HomeMy WebLinkAboutOrd 04-18 Approving a Development Agreement between the City of Dublin and Ashton at Dublin Station ORDINANCE NO. 04— 18
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * ** * ** * *
APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND
ASHTON AT DUBLIN STATION, LLC PLPA-2017-00036
The City Council of the City of Dublin does ordain as follows:
Section 1: RECITALS
A. The Applicant, Ashton at Dublin Station, is proposing to construct a residential project
comprised of 220 units, residential amenities including a fitness center, pool, roof top lounge, and
331 spaces of structured parking spaces on approximately 2.36-acre site located on Site A-3 in
the Dublin Transit Center. The proposed development and applications are collectively known as
the "Project"; and
B. The City Council denied the project on March 6, 2018, and the Applicant subsequently filed a
lawsuit against the City; and
C. In accordance with the settlement agreement, the City Council will reconsider the project, and
consider the proposed Development Agreement; and
D. The Planning Commission held a public hearing on the proposed Development Agreement on
July 10, 2018 for which public notice was given by law; and
E. The Planning Commission made its recommendation to the City Council for approval of the
Development Agreement by Resolution 18-17; and
F. A public hearing on the proposed Development Agreement was held before the City Council on
July 17, 2018 for which public notice was given as provided by law; and
G. The City Council has considered the recommendation of the Planning Commission including
the Planning Commission's reasons for its recommendation, the City Council Staff Report dated
July 17, 2018 and all comments received in writing and all testimony received at the public
hearing.
Section 2: FINDINGS AND DETERMINATIONS
Therefore, on the basis of: a) the foregoing Recitals which are incorporated herein, b) the City of
Dublin General Plan, Eastern Dublin Specific Plan and Transit Center Stage 1 Development Plan,
c) the Staff Report, and, on the basis of the specific conclusions set forth below, the City Council
finds and determines that:
1. The proposed Development Agreement is consistent with the objectives, policies, general land
uses and programs specified in the General Plan and Eastern Dublin Specific Plan in that: a) the
General Plan and Eastern Dublin Specific Plan land use designation for the subject site is High
Density Residential and the Development Agreement is consistent with that designation; and b)
Ord No. 04-18, Adopted 7/17/2018, Item No. 6.1 Page 1 of 2
the Development Agreement is consistent with the fiscal policies in relation to the provision of
infrastructure and public services of the General Plan and Eastern Dublin Specific Plan.
2. The proposed Development Agreement is compatible with the uses authorized in, and the
regulations prescribed for, the land use designation in which the real property is located.
3. The proposed Development Agreement is in conformity with the public convenience, general
welfare and good land use practice in that the proposed project will implement land use
guidelines that are in place at the time the project is approved.
4. The proposed Development Agreement will not be detrimental to the health, safety, and general
welfare in that the project will proceed in accordance with the General Plan, Eastern Dublin
Specific Plan, Planned Development Zoning, and any Conditions of Approval for the proposed
project.
5. The proposed Development Agreement will not adversely affect the orderly development of the
property or the preservation of property values in that the development will be consistent with the
City of Dublin General Plan, Eastern Dublin Specific Plan, Planned Development Zoning, and
future project approvals.
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 and be in force thirty (30) days from and after the date of its final
adoption. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least
three (3) public places in the City of Dublin in accordance with Section 39633 of the Government
Code of California.
PASSED, APPROVED AND ADOPTED this 17th day of July 2018, by the following vote:
AYES: Councilmembers Gupta, Hernandez, Thalblum and Mayor Haubert
NOES:
ABSENT: Councilmember Goel
ABSTAIN:
ATTEST: ayi L cyk Mayor
City Clerk
Ord No. 04-18, Adopted 7/17/2018, Item No. 6.1 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
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
ASHTON AT DUBLIN STATION, LLC
FOR THE ASHTON AT DUBLIN STATION PROJECT
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THIS DEVELOPMENT AGREEMENT (this “Agreement” or this “Development
Agreement”) is made and entered in the City of Dublin on this __ day of ___________,
2018 (the “Effective Date”), by and between the City of Dublin, a Municipal Corporation
(hereafter “City”) and Ashton at Dublin Station, 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 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 (hereafter
“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 owns certain real property (the “Property”) consisting of
approximately 2.36 acres of land, as more particularly described in Exhibit A attached
hereto and incorporated herein by reference.
C. City has previously approved various land use approvals in connection
with the development of the Dublin Transit Center Project, including the Project, which
approvals include, without limitation, a General Plan and Eastern Dublin Specific Plan
Amendment for the Dublin Transit Center Project (Resolution No. 216-02 adopted on
November 19, 2002), a Stage 1 Planned Development Zoning and Development Plan
(Ord. No. 21-02 adopted on December 3, 2002; amended by Ord. No. 06-11 adopted on
June 7, 2011), and a Master Development Agreement (Ord. No. 05-03 adopted on May
6, 2003; amended by Ord. No. 24-05 adopted on October 4, 2005) (collectively referred
to herein as the “Transit Center Approvals”).
D. Developer has applied for, and City has approved, various land use
approvals in connection with a high-density residential development of two hundred
twenty (220) units and related amenities (the “Project”), including, without limitation, a
Stage 2 Planned Development Rezoning and Development Plan for the Transit Center
Site A-3 (Ord. No. ___ adopted by the City Council on ______, 2018), and a Site
Development Review (SDR) approval permit and Tentative Map 8437 for the Transit
Center Site A-3 Project (Resolution No. ___ adopted on ______, 2018), and the DA
Approving Ordinance (defined below) (collectively with the Transit Center Approvals,
referred to herein as the “Project Approvals”).
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 and the Eastern Dublin Specific Plan
(“Specific Plan”), as both have been amended by the Project Approvals, and has been
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reviewed and evaluated in accordance with the Development Agreement Statute and
Chapter 8.56. The proposed project is consistent with the General Plan Land Use
Designation for Site A-3 and does not exceed the units allowed by the Dublin Transit
Center Stage 1 Planned Development Zoning.
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. City has undertaken, 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 Project and has
determined that the project qualifies for a statutory exemption from CEQA under
Government Code section 65457. An EIR has been certified for the Transit Center
Approvals. Public Resources Code Section 21166 and CEQA Guidelines Section 15162
identify the conditions requiring subsequent environmental review. The CEQA
document in Support of a Specific Plan Exemption finds that no event as specified in
Section 21166 of the Public Resources Code has occurred since the certification of the
Dublin Transit Specific Plan EIR that requires preparation of a subsequent or
supplemental EIR or Negative Declaration.
I. On ___________, 2018, the City Council of the City of Dublin adopted
Ordinance No. ___ approving this Development Agreement (the “DA Approving
Ordinance”). The DA Approving Ordinance took effect on ____________, 2018.
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 (“Property”).
2. Interest of Developer. Developer has a legal interest in the Property in
that it is the owner of the Property.
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 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.
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4. Effective Date and Term
4.1 Effective Date. The effective date of this Agreement (“Effective
Date”) is _______________ (as first set forth above).
4.2 Term. The term of this Agreement shall commence on the Effective
Date and shall continue for five (5) years thereafter, unless said term is otherwise
extended or terminated as provided in this Agreement. In the event that any third-party
lawsuit is filed challenging the City’s issuance of the Project Approvals or its compliance
with CEQA, the term of this Agreement shall be automatically extended for a duration
equal to the time from the filing of such lawsuit to the entry of an order dismissing or
otherwise terminating such lawsuit, which duration shall include any appeals.
4.3 Term of Project Approvals. The term of any Project Approvals for
the Property or any Portion thereof, specifically including the Site Development Review
approval permit and Tentative Map No. 8347 approved by Resolution No. _____, shall
be extended automatically for the Term of this Agreement.
5. Vested Rights/Use of the Property/Applicable Law/Processing
5.1 Right 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, and the
City’s ordinances, codes, resolutions, rules, regulations and official policies governing
the development, construction, subdivision, occupancy and use of the Project and the
Property including, without limitation, the General Plan, the Dublin Municipal Code, and
the Specific Plan, the permitted uses of the Property, density and intensity of use of the
Property and the maximum height, bulk and size of proposed buildings, and the
provisions for reservation or dedication of land for public purposes that are in force and
effect on the Effective Date of this Agreement (collectively, “Applicable Law”). In
exercising its discretion when acting upon subsequent project approvals, City shall
apply the Applicable Law as the controlling body of law (within which Applicable Law
such discretion shall be exercised). Notwithstanding the foregoing or anything to the
contrary herein, any amendment to the Project Approvals 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 this
Agreement. In the event that such amendments to the Project Approvals are sought for
any distinct portion of the Property or Project, such amendments shall not require
amendment of this Agreement with respect to any other portion of the Property or
Project, except to the extent set forth in such amendment.
5.2 Fees, Exactions, Dedications. The City shall not apply to the
Project any development impact fee or any application, processing or inspection fee
(collectively, “Fees”) that the City first enacts after the Effective Date. Furthermore, the
rate imposed for each such applicable Fee shall be the lower of (a) the rate in effect on
June 30, 2018, as set forth in the schedule attached hereto as Exhibit B, or (b) the rate
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in effect at the time such Fee is payable under the terms of the legislation imposing the
particular Fee. Notwithstanding the foregoing, the City shall be permitted to impose any
Exaction on a subsequent project approval that requires an amendment to the Project
Approvals.
5.3 Construction Codes. Notwithstanding the provisions of Section 5.1
above, to the extent Applicable Law includes requirements under the state or locally
adopted building, plumbing, mechanical, electrical and fire codes (collectively the
“Codes”), the Codes included shall be those in force and effect at the time Developer
submits its application for the relevant building, grading, or other construction permits to
City. In the event of a conflict between such Codes and the Project Approvals, the
Project Approvals shall, to the maximum extent allowed by law, prevail. For
construction of public infrastructure, the Codes applicable to such construction shall be
those in force and effect at the time of execution of an improvement agreement between
City and Developer pursuant to Chapter 9.16 of the Dublin Municipal Code.
5.4 Omitted.
5.5 New Rules and Regulations. During the term of this Agreement,
the City may apply new or modified ordinances, resolutions, rules, regulations and
official policies of the City to the Property which were not in force and effect on the
Effective Date only to the extent they are not in conflict with the vested rights granted
by this Agreement, the Applicable Law, the Project Approvals or this Agreement. In
addition to any other conflicts that may occur, each of the following new or modified
ordinances, resolutions, rules, regulations or official policies shall be considered a per
se conflict with the Applicable Law:
5.5.1 Any application or requirement of such new or modified
ordinances, resolutions, rules, regulations or official policies that would (i) cause or
impose a substantial financial burden on, or materially delay development of the
Property as otherwise contemplated by this Agreement or the Project Approvals, (ii)
frustrate in a more than insignificant way the intent or purpose of the Project Approvals
or preclude compliance therewith including, without limitation, by preventing or imposing
limits or controls in the rate, timing, phasing or sequencing of development of the
Project; (iii) prevent or limit the processing or procuring of subsequent project approvals;
or (iv) reduce the density or intensity of use of the Property as a whole, or otherwise
requiring any reduction in the square footage of, or total number of, proposed buildings,
structures and other improvements, in a manner that is inconsistent with or more
restrictive than the limitations included in this Agreement and the Project Approvals;
and/or
5.5.2 If any of such ordinances, resolutions, rules, regulations or
official policies do not have general (City-wide) applicability.
Developer specifically acknowledges that it will be subject to new or modified
ordinances, resolutions, rules, regulations or official policies that implement the
Municipal Regional Stormwater NPDES Permit issued by the Regional Water Quality
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Control Board for the San Francisco Bay Region from time to time (the “MRP”) to the
extent that the permit does not include exemptions that apply to the Project.
5.6 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, if a City ordinance, resolution, policy, directive, or other
measure is enacted or becomes effective, whether by action of the City or by initiative,
and if it imposes a building moratorium which affects all or any part of the Project, City
agrees that such ordinance, resolution or other measure shall not apply to the Project,
the Property, this Agreement or the Project Approvals unless the building moratorium is
imposed as part of a declaration of a local emergency or state of emergency as defined
in Government Code section 8558, provided that to the extent a moratorium applies to
all or any part of the Project then the Term shall automatically be extended for a period
of time equal to the period of the moratorium.
5.7 Revised Application Fees. Notwithstanding section 5.2 above, any
existing application, processing and inspection fees that are revised during the term of
this Agreement shall apply to the Project provided that (1) such fees have general
applicability and are consistent with State law limitations that processing fees not
exceed the estimated reasonable cost of providing the service for which they are
charged; (2) the application of such fees to the Property is prospective; and (3) the
application of such fees would not prevent, impose a substantial financial burden on, or
materially delay development in accordance with this Agreement. By so agreeing,
Developer does not waive its rights to challenge the legality of any such application,
processing and/or inspection fees.
5.8 New Taxes. This Agreement shall not prohibit the application of
any subsequently enacted city-wide taxes to the Project provided that (1) the application
of such taxes to the Property is prospective, and (2) the application of such taxes would
not prevent development in accordance with this Agreement. By so agreeing,
Developer does not waive its rights to challenge the legality of any such taxes, facially
or as applied to its Project or Property, or to claim exemption from any taxes to the
extent allowed by law.
5.9 Development of the Project; Phasing, Timing. Since the California
Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d
465, that the failure of the parties therein to provide for the timing of development
resulted in a later adopted initiative restricting the timing of development to prevail over
such parties’ agreement, it is the Parties’ intent to cure that deficiency by acknowledging
and providing that this Agreement contains no requirements that Developer must initiate
or complete any action, including without limitation, development of the Project within
any period of time set by City. Nothing in this Agreement is intended to create nor shall
it be construed to create any affirmative development obligations to develop the Project
at all or in any particular order or manner, or liability in Developer under this Agreement
if the development fails to occur. It is the intention of this provision that Developer be
able to develop the Property in accordance with its own time schedules and the Project
Approvals.
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5.10 Processing. Nothing in this Agreement shall be construed to limit
the authority or obligation of City to hold necessary public hearings, nor to limit the
discretion of City or any of its officers or officials with regard to subsequent project
approvals that require the exercise of discretion by City, provided that such discretion
shall be exercised consistent with the vested rights granted by this Agreement, the
Applicable Law and this Agreement.
6. Community Benefits.
6.1 Community Benefit Payment. Concurrently with the Effective Date
of this Agreement, Developer has contributed the sum of Six Hundred Thousand Dollars
($600,000) to the City as a Community Benefit, to be allocated by the City toward
improvements in Don Biddle Community Park, in accordance with the Master Plan
adopted for the park.
6.2 Affordable Housing. Developer shall ensure that a minimum of
10% of the units in the Project shall be made affordable for fifty-five (55) years to
households earning between 80% and 120% of area median income, pursuant to an
Affordable Housing Agreement with the City, which agreement shall comply with the
City’s Inclusionary Zoning Ordinance (Municipal Code Chapter 8.68) and shall satisfy
Developer’s obligations thereunder.
6.3 Right-of-Way Purchase. As consideration for Developer’s purchase
of approximately three hundred (300) square feet of the City’s right-of-way in
accordance with the terms and conditions of the Project Approvals, Developer shall
contribute the purchase price of Twenty-Five Thousand Dollars ($25,000), prior to
issuance of building permits for the Project.
7. Amendment or Cancellation.
7.1 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). Each Party agrees to extend to the
other its prompt and reasonable cooperation in so modifying this Agreement or
approved plans.
7.2 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. When a Party seeking such an
amendment owns or has an equitable right to only a portion of the whole of the Property
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(“Portion”), then such Party may only seek amendment of this Agreement as directly
relates to the Portion, and the party owning any other Portion shall not be required or
entitled to be a signatory or to consent to an amendment that affects only another
party’s Portion. If any Portion of the Property is subject to a document which creates an
association which oversees common areas and any construction or reconstruction on or
of the same, then the association shall be deemed to be the “owner” of that Portion of
the Property for the purpose of amending this Agreement.
7.3 Major Amendments. Any amendments to this Agreement which
relate to (a) the Term; (b) the permitted uses of the Property as provided in paragraph
5.1; (c) provisions for “significant” reservation or dedication of land; (d) conditions,
terms, restrictions or requirements for subsequent discretionary actions; (e) an increase
in the density or intensity of use of the overall Project; (f) the maximum height or size of
proposed buildings; or (g) monetary contributions by Developer as provided in this
Agreement, shall be deemed a “Major Amendment” and shall require notice or public
hearing before the Planning Commission and the City Council before the parties may
execute an amendment hereto. The City’s Public Works Director shall determine
whether a reservation or dedication is “significant” in the context of the overall Project.
7.4 Minor Amendments. Any amendment that is not a Major
Amendment shall be deemed a “Minor Amendment” and shall not, except to the extent
otherwise required by law, require notice or public hearing before the parties may
execute an amendment hereto. The City Manager or his or her designee shall have the
authority to determine if an amendment is a Major Amendment subject to Section 7.3
above or a Minor Amendment subject to this Section 7.4. The City Manager shall have
the authority to review, approve, and execute amendments to this Agreement provided
that such amendments are not Major Amendments.
7.5 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. Any fees paid pursuant to this Agreement prior to the date of cancellation
shall be retained by the City.
8. Annual Review.
8.1 Review Date. The annual review date for this Agreement shall be
between July 15 and August 15, 2019 and thereafter between each July 15 and August
15 during the Term.
8.2 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
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compliance with the provisions of the Agreement. The burden of proof by substantial
evidence of compliance is upon Developer.
8.3 Staff Reports. To the extent practical, the City shall deposit in the
mail to Developer a copy of all staff reports, and related exhibits concerning contract
performance at least five (5) days prior to any public hearing addressing annual review.
8.4 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.
9. Default.
9.1 Remedies Available. Upon the occurrence of an event of default,
the parties may pursue all remedies at law or in equity which are not otherwise provided
for in this Agreement or in the City’s regulations governing development agreements,
expressly including, but not limited to, the remedy of specific performance of this
Agreement.
9.2 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 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.
9.3 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.
10. 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. The 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
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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.
11. Mortgagee Protection; Certain Rights of Cure.
11.1 Mortgagee 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.
11.2 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 11.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to 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 a 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.
11.3 Notice of Default to Mortgagee and Extension of Right 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 claimed set forth in the City’s notice. The City, through its City
Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more
than an additional sixty (60) days upon request of Developer or a Mortgagee.
12. 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.
13. Attorneys’ Fees and Costs.
13.1 Prevailing Party. 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.
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13.2 Third Party Challenge. 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.
14. Transfers and Assignments.
14.1 Agreement Runs 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 assignees, representatives, lessees,
and all other persons 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, including, 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.
14.2 Right to Assign. Developer may wish to sell, transfer or assign all
or portions of its 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 any or all rights,
interests and obligations of Developer arising hereunder and that pertain to the portion
of the Property being sold or transferred, to such Transferee, provided, however, that:
except as provided herein, 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.
14.3 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 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.
Page 12
14.4 Considerations for Approval of Sale, Transfer or Assignment. In
considering the request, the City Manager shall base the decision upon the proposed
assignee's reputation, experience, financial resources and access to credit and
capability to successfully carry out the development of the Property to completion. The
City Manager's approval shall be for the purposes of: a) providing notice to City; b)
assuring that all obligations of Developer are allocated as between Developer and the
proposed purchaser, transferee or assignee as provided by this Agreement; and c)
assuring City that the proposed purchaser, transferee or assignee is financially capable
of performing Developer's obligations hereunder not withheld by Developer.
Notwithstanding the foregoing, the City Manager’s approval shall not be required for an
assignment to an entity or entities controlling Developer, controlled by Developer, or
under common control with Developer, provided that Developer owns and controls no
less than fifty percent (50%) of such successor entity.
14.5 Release upon Transfer. Upon the transfer, sale, or assignment of
all of Developer’s rights, interests and obligations hereunder pursuant to Section 14.2 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, purchaser, or assignee 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.
14.6 Developer’s Right to Retain Specified Rights or Obligations.
Developer may withhold from a sale, transfer or assignment of this Agreement or any
portion of the Property transferred, certain rights, interests and/or obligations which
Developer wishes to 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 purchaser, transferee or assignee 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.
14.7 Omitted.
15. Bankruptcy. The obligations of this Agreement shall not be dischargeable
in bankruptcy.
16. 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 claims, costs
(including 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
Developer, or any actions or inactions of Developer’s contractors, subcontractors,
Page 13
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.
17. Insurance.
17.1 Commercial General Liability Insurance. During the term of this
Agreement, Developer shall maintain in effect a policy of commercial general liability
insurance with a per-occurrence combined single limit of not less than one million
dollars ($1,000,000.00). 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. City and Developer agree that such insurance may include
alternative risk management programs, including self-insurance or a combination of
self-insurance and insurance, provided that such alternative risk management programs
provide protection equivalent to that specified under this Agreement.
17.2 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.
17.3 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 17.1 and 17.2 and evidence that the carrier is
required to give the City at least fifteen days prior written notice of the cancellation or
reduction in coverage of a policy unless replaced with similar coverage. 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.
18. Sewer and Water. Developer acknowledges that it must obtain water and
sewer permits from the Dublin San Ramon Services District (“DSRSD”) which is another
public agency not within the control of the City. City agrees that it shall not take any
action with DSRSD opposing Developer’s efforts to reserve water and sewer capacity
sufficient to serve the Project described herein.
19. 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:
Page 14
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:
Ashton at Dublin Station, LLC
c/o UDR, Inc.
1745 Shea Center Drive, Suite 200
Highlands Ranch, CO 80129
Attn: Warren L. Troupe and David G. Thatcher
With a copy to:
Morrison & Foerster LLP
425 Market Street
San Francisco, 94105-2482
Attn: Megan A. Jennings
A party may change address by giving notice in writing to the other party and 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.
20. Agreement is Entire Understanding. This Agreement constitutes the
entire understanding and agreement of the parties.
21. Exhibits. The following document is referred to in this Agreement and is
attached hereto and incorporated herein as though set forth in full:
Exhibit A Legal Description of Property
Exhibit B Schedule of Impact Fees
22. Recitals. The foregoing Recitals are true and correct and are made a part
hereof.
23. Counterparts. This Agreement is executed in two (2) 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 execution by all parties.
Page 15
25. No Third Party Beneficiaries. Nothing contained in this Agreement is
intended to or shall be deemed to confer upon any person, other than the Parties and
their respective permitted successors and assigns, any rights or remedies hereunder.
[Execution Page Follows]
Page 16
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
By: __________________________
Chris Foss, City Manager
Attest:
________________________
Caroline Soto, City Clerk
Approved as to form
________________________
John Bakker, City Attorney
DEVELOPER
Ashton at Dublin Station, LLC,
a Delaware limited liability company
By: _______________
Its: _______________
By: __________________________
Name: _______________________
Its: ____________________________
2977065.5
(NOTARIZATION ATTACHED)
Exhibit A
Legal Description of Property
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF DUBLIN,
COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND IS DESCRIBED AS
FOLLOWS:
Parcel A:
Parcel 3, Parcel Map 8275, filed March 29, 2005, Book 280 of Parcel Map 71, Alameda
County Records.
Parcel B:
An ingress and egress easement over and across that portion of Parcel 2, as shown on
Parcel Map 8275, filed March 29, 2005 in Book 280 of Parcel Map, Page 71, Alameda
County Records, designated thereon as “RIEE” or “Reciprocal Ingress Egress
Easement” for the purposes of vehicular ingress and egress and pedestrian ingress and
egress.
APN: 986-0034-009
Paid To Fee Type Fee Detail Per home Total
City of Dublin Impact Fee-Public Facility Community Parks, Improvements $2,761 $607,420
City of Dublin Impact Fee-Public Facility Community Buildings $2,281 $501,820
City of Dublin Impact Fee-Public Facility Libraries $164 $36,080
City of Dublin Impact Fee-Public Facility Civic Center $910 $200,200
City of Dublin Impact Fee-Public Facility Neighborhood Parks Improvements $1,614 $355,080
City of Dublin Impact Fee-Public Facility Aquatic Center $205 $45,100
City of Dublin Impact Fee-Public Facility Community Nature parks, Improvements $175 $38,500
City of Dublin Impact Fee-Public Facility Community Parks, Land $4,992 $1,098,240
City of Dublin Impact Fee-Public Facility Neighborhood Parks, Land $2,248 $494,560
City of Dublin Impact Fee-Public Facility Community Nature Parks, Land $0 $0 -------------------------------------------------------------------------------------------------------------------------------------------------------------------$267-----------------------------$45~54_0 _______________________
City of Dublin Impact Fee Fire Impact Fee (MF Res.)
City of Dublin Impact Fee Eastern Dublin Traffic Impact Fee (Res ., Inside Transit Center) $4,587 $1,009,140
City of Dublin Impact Fee Noise Mitigation Fee (Res.) $3 $627
TOTAL IMPACT FEES/DU $20,147 $4,432,307
I city of Dublin Building Permit PLAN CHECK FEE*I$3,632 1$798,932
*includes Building Permit Fee, Permit Application Fee, Fire New Building Construction Plan Check, CAL Green Inspection Fee, SMIP-Multi-Family, CAL Green Application Fee, C&D Compliance Fee Res, Plan Storage Fee, Greer
Building Fee-State, Impervious SQ FT-Zone 7, Fire New Building Construction Inspection, Adjusted Plan Check, Grading Permit Fee, Site Work Fee, Additional Plan Check-Hourly Fees, and all other Permit and Plan Check
Fees.
Exhibit B