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HomeMy WebLinkAboutOrd 04-19 Approving Amendment No. 1 to the Amended and Restated Agreement with Dublin Crossing LLC ORDINANCE NO. 04— 19 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN ADOPTING AMENDMENT NO. 1 TO THE AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN CROSSING, LLC RELATED TO THE DUBLIN CROSSING PROJECT PLPA-2018-00027 (HISTORICAL APNs 986-0001-001-15 (PARTIAL), 986-0034-002-00, AND 986-0034-006-00) THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. On November 5, 2013, the City Council approved Resolutions 186-13 (EIR certification) and 187-13 (Specific Plan approval and General Plan amendments) as well as Ordinances 07-13 (Zoning Ordinance and Zoning Map changes) and 08-13 (Development Agreement approval) that approved the Dublin Crossing project (now referred to as "Boulevard") on properties historically identified by Assessor Parcel Numbers 986-0001-001-15 (partial), 986-0034-002-00, and 986-0034- 006-00 (an approximately 189 acre site); and B. The project is located within the proposed Dublin Crossing Specific Plan area, which is the subject of an Environmental Impact Report (EIR), State Clearinghouse number 2012062009. Resolution 186-13 certified the Dublin Crossing Specific Plan Final EIR and adopting CEQA findings, a Statement of Overriding Considerations, and Mitigation Monitoring and Reporting Program for the Project. The original Development Agreement was part of the Project analyzed in the EIR and the impacts of the activities under the Development Agreement were analyzed in the EIR; and - C. The Dublin Crossing project includes the demolition of the existing buildings and other improvements on the site and construction of a residential mixed- use project with up to 1,995 single- and multi- family residential units; a 30 acre Community Park; and a 12-acre joint use park/school site to serve approximately 900 students; and D. Subsequent to the approval of the original Development Agreement, the parties have amended the Development Agreement several times, most recently by the "Amended and Restated Development Agreement Between the City of Dublin and Dublin Crossing LLC Relating to the Dublin Crossing Project," dated November 20, 2018 and recorded in the Official Records as document number 2019030149 (the "Agreement").; and E. Subsequent environmental review was completed prior to approval of amendments to the Agreement that included land use changes; and F. It has been determined that additional changes to the Agreement are necessary to clarify the application of the Eastern Dublin Traffic Impact Fee to development on the former ACSPA property, and the parties have negotiated Amendment No. 1 to the Agreement to do so; and G. The Agreement allows for insubstantial amendments (as defined) without notice and public hearings before the Planning Commission and City Council, and the proposed amendment meets the definition of an insubstantial amendment. Ord 04-19, Adopted 5/21/2019, Item 4.6 Page 1 of 3 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; (c) the Dublin Crossing Specific Plan, (d) the Dublin Crossing Specific Plan EIR; (e) the Staff Report; (f) information in the entire record of proceeding for the Project, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. Amendment No. 1 is consistent with the objectives, policies, general land uses and programs specified and contained in the City's General Plan, and in the Dublin Crossing Specific Plan in that: (a) Amendment No. 1 incorporates the objectives policies, general land uses and programs in the General Plan and Specific Plan and does not amend or modify them; and (b) the project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to the provision of infrastructure and public services. 2. Amendment No. 1 is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located because Amendment No. 1 does not amend the uses or regulations in the applicable land use district. 3. Amendment No. 1 is in conformity with public convenience, general welfare, and good land use policies in that the Developer's project will implement land use guidelines set forth in the Dublin Crossing Specific Plan and the General Plan as articulated in Resolution No. 187-13, amending the General Plan and adopting the Dublin Crossing Specific Plan, adopted by the City Council on November 5, 2013, and as subsequently amended. 4. Amendment No. 1 will not be detrimental to the health, safety, and general welfare in that the Developer's proposed project will proceed in accordance with all the programs and policies of the General Plan, Dublin Crossing Specific Plan, and future Project Approvals and any Conditions of Approval. 5. Amendment No. 1 will not adversely affect the orderly development of property or the preservation of property values in that the project will be consistent with the General Plan, the Dublin Crossing Specific Plan, and future Project Approvals. 6. Amendment No. 1 does not change the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The original Development Agreement continues to contain an indemnity and insurance clause requiring the developer to indemnify and hold the City harmless against claims arising out of the development process, including all legal fees and costs. Section 3. APPROVAL The City Council hereby approves Amendment No. 1 (Exhibit A to the Ordinance) and authorizes the City Manager to execute it. Section 4. RECORDATION Within ten (10) days after Amendment No. 1 is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. Ord 04-19, Adopted 5/21/2019, Item 4.6 Page 2 of 3 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 passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this 21st day of May 2019, by the following vote: AYES: Councilmembers Goel, Hernandez, Josey, Kumagai, and Mayor Haubert NOES: ABSENT: ABSTAIN: rIfr 4-.�- Mayor ATTEST: 6t49 City Cler Ord 04-19, Adopted 5/21/2019, Item 4.6 Page 3 of 3 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 AMENDMENT NO. 1 TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN CROSSING LLC RELATING TO THE DUBLIN CROSSING PROJECT Amendment No. 1 to Amended and Restated Dublin Crossing Development Agreement Page 2 of 5 THIS AMENDMENT (“Amendment”) is made and entered in the City of Dublin on this __ day of _______, 201 9, by and between the City of Dublin, a Municipal Corporation (hereafter “City”), 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”). The Original Agreement was amended several times, most recently by the “Amended and Restated Development Agreement Between the City of Dublin and Dublin Crossing LLC Relating to the Dublin Crossing Project,” dated November 20, 2018 and recorded in the Official Records as document number 2019030149 (the “Agreement”). 3. Section 10.7 of the Agreement indicates that a certain portion of the Property (the “ACSPA Property”) is within the boundary of and subject to the Eastern Dublin Traffic Impact Fee (“EDTIF”), that it was and is the City’s intent to remove the ACSPA Property from the EDTIF, that the Developer would pay the EDTIF if it proposed development on the ACSPA Property before such time as the ACSPA was removed from the EDTIF, and that the Developer could use “overages” created under the Agreement as a result of constructing EDTIF improvements to satisfy EDTIF. 4. The City has not yet removed the ACSPA property from the EDTIF, although it is actively pursuing that effort, and Developer is proposing development on the ACSPA Property that will obligate it to pay the EDTIF prior to the ACSPA property being removed. The EDTIF Program would require a certain proportion of the EDTIF to be paid in cash, rather than allowing the use of credits created by the construction of eligible EDTIF improvements. Given the substantial benefits to the EDTIF program resulting from Developer’s project, and the City’s intent to remove the ACSPA Property from the EDTIF, the City is amenable to exempting the Developer from the EDTIF’s cash-payment requirement, and this Amendment would amend section 10.7 to accomplish that goal. Amendment No. 1 to Amended and Restated Dublin Crossing Development Agreement Page 3 of 5 5. Section 15.3 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 15.3 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 4 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 P roject 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. On _____________, 2019, the City Council of the City of Dublin adopted Ordinance No. ____ approving this Amendment No. 1 to the Amended and Restated Development Agreement (“DA Amendment Approving Ordinance”). The ordinance took effect on ___________, 2019 (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. Amendment to Section 10.7. Section 10.7 of the Agreement is amended to read in its entirety as follows: Eastern Dublin Traffic Impact Fee for ACSPA Property. The ACSPA Property, unlike the remainder of the Property, is within the boundary of and subject to the Amendment No. 1 to Amended and Restated Dublin Crossing Development Agreement Page 4 of 5 EDTIF. The City’s present intention is to remove the ACSPA Property from the EDTIF. Nonetheless, if the ACSPA Property remains in the EDTIF boundary, the Developer shall pay the EDTIF as required by the EDTIF for any development on the ACSPA Property. Developer may use overages created under Section 10.2 to satisfy this EDTIF obligation to the extent the EDTIF permits EDTIF fee credits to be used. The EDTIF Guidelines requires that a certain percentage of the EDTIF be paid in cash rather than EDTIF credits, but those provisions shall not apply to Developer should it use overages to meet its EDTIF payment obligation under this Section. Section 2. 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 3. Defined Terms. Defined terms have the same meaning in this Amendment as in the Agreement unless otherwise specified. Section 4. Effective Date. This Amendment shall become effective upon the date the ordinance approving this Agreement becomes effective (the “Effective Date”). Section 5. Recordation. City shall record a copy of this Amendment within ten (10) days following execution by all parties. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date and year first above written. CITY: CITY OF DUBLIN By: _________________________ Christopher L. Foss, City Manager Attest: ________________________ Caroline Soto, City Clerk Approved as to form ________________________ John Bakker, City Attorney Amendment No. 1 to Amended and Restated Dublin Crossing Development Agreement Page 5 of 5 DEVELOPER: DUBLIN CROSSING, LLC, a Delaware limited liability company By: BrookCal Dublin LLC, a Delaware limited liability company Its: Member By: _______________________________ Name: _______________________________ Its: _______________________________ By: _______________________________ Name: ______________________________ Its: _______________________________ By: SPIC Dublin LLC, a Delaware limited liability company Its: Member By: Standard Pacific Investment Corp., a Delaware corporation Its: Member By: ___________________________ Name: _________________________ Its: ___________________________ 3207291.1