Loading...
HomeMy WebLinkAboutItem 8.1 Downtown SP Comm Benefit Prog STAFF REPORT CITY CLERK File #410-10 CITY COUNCIL DATE:June 19, 2012 TO: Honorable Mayor and City Councilmembers FROM: Joni Pattillo, City Manager SUBJECT: Presentation of Form for Downtown Dublin Specific Plan Area Community Benefit Program Agreement Prepared by John D. Bakker, City Attorney and Stephen Muzio, Assistant City Attorney EXECUTIVE SUMMARY: The Downtown Dublin Specific Plan establishes a limited development pool of additional non- residential square footage and residential dwelling units that would be made available to developers who participate in the Community Benefit Program and provide a community benefit to the City in exchange for use of a portion of the pool. The City Attorney’s Office has prepared a form agreement proposed to be used by developers wishing to participate in the Program. FINANCIAL IMPACT: None at this time, although future participation by developers in the Community Benefit Program may result in a positive financial impact to the City. RECOMMENDATION: Staff recommends that the City Council receive staff report. Submitted By Reviewed By City Attorney Assistant City Manager DESCRIPTION: On February 1, 2011, the City adopted Resolution 9-11 establishing a “Downtown Dublin Specific Plan” (the “Specific Plan”), which sets forth a comprehensive set of guiding principles, standards, and design guidelines for the implementation of future development in Downtown Dublin. Among other things, Sections 4.1.3, 4.2.3 and 4.3.3 of the Specific Plan regulate the density of development allowed in Specific Plan Area by establishing a “Base Floor Area Ratio (FAR)” for development in each of the three districts within the Specific Plan Area. ITEM NO. 8.1 Page 1 of 2 The Specific Plan also establishes a pool of additional development potential, in the form of 2,093,220 square feet of non-residential development and 1,300 residential dwelling units (collectively “the Excess Capacity”) apportioned between the three districts in the Specific Plan Area. This is described in Table 6-1 “Development Pool” of the Specific Plan. Developers that wish to develop a project that exceeds the Base FAR may utilize a portion of the Excess Capacity by participating in the Community Benefit Program. Similarly, developers wishing to develop residential units may utilize a portion of the Excess Capacity by participating in the Community Benefit Program. The Specific Plan provides that Developers wishing to participate in this program may be required to “provide one or a combination of benefits in relation to the density they are obtaining from the [Excess Capacity] Pool.” The Specific Plan gives the following examples of the types of possible benefits developers could provide: public parks or gathering spaces, sponsorship of downtown events, public safety enhancements, and enhanced streetscape improvements. The Specific Plan also requires that developers taking part in this program must enter into a binding agreement with the City specifying the benefit that will be provided. The City Attorney’s Office has drafted a form agreement (the “Agreement”) that will be used as the basis for Community Benefit Programs agreement that may be negotiated in the future. (Attachment 1) Given the wide variety of project types that could be proposed in Downtown Dublin, as well as the different benefits that might be provided, it is likely that any actual negotiated agreement will differ in some respects from the form agreement. In some cases, an agreement regarding participation in the Community Benefit Program may be incorporated into a larger Development Agreement. The form agreement is designed to be approved after a developer has obtained a Site Development Review approval for the project that proposes to utilize some of the Excess Capacity. Any SDR approval of such a project would be contingent upon the developer entering into a Community Benefit Program Agreement. The Agreement would have a limited term—to be negotiated on a case-by-case basis but generally 2 years—and would require that the developer provide a deposit to the City in exchange for reserving the Excess Capacity. In the event that a developer fails to provide the City with the agreed upon community benefit during the term of the agreement, this deposit would be forfeited to the City. In exchange, the City would reserve the Excess Capacity proposed to be utilized in the project for use by the developer during the term of the Agreement. If the developer’s SDR expires due to the developer’s failure to commence construction within one year of the SDR approval, then the agreement would terminate and the reserved capacity would return to the Excess Capacity pool. The Agreement also provides that the developer must provide the community benefit to the City prior to receiving the first building permit for the project in question. Given the various types of potential community benefit contemplated in the Specific Plan, it is possible that this provision will have to be modified. For example, if a benefit consists of the provision of a public park or enhanced streetscape improvements, the Agreement might be modified to allow the developer to obtain building permits, but to require that the developer provide the City a security, such as a bond, to secure satisfactory performance of the agreement. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None required. ATTACHMENTS: 1.Community Benefit Program Agreement-Downtown Dublin Specific Plan Page 2 of 2 CITY OF DUBLIN COMMUNITY BENEFIT PROGRAM AGREEMENT This Community Benefit Program Agreement (“Agreement”) is entered into on this __ day of _____, 2012, by and between the City of Dublin, a municipal corporation (“City”) and (“Developer”). 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. On February 1, 2011, the City adopted Resolution 9-11 establishing a “Downtown Dublin Specific Plan” (the “Specific Plan”), which sets forth a comprehensive set of guiding principles, standards, and design guidelines for the implementation of future development in Downtown Dublin (“the Specific Plan Area”). B. The Specific Plan regulates the density of development allowed in Specific Plan Area by establishing a “Base Floor Area Ratio (FAR)” for development in each of the three districts within the Specific Plan Area. C. The Specific Plan also establishes a pool of additional development potential, in the form of 3,035,540 square feet of non-residential development and 1,300 residential dwelling units (collectively “the Excess Capacity”) apportioned between the three districts in the Specific Plan Area. The pool can be used by developers that wish to develop a project that exceeds the Base FAR up to a defined “Maximum FAR” and by developers that wish to develop residential dwelling units. Developers wishing to utilize said Excess Capacity must participate in the Community Development Program and enter into a Community Benefit Program Agreement with the City. D. Developer proposes to develop certain property (“the Property”) [ within the Specific Plan Area, and as part of its proposal desires to add project specific details identifying the amount of excess capacity non-residential square footage and/or number of residential units proposed to be ] constructed by Developer(“the Project”). In exchange for the use of this [ excess development capacity, Developer proposes to provide adddescription ] of proposed community benefit to be provided by Developer (“the Community Benefit”). E. Developer has applied for, and City has approved, contingent upon City Council approval of a Community Benefit Program Agreement, a Site Development Review (Planning Commission Resolution No. ), which approval, together with any approvals or permits now or hereafter issued with respect to the Project are referred to as the “Project Approvals.” 1893121.6 Form Community Benefit Agreement 16 Page of F. The City and Developer have reached agreement with respect to the Community Benefit and desire to express herein a Community Benefit Program Agreement clearly setting forth the Community Benefit to be provided by the Developer, and the scope and nature of excess development capacity to be granted to Developer in exchange for said Community Development. 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. 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. 2. Effective Date and Term. 2.1 Effective Date. The effective date of this Agreement shall be the Approval Date. 2.2 Term. The term of this Agreement shall commence on the Effective Date and shall extend until the earlier of the following: 1) the Developer has provided the Community Benefit to the City as provided in Section 3 of this Agreement, 2) any of the Project Approvals expires, or 3) (__) years after the Effective Date. 1893121.6 Form Community Benefit Agreement 26 Page of 3. Community Benefit to Be Provided By Developer. [ Developer shall provide the following Community Benefit to the City: add ] detailed description of benefit to be provided. The Developer shall provide the Community Benefit to the City no later than the time of issuance of the first building permit for the Project. In no event shall the City be required to issue a building permit unless the Community Benefit has been provided to the City. [ This Section may contain additional details regarding the Benefit and how it is to be “provided” to the City. E.g. details on property transfer, etc.] 4. Deposit. Within ( ) days of the effective date of this Agreement, Developer shall provide to the City a deposit in the amount of dollars ($ ). Said deposit is intended to secure the provision by the Developer of the Community Benefit described in Section 3 of this Agreement. The City will return the full amount of the deposit within ( ) days of Developer’s provision of said Community Benefit as required by Section 3 of this Agreement. If Developer fails to provide the Community Benefit during the term of this Agreement, the deposit shall be forfeit, and City shall have no obligation to return it to Developer. [ This may be modified depending on the nature of the Benefit. E.g., if the Benefit is a cash payment, then the deposit amount may be deducted ] from the total amount owed, rather than being returned to Developer. 5. Reservation of Excess Development Capacity. 5.1 Reservation of Excess Capacity. During the term of the Agreement, and so long as each of the Project Approvals remain in effect, City [] shall reserve description of Excess Capacityallocated to the District of the Specific Plan Area for Developer’s use. If Developer fails to provide the Community Benefit during the term of this Agreement, the Excess Capacity reserved for Developer shall revert to the pool maintained by the City and will be available to other developers on a “first come, first served” basis. 5.2 Limitation on City’s Obligation. This Agreement shall not be construed to require the City to issue any Project Approval to the Developer. City is solely required to reserve the Excess Capacity identified in Section 5.1 of this Agreement. Other than this obligation, nothing in this Agreement shall prevent the City from denying or conditionally approving any subsequent land use permit or authorization for the Project. All of City’s applicable ordinances, resolutions, rules, regulations and official policies shall apply to the Project including, but not limited to, those governing the permitted uses of the Property, design and construction of the Project, density and intensity of use of the Project, and the maximum height, bulk and size of proposed buildings within the Project. 1893121.6 Form Community Benefit Agreement 36 Page of 6. Amendment or Cancellation. 6.1 Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties. 7. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 8. 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, 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. 9. Assignment. Developer may wish to sell, transfer or assign all or portions of the Property to other developers (each such other developer is referred to as a “Transferee”). In connection with any such sale, transfer or assignment to a Transferee, Developer may sell, transfer or assign to such Transferee some or all of the Excess Capacity reserved under this Agreement, so long as said transfer would not result in development of the Property in excess of the Maximum FAR. No such transfer, sale or assignment of Developer’s rights, interests and obligations hereunder shall occur without prior written approval by the City. 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 obligations incurred by Developer pursuant to this Agreement will be fully satisfied. 10. Notices. All notices required to be given to City under this Agreement shall be in writing and shall be addressed as follows: City Manager 1893121.6 Form Community Benefit Agreement 46 Page of City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925) 833-6651 11. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 12. Legal Authority. Each individual executing this Agreement on behalf of Developer hereby represents and warrants that he or she has full power and authority under the entity’s governing documents to execute and deliver this Agreement in the name of and on behalf of the company and to cause the entity to perform its obligations under this Agreement. [Execution Page Follows] 1893121.6 Form Community Benefit Agreement 56 Page of 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 By: __________________________ Joni Pattillo, City Manager By:_____________________________ Attest: Its: ________________________ Caroline Soto, City Clerk Approved as to form ________________________ John Bakker, City Attorney 1893121.6 Form Community Benefit Agreement 66 Page of