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HomeMy WebLinkAboutReso 160-14 DSRSD Sewer Capacity Pacific Catch RESOLUTION NO. 160 - 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 AND PACIFIC CATCH, INC. 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, the City received a request to participate in the Program from Pacific Catch Inc.; and WHEREAS, through the Program, the City will be able to assist Pacific Catch Inc. with the allocation of 8.4375 Dwelling Unit Equivalents (DUEs) (value: approximately $140,535 in DSRSD fees) of the 14.7 DUEs of excess sewer capacity that the City holds. The 8.4375 DUEs is 75% of the 11.25 DUEs estimated by DSRSD; and WHEREAS, but for the existence of this Agreement, Pacific Catch Inc. would not be able to locate a restaurant in Dublin; 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 sales tax revenue attributable to the development of the restaurant; and Page 1 of 2 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 restaurant; and WHEREAS, pursuant to Section 53083(b) of the California Government Code (Assembly Bill 562), the City of Dublin held a duly noticed public hearing prior to granting the proposed economic development subsidy. 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, Regency Village at Dublin, LLC, and Pacific Catch Inc." 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. PASSED, APPROVED AND ADOPTED this 16th day of September, 2014 by the following vote: AYES: Councilmembers Biddle, Gupta, Hart, Haubert, and Mayor Sbranti NOES: None ABSENT: None ABSTAIN: None j\-( Mayor ATTEST: ece__ City Clerk Reso No. 160-14,Adopted 9-16-14, Item 6.3 Page 2 of 2 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 AGREEMENT PERMITTING RE-ALLOCATION OF REGIONAL AND LOCAL SEWER CAPACITY Agreement with Regency Village at Dublin,LLC&Pacific Catch Inc. AGREEMENT PERMITTING RE-ALLOCATION OF REGIONAL AND LOCAL SEWER CAPACITY RIGHTS This Agreement, made and entered into this day of September, 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"), REGENCY VILLAGE AT DUBLIN, LLC ("Owner") and PACIFIC CATCH INC. ("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&Pacific Catch Inc. 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 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 — Pacific Catch at the Persimmon Place shopping center(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 be provided on the parcel which will be served by the District, or to Agreement with Regency Village at Dublin,LLC&Pacific Catch Inc. 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: Residential discharge equivalency means a unit of wastewater discharge Agreement with Regency Village at Dublin,LLC&Pacific Catch Inc. 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 1856.8 gpd (gallons per day) flow, 3.5462 pounds per day BOD and 3.7940 pounds per day SS [or, 8.44 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 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, provided that lease has been signed between the tenant and property owner, and 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, unless earlier terminated pursuant to Paragraphs 4 or 6 hereof. If a lease is not executed within six months of the signing of this Agreement,the Agreement shall become null and void. 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 Agreement with Regency Village at Dublin,LLC&Pacific Catch Inc. allocated to Owner's Property. District or City may, but shall not be required to, 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. Non-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 li signature of the successor(s) upon a recordable instrument by which the successor(s) 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 Agreement with Regency Village at Dublin,LLC&Pacific Catch Inc. Applicant hereunder. The duty to defend shall include provision for all costs and 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 an-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 (925) 828-0515 Attention: General Manager in the case of City, as follows: City of Dublin 100 Civic Plaza Dublin, CA 94568 (925) 833-6650 Attention: City Manager in the case of Owner, as follows: Regency Village at Dublin, LLC 2999 Oak Road, Suite 1000 Walnut Creek, CA 94597 (510)279-1800 Agreement with Regency Village at Dublin,LLC&Pacific Catch Inc. Attention: Pete Knoedler, Senior Vice President and in the case of Applicant,as follows: Pacific Catch Inc. 75 Oak Grove Street San Francisco, CA 94107 (415) 896-6888 Attention: Steve Stoddard, CEO 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 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. Paragranh 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 page.] Agreement with Regency Village at Dublin,LLC&Pacific Catch Inc. 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, City Manager ATTEST: REGENCY VILLAGE AT DUBLIN,LLC, Caroline P. Soto By: Doug Shaffer,Senior Vice President Market Officer PACIFIC CATCH INC, By: Steve Stoddard, Chief Executive Officer Date Agreement with Regency Village at Dublin,LLC&Pacific Catch Inc.