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HomeMy WebLinkAbout8.1 Attch 3 Exh A-1-Development Agmt RECORDING REQUESTED BY: - CITY OF DUBLIN When Recorded Maii 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 AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN CROSSING VENTURE LLC RELATING TO THE DUBLIN CROSSING PROJECT EXHIBIT A-1 TO ATTACHMENT 3 THIS AMENDMENT ("Amendment") is made and entered in the City of Dublin on this _ day of , 2015, by and between the City of Dublin, a Municipal Corporation (hereafter "City"), DUBLIN CROSSING VENTURE, LLC, a Delaware limited liability company (hereafter "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. City and Developer are from time-to-time individually referred to in this Amendment as a "Party" and are collectively referred to as "Parties". RECITALS 1. California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Development Agreement Statutes") authorize the City to enter into an 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. 2. Pursuant to that authority, City and Developer entered into that certain "Development Agreement Between the City of Dublin and Dublin Crossing Venture LLC," dated November 19, 2013 and recorded in the Official Records of Alameda County ("Official Records") on June 4, 2014 as document number 2014134795 (the "Agreement"). Amendments to the Agreement are permitted by the mutual consent of the Parties in accordance with Article 13.2 of the Agreement and by the Development Agreement Statutes. 3. The Developer's original entitlements (described as the "Existing Project Approvals" in the Agreement) allowed for the construction of up to 1,995 single- and multi-family residential units; up to 200,000 square feet of retail, office, and/or commercial uses; a 30 acre Community Park; a 5-acre Neighborhood Park, and a 12 acre elementary school site. 4. The Dublin Unified School District has stated it is unlikely that it will have the ability to acquire the 12-acre elementary school site in the near term, given the current land value of approximately $36,000,000. 5. Developer and City reached a tentative agreement that would allow the transfer of the future school site to the City at no cost in exchange for modification to the entitlements for the Dublin Crossing Project. These modifications (which were processed in conjunction with this Amendment) required amendments to the Dublin Crossing Specific Plan and to the Dublin Crossing Project Development Agreement (the "Subsequent Project Approvals"), but did not increase the current maximum number of housing units allowed in the Project. Amendment No. 1 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project � 6. Parties now wish to amend the terms of the Agreement to reflect the changes to the entitlements, to remove the requirement to provide construction funding for a 5-acre Neighborhood Park (which Neighborhood Park the entitlements eliminate), to reduce the total Community Benefit Payment by $1,200,000, and to include language related to the no-cost transfer of the school site, among other complementary and/or conforming amendments. 7. On May 12, 2015 the Planning Commission held a public hearing with respect to this Amendment and the Project Approvals described below and adopted Resolution No. 15- recommending that the City Council approve Amendment No. 1 to the Development Agreement. 8. On , 2015 the City Council held a public hearing with respect to the following approvals and approved the following: an amendment to the Dublin Crossing Specific Plan, (Resolution No. ) and the DA Amendment Approving Ordinance (defined below) (the "Project Approvals"). 9. City undertook, pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq., hereinafter "CEQA"), the required analysis of the environmental effects that would be caused by the Existing Project Approvals and determined those feasible mitigation measures which will eliminate, or reduce to an acceptable level, the adverse environmental impacts of the Existing Project Approvals. The environmental effects of the proposed development of the Property were analyzed by the Final Environmental Impact Report (the "FEIR") certified by City on November 5, 2013. In conjunction therewith, City also adopted a mitigation monitoring and reporting program (the "MMRP") to ensure that those mitigation measures incorporated as part of, or imposed on, the Project are enforced and completed. Those mitigation measures for which Developer is responsible are incorporated into, and required by, the Project Approvals. 10. In conjunction with its review of the Subsequent Project Approvals, the City prepared an addendum to the FEIR that concluded that none of the conditions described in CEQA Guidelines section 15162 calling for the preparation of a subsequent EIR have occurred. 11. On , 2015, the City Council of the City of Dublin adopted Ordinance No. approving this Amendment No. 1 to the Development Agreement ("DA Amendment Approving Ordinance"). The ordinance took effect on , 2015 (the "Amendment 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: Amendment No. 1 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 2 AGREEMENT Section 1. The parties agree that the Project Approvals will be treated as Subsequent Project Approvals as that term is defined in the Agreement. Section 2. Section 6.1 of the Agreement is amended to read in its entirety as follows: "6.1 Development Aqreement Fee� Due On a Per-Unit Basis at Final Map. Prior to the City's approval of each final map creating individual lots for residential units, Developer shall pay the City a development agreement fee (the "Development Agreement Fee") calculated as follows: the number of residential lots (or condominium parcels) that would be created by the final map multiplied by $22,941.96. For maps that create condominiums, the tentative and final map shall indicate the maximum number of units permitted by the final map, and the Development Agreement Fee paid shall be based on the maximum number of units permitted by the map. For maps creating fewer than 40 lots or condominium units, the Development Agreement Fee shall be based on 40 lots or condominium units. In the event that Developer seeks a site development review ("SDR") approval for residential units for which the per unit fee has not been paid (e.g. apartment projects), Developer shall pay the per-unit fee amount at the time of SDR approval. The per-unit fee amount ($22,941.96 per residential unit) shall not be adjusted for inflation. At such point as Developer has paid Development Agreement Fees or advances equal to $36,707,142 in the aggregate, Developer shall no longer be obligated to pay the Development Agreement Fee required by this subsection. As detailed in Exhibit E, the $22,941.96 per residential unit fee generates $36,707,142 at the point when 1,600 units are mapped in the Project. The Development Agreement Fee was determined based on six separate components described in this Agreement: (a) Park Construction, § 9.6; (b) Community Benefit, § 7; (c) Iron Horse Bridge Design, § 10.3.1; (d) Iron Horse Bridge Construction; § 10.3.2; (e) ACSPA Property Acquisition Contribution, § 9.8; and (fl Park Maintenance Endowment, § 9.7. The City is requiring the payment of the Development Agreement Fee as a condition to development of the Property. The Parties agree that the City shall be deemed for all purposes to be requiring the payment of the Development Agreement Fee as a condition to development of the Property and that the Development Agreement Fee should be considered a supplemental fee and, in all aspects of its application and implementation, should not be deemed a waiver or fee reduction of any kind. If at any point the City Council determines that at full buildout development on the Property will not or is unlikely to produce 1,600 units, the City may withhold further approvals, including final maps, until such time as Developer provides adequate assurances that the City will receive the entire $36,707,142 in Development Fee revenue." Amendment No. 1 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 3 Section 3. Section 7 of the Agreement is amended to read in its entirety as follows: "7. Community Benefit Payment. 7.1 Developer has agreed, as partial consideration for the City's entering into this agreement, to contribute to the City over the course of the Project the sum of $17,500,000 as a Community Benefit Payment, in accordance with the following schedule and requirements. 7.2 The Community Benefit Payment is a component of the Development Agreement Fee and will be paid as specified in section 6.1, except that, if the City has not received the following amount, exclusive of Development Agreement Fee component payments previously applied, by the applicable deadline below, Developer shall, on or before the applicable deadline, make an advance of Development Agreement Fees equal to the difference between the amount of Development Agreement Fees the City had previously received, exclusive of Development Agreement Fee component payments previously applied, and the amount set out below. Payment Amount Deadline First $10,000,000 24 months following the Project Approval Date Second $5,000,000 48 months following the Project Approval Date Third $2,500,000 At recordation of the last final map in Phase 4 of the Project (see Exhibit D) The "Project Approval Date" shall be the date upon which all appeal, legal challenge and rehearing periods relating to the Existing Project Approvals shall have expired without legal challenge, or, if any appeal, legal challenge or rehearing request is filed against the City challenging such Project Approvals, the date upon which all such challenges are finally dismissed and either (a) all of such Project Approvals remain effective or, (b) have been reaffirmed, if required by the resolution of the challenge(s). The Parties agree that any payment deadlines under this Section that occur during the pendency of any appeal, legal challenge or rehearing request filed against the City challenging any of the Subsequent Project Approvals shall be extended to a date 30 days following the finality of any such appeal, legal challenge, or rehearing request. Notwithstanding any other provision of this Agreement, the Developer shall not be required to make the foregoing payments if the City Council elects for any reason not to form Amendment No. 1 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 4 a CFD proposed by Developer that meets the requirements of Section 8. Notwithstanding anything to the contrary in this Agreement, if any payment under this subsection is not received in full by the City by the deadline for such payment, the City may withhold further issuance of building permits and other approvals, including final maps, for the Project until such time as Developer has made the required payment." Section 5. Section 9.1 of the Agreement is amended to read in its entirety as follows: "9.1 Parkland Dedication. Except as specified in Section 9.8, the Project proposed by Developer includes the dedication of 30 net acres of community parkland. Developer shall dedicate the specified parkland with the first final map in the Project phase specified below, or earlier: Project Size of dedication Phase 1st Phase 2 10 net acres of community park land (includes 8.7 acres in exchange for ACSPA Property transfer by City under section 9.8.) 2nd Phase 3 10 net acres of community park land 3rd Phase 5 10 net acres of community park land Net acreage is measured at the property line of the park parcels dedicated by Developer and does not include land area currently owned by the City or land area within adjacent existing or future street right of ways. Other than the creek and the 50-foot buffer boundary from top of bank on either side of the creek, net acreage does not include land that is encumbered by use restrictions, unless the use restrictions are approved by the City. The City acknowledges that the portions of the 30 acres may be subjected to the following reasonable restrictions: active sports fields, certain species of plantings, and the use of motorized vehicles. If resource agencies require use restrictions that are not acceptable to the City in the area beyond the 50-foot buffer boundary from top of bank on either side of the creek, Developer shall identify additional acreage to meet the net 30 acre requirement. This obligation shall be satisfied prior to the issuance of the first building permit in Phase 2, and the City may withhold further building permits outside of Phase 1 until it is satisfied. The Parties agree that, in the event of substantial revisions to the geography of the Project phases (as determined by the City Manager), this Agreement shall be promptly amended to revise Exhibit D and to reflect the Amendment No. 1 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 5 impact the revised phases have on provisions of this Agreement that reference the Project phases, which include, but are not limited to, this Section 9.1 and Sections 9.6 and 9.8. The City Manager may approve insubstantial revisions to Exhibit D requested by Developer and if such revisions are so approved the revised Exhibit D shall automatically become annexed to this Agreement and shall replace the prior Exhibit D and the Parties shall be authorized to and shall replace the prior Exhibit D with the new Exhibit D in each copy of the Agreement." Section 6. Section 9.2 of the Agreement is amended to read in its entirety as follows: "9.2 Public Facilities Fee and Quimby Requirements For Land Dedications. In the aggregate, the dedications required by this Agreement, including the dedication of the school site pursuant to Section 12 on which the City intends to provide for a minimum of 5 acres of joint school/park use, and the Developer's contribution toward the City's purchase of the ACSPA Property pursuant to Section 9.8.3, satisfy the community park land component of the City's Public Facilities Fee and the parkland dedication requirements of Chapter 9.28 of the Dublin Municipal Code for up to 1,995 residential units and for all of the commercial development proposed on the Specific Plan. Except as otherwise specified in this Agreement, development in the Project and on the Property shall be subject to all other components of the Public Facilities Fee. At the time of dedication on the final map, provided that Developer (a) enters into an improvement agreement in conjunction therewith and (b) provides evidence, acceptable to the City Engineer, demonstrating that the land to be conveyed (including any imported fill) meets California Department of Toxic Substances Control standards applicable to residential development or such lesser standard acceptable to the City, the City will promptly upon receipt of such evidence indicate in its records that Developer has made such a dedication, and those records will be used to determine whether the Developer has satisfied its obligations under the community park land component of the City's Public Facilities Fee and the parkland dedication requirements of Chapter 9.28 of the Dublin Municipal Code. The City's records of the dedications shall be expressed in acres of community and neighborhood parkland as follows: Dedication Neighborhood Park Community Park 1 st 3 acres 7 acres 2nd 2.170 acres 5.063 acres 3rd 3 acres 7 acres When the previous dedications are used to satisfy the obligations as to individual maps and building permits, the unapplied dedications reflected in the City's records shall be reduced to reflect the equivalent in acreage of the fee Amendment No. 1 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 6 component for which previous dedications were used. If Developer does not have sufficient unapplied dedication acreage when it seeks approval for a particular map or building permit, it may, instead of paying the applicable fees in lieu of parkland dedication or the community park land component of the Public Facilities Fee, provide security acceptable to the City that secures payment of such fees. Upon its receipt of parkland dedications to satisfy the obligations so secured, the City will promptly reduce the security in an equivalent amount." Section 7. Section 9.3 of the Agreement is amended to read in its entirety as follows: "9.3 Stormwater Facilities. The City will allow underground stormwater detention facilities within the 30 acre net community park, not to exceed a footprint of 87,120 square feet, and in locations acceptable to the City. The underground stormwater facilities shall include a minimum cover acceptable to the City." Section 8. Section 9.5 is amended to read as follows: "9.5 City Obligation to Improve Parkland. City will complete each of the three park phases within 24 months of (a) the City accepting the applicable dedication pursuant to Section 9.4 and (b) Developer providing the required funds for the applicable park phase's construction pursuant to section 9.6. The 24-month period will not commence until the Parties have confirmed in writing that the criteria have been satisfied." Section 8. Section 9.6 of the Agreement is amended to read in its entirety as follows: "9.6 Project's Obliqation to Fund Park Construction. The Project's contribution to fund park construction shall be $4,285,714 for each of the three community park phases which may reimbursed through the CFD. These contributions exceed the amounts otherwise required to be contributed by Developer under the Public Facilities Fee for park improvements and shall therefore be deemed to satisfy the Project's obligations to fund park improvements under the Public Facilities Fee. Upon request of Developer, the City shall apply previously collected Development Agreement Fees revenues, exclusive of Development Agreement Fee component payments previously applied, toward the required contribution. If such application of Development Agreement Fees is insufficient to satisfy the required contribution, Developer may advance the necessary funds under Subsection 6.3 in order to trigger the City's park improvement obligations under Section 9.5. In any event, Developer shall make the following contributions for each phase of the park, by requesting application of previously collected Development Agreement Fees toward the contribution, making a Development Agreement Fee advance, or both, no later Amendment No. 1 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project � than: the first recorded subdivision map creating residential lots for a $100,000 contribution to be used for the preparation of a master plan for the community park; the first recorded subdivision map in Phase 2 for the first $4,285,714 contribution (less the $100,000 contribution previously for the master plan); the first recorded subdivision map in phase 3 for the second $4,285,714 contribution; and the first recorded subdivision map in phase 5 for the last $4,285,714 contribution. In addition, with the submission of the first subdivision map creating residential lots in Phase 1, the Developer shall prepare, at its own expense, a traffic circulation analysis to determine the appropriate location of the Community Park parking lot and driveway entrance(s) for review and approval by the City Engineer. The report shall evaluate the location of potential driveways on Scarlett Drive and how they would interact with the existing intersection at Houston Place as well as consider connectivity of the future parking lot(s) to both G Street and Scarlett Drive. The results of the analysis will be incorporated in the subsequent Project Approvals. The Developer shall not be required to make the contributions required by this paragraph to the extent that they are due after the contingent event described in Section 6.2 above occurs. If such contingent event does occur, and the contributions required by this paragraph cease, Developer shall, so as to avoid a significant impact pursuant to Impact 3.11-4 described in the FEIR, thereafter be required to pay the community park improvements component of Public Facilities Fee and the neighborhood park improvement component of the Public Facilities Fee as it applies in Eastern Dublin. The City shall use the contributions made pursuant to this Section only for the improvement of parks within the Specific Plan area. 9.6.1 Public Facilities Fee Payment Security. Developer's contributions as specified above shall be deemed to satisfy its obligation to contribute to Community and Neighborhood Park Improvements under the Public Facilities Fee Program. If, however, at the time Developer seeks to file a final map Developer has not made the required contributions in amounts sufficient to satisfy the final map's Park Construction obligation, Developer shall provide security acceptable to the City that ensures payment of the community park improvements component of Public Facilities Fee for the units and the neighborhood park improvement component of the Public Facilities Fee applicable in Eastern Dublin. For the purposes of this paragraph, Developer shall upon each $4,285,714 contribution be deemed to have satisfied its obligations for 665 residential units. The contributions may be used to reduce previously posted security under this paragraph and to avoid the requirement to post security under this paragraph." Section 9. Section 12 of the Agreement is amended to read in its entirety as follows: "12. School Site. Developer shall dedicate to the City the 12 net acre school site with the first final map in Project Phase 3. The 12 net acre school site Amendment No. 1 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project $ is designated Parcel 27 on Vesting Tentative Map 8150 and is bounded by D Street, G Street, F Street, and Central Parkway. The dedication will, upon satisfaction of the criteria in Section 9.2 for such treatment, be noted in the City's records as a dedication of 3 acres of parkland for the purposes of the Developer's satisfaction of its obligations under the community park land component of the City's Public Facilities Fee and the parkland dedication requirements of Chapter 9.28 of the Dublin Municipal Code. The City will accept the school site upon satisfaction of the requirements set forth in Section 9.4 for acceptance of parkland." Section 10. Exhibits D, E, and F to the Agreement are replaced in their entirety by revised Exhibits D, E, and F attached hereto and incorporated by this reference. Section 11. Full Force and Effect. Except as specifically clarified, confirmed or modified herein, the Agreement shall continue in full force and effect according to its terms. Section 12. Defined Terms. Defined terms have the same meaning in this Amendment as in the Agreement unless otherwise specified. Section 13. Effective Date. This Amendment shall become effective upon the date the ordinance approving this Agreement becomes effective (the "Effective Date"). Section 13. Recordation. City shall record a copy of this Amendment within ten (10) days following execution by all parties. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN DEVELOPER DUBLIN CROSSING VENTURE LLC, By: a Delaware limited liability company Chris Foss, City Manager Attest: By: Its: Caroline Soto, City Clerk Amendment No. 1 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 9 Approved as to form John Bakker, City Attorney 114.266 2419687.8 Amendment No. 1 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 10 Revised Exhibit D Diagram of Project Phases LEGEND � PHASING 80UNDARY IAPPROXIMATEI - SCHOOL � DC-MEDIUM DEN9ITV RESIDENTIAL PARK DG-MEDIUM-HIGH DENSI7V FESIDENTIAL �; � OPEN 3PACE r�a a.+w p�m �a , # �� i iw� A� �'ti� � � GENERAL GOMMERCIAL/DPMEDIUM-HIGH DEN817Y RE3IDENTIAL (_ � PROJECT AREA BOUNDARY �-� '�+��_�^� ��' � ��� a � k 9 'H^•,am"�'t�." ? � GENERAL COMMERCIAVDC-HIGH DENSITV RESIDENTIAL �', . �° ' � ' ' "� ��� � ` � ' + �,� ' a� � �' �'�° � � . �� ��* . u #a, .+ ` ,�_ . �` � ,°.�`�y, � d � �r� .� i i : 1 � �rr �" �'� i^� k 3i� y i , ���u��:7.� � {P � h��e.} "�� ��.. f n ��. . 3a�k '$� '�N� .N PA IIl�MA , �� �".r r�'.. � P. � ?�' U . .,� . p ��' �'�• { '�'^�' �ii � " �. �' .� �}f ��:� Y u.._.� ...:_ .; � Y� h'� .Y, x. +`s� t���i 5.� ` �nr+�s. 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