HomeMy WebLinkAboutOrd 15-14 Heritage Park DA ORDINANCE NO. 15 - 14
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * ** * * * * * * * ** * **
APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND
BATES STRINGER VENTURES FOR THE HERITAGE PARK PROJECT
PLPA 2013-00002
THE DUBLIN CITY COUNCIL DOES ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The Applicant, Bates Stringer Ventures, proposes to demolish an existing 110,000
square foot office complex and develop 54 small-lot single family homes and a two-story 14,000
square foot office building on approximately 6.6 acres in the Dublin Village Historic Area Specific
Plan ("Specific Plan") area. The project proposes a General Plan and Specific Plan Amendment
to change the land use designations on a 5.94 acre portion of the site from Retail/Office (RO) to
Medium Density Residential (MDR), and proposes a PD-Planned Development rezoning with
Stage 1 and Stage 2 Development Plan, Site Development Review, Vesting Tentative Map and
Development Agreement for the entire 6.6 acre site. The proposed development and
applications are collectively known as the "Project"; related approvals of the applications are
collectively known as the "Project Approvals"; and
B. The Project site is located at 11875 Dublin Boulevard, west of San Ramon Road;
south of Dublin Boulevard; east of Donlon Way; and north of Interstate 580; and
C. The A pp licant and Ci ty desire to enter into a Development Agreement subject to
certain terms, including a Community Benefit Payment to the City in the amount of $324,000 to
be applied towards future investment and development of the City's heritage assets, and the
vesting of the Project Approvals for five years; and
D. The California Environmental Quality Act (CEQA), together with the State
guidelines and City environmental regulations, require that certain projects be reviewed for
environmental impacts and that environmental documents be prepared; and
E. The Project is located within the Dublin Village Historic Area Specific Plan area for
which a Mitigated Negative Declaration was adopted on August 1, 2006 by Resolution No. 149-
06. The previous environmental analysis was updated for the Project through a project- and
site-specific Heritage Park Environmental Impact Report ("EIR", SCH # 2013092043). The
Heritage Park EIR analyzed the environmental impacts of the Project, including this Agreement.
The City Council also approved a Mitigation Monitoring and Reporting Program for the
Project. No significant unavoidable impacts were identified in the Heritage Park EIR; and
F. On June 10, 2014, the Planning Commission adopted Resolution 14-28
recommending that the City Council certify the EIR, which Resolution is incorporated herein by
reference and available for review at City Hall during normal business hours; and
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G. On June 10, 2014, the Planning Commission held a properly noticed public
hearing on the Project, including the proposed Development Agreement, and adopted
Resolution 14-32 recommending that the City Council adopt the Development Agreement, which
Resolution is incorporated herein by reference and available for review at City Hall during
normal business hours; and
H. The City Council held a properly noticed public hearing on the Project, including
the proposed Development Agreement, on July 15, 2014 at which time all interested parties had
the opportunity to be heard; and
I. A Staff Report dated July 15, 2014 and incorporated herein by reference,
described and analyzed the Project, including the Development Agreement, for the City Council;
and
I. The City Council used their independent judgment and considered the staff report,
the EIR, and all reports, recommendations and testimony referenced above and adopted
Resolution No. 127-14 certifying the EIR prior to approving the Development Agreement; and
J. The City Council has considered the recommendation of the Planning Commission
on the Development Agreement, including the Planning Commission's reasons for its
recommendation, the Staff Report, all comments received in writing, and all testimony received
at the public hearing.
Section 2. FINDINGS AND DETERMINATIONS
On the basis of: (a) the foregoing Recitals which are incorporated herein, (b) the City of
Dublin General Plan; (c) the Dublin Village Historic Area Specific Plan, (d) the EIR, (e) the staff
report; (f) information in the entire record of proceedings for the Project, and on the basis of the
specific conclusions set forth below, the City Council finds and determines that:
1. The Development Agreement is consistent with the objectives, policies, general
land uses and programs specified and contained in the City's General Plan, and in the Dublin
Village Historic Area Specific Plan in that: (a) the General Plan and Dublin Village Historic Area
Specific Plan land use designations, policies, programs and objectives are incorporated into the
Development Agreement and not altered by the Development Agreement; and (b) 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.
2. 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.
3. The Development Agreement is in conformity with public convenience, general
welfare, and good land use policies in that the Project will implement land use guidelines set
forth in the General Plan and the Dublin Village Historic Area Specific Plan.
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4. The Development Agreement will not be detrimental to the health, safety, and
general welfare in that the Developer's proposed Project will proceed in accordance with all the
programs and policies of the General Plan, Dublin Village Historic Area Specific Plan, and
Project Approvals.
5. 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
General Plan, the Dublin Village Historic Area Specific Plan, and Project Approvals.
6. The Development Agreement complies with the requirements of §§ 65864 et seq.
of the California Government Code and Dublin Municipal Code Chapter 8.56 and specifies the
duration of the agreement, the permitted uses of the property, the density or intensity of use, the
maximum height and size of proposed buildings, and provisions for reservation or dedication of
land for public purposes. The Development Agreement contains an indemnity and insurance
clause requiring the developer to indemnify and hold the City harmless against claims arising
out of the development process, including all legal fees and costs.
Section 3. APPROVAL
The City Council hereby approves the Development Agreement (Exhibit A to the
Ordinance) and authorizes the City Manager 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 on the date the Applicant acquires fee title to the
Property. 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 this 19th day of August, 2014, by the following
vote:
AYES: Councilmembers Biddle, Gupta, Hart, Haubert, and Mayor Sbranti
NOES: None
ABSENT: None
ABSTAIN: None
le/161
Mayor
ATTES .
(402 17 iesW
City Clerk
Ord No. 15-14,Adopted 8-19-14, Item 4.10 Page 3 of 3
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 Recorders use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
THE STRINGER COMPANY
FOR THE HERITAGE PARK PROJECT
THIS DEVELOPMENT AGREEMENT ("Agreement"or"Development
Agreement") is made and entered into in the City of Dublin on this day of
2014, by and between the CITY OF DUBLIN, a Municipal
Corporation ("City")and THE STRINGER COMPANY, a California corporation
("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 ("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 has the right to purchase certain real property consisting
of approximately 6.6 acres of land in the southwest corner of Dublin Boulevard
and San Ramon Road, (APN 941-1550-005-03) and that is more particularly
described in Exhibit A attached hereto and is incorporated herein by reference
("the Property").
C. Developer, or its predecessor in interest, has applied for, and City
has approved or is processing, various land use approvals in connection with the
development of the Project, including, without limitation, a General Plan
Amendment, and Dublin Village Historic Area Specific Plan Amendment
(Resolution No. , adopted by the City Council on , 2014); a Planned
Development rezoning with related Stage 1 and 2 Development Plan (Ordinance
, , 2014); Site Development Review and Vesting Tentative Tract Map
(Resolution , , 2014; and this Development Agreement. 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."
None of the Project Approvals take effect until the Development Agreement takes
effect.
D. The proposed project (the "Project")on the Property includes the
demolition of a 110,000 square foot existing office complex known as"Heritage
Park,"the construction of 54 small-lot single-family homes, and the construction
of a two-story 14,000 square foot office building.
E. City desires the timely, efficient, orderly and proper development of
the Project.
F. The City Council has found that, among other things, this
Development Agreement is consistent with its General Plan, as amended, and
the Dublin Village Historical Area Specific Plan, as amended, and has been
2259764.2 2
reviewed and evaluated in accordance with the Development Agreement Statute
and Chapter 8.56.
G. 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.
H. The Project is located within the Dublin Village Historic Area
Specific Plan area for which a Mitigated Negative Declaration was adopted on
August 1, 2006 by Resolution No. 149-06. The previous environmental analysis
was updated for the Project through a project-and site-specific Heritage Park
Environmental Impact Report(SCH#2013092043), certified by the City Council
in Resolution No. -2014("Heritage Park EIR"). The Heritage Park EIR
analyzed the environmental impacts of this Agreement. The City Council also
approved a Mitigation Monitoring and Reporting Program for the Project. No
significant unavoidable impacts were identified in the Heritage Park EIR.
I. On , _2014, the City Council adopted Ordinance No.
approving this Development Agreement ("the Approving Ordinance"). The
Approving Ordinance states that it will take effect on the date the Developer
acquires fee title to the Property(the"Ordinance Effective Date").
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein
contained, City and Developer agree as follows:
AGREEMENT
1. Description of Property.
The Property that is the subject of this Agreement is described in Exhibit A
attached hereto.
2. Interest of Developer.
The Developer has an equitable interest in the Property in that it has the
right to acquire the Property for the purpose of developing the Project.
Dublin Municipal Code section 8.56.040 specifies that, unless the property
owner is party to development agreements, development agreements are
"conditional upon the close of escrow vesting fee title to the property in the
Developer." Accordingly, the rights and obligations under this Agreement shall
become applicable only upon the Developer's acquiring fee title to the Property.
2259764.2 3
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. Term, and Community Benefit Payment.
4.1. Effective Date. The effective date of this Agreement shall be the
Ordinance Effective Date("Effective Date").
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 pursuant to the provisions of this Agreement.
4.3. Termination on Sale of Individual Lots. Notwithstanding the
foregoing Section 4.2, the provisions of this Agreement shall terminate with
respect to any individual lot and such lot shall be released from and shall no
longer be subject to this Agreement(without the execution or recordation of any
further document or the taking of any further action) upon the lot being finally
subdivided and sold or leased (for a period longer than one (1)year)to a
member of the public or any other ultimate user. City shall cooperate with
Developer, at no cost to City, in executing in recordable form any document that
Developer(including any successor to the title of the Developer in and to any of
the aforedescribed lots) may submit to confirm the termination of this Agreement
as to any such lot.
4.4. Community Benefit Payment. The Developer shall provide a
Community Benefit Payment of$6,000 per unit, for a total payment of$324,000,
payable to the City on or before the recordation of the first final subdivision map
for the Project creating residential lots. The Community Benefit Payment will be
applied towards future capital improvements related to the Heritage Park and
Museums site.
This Term survives the expiration of this Agreement.
5. Use of the Property.
5.1. Riaht 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, once effective, shall become part of the law
2259764.2 4
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 or the Specific Plan not 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 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,
the provisions for reservation or dedication of land for public purposes, the
location and maintenance of on-site and off-site improvements, the 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. Rules Reaardina 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 and governing density and intensity
of use of the Property and the maximum height, bulk and size of proposed
buildings shall be those in force and effect on the Effective Date of the
Agreement.
5.4. Rules Reaardina 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 the date of that
approval is prior to or after the date of this Agreement.
5.5. Buildina and Other Codes Aoolicable. The Project shall be
constructed in accordance with the provisions of the Building, Mechanical,
Plumbing, Electrical, and Fire Codes and Title 24 of the California Code of
Regulations, relating to Building Standards, in effect at the time of approval of the
appropriate building, grading, encroachment or other construction permits for the
Project.
6. Subsequently Enacted Rules and Regulations.
6.1. New Rules and Regulations. During the term of this Agreement,
the City may apply new or modified ordinances, resolutions, rules, regulations
2259764.2 5
and official policies of the City to the Property, which were not in force and effect
on the Effective Date of this Agreement and which are not in conflict with those
applicable to the Property as set forth in this Agreement if: (a)the application of
such new or modified ordinances, resolutions, rules, regulations or official
policies would not prevent, impose a substantial financial burden on, or materially
delay development of the Property as contemplated by this Agreement and the
Project Approvals and (b) if such ordinances, resolutions, rules, regulations, or
official policies have general applicability.
6.2. 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. Subsequently Enacted or Revised Fees, Assessments and Taxes.
Notwithstanding anything to the contrary contained herein, the Project
shall be subject to subsequently enacted or revised fees, assessments and taxes
adopted by the City after the Effective Date of this Agreement. Nothing in this
Agreement creates a vested right for the Project in the amount or type of fees,
assessments and taxes in effect on the Effective Date of this Agreement.
8. Amendment or Cancellation.
8.1. Modification Because of Conflict with State or Federal Laws. The
Project and Property shall be subject to state and federal laws and regulations
and this Agreement does not create any vested right in state and federal laws
and regulations in effect on the Effective Date. 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.
8.2. 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.
8.3. Insubstantial Amendments. Notwithstanding the provisions of the
preceding Paragraph 8.2, any amendments to this Agreement that 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)the density or intensity of
2259764.2 6
use of the Project; (d)the maximum height or size of proposed buildings; or(e)
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.
8.4. 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.
9. Annual Review.
9.1. Review Date. The annual review date for this Agreement shall be
between June 1 and July 1, 2015 and thereafter between each June 1 and July 1
during the Term.
9.2. 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.
9.3. 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.
9.4. 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.
10. Default.
10.1. Other Remedies Available. Upon the occurrence of an event of
default, the parties may pursue all other remedies at law or in equity that are 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.
10.2. 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
2259764.2 7
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.
10.3. 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.
11. 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.
12. Mortaaaee Protection; Certain Rights of Cure.
12.1. Mortaaaee Protection. This Agreement shall be superior and
senior to any lien placed upon the Property, or any portion thereof after the date
of recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat,
render invalid, diminish, or impair the lien of any Mortgage made in good faith
and for value, but all the terms and conditions contained in this Agreement shall
be binding upon and effective against any person or entity, including any deed of
trust beneficiary or mortgagee ("Mortgagee")who acquires title to the Property, or
any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or
otherwise.
12.2. Mortaaaee Not Obligated. Notwithstanding the provisions of
Section 12.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to
2259764.2 8
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 the 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.
12.3. Notice of Default to Mortgagee and Extension of Riaht 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 daimed set forth in the
City's notice. The City, through its City Manager, may extend the thirty-day cure
period provided in Paragraph 10.2 for not more than an additional sixty(60) days
upon request of Developer or a Mortgagee.
13. Severability.
The unenforceability, invalidity, or illegality of any provision, covenant,
condition, or term of this Agreement shall not render the other provisions
unenforceable, invalid, or illegal.
14. 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.
15. Transfers and Assianments.
15.1. Riaht to Assign. Developer may wish to sell, transfer, or assign all
or portions of its Property to another entity (each such other entity 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
2259764.2 9
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.
15.2. 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.
15.3. Release Upon Transfer. Upon the transfer, sale, or assignment of
all of Developer's rights, interests, and obligations hereunder pursuant to
Paragraph 15.1 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 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.
15.4. Developer's Right to Retain Specified Rights or Obligations.
Notwithstanding Paragraphs 15.1 and 15.2 and Paragraph 16, 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 prior to the sale, transfer, or assignment of the Property.
Developer's Transferee 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.
16. Agreements Run 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 assigns, representatives, lessees, and all other persons
2259764.2 10
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 the 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.
12.3. Notice of Default to Mortaaaee and Extension of Riaht 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 daimed set forth in the
City's notice. The City, through its City Manager, may extend the thirty-day cure
period provided in Paragraph 10.2 for not more than an additional sixty(60)days
upon request of Developer or a Mortgagee.
13. Severability.
The unenforceability, invalidity, or illegality of any provision, covenant,
condition, or term of this Agreement shall not render the other provisions
unenforceable, invalid, or illegal.
14. 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.
15. Transfers and Assianments.
15.1. Riaht to Assian. Developer may wish to sell, transfer, or assign all
or portions of its Property to another entity (each such other entity 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
2259764.2 9
acquiring the Property, or any portion thereof, or any interest therein, whether by
operation of law or in any manner whatsoever. All of the provisions of this
Agreement shall be enforceable as equitable servitude and shall constitute
covenants running with the land pursuant to applicable laws, induding, 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.
17. Bankruptcy.
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
18. 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 daims, costs (induding legal
fees and costs)and liability for any personal injury or property damage which
may arise directly or indirectly as a result of any actions or inactions by the
Developer, or any actions or inactions of Developer's contractors,
subcontractors, agents, or employees in connection with the construction,
improvement, operation, or maintenance of the 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.
19. Insurance.
19.1. Public Liability and Property Damaae 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.
2259764.2 11
19.2. 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.
19.3. Evidence of Insurance. Prior to issuance of any permits for the
Project, including grading permits, Developer shall furnish the City satisfactory
evidence of the insurance required in Sections 19.1 and 19.2 and evidence that
the carrier is required to give the City at least fifteen (15)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.
20. 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:
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:
Scott L. Stringer
The Stringer Company
875 Orange Blossom Way
Danville, CA 94526
Fax No. (925)831-9368
A party may change its address by giving notice in writing to the other
party. 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.
2259764.2 12
21. Agreement is Entire Understanding.
This Agreement constitutes the entire understanding and agreement of the
parties.
22. 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
23. Counterparts.
This Agreement is executed in three (3) duplicate originals, each of which
is deemed to be an original.
24. Recordation.
The City shall record a copy of this Agreement within ten (10)days
following the Effective Date.
[Execution Page Follows]
2259764.2 13
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 DEVELOPER
THE STRINGER COMPANY
By:
Chris Foss, Acting City Manager By:
Scott L. Stringer
Attest: Its:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
(NOTARIZATION ATTACHED)
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2259764.2 14
Exhibit A
Legal Description of the Property