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HomeMy WebLinkAboutDublin Crossing LLC Development Agreement Amend #2 9`a 2016056821 03/08/2016 03:30 PM • '�/— OFFICIAL RECORDS OF ALAMEDA COUNTY �..ti" N\* STRECORDING FEE:MANNING RECORDING REQUESTED BY: 0.00 CITY OF DUBLIN 16 PGS When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 L Fee Waived per GC 27383 Space above this line for Recorder's use AMENDMENT NO. 2 TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN CROSSING LLC RELATING TO THE DUBLIN CROSSING PROJECT THIS AMENDMENT ("Amendment") is made and entered in the City of Dublin on this 12 day of , 2016, by and between the City of Dublin, a Municipal Corporation (hereafter " ity"), DUBLIN CROSSING, 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 "Original Agreement"). Subsequently, the Parties entered into that certain "Amendment No. 1 to Development Agreement Between the City of Dublin and Dublin Crossing Venture LLC Relating to the Dublin Crossing Project," dated June 16, 2015 and recorded in the Official Records on July 22, 2015 as document number 2015202606 (the "First Amendment"). The Original Agreement, as amended by the First Amendment, is referred to as 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. Subsequent to execution of the First Amendment, Dublin Crossing Venture, LLC sold and assigned all of its right, title and interest in the property and the development project described in the Agreement (the "Property" or the "Project") to Developer, with the consent of City, pursuant to that certain Assignment and Assumption of Development Agreement recorded in the Official Records on August 28, 2015 as document number 2015239932 (the "DA Assignment"). 4. The Developer has requested certain minor changes to the Project, and the City has approved them (the "Subsequent Project Approvals"), contingent upon the effectiveness of this Amendment. The Subsequent Project Approvals include certain changes to the proposed frontage along Arnold Road made at the behest of the Regulatory Agencies and modifying conditions of Amendment No. 2 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 1 approval that would require undergrounding certain electrical transmission lines that cross the Property. 5. Section 13.3 of the Agreement provides that insubstantial amendments to the Agreement may be executed by the parties to the Agreement and shall not require notice or public hearing before either the Planning Commission or the City Council. 6. Section 13.3 of the Agreement provides that an insubstantial amendment is any amendment to the Agreement that does not relate to the following (which are hereafter referred to as "Substantial Changes"): 1) the term of the Agreement as provided in Section 4.2; 2) the permitted uses of the Property as provided in Section 5.1 ; 3) provisions for "significant" reservation or dedication of land as provided; 4) conditions, terms, restrictions or requirements for subsequent discretionary actions; 5) the density or intensity of use of the Project; 6) the maximum height or size of proposed buildings; and 6) monetary contributions by Developer as provided in the Agreement. 7. This Amendment does not relate to any Substantial Changes as described in Recital 6 above and therefore constitutes an insubstantial amendment that may be executed without notice or public hearing before either the Planning Commission or the City Council. 8. Pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq., hereinafter "CEQA"), City undertook 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. 9. 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. 10. On Feb. o. , 2016, the City Council of the City of Dublin adopted Ordinance No. 02-11 approving this Amendment No. 2 to the Development Agreement ("DA Amendment Approving Ordinance"). The Amendment No. 2 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 2 ordinance took effect on maAtth 3 , 2016 (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: 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 Agreement 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 specific final map subject to approval multiplied by $26,691 .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 final 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 ($26,691 .96 per residential unit) shall not be adjusted for inflation. At such point as Developer has paid Development Agreement Fees or advances equal to $42,707,142 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 $26,691.96 per residential unit fee generates $42,707,142 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 (f) 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 Amendment No. 2 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 3 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 $42,707,142 in Development Fee revenue." 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 $23,500,000 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. Amendment No. 2 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 4 Payment Amount Deadline First $15,000,000 June 30, 2016 Second $3,000,000 June 30, 2018 Third $1 ,000,000 June 30, 2019 Fourth $1 ,000,000 June 30, 2020 Fifth $1 ,000,000 June 30, 2021 Sixth $2,500,000 At recordation of the last final map in Phase 4 of the Project (see Exhibit D)" Section 4. Section 9.9 is added to the agreement to read as follows: "9.9. Cooperation in Potential Expansion of Park Footprint. One of the transportation improvements that Developer is required to complete, the Scarlett Drive extension, requires the acquisition of a portion of a parcel owned by a third party, Scarlett Homes LLC. The remainder, if acquired from Scarlett Homes LLC, could be incorporated into the Dublin Crossing Park, and the Parties desire that that occur if feasible. Developer will use commercially reasonable efforts, as determined by Developer in its sole discretion, to acquire the entire parcel owned by Scarlett Homes LLC, and, if that effort is successful, it will dedicate it to the City for park purposes. City shall accept such dedication upon Developer's satisfaction of the requirements of Section 9.4. The City shall not be obligated under Section 9.5 to improve the lands dedicated pursuant to this Section, and Developer shall not be entitled to credit under the PFF as a result of the dedication." Section 5. 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 is designated Parcel 27 on Vesting Tentative Map 8150 and is bounded by D Amendment No. 2 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 5 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. Notwithstanding anything to the contrary in this Section and in Section 9, Developer agrees to improve and maintain for a period of 24 months following their completion: (a) curb, gutter, and planter strips surrounding the school site and (b) four acres of hydroseeded turf in a location on the school site to be determined by the City. The improvements shall be completed within 18 months of Developer's acquisition of the property that contains the school site and shall be maintained during the 24-month period at no cost to the City. The City will accept the school site at the conclusion of the 24-month period provided developer has satisfied the requirements set forth in Section 9.4 for acceptance of parkland." Section 6. Sections 13 through 29 of the Agreement are hereby renumbered 15 through 31 . Section 7. New Section 13 is hereby added to the Agreement to read as follows: "13. Wetlands Mitigation Easement Purchase. As a means of potentially satisfying the Project's wetlands mitigation obligation, Developer agrees to consider the purchase of rights from the City over the City-owned parcel adjacent to the Iron Horse Trail and south of Dublin Boulevard (Assessor's Parcel Number 941-0550-023-04) ("the Property") that would allow the Property or a portion thereof to be preserved under conservation easement held by a third party. Developer shall be responsible for obtaining regulatory approval for the Property's use as wetlands mitigation for the Project and for the costs of any necessary improvements to the Property. The parties anticipate that the City would be responsible for the costs of any required maintenance and management of the easement area in accordance with the Wetland Mitigation Plan required by the regulatory agencies. Nothing in this paragraph obligates the City to sell the necessary rights to Developer. The parties agree that the City shall be grantee of a conservation easement and a third party conservation easement holder may be required and is subject to regulatory agency approval." Section 8. New Section 14 is hereby added to the Agreement to read as follows: "14. Acceleration of Civic Center Component of Public Facilities Fee. Developer shall pay the Civic Center Component of the Public Facilities Fee for 1600 residential units on an accelerated basis at the rate that became effective October 15, 2015 ($892 per dwelling unit). The entire payment ($1 ,427,200) Amendment No. 2 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 6 shall be made on or prior to the later of (a) June 30, 2016 or (b) the date upon which all appeal, legal challenge and rehearing periods relating to the Subsequent Project Approvals shall have expired without legal challenge, or, if any appeal, legal challenge or rehearing request is filed against the City challenging the Subsequent Project Approvals, the date upon which all such challenges are finally dismissed and either (i) all of such Subsequent Project Approvals remain effective or, (ii) have been reaffirmed, if required by the resolution of the challenge(s), whichever is later. As a result of such payment, Developer shall receive a credit against the Civic Center Component of the Public Facilities Fee for the first 1600 units in the Project. The credit created as a result of this Section shall be a credit against the Civic Center Component of the Public Facilities Fee for up to 1 ,600 units, notwithstanding any future changes in the amount of the fee , shall be applicable only to units within the Project area, and shall in all other respects be subject to the requirements of the City's "Consolidated Impact Fee Administrative Guidelines" or its successor that is in effect at the time the credits are created." Section 9. Exhibits E and F to the Agreement are replaced in their entirety by revised Exhibits E and F attached hereto and incorporated by this reference. Section 10. 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 11 . Defined Terms. Defined terms have the same meaning in this Amendment as in the Agreement unless otherwise specified. Section 12. 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. Amendment No. 2 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 7 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first above written. CITY: DEVELOPER: CITY OF DUBLIN DUBLIN CROSSING, LLC, a Delaware limited liability company -�� B By: BrookCal Dublin LLC, - ' ►4anage - - a Delaware limited liability company l Its: Member I o* Attest: I V l By: Name: "J ri Its: By: ,mss LENS Caroline Soto, City Clerk Name: ,� E� Its: Approved as to form By: SPIC Dublin LLC, a Delaware limited liability company Its: Member By: Standard Pacific Investment Corp., . - a Delaware corpiration J. n Bakker, City Attorney Its: M - II NBame:`t3Rt •, Its: .t � �..� '_ ..-Z 71U'� Amendment No. 2 to Dublin/Dublin Crossing Venture LLC Development Agreement for the Dublin Crossing Project 8 LALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Alameda On February 9, 2016 before me, Taryn Gavagan Bozzo, a Notary Public, personally appeared Linda Smith who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/aye subscribed to the within instrument and acknowledged to me that he/she/they executed the same in 11-is/her/t-he authorized capacity( es), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. TARYN GAVAGAN 80770 Commission # 1999876 Notary Public -California A' Alameda County Comm. Expires Dec 3,2016 Signature CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 C ' .cam_s�.2.:rQ.v.C.a-.�.s�`..� r. .�.s��2.aC A2..4�,A. �t.s�t.s�._q<.sa•.cq..�C c�`:�.:a.w•.wt..�.. �C.s�4.A s��s�t.w<.T�_s�Z.s�•s�2.aC.aa.a.s��c��saC..s�C. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness,accuracy, or validity of that document. State of California County of Contra Costa // On E b t' L _ftj 16 1 0O/l0 before me, Yvonne M. Craves, Notary Public, Date ,J Here Insert Name and Title of the Officer personally appeared John Ryan and Gregory Glenn Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity,and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph YVONNE M. CRAVES is true and correct. Commission # 2014324 Notary Public - California Z z WITNESS my hand and official seal. z Contra Costa County Expire; Mar 26,2017 " '�_v' " Signature / ' Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies)Claimed by Signer(s) Signer's Name: Signer's Name: Corporate Officer—Title(s): Corporate Officer Title(s): ❑❑ Partner Limited ❑General ❑❑Partner ❑Limed ❑General Individual JJ Attorney in Fact Individual Attorney in Fact Trustee ❑Guardian or Conservator ❑Trustee 0 Guardian or Conservator Other: Other: Signer Is Representing: Signer Is Representing: 64487.4ctr, 'as-e7CE.;-e/V,V'./4'ei6',v4-e�..-.ryV,-ri,'ri.-v6'L-' e'•''er•47-rit'ygV-d6'y-a+WOW, 'y�V 4'ar4ie,,-2/4 6,,'aiA�Aa.: ✓6v.`es4`�'riiVt ©2015 National Notary Association•www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. STATE OF CALIFORNIA COUNTY OF Alameda On February 10 , 2016 , before me, Mandi M. Misasi,Notary Public (here insert name and title of the officer) personally appeared Bridgit Koller who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they-executed the same in hi-s,her/their authorized capacity( es), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. MANDI M.MISASI WITNESS my hand and official seal. tip,`- Commission N 2098521 ! .;,» Notary Public•California Z V•r, San Joaquin County Comm.Exeires Jan 10,20_14 Signature (SEAL) 2294-00169\FORM\1227861.1 10/29/14 Exhibit E Components of Development Agreement Fee Lots Aggregate Per Lot CFD Eligible CFD Ineligible Totals 1600 $42,707,142 $26,691.96 $16,707,142 $26,000,000 Components Section Park Construction amended 9.6 $12,857,142 $8,035.71 $12,857,142 $0 Community Benefit amended 7.1 $23,500,000 $14,687.50 $0 $23,500,000 Iron Horse Trail Grade Separated 10.3.1 $50,000 $31.25 $50,000 $0 Crossing Design Iron Horse Trail Grade Separated 10.3.2 $1 ,000,000 $625.00 $1 ,000,000 $0 Crossing Construction ACSPA Contribution 9.8 $2,800,000 $1,750.00 $2,800,000 $0 Park Maintenance Endowment 9.7 $2,500,000 $1,562.50 $0 $2,500,000 Exhibit F Examples of Operation of Development Agreement Fee Advances and Applications Table 1 Contributions by Phase and Time CFD Eligible Not CFD Eligible Community Park ACSPA Iron Horse Subtotal, Park Community Subtotal, Not Units Construction Parcel Bridge CFD Eligible Endowment Benefit CFD Eligible Total Contributions Required in Phases Phase 1 430 $100,000 $50,000► $150,000 $0 $150,000 Phase 2 322 $4,185,714 $2,800,000 ▪ $6,985,714 $840,000 $840,000 $7,825,714 r Phase 3 360 $4,285,714 $4,285,714 $840,000 $840,000 $5,125,714 Phase 4 150 $0 $2,500,000 $2,500,000 $2,500,000 Phase 5 338 $4,285,714 • $4,285,714 $820,000 $820,000 $5,105,714 Project End1 - $1,000,000 $1,000,000 $0 $1,000,000 Subtotal 1600 $12,857,142 $2,800,000 $1,050,000 F $16,707,142 $2,500,000 $2,500,000 $5,000,000 $21,707,142 Contributions Required at Specific Times 6/30/2016 $15,000,000 $15,000,000 $15,000,000 6/30/2018 $3,000,000 $3,000,000 $3,000,000 6/30/2019 $1,000,000 $1,000,000 $1,000,000 6/30/2020 $1,000,000 $1,000,000 $1,000,000 6/30/2021 $1,000,000 $1,000,000 $1,000,000 Subtotal $21,000,000 $21,000,000 $21,000,000 TOTAL $12,857,142 $2,800,000 $1,050,000 $16,707,142 $2,500,000 $23,500,000 $26,000,000 $42,707,142 Total Contributions Required: $42,707,142 Contributions Per Unit: $26,691.96 1) The $1 million contribution to the construction of the Iron Horse Bridge will have been collected in full upon completion of 1600 units. Example Scenario: Phase 1 starts immediately. Each phase is completed in 24 months. a b c d e f Cumulative Total Balance at End of Per Lot Fees by Contributions Time Frame Contributions Phase Phase Required in Phase Contributions in Phase (e - b + prior Phase Complete Units (c x$26,691.96) (See Table 1) (See Table 1) (c + d) balance) 1 6/30/2016 430 $11,477,544.41 $150,000 $15,000,000 $15,150,000 $3,672,456 2 6/30/2018 322 $8,594,812.33 $7,825,714 $3,000,000 $10,825,714 $5,903,357 3 6/30/2020 360 $9,609,106.95 $5,125,714 $2,000,000 $7,125,714 $3,419,964 4 6/30/2022 150 $4,003,794.56 $2,500,000 $1,000,000 $3,500,000 $2,916,170 5 6/30/2024 338 $9,021,883.75 $5,105,714 $5,105,714 -$1,000,000 Project End $1,000,000 $1,000,000 $0 Totals 1600 $42,707,142.00 $21,707,142 $21,000,000 $42,707,142 $0