewer Capacity Assistance Program and Establishing
Criteria for Program Implementation;and
WHEREAS, Applicant has requested and applied for a Certificate of Capacity Rights
from the District to receive service from the District's wastewater facilities;and
WHEREAS, City has agreed to allocate City wastewater capacity rights for Applicant's
new,expanding,or relocating business(hereinafter,"project"or"Applicant's Project");and
WHEREAS, Owner acknowledges the benefits of using such an allocation to support
Applicant's Project, and believes that those benefits outweigh the risk that such an allocation
could subsequently be removed from the Owner's Property if Applicant's Project is
unsuccessful;and
WHEREAS, Owner is therefore willing to agree that if Applicant's Project fails, City
may recover the full amount of City's wastewater capacity rights that City has allocated to
Applicant's project;and
Agreement with Regency Village at Dublin,LLC
WHEREAS, under the circumstances specified in, and pursuant to the provisions of,
Resolution No. 09-10, a portion of City's wastewater capacity rights may be allocated to
Applicant's Project pursuant to written agreement in a form approved by the District's Board of
Directors;and
WHEREAS, City, Owner and Applicant desire to enter into such agreement in the form
hereof as heretofore approved by the District's Board of Directors;
NOW THEREFORE THE PARTIES HERETO AGREE AS FOLLOWS:
1. Definitions. The following words and terms as used herein shall have the
meanings respectively ascribed thereto except to the extent that any one or more
of said definition(s) may from time to time be amended or revised by the
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District's Board of Directors through amendment of the District Code affecting
(and/or renumbering)the provisions referenced below:
A. Applicant—hereinabove described.
B. Applicant's Project—Retail Shopping Center located at 5054 Hacienda
Drive(APN 986-0033-007-00).
C. BOD—defined in the District Code, Section 1.20.080,as follows:
"BOD (biochemical oxygen demand)" means the quantity of dissolved
oxygen utilized in the biochemical oxidation of organic matter measured
using the standard laboratory method therefor, usually expressed in
milligrams per liter(mg/L).
D. Capacity Rights — defined in the District Code, Section 1.20.080, with
respects to wastewater connection,as follows:
"Capacity rights" means the flow, BOD and suspended solids (SS)
capacity purchased by a user upon obtaining a certificate of capacity
rights, or, if such data is not available, the average month loadings of a
user during some prior calendar year when it can be shown to the
satisfaction of the District Engineer that such prior year's average month
loadings are more representative of a user's use of the wastewater system.
E. Certificate of Capacity Rights — defined in the District Code, Section
1.20.080,as follows:
"Certificate of capacity rights"(formerly known as"connection permit"or
"sewer permit") means a certificate granted by the District to an applicant
reserving capacity sufficient to provide potable and/or recycled water
service through a specified number of equivalent 5/8-inch water meters to
Agreement with Regency Village at Dublin.LLC
be provided on the parcel which will be served by the District, or to
provide the wastewater capacity in terms of flow and strength allocated to
the parcel to be served by the District,or both.
F. District—hereinabove defined.
G. District Code — the District Code of the Dublin San Ramon Services
District, as adopted, and as amended from time to time by the District's
Board of Directors.
H. Local Wastewater Capacity Fee—defined in the District Code, Section
3.70.010.C.2,as follows:
Local wastewater capacity reserve fees for service from and use of the
District's wastewater collection system, based on average daily flow
proposed to be discharged to the wastewater system, within the area
served by the District or a specified portion thereof, as estimated by the
District Engineer.
I. Non-transferability of certificate of capacity rights — defined in the
District Code, Section 3.60.040,as follows:
Capacity rights, when a certificate therefor is issued, shall attach to and
run with the lot or parcel of land for which the certificate was issued;
•, capacity rights for multiple parcels, including landscaped parcels along
roadways, under common ownership and served by a single irrigation
water meter shall attach to and run with the parcels of land for which the
certificate was issued. The certificate of capacity rights is not transferable
except with the land to which it is attached.
J. Owner-hereinabove defined.
K. Owner's Property—Assessor's Parcel No.986-0033-007-00.
L. Regional Wastewater Capacity Reserve Fee — defined in the District
Code, Section 3.70.010.C.1,as follows:
Regional wastewater capacity reserve fees for service from and use of the
District's regional wastewater treatment plant,as determined by the
District Engineer,based on the average daily flow,BOD and SS proposed
to be discharged to the wastewater system within the area served by the
District or a specified portion thereof as estimated by the District
Engineer.
M. Residential Discharge Equivalency—as defined herein,as follows:
Agreement with Regency Village at Dublin.LLC
Residential discharge equivalency means a unit of wastewater discharge
equal in volume and strength to the discharge of a typical single-family
residential user. This shall be 220 gallons per day of flow,0.42 lb.per day
of BOD,and 0.45 lb.per day of SS.
N. SS—defined in the District Code,Section 1.20.080,as follows:
"SS (suspended solids)" means solids, as measured using the standard
laboratory method therefor, that are in suspension in wastewater and
which are largely removable by laboratory filtration procedures.
Notwithstanding any implication to the contrary, this Agreement shall remain in
effect despite the revision or repeal of any of the sections of the District Code,
including without limitation those referenced above.
2. Allocated Wastewater Capacity Rights. In response to the Applicant's request
City shall, subject to the right to terminate set forth in Paragraph 4, allocate
Wastewater Capacity Rights to Owner's Property in the amount of 3,304.4 gpd
(gallons per day) flow, 6.3109 pounds per day BOD and 6.7518 pounds per day
SS [or, 15.02 Residential Discharge Equivalencies, as applicable]. Said allocation
shall be provided to Applicant as an equivalent portion of credit toward both
Regional Wastewater Capacity Reserve Fee and Local Wastewater Capacity •
Reserve Fee due for Applicant's Project. Said allocation shall become effective
upon Applicant's payment of the remainder of fees due and District issuance to
Applicant a Certificate of Capacity Rights for Applicant's Project. In recognition
of the benefits flowing from the allocation of additional Capacity Rights to
Owner's Property as specified in this Agreement, Owner expressly waives the
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protections that would otherwise be afforded to Owner by the District Code,
including without limitation those sections referenced above, to the extent they
are determined by the District to be inconsistent with the provisions of this
Agreement.
3. Term of Agreement: Effect of Termination. This Agreement shall become
effective upon the date first hereinabove written and, unless earlier terminated
pursuant to Paragraphs 4 or 6 hereof, shall expire ten (10)years from the date of
issuance of a Certificate of Occupancy pertaining to the Applicant's Project
located on Owner's Property.
In the event of termination by District pursuant to Paragraph 4 or Paragraph 6 of
this Agreement, all rights and privileges of Owner and Applicant hereunder shall
cease and terminate,and all Wastewater Capacity Rights allocated pursuant to this
Agreement shall forthwith revert to City, and become the property of City, and
the Certificate of Capacity Rights issued hereunder shall be amended to reflect the
re-allocation to City of all Wastewater Capacity Rights allocated pursuant to this
Agreement and the commensurate reduction in Wastewater Capacity Rights
allocated to Owner's Property. District or City may,but shall not be required to,
Agreement with Regency Village at Dublin,LLC
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record a Notice of Termination against the Owner's Property upon which the
Applicant's Project is or was located.
Notwithstanding the foregoing, the Wastewater Capacity Rights allocated to
Owner's Property by virtue of the Wastewater Capacity Reserve Fees paid by
Applicant shall remain allocated to Owner's Property and shall run with such
land, subject to the provisions of to the District Code relating to the reduction,
expiration,or termination of Sewer Permits and Capacity Rights.
4. Allocation Expressly Conditional on Continuing Operations:, During the term
of this Agreement, should the City determine that Applicant's Project has ceased
operations, all rights and privileges of Owner and Applicant under this
Agreement, shall cease and, upon the written request of City, the District may
terminate this Agreement upon five (5) days' written notice, whereupon all
Wastewater Capacity Rights allocated pursuant to the Certificate of Capacity
Rights issued hereunder shall, as specified in Paragraph 3 (Term of Agreement;
Effect of Termination),revert to City,and become the property of City. District's
right of termination under this Paragraph 4 is in addition to, and separate from,
District's right of termination pursuant to Paragraph 6(Hold Harmless).
5. Noo Assignability. Neither this Agreement, nor any interest herein, may be
assigned, conveyed, or in any manner transferred by Owner or Applicant to
anyone, including any successor to the Owner (of the Owner's Property) or any
successor to the owner of Applicant's Project, or to or by one or more tenants
thereof, without the prior written consent thereto signed by the City Manager and
the District's General Manager, which consent may be conditioned upon the
signature of the successor(s) upon a recordable instrument by which the
successors) assume(s) all of the.rights and obligations of its predecessor under
this Agreement, which shall, at the election of either the City of the District, be
recorded against the Owner's Property upon which the Applicant's Project is or
was located. District and City shall not unreasonably withhold its consent to an
assignment to the successive owner(s) of Owner's Property or to the successive
owner(s)of Applicant's Project.
Notwithstanding the foregoing, no assignment of the Certificate of Capacity
Rights issued hereunder, or the Capacity.Rights pertaining thereto, shall be made
with respect to any other property than Owner's Property hereinabove defined
except as specified in Paragraphs 2 or 4 above.
6. Hold Harmless. Applicant shall hold harmless, defend, and indemnify District,
its Board of Directors, officers, employees, consultants, and agents from and
against any and all claims, suits, causes of action, or other proceedings for
damages, injuries,losses,costs(including attorneys' fees and costs of suit or other
dispute resolution processes),or any other liability arising out of,or in connection
with, the performance, or failure to perform, any of the duties and obligations of
Applicant hereunder. The duty to defend shall include provision for all costs and
Agreement with Regency Village at Dublin,LLC
fees, including attorneys' fees, associated with such defense, and the selection of
defense counsel for District, its Board, officers, employees, consultants, and
agents shall be by District.
The duty of Applicant to indemnify District shall include the duty to defend as set
forth in California Civil Code Section 2778; provided that nothing herein
contained shall require Applicant to defend against claims for a liability excluded
under the provisions of California Civil Code Section 2782.
7. Successors. If,and to the extent,approved by the City Manager and the District's
General Manager pursuant to Paragraph 5 hereof,entitled Non-Assignability,the
duties, responsibilities, and rights pertaining and accruing to the parties hereto,
shall run with the land, and be binding upon and inure to the benefit of the
successors, administrators, assigns, and transferees of the respective parties
hereto, subject to the provisions of to the District Code relating to the reduction,
expiration,or termination of Certificate of Capacity Rights and Capacity Rights.
8. Notices. All notices, necessary or convenient to the performance of the parties
hereunder, shall be in writing, and may be given to the parties by personal
delivery, or by mail,.first class (or equivalent) postage prepaid, addressed in the
case of District as follows:
Dublin San Ramon Services District
7051 Dublin Boulevard
Dublin,CA 94568-3018 •
Attention: General Manager
in the case of City,as follows:
City of Dublin
100 Civic Plaza
Dublin,CA 94568
Attention:City Manager
in the case of Owner,as follows:
Regency Centers
2999 Oak Road, Suite 1000
• Walnut Creek,CA 94597
Attention:Pete Knoedler, Senior Vice President
9. Recordation. This Agreement shall be submitted by the District to the County
Recorder's Office for the county in which the Owner's Property is located, for
recordation in the Official Records thereof,to give notice of the Agreement in the
Agreement with Regency Village at Dublin,LLC
public records. Upon recordation, the terms, conditions and obligations of the
Agreement shall run with such land, subject to the provisions of to the District
Code relating to the reduction, expiration, or termination of Certificate of
Capacity Rights and Capacity Rights.
10. Paragraph Headings. Paragraph headings as used herein are for convenience
and shall not be deemed to alter or amend the paragraphs headed thereby.
11. Integration. This Agreement comprises the entire agreement between the parties
with respect to the subject matter thereof,and supersedes and replaces any and all
prior understandings,oral or written,between the parties.
[No further text on this e.
� .f�' Pag 1
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Agreement with Regency Village at Dublin.LLC
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed and
effective as of the date first hereinabove written.
DUBLIN SAN RAMON SERVICES
DISTRICT,
a public agency of the State of California
By:
Bert Michalczyk,General Manager
ATTEST:
Nancy G.Hatfield,District Secretary
CITY OF DUBLIN
By:
Christopher L.Foss,Acting City Manager
ATTEST:
Caroline Soto,City Clerk
REGENCY VILLAGE AT DUBLIN, LLC,a
Delaware Limited Liability Company
By: Regency Centers, L.P., a Delaware Limited
Partnership, its sole member
By: Regency Centers Corporation, a Florida
Corporation • General Partner
By:
to Knoedler, Senior Vice President •
Cf/I-Pq
Date
&e .Nrinekled P+q eubl€ rei —
Agreement with Regency Village at Dublin,LLC
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT cool.coos ti 1180
'. State of California
• County of (1 NAACk / .
•
•
On ` � before me, t� 4 C'Ca' ..ni lioer`„�a RLIO I kC
• personally appeared Te` r \�e -
N.msa)a «cs>
•
who proved to me on the basis of satisfactory .
evidence to be the person$) whose nameSsl isigifii
• subscribed to the within instrument and acknowledged
to me that he/s e/tt ey executed the same in '.
his/I /thplr authUized c ity(ig1, and that by
his/tfer/tpoir signature( ) on the Instrument the
'. person , or the entit9 upon behalf of which the
• person acted,executed the instrument.
•
D. s, I certify under PENALTY OF PERJURY under the
sr`� Commission M #2098299 laws of the State of California that the foregoing
c, ,� paragraph is true and correct.
• \', •
+'+J Notify Costa County '.
• Comm.E es se 19.2017 WITNESS my hand and official seal.
Signatu
•
Place Notary ew Above Public •
OPTIONAL
• Though the Information below 1 not required by law,it may prove valuable to persons relying on the document •.
and could prevent fraudulent removal and reattachment of this form to another document •
Description of Attached 0 • - ment r��.��
Title or Type of Document: e�' ' � ,(mrk- - skleC'rl1
Document Date: 9(7 J 2.0 k� Number of Pages: 1 Z
. Signer's)Other Than Named Above: •
Capaclty(les)Claimed by Signer(s)
Sig - s Name: Signer's Name: .
•
❑ Co .• -• , Officer—Title(s): ❑Corpbrete Officer—Title(s):
1. ❑ Individual ❑Individual--„,
.' ❑ Partner—❑U r,, ❑General ❑Partner—Olimited ❑General
•
❑ Attorney in Fact 0 Attorney In Fact `'',
❑ Trustee ❑Trustee
❑ Guardian or Conservator ❑Guardian or Conservator
❑ Other: ❑Other: •
•
'. Signer Is Representing: Signer is Representing: .
0 2012 National Notary Association•NationalNotaryorg■1-800-US NOTARY(1-800-876-8827) item#5907
Exhibit A
Allocated Wastewater Capacity Rights
The below chart illustrates the designation breakdown of the 15.02 Residential Discharge
Equivalencies.
\ Y - -- fYp t f Eiort 4 z .: .53� -4`44 ) X_
:,,,,,.:...,,.::`,.: 1,''''',4'..,':',\',,;.,v;.;‘ p� "k ., , a 1'. ,� i I 4;▪ Ki a y� i
,1 31 S -ilk;RHI9t. I i i ,.,.\S 1 ' '1 -I�t 7,ti�d Yeyr
4�,} £ 3:,�,, � ` :z� ?, , ri . �kS re' 0f 4x )1x0" :i btu `1.'*, '' �,I h
1 k n6 •. :' ` ..,:3.. ", '..:c .S•'i',,, ,:''..‘'-'0,1.-: ,.»,dil'AG 'E i.V.., .:' <' .Z,,,.:.1 ; ,ze fq,_ aM;�(• 't _ '
Whole Foods 40 000 34.55 8.64 Parcel 2
Nordstrom Rack 35 000 7.95 1.99 Parcel l
HomeGoods 22 000 5.00 1.25 Parcel 1
Restaurant A* 3 800 0.86 0.22 Parcel 4
Restaurant B* 2 00 0.50 0.12 Parcel 1
Restaurant C* 2 000 0.45 0.11 Parcel 1 •
Restaurant D* 5 500 1.25 0.31 Parcel 1
Retail A* 5 800 1.31 0.33 Parcel 3
Remainin: Retail 30 00 6.85 1.71 Parcels 1,3,4&5
Remainin: Restaurant 6 000 1.36 0.34 Parcels 1 &3
..,,.;,,"� w. ». .. .. ,,,:::z:.:•:;, ... LPG R1r. i 'Sys - . . ��h
*At the time of this contract,the lease was in negotiation so the name of the business could not be shared.
2260411.1
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Agreement with Regency Village at Dublin,LLC