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HomeMy WebLinkAboutAshton at Dublin Station LLCRECORDING 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 tr OF 4< j . 9�a 2018164184 08/22/2018 01:02 PM OFFICIAL RECORDS OF ALAMEDA COUNTY STEVE MANNING C41�pppN�* RECORDING FEE: 0.00 20 PGS 0 Space above this line for Recorder's use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND ASHTON AT DUBLIN STATION, LLC I�i73�IlI��C�LL�1�J: �I�L��7[�P►1��iaLx� THIS DEVELOPMENT AGREEMENT (this "Agreement" or this "Development Agreement ") is made and entered in the City of Dublin on thisi6thday of August , 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." 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. 03-18 adopted by the City Council on July 17 , 2018), and a Site Development Review (SDR) approval permit and Tentative Map 8437 for the Transit Center Site A -3 Project (Resolution No. 95 -18 adopted on July 17 , 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 Page 2 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 July 17 , 2018, the City Council of the City of Dublin adopted Ordinance No. 04-08 approving this Development Agreement (the "DA Approving Ordinance "). The DA Approving Ordinance took effect on August 16 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. Page 3 4. Effective Date and Term 4.1 Effective Date. The effective date of this Agreement ( "Effective Date ") is August 16, 2018 (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. 95 -18 , 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 Page 4 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 Page 5 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. Page 6 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 Page 7 ( "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 Page 8 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 Page 9 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. Page 10 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 11 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 12 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 13 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: Coblentz Patch Duffy & Bass LLP One Montgomery Street, Suite 3000 San Francisco, CA 94104 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 14 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 15 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 B: Chris Foss, City r Ak- 6�a,54 -1)-n. L, Foss Attest: Caroline Soto, City Clerk Approved as to form hn Bakker, City Attorney DEVELOPER Ashton at Dublin Station, LLC, a Delaware limited liability company By: UDR /ML Venture, LLC, a Delaware limited liability company, its Sole Member By:UDR, Inc., a Maryland corporation, its Sole Member By: (7, S;�Q= , Name: Warren L. Troupe Its: Senior Executive Vice Presi ent (NOTARIZATION ATTACHED) Page 16 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE .: .. 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 A On A 221 201$ before me, I�G�1+i ,In�n��K" litvy�r Gj C� <k �(%k•� �atl�� Date Here Insert Name and Title of the Officer personally appeared 64 ?Lid 4p O, L Fosf Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the personK )whose names /pt6' subscri ed to the within instrument and acknowledged to me that he /sW /tf K executed the same in his /h�fer authorized capacity(ies�, and that by his /clef /t�signature�n the instrument the person(W, or the entity upon behalf of which the person(,$) 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. SOLOUMO WITNESS my hand and official seal. % WALFRED COMM. #2189503 CJ�' COMM. #2189503 z �° Notary Public . California o Signature 2 Alameda County Signature of Notary Public Comm. Ex ' . 2, 2021 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: Number of Pages: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: [ _ I Corporate Officer — Title(s): C I Partner — ❑ Limited ❑ General Individual ❑ Attorney in Fact ] Trustee ❑ Guardian or Conservator C] Other: Signer Is Representing: Signer's Name: f_] Corporate Officer — Title(s): Partner — ❑ Limited ❑ General Individual ❑ Attorney in Fact L J Trustee ❑ Guardian or Conservator ] Other: Signer Is Representing: STATE OF COLORADO ) ) SS. COUNTY OF DOUGLAS ) Subscribed and sworn to before me, in my presence, by Warren L. Troupe, who is personally known to me and who executed the within instrument in his authorized capacity of Senior Executive Vice President of UDR, Inc., the Sole Member of UDR/ML Venture LLC, the Sole Member of Ashton at Dublin State, LLC, this 1!94" day of August 2018. Witness my hand and official seal. LESLIE E. GREEN NOTARY PUBLIC STATE OF COLORADO C.1� NOTARY ID 19964006148 MY COMMISSION EXPIRES APRIL 20, 2020 es ie E. Green, Notary Public 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 m x W 00 O N C m W U W C N 0) LL co U Q Q Q ^O W N U U) I t i ov i N ccoo °oS g 8 aN� $ jt rp: ri g vi 7S �`�yyv pp lD t�l1 M N I�+1 N N N R �ta/1 Uf N Vf N V1 °a 2S n N {IDJ1 n e ��yy N s i 1 �p m 0~0 t{p{ ra-I N � O1Uf �ON{1 N N 'i 01 rl N N Vf 41 N N N N to N i�3 VNY Vaj 1m/F N 1 { o W Lu LL q SOS 'N I v C I N u c L O V yy I LL E i