HomeMy WebLinkAbout03-058 TrnstCtrSiteB Avalon Bay
AGENDA STATEMENT
PLANNING COMMISSION MEETING DATE: December 14, 2004
SUBJECT:
ATTACHMENTS:
RECOMMENDATION:
BACKGROUND:
PUBLIC HEARING: P A 03-058 Dublin Transit Center Site B,
Avalon Bay Communities Development Agreement
Report Prepared by, Mamie R. Nuccio, Assistant Planne~
1.
Resolution recommending City Council adoption of an
Ordinance approving a Development Agreement between the
City of Dublin and Avalon Bay Communities, with the
Development Agreement attached as Exhibit A.
1.
2.
Open Public Hearing
Receive Staff Presentation
Receive Public Testimony
Close Public Hearing
Deliberate
Adopt Resolution (Attachment 1) recommending City
Council approval of a Development Agreement between the
City of Dublin and Avalon Bay Communities, with
Development Agreement attached as Exhibit A
....
-'.
4.
5.
6.
This is a request for approval of a Development Agreement between the City of Dublin and Avalon Bay
Communities for the area within Duhlin Transit Center known as Site B. Development Agreements ::ue
required by the Eastern Dublin Specific Plan which the Transit Center is a part of. Other approvals
requested for the development of Site B include, a Vesting Tentative Tract Map, Stage 2 Planned
Development Rezoning, and Site Development Review. The tentative map, which would subdivide Site
B into 3 parcels, was approved by the Planning Commission on November 9,2004. The Stage 2 Planned
Development Rezoning and Site Development Review for a maximum of 565 units was reviewed by the
Planning Commission on November 9, 2004 and referred to the City Council for approval, with
comments. The project is expected to go before the City Council on January 4, 2005, along with the
Development Agreement.
ANAL YSIS:
One of the implementing actions of the Eastern Dublin Specific Plan is the requirement that all applicants
for development in the Eastern Dublin Specific Plan Area enter into a mutually acceptable Development
Agreement with the City. The City and the developer commit themselves to proceed in accordance with
the terms of the agreement and the City promises not to change its planning or zoning laws applicable to
the development for a specified period of time, five years. In return, the developer agrees to construct
specific improvements, provide public facilities and servIces, develop according to a specified time
COPIES TO:
Applicant
Property Owner
P A File
Project Manager
ITEM NO. -Z-J-
schedule and make other commitments which the City might otherwise have no authority to compel the
developers to perform. Specifically, the Development Agreement augments the City's standard
development regulations in response to the particular characteristics of each individual project; spells out
the precise financial responsibilities of the developer; ensures timely provision of adequate public
Facilities for each project; provides the terms for reimbursement when a developer advances funding for
specific facilities which have community-wide or area benefit.
In 2003, a master Development Agreement for the Transit Center project area was adopted. The master
Development Agreement vested the approved land uses for the entire project area for a period of five
years with the right to ten optional extensions at a cost of $100,000 a year. The following highlights the
main points of the master Development Agreement:
· Specifies the timing of construction of certain infrastructure which assures that the entire site will
function well.
· Requires that 15% of all residential units be affordable and provides the developer with a credit for
any affordable units in excess of 15%.
· Allows the clustering of very low and low income affordable units on Site A-2 and allows for the
moderate units to be constructed on other sites (Sites B and C).
· Addresses maintenance of street landscaping and lighting and included a $250,000 contribution for
public art for the residential phase.
The Af!reement
The proposed Development Agreement (Exhibit A of Attachment I) is based on the standard
Development Agreement developed by the City Attorney and adopted by the City Council for projects
located within the Eastern Dublin Specific Plan area. It was drafted with input from City Staff, the project
developer (Avalon Bay Communities), and their respective attorneys. The Development Agreement sets
forth the agreements between the parties in relation to many items, including, but not limited to,
infrastructure sequencing; sewer, water, storm drainage, and other utilities; phasing and timing; a
financing plan; fees and dedications; credits; and, maintenance of street lighting. The Development
Agreement becomes effectiw for a term of five years from the date it is recorded. It runs with the land
and the rights thereunder can be assigned.
The Zoning Ordinance requires that Development Agreements be heard at three public hearings. The
purpose for the hearing before the Planning Commission is to recommend approval of the Development
Agreement to the City Council. It would then go before the City Council for two readings before
adoption. The Development Agreement becomes effective 30 days after adoption.
ENVIRONMENT AL ANALYSIS:
Pursuant to the California Environmental Quality Act, Staff has recommended that the project be found
exempt from CEQA pursuant to Government Code section 65457 which exempts residential projects that
are consistent with a specific plan from further environmental review. Additionally, the Project is within
the scope of the Final Environmental Impact Report for the Dublin Transit Center General Plan
Amendment, Eastern Dublin Specific Plan Amendment, Stage 1 Planned Development Zoning, Tentative
Parcel Map, and Development Agreement (SCH 2001120395) which was certified by City Council
Resolution No. 215-02 dated November 19, 2002. This recommendation is based on a determination that
there are no supplemental impacts that would require preparation of a Supplemental Environmental
Impact Report.
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CONCLUSION:
Approval of this Development Agreement will implement provisions of the Eastern Dublin Specific Plan
and the Vesting Tentative Map, Rezoning, and Site Development Review for the Transit Center Site B
project. The proposed Development Agreement is consistent with both the General Plan and the Eastern
Dublin Specific Plan.
RECOMMENDATION:
Staff recommends that the Planning Commission open the Public Hearing; receive Staffs presentation;
receive Public testimony; close the Public Hearing; deliberate; and, adopt Resolution (Attachment 1)
recommending City Council adoption of an Ordinance approving a Development Agreement between the
City of Dublin and Avalon Bay Communities with the Development Agreement attached as Exhibit A.
3
GENERAL INFORMATION
APPLICANT:
PROPERTY OWNER:
LOCATION:
ASSESSORS PARCEL
NUMBER:
EXISTING ZONING:
GENERAL PLAN
DESIGNATION:
SPECIFIC PLAN
DESIGNA TION:
Steve Wilson/Nathan Hong
Avalon Bay Communities, Inc
400 Race Street, Suite 200
San Jose, CA 95126
Pat Cashman/Stuart Cook
Alameda County Surplus Property Authority
224 West Winton Avenue, Room 110
Hayward, CA 94544
Southwest corner of Dublin Boulevard and Iron Horse Parkway
986-0001-011
PD, Planned Development (PA 00-013)
High Density Residential
Eastern Dublin Specific Plan, High Density Residential
4
RESOLUTION NO. 04 -
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT A DEVELOPMENT AGREEMENT
FOR P A 03-058 DUBLIN TRANSIT CENTER SITE B (AVALON BAY COMMUNITIES)
APN 986-0001-011
WHEREAS, Avalon Bay Communities has requested approval of a Development Agreement for
Dublin Transit Center Site B located south of Dublin Boulevard between DeMarcus Boulevard and Iron
Horse Parkway; and
WHEREAS, Development Agreements are required as an implementing measure of the Eastern
Dublin Specific Plan; and
WHEREAS, Pursuant to the California Environmental Quality Act, Staff has recommended that
the project be found exempt from CEQA pursuant to Government Code section 65457 for residential
projects that are consistent with a specific plan. The Project is within the scope of the Final
Environmental Impact Report for the Dublin Transit Center General Plan Amendment, Eastern Dublin
Specific Plan Amendment, Stage 1 Planned Development Zoning, Tentative Parcel Map, and
Development Agreement (SCH 2001120395) which was certified by City Council Resolution No. 215-02
dated November 19, 2002. This recommendation is based on a determination that there are no
supplemental impacts that would require preparation of a Supplemental EIR; and
WHEREAS, the text of the Draft Development Agreement is attached to this resolution as Exhibit
A; and
WHEREAS, the Planning Commission did hold a public hearing on said application on December
14,2004; and
WHEREAS, proper notice of said public hearing was given in all respects as required by law; and
WHEREAS, the Staff Report was submitted recommending that the Planning Commission
recommend that the City Council approve the Development Agreement; and
WHEREAS, the Planning Commission did hear and use their independent judgment and
considered all said reports, recommendations and testimony hereinabove set forth.
NOW THEREFORE BE IT RESOLVED THAT THE Dublin Planning Commission does
hereby make the following findings and determinations regarding said proposed Development Agreement:
]. Said Agreement is consistent with the objectives, policies, general land uses and programs
specified in the Eastern Dublin Specific Plan/General Plan in that, a) the Eastern Dublin
Specific Plan/General Plan land use designation for the subject site is proposed to be
Planned Development and that the proposed Site B residential development is consistent
with that designation; b) the project is consistent with the fiscal policies in relation to
provision of infrastructure and public services of the City's Eastern Dublin Specific
Plan/General Plan; c) the Agreement sets forth the rules the Developer and City will be
governed by during the development process which is required by the Eastern Dublin
Specific Plan and the Mitigation Monitoring Program of the Eastern Dublin Specific Plan.
¿lit tlc /uYLê /¿l /
2. Said Agreement is compatible with the uses authorized in, and the regulations prescribed
for, the land use district in which the real property is located in that the project approvals
include a Tentative Parcel Map, Planned Development Rezone, and Site Development
Review.
3. Said Agreement is in conformity with public convenience, general welfare, and good land
use practice in that the Site B residential development will implement land use guidelines
set forth in the Eastern Dublin Specific Plan/General Plan, as proposed.
4. Said Agreement will not be detrimental to the health, safety and general welfare in that the
development will proceed in accordance with the Agreement and any Conditions of
Approval for the Project.
5. Said 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 Eastern Dublin Specific Plan/General Plan.
NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning
Commission does hereby recommend that the City Council approve the Development Agreement between
the City of Dublin and Avalon Bay Communities.
PASSED, APPROVED AND ADOPTED this l4th day of December 2004.
AYES:
NOES:
ABSENT:
ABSTAIN:
Planning Commission Chairperson
ATTEST:
Planning Manager
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
AVALON BAY COMMUNITIES, INC.
FOR THE DUBLIN TRANSIT CENTER SITE B PROJECT
EXHIBIT A
THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin
on this _ day of , 2005, by and between the CITY OF DUBLIN, a Municipal
Corporation (hereafter "CITY") and AVALON BAY COMMUNITIES, Inc., a Maryland
corporation (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 desires to develop and holds an equitable interest in, in that
it has the right to purchase, under that certain Agreement for Purchase and Sale of
Real Property and Escrow Instructions, dated March 11, 2003, between the Surplus
Property Authority of Alameda County and Developer ("the Purchase and Sale
Agreement"), certain real property consisting of approximately 8.84 acres of land,
located in the City of Dublin, County of Alameda, State of California, which is more
particularly described in Exhibit A attached hereto and incorporated herein by this
reference, and which real property is hereafter called the "Property." The Alameda
County Surplus Property þ,uthority ("COUNTY") presently is the fee owner of the
Property.
C. The City Council adopted the Eastern Dublin Specific Plan by Resolution
No. 53-93 which Plan is applicable to the Property. The Eastern Dublin Specific Plan
requires DEVELOPER to enter into a development agreement.
D. The Property is within an approximately 91-acre master-planned area
("the Transit Center Property") that was the subject in 2002 of a General Plan
Amendment, a specific plan amendment to add the area to the Eastern Dublin Specific
Plan, a master tentative map to create master parcels for development, and a master
development agreement ("the Transit Center Approvals").
E. DEVELOPER proposes the development of the Property as a multi-family
residential project of a maximum of 565 units (the "Project").
F. DEVELOPER has applied for, and CITY has approved or is processing,
various land use approvals in connection with the development of the Project, including,
without limitation, a General Plan Amendment (City Council Resolution No. 216-02), an
amendment to the Eastern Dublin Specific Plan to add the Dublin Transit Center
Property to the specific plan area (City Council Resolution No. 216-02), a Master
Tentative Parcel Map (Tract 7892) (Planning Commission Resolution 02-40); a Planned
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
683717.7
Page 1 of 15
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Development District Rezoning including a Stage 1 Development Plan (Ord. No. 21-02);
a vesting tentative parcel map (tract 7525) that would create the parcels on which the
Project would be constructed (Planning Commission Resolution 04-65); a Stage 2
Development Plan (Ord. No. _); and Site Development Review (City Council
Resolution No. _). All such approvals collectively, together with any approvals or
permits now or hereafter issued with respect to the Project are referred to as the
"Project Approvals."
G. DEVELOPER, pursuant to the Purchase and Sale Agreement, has agreed
to construct a parking garage to serve the patrons of the nearby BART station ("the
Garage"), and certain transportation infrastructure must be constructed when the
Garage is constructed. Since the City is not permitting the Garage, DEVELOPER has,
pursuant to the Project Approvals and this Agreement, agreed to construct such
improvements in conjunction with the Garage or within 5 years of the approval of
Planning Commission Resolution 04-65, whichever is earlier.
H. Development of the Property by DEVELOPER may be subject to certain
future discretionary approvals, which, if granted, shall automatically become part of the
Project Approvals as each such approval becomes effective.
I.
Project.
CITY desires the timely, efficient, orderly and proper development of the
J. The City Council has found that, among other things, this Development
Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan and
has been reviewed and evaluated in accordance with the Development Agreement
Statute and Chapter 8.56.
K. 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.
L. Pursuant to the California Environmental Quality Act (CEQA) the City
Council adopted Resolution No. _ finding that the Project is within the scope of the
Program EIR prepared for the Dublin Transit Center Approvals, which was certified
pursuant to the California Environmental Quality Act (CEQA) (Resolution 215-02); and
M. On , the City Council of the City of Dublin adopted
Ordinance No. approving this Development Agreement ("the Approving
Ordinance"). The Approving Ordinance will take effect on ("the
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:
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
683717.7
Page 2 of 15
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AGREEMENT
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in Exhibit A attached hereto ("Property").
2. Interest of Developer.
The DEVELOPER has a legal or equitable interest in 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 CITY and DEVELOPER and that the
DEVELOPER is not an agent of 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.
4. Effective Date and Term.
4.1 Effective Date. The effective date of this Agreement shall
be the date ("the Effective Date") upon which a grant deed conveying the Property from
COUNTY to DEVELOPER is recorded in the Officiai Records of Alameda County. This
Agreement shall automatically terminate without any further action of the Parties upon
the happening of either of the following:
(a) If a grant deed conveying the Property from COUNTY to
DEVELOPER is not recorded within 12 months of the Approval Date: or
(b) If the Purchase and Sale Agreement is terminated for
any reason (and upon DEVELOPER's providing satisfactory of evidence of such fact to
CITY).
4.2 Term. The "Term" of this Development Agreement shall
commence on the Approval Date and extend five (5) years thereafter, unless said Term
is otherwise terminated or modified by circumstances set forth in this Agreement.
5. Use of the Property.
5.1 Riqht 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.
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
6837177
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5.2 Permitted Uses. The permitted uses of the Property, the
density and intensity of use, the maximum height, bulk and size of proposed buildings,
provisions for reservation or dedication of land for public purposes and location and
maintenance of on-site and off-site improvements, location of public utilities (operated
by CITY) and other terms and conditions of development applicable to the Property,
shall be those set forth in this Agreement, the Project Approvals and any amendments
to this Agreement or the Project Approvals.
5.3 Additional Conditions. Provisions for the following
("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated
herein by reference.
5.3.1 Subsequent Discretionary Approvals. Conditions,
terms, restrictions, and requirements for subsequent discretionary
actions. (These conditions do not affect DEVELOPER's responsibility
to obtain all other land use approvals required by the ordinances of
the City of Dublin and any permits required by regulatory agencies.)
See Exhibit B.
5.3.2 Mitiqation Conditions. Additional or modified
conditions agreed upon by the parties in order to eliminate or mitigate
adverse environmental impacts of the Project or otherwise relating to
development of the Project.
See Exhibit B
5.3.3 Phasinq, Timinq. Provisions that the Project be
constructed in specified phases, that construction shall commence
within a specified time, and that the Project or any phase thereof be
completed within a specified time.
See Exhibit B
5.3.4 Financinq Plan. Financial plans which identify
necessary capital improvements such as streets and utilities and
sources of funding.
See Exhibit B
5.3.5 Fees, Dedications. Terms relating to payment of
fees or dedication of property.
See Exhibit B
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
683717.7
Page 4 of 15
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5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.3.7 Miscellaneous. Miscellaneous terms.
See Exhibit B
6. Applicable Rules, ReQulations and Official Policies.
6.1 Rules re Permitted Uses. For the term of this Agreement,
the City's ordinances, resolutions, rules, regulations and official policies governing the
permitted uses of the Property, governing density and intensity of use of the Property
and the maximum height, bulk and size of proposed buildings shall be those in force
and effect on the Approval Date.
6.2 Rules re Desiqn and Construction. Unless otherwise
expressly provided in Paragraph 5 of this Agreement or in Chapter 7.28 of the Dublin
Municipal Code, the ordinances, resolutions, rules, regulations and official policies
governing design, improvement and construction standards and specifications
applicable to Project construction (but not use) shall be those in force and effect at the
time the DEVELOPER submits its application for the relevant building, grading, or other
construction permits to CITY. In the event of a conflict between such ordinances,
resolutions, rules, regulations and official policies and the Project Approvals, tile Project
Approvals shall prevail.
For construction of public infrastructure, the ordinances, resolutions, rules,
regulations and official policies governing design, improvement and construction
standards and specifications applicable to Project 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.
6.3 Buildinq Standards Codes Applicable. Unless expressly
provided in Paragraph 5 of this Agreement or in Chapter 7.28 of the Dublin Municipal
Code, the Project shall be constructed in accordance with the provisions of the Building,
Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California Code of
Regulations, relating to Building Standards, in effect at the time the DEVELOPER
submits its application for the relevant building, grading, or other construction permits
for the Project to CITY.
7. Subsequentlv Enacted Rules and ReQulations.
7.1 New Rules and ReQulations. 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
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
6837177
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effect on the Approval Date and which are not in conflict with those applicable to the
Property as set forth in this Agreement and the Project Approvals if: (a) the application
of such new or modified ordinances, resolutions, rules, regulations or official policies
would not prevent, impose a substantial financial burden on, or materially delay
development of the Property as otherwise contemplated by the Project Approvals and
(b) if such ordinances, resolutions, rules, regulations or official policies have general
(City-wide) applicability.
7.2 Approval of Application. Nothing in this Agreement shall
prevent the CITY from denying or conditionally approving any subsequent land use
permit or authorization for the Project on the basis of such new or modified ordinances,
resolutions, rules, regulations and policies except that such subsequent actions shall be
subject to any conditions, terms, restrictions, and requirements expressly set forth
herein.
7.3 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, in the event an ordinance, resolution or other measure is
enacted, whether by action of CITY, by initiative, referendum, or otherwise, that
imposes a building moratorium which affects the Project on all or any part of the
Property, CITY agrees that such ordinance, resolution or other méasure 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 §8558.
7.4 Rìqhts Under Vestinq Tentative Map. Notwithstanding
anything to the contrary contained herein, this Agreement shall not supercede any
rights DEVELOPER may obtain pursuant to CITY's approval of the vesting tentative
map for the Project.
8. Subsequentlv Enacted or Revised Fees, Assessments and Taxes.
8.1 Fees, Exactions, Dedications. CITY and DEVELOPER
agree that the fees payable and exactions required in connection with the development
of the Project Approvals for purposes of mitigating environmental and other impacts of
the Project, providing infrastructure for the Project and complying with the Specific Plan
shall be those set forth in the Project Approvals and in this Agreement (including Exhibit
B). The CITY shall not impose or require payment of any other fees, dedications of
land, or construction of any public improvement or facilities, shall not increase or
accelerate existing fees, dedications of land or construction of public improvements, in
connection with any subsequent discretionary approval for the Property, except as set
forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph
5.3.5).
8.2 Revised Application Fees. 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; (2) the
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
683717.7
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application of such fees to the Property is prospective; and (3) the application of such
fees would not prevent development in accordance with this Agreement.
8.3 New Taxes. Any subsequently enacted city-wide taxes shall
apply 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.
8.4 Assessments. Nothing herein shall be construed to relieve
the Property from assessments levied against it by CITY pursuant to any statutory
procedure for the assessment of property to pay for infrastructure and/or services which
benefit the Property.
8.5 Vote on Future Assessments and Fees. In the event that
any assessment, fee or charge which is applicable to the Property is subject to Article
XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER
agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's
ballot as affirmatively voting in favor of such assessment, fee or charge.
9. Amendment or Cancellation.
9.1 Modification Because of Conflict with State or Federal Laws.
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 íaw or regulation. Any such
amendment or suspension of the Agreement shall be approved by the City Council in
accordance with Chapter 8.56.
9.2 Amendment bv 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.
9.3 Insubstantial Amendments. Notwithstanding the provisions
of the preceding section 9.2, any amendments to this Agreement which do not relate to
(a) the term of the Agreement as provided in section 4.2; (b) the permitted uses of the
Property as provided in section 5.2; (c) provisions for "significant" reservation or
dedication of land as provided in Exhibit B; (d) conditions, terms, restrictions or
requirements for subsequent discretionary actions; (e) the density or intensity of use of
the Project; (f) the maximum height or size of proposed buildings; or (g) monetary
contributions by DEVELOPER as provided in this Agreement, shall not, except to the
extent otherwise required by law, require notice or public hearing before either the
Planning Commission or the City Council before the parties may execute an
amendment hereto. CITY's Public Works Director shall determine whether a
reservation or dedication is "significant".
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
683717.7
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9.4 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 Paragraph 5.3 and Exhibit B of
this Agreement prior to the date of cancellation shall be retained by CITY.
10. Term of Project Approvals.
The term of any Project Approval shall be extended only if so provided
in Exhibit B.
11. Annual Review.
11.1 Review Date. The annual review date for this Agreement
shall be between July 15 and August 15, 2006 and each July 15 to August 15
thereafter.
11.2 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 compliance with the provisions of the Development Agreement.
The burden of proof by substantial evidence of compliance is upon the DEVELOPER.
11.3 Staff Reports. To the extent practical, CITY shall deposit in
the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits
concerning contract performance at least five (5) days prior to any annual review.
11.4 Costs. Costs reasonably incurred by 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.
12. Default.
12.1 Other Remedies Available. Upon the occurrence of an
event of default, the parties may pursue all other remedies at law or in equity which are
not otherwise provided for in this Agreement or in CITY's regulations governing
development agreements, expressly including the remedy of specific performance of
this Agreement.
12.2 Notice and Cure. Upon the occurrence of an event of
default by any 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
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
683717.7
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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.
12.3 No Damaqes Aqainst CITY. In no event shall damages be
awarded against CITY upon an event of default or upon termination of this Agreement.
13. Estoppel Certificate.
Any 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. City Manager of 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 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.
14. Mortqaqee Protection: Certain Riqhts of Cure.
14.1 Mortqaqee 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.
14.2 Mortqaqee Not Obliqated. Notwithstanding the provisions of
Section 14.1 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,
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
683717.7
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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.
14.3 Notice of Default to Mortqaqee and Extension of Riqht to
Cure. If 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 CITY shall deliver to such Mortgagee, concurrently with service thereon to
DEVELOPER, any notice given to DEVELOPER with respect to any claim by 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. CITY,
through its City Manager, may extend the thirty-day cure period provided in section 12.2
for not more than an additional sixty (60) days upon request of DEVELOPER or a
Mortgagee.
15. Severabilitv.
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.
16. Attornevs' Fees and Costs.
If CITY or DEVELOPER initiates any action at law or in equity to
enforce or interpret the terms and conditions of this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees and costs in addition to any other
relief to which it may otherwise be entitled. If any person or entity not a party to this
Agreement initiates an action at law or in equity to challenge the validity of any provision
of this Agreement or the Project Approvals, the parties shall cooperate and appear in
defending such action. DEVELOPER shall bear its own costs of defense as a real
party in interest in any such action, and DEVELOPER shall reimburse CITY for all
reasonable court costs and attorneys' fees expended by CITY in defense of any such
action or other proceeding.
17. Transfers and Assiqnments.
17.1 DEVELOPER's Riqht to Assiqn. All of DEVELOPER'S
rights, interests and obligations hereunder may be transferred, sold or assigned in
conjunction with the transfer, sale, or assignment of the Property subject hereto, or any
portion thereof, at any time during the term of this Agreement, provided that no transfer,
sale or assignment of DEVELOPER's rights, interests and obligations hereunder shall
occur without the prior written notice to CITY and approval by the City Manager, which
approval shall not be unreasonably withheld or delayed. The City Manager shall
consider and decide the matter within 10 working days after DEVELOPER's notice
provided and receipt by City Manager of all necessary documents, certifications and
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
683717.7
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other information required by City Manager to decide the matter. 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; and c) assuring CITY that the
proposed purchaser, transferee or assignee is capable of performing the
DEVELOPER's obligations hereunder not withheld by DEVELOPER pursuant to section
17.3. Notwithstanding the foregoing, provided notice is given as specified in Section
23, no CITY approval shall be required for any transfer, sale, or assignment of this
Agreement to: 1) any entity which is an affiliate or subsidiary of DEVELOPER; 2) any
Mortgagee; or 3) any transferee of a Mortgagee; or 4) D. R. Horton, Inc., or its affiliates
("D. R. Horton") in conjunction with the sale of that portion of the Property described as
the Dublin Transit Center Site B-1 from DEVELOPER to D. R. Horton, provided that
DEVELOPER has, at the time of the transfer, complied with all obligations of this
Agreement or provided evidence satisfactory to the City Manager demonstrating that
the remaining obligations have been allocated between DEVELOPER and D. R. Horton.
17.2 Release Upon Transfer. Upon the transfer, sale, or
assignment of all of DEVELOPER's rights, interests and obligations hereunder pursuant
to section 17.1 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 aporoval 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.
17.3 Developer's Riqht to Retain Specified Riqhts or Obliqations.
Notwithstanding sections 17.1 and 17.2 and section 18, DEVELOPER may withhold
from a sale, transfer or assignment of this Agreement certain rights, interests and/or
obligations which DEVELOPER shall 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.
18. Aqreement Runs with the Land.
All of the provisions, rights, terms, covenants, and obligations
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and Avalon Bay Communities, Inc.
683717.7
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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.
19. Bankruptcy.
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
20. Indemnification.
DEVELOPER agrees to indemnify, defend and hold harmless 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 the DEVELOPER, or any actions
or inactions of DEVELOPER's contractors, subcontractors, 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 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 will cooperate with
DEVELOPER, will appear in such action and will not unreasonably withhold approval of
a settlement otherwise acceptable to DEVELOPER. If CITY is named as a party to any
legal action, CITY will cooperate with DEVELOPER, will appear in such action and will
not unreasonably withhold approval of a settlement otherwise acceptable to
DEVELOPER.
21. Insurance.
21.1 Public Liability and Property Damaqe Insurance. At all times
that DEVELOPER is constructing any improvements that will become public
improvements, DEVELOPER shall maintain in effect a policy of comprehensive general
liability insurance with a per-occurrence combined single limit of not less than one
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
683717.7
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million dollars ($1,000,000.00) and a deductible of not more than ten thousand dollars
($10,000.00) per claim. 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.
21.2 Workers Compensation Insurance. At all times that
DEVELOPER is constructing any improvements that will become public improvements,
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.
21.3 Evidence of Insurance. Prior to commencement of
construction of any improvements which will become public improvements,
DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in
Sections 21.1 and 21.2 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. 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.
22. Sewer and Water.
DEVELOPER acknowledges that it must obtain water and sewer
permits from the Dublin San Ramon Services District (UDSRSD") which is another public
agency not within the control of CITY
23. Notices.
All notices required or provided for under this Agreement shall be in
writing. Notices required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Notice required to be given to DEVELOPER shall be addressed as
follows:
Avalon Bay Communities, Inc.
Stephen W. Wilson
Senior Vice President
Avalon Bay Communities, Inc.
400 Race Street, Suite 200
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and Avalon Bay Communities, Inc.
6837177
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San Jose, CA 95126
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.
24. Recitals.
The foregoing Recitals are true and correct and are made a part
hereof.
25. Aqreement is Entire Understandinq.
This Agreement constitutes the entire understanding and agreement
of the parties.
26. Exhibits.
The following documents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
Exhibit A Legal Description of Property
Exhibit B Additional Conditions
27. Counterparts.
This Agreement is executed in three (3) duplicate originals, each of
which is deemed to be an original.
28. Recordation.
CITY shall record a copy of this Agreement within ten days of
DEVELOPER providing CITY notice that a grant deed conveying the Property from
COUNTY to DEVELOPER is recorded in the Official Records of Alameda County.
29. Leqal Authority.
Each individual executing this Agreement on behalf of Developer
hereby represents and warrants that has full power and authority under the entity's
governing documents to execute and deliver this Agreement in the name of and on
behalf of the company and to cause the entity to perform its obligations under this
Agreement.
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
6837177
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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:
Mayor
Date:
Attest:
By:
City Clerk
Date:
Approved as to Form:
City Attorney
AVALON BAY COMMUNITIES, INC., a Maryland Corporation
(fC:
c
~
Stephen W. Wilson
Its: Senior Vice President
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.
683717.7
Page 15 of 15
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Exhibit A
Property Description
BEING THAT CERTAIN PARCEL OF LAND DESIGNATED AS PARCEL 2 OF
PARCEL MAP 7395 AS FILED ON OCTOBER 31, 2000 IN BOOK 254 OF PARCEL
MAPS AT PAGES 28 THROUGH 37, ALAMEDA COUNTY RECORDS, CALIFORNIA.
6837177
Exhibit B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3
above.
Subparaaraph 5.3.1 -- Subsequent Discretionary Approvals
None
Subparaaraph 5.3.2 -- Mitiaation Conditions
Subsection a.
Infrastructure SeQuencina Proaram
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of dedication)
identified in Planning Commission Resolution No. 04-65 approving Vesting Tentative
Tract Map 7525 ("the VTM Resolution") and City Council Resolution No. 04-_
approving Site Development Review ("the SDR Resolution") shall be completed by
DEVELOPER to the satisfaction and requirements of the Public Works Director at the
times and in the manner specified in the VTM Resolution and SDR Resolution unless
otherwise provicied below.
--Conditions 11. 12. and 14 of the VTM Resolution rRoadwav Improvementsl
Condition 11 of the VTM Resolution reads as follows:
Phase 2 Improvements. The Developer shall construct the following
street and utility improvements, as contained in the Street
Improvement Plans Associated with Parcel Map 7892 prepared by
BKF Engineers / Surveyors / Planners, with the Phase 2
improvements. The Phase 2 improvements may be deferred to be
completed concurrently with the completion of the BART garage or
within 5 years, whichever is earlier. The Developer shall provide
guarantees for the Phase 2 improvements with an Improvement
Agreement as required by Public Works Standard Conditions of
Approval.
a) Martinelli Drive between Arnold Road and Iron Horse
Parkway. Developer shall construct street improvements
including median curbs. a twelve-foot wide travel lane in each
direction, median turning lanes, six-foot wide rock shoulders, and
storm drainage, street lighting, joint trench utilities, sanitary
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sewer and water improvements on Martinelli Drive between
Arnold Road and Iron Horse Parkway to the satisfaction of the
City Engineer. STOP signs with conduit for future traffic signal
are to be installed at the intersection with Iron Horse Parkway.
The BART surface parking lot entrance I exit to Iron Horse Trail
shall be closed and moved to the Village Green at the time either
the Village Green or Martinelli Drive connection is made to the
Iron Horse Parkway.
b) Campus Drive. Developer shall construct street
improvements consisting of 20-foot wide pavement and curb &
gutter on Campus Drive along the BART parking garage
frontage as required by the Fire Department for the BART
garage structure and to the satisfaction of the City Engineer.
c) Altamirano Avenue. Developer shall construct street
improvements including the southern frontage curb & gutter, 27-
foot wide pavement, six-foot wide rock shoulder, drainage,
water, joint trench utilities and street lighting on Altamirano
Avenue between Arnold Drive and Campus Drive to the
satisfaction of the City Engineer.
d) Iron Horse Parkway-BART Garage Intersection. The
existing Iron Horse Parkway improvements shall be modified to
accommodate the new intersection at the BART garage
entrance to the satisfaction of the City Engineer. STOP sign
control is to be installed at this intersection with conduit for future
traffic signal.
Condition 13 of the VTM Resolution reads as follows:
Arnold Road. Unless previously constructed by others, the
Developer shall construct 24-foot wide pavement with six-foot wide
rock shoulders and turning lanes within the existing right of way for
Arnold Drive between Dublin Blvd and Altamirano Avenue. The
roadway shall be in a street and lane configuration to the
satisfaction of the City Engineer and a temporary walkway may be
required on one side. These improvements shall be constructed
with the Phase 2 improvements.
Condition 14 of the VTM Resolution reads as follows:
Martinelli Drive between Arnold Road and Hacienda Drive.
Unless previously constructed by others, Developer shall construct
the center travel lanes and median curbs for Martinelli Drive
between Hacienda Drive and Arnold Road within the existing right
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and Avalon Bay Communities, Inc.-EXHIBIT B
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of way. The improvements shall be for two travel lanes (26-feet
wide) with a 6-foot wide rock shoulder in each direction and turning
lanes at the intersections. A new traffic signal and lane
modifications shall be provided on Hacienda Drive for the new
intersection with Martinelli Drive. The improvements shall be
constructed with the Phase 2 improvements.
DEVELOPER hereby agrees to comply with Conditions 11, 13 and 14 of
the VTM Resolution. Notwithstanding the provisions of Section 4 of this
Agreement, Condition 11 shall survive termination of this Agreement.
(ii) Sewer
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with DSRSD
requirements.
(iii) Water
An all-weather roadway and an approved hydrant and water supply
system shall be available and in service at the site in accordance with the SDR
conditions of approval to the satisfaction and requirements of the CITY's fire
department.
All potable water system components to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with DSRSD
requirements.
Recycled water lines shall be installed in accordance with the SDR
conditions of approval.
ílYl Storm Drainaae
Prior to issuance of the first Certificate of Occupancy for any building
which is part of the Project, the storm drainage systems off site, as well as on-site
drainage systems to the areas to be occupied, shall be improved to the satisfaction and
requirements of the Dublin Public Works Department applying CITY's and Zone 7
(Alameda County Flood Control and Water Conservation District, Zone 7) standards
and policies which are applicable. Pursuant to Alameda County's National Pollution
Discharges Elimination Permit (NPDES) No. CAS0029831 with the California Regional
Water Quality Control Board, all grading, construction, and development activities within
the City of Dublin must comply with the provisions of the Clean Water Act. Proper
erosion control measures must be installed at development sites within the City during
construction, and all activities shall adhere to Best Management Practices.
(v) Other Utilities fe.a. aas. electricity. cable televisions. telephone)
Development Agreement Between City of Dublin
and Avalon Bay Communities, Inc.-EXHIBIT B
683717.7
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Construction of other utilities shall be complete by phase prior to
issuance of the first Certificate of Occupancy for any building within that specific phase
of development.
Subsection b.
Miscellaneous
(i) Completion Mav be Deferred.
Notwithstanding the foregoing, CITY's Public Works Director may, in his
or her sole discretion and upon receipt of documentation in a form satisfactory to the
Public Works Director that assures completion, allow DEVELOPER to defer completion
of discrete portions of any of the public improvements required for the Project until after
issuance of Certificate of Occupancy for the first building for the Project if the Public
Works Director determines that to do so would not jeopardize the public health, safety
or welfare.
Subparaaraph 5.3.3 -- Phasina. TiminQ
This Agreement contains no requirements that DEVELOPER must initiate or
complete development of the Project within any period of time set by CITY. 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.
Subparaaraph 5.3.4 -- Financina Plan
DEVELOPER will install all improvements necessar¡ for the Project at its own
cost (subject to credits for any improvements that qualify for credits as provided in
Subparagraph 5.3.6 below), unless otherwise required by this Agreement.
Other infrastructure necessary to provide sewer, potable water, and recycled
water services to the Project will be made available by the Dublin San Ramon Services
District. The present owner of the Property, the Alameda County Surplus Property
Authority, has entered into an "Area Wide Facilities Agreement" with the Dublin San
Ramon Services District to pay for the cost of extending such services to the Project.
Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above.
Subparagraph 5.3.5 -- Fees, Dedications
Subsection a.
Traffic Impact Fees.
Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established
by Resolution No. 111-04, including any future amendments to such fee. Developer will
pay such fees no later than the time of issuance of building permits and in the amount
of the impact fee in effect at time of building permit issuance.
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and Avalon Bay Communities, Inc.-EXHIBIT B
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Developer further agrees that it will pay eleven percent (11 %) of the "Section
1/Category 1" portion of the TIF in cash.
Developer also agrees that it will pay twenty-five percent 25% of the "Section
2/Category 2" portion of the TIF in cash. If City amends its TIF fee and as a result the
City's outstanding balance due on loans is less than 25% of total Section 2/Category 2
improvements, the Developer shall pay such reduced percentage of the "Section
2/Category 2" portion of the TI F in cash.
Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freewav
Interchanaes.
DEVELOPER shall pay a Eastern Dublin 1-580 Interchange Fee in the
amounts and at the times set forth in City of Dublin Resolution No. 155-98, or in the
amounts and at the times set forth in any resolution revising the amount of the Eastern
Dublin 1-580 Interchange Fee.
Subsection c.
Public Facilities Fees.
DEVELOPER shall pay a Public Facilities Fee established by City of
Dublin Resolution No. 214-02, including any future amendments to such fee.
DEVELOPER will pay such fees no later than the time of issuance of building permits
and in the then-current amount of the fee.
Subsection d. Noise Mitiaation Fee.
DEVELOPER shall pay a Noise Mitigation Fee established by City of
Dublin Resolution No. 33-96, including any future amendments to such fee.
DEVELOPER will pay such fees no later than the time of issuance of building permits
and in the amount of the fee in effect at time of building permit issuance.
Subsection e.
School Impact Fees.
School impact fees shall be paid by DEVELOPER in accordance with
Government Code section 53080 and the existing agreement between DEVELOPER's
predecessor in interest and the Dublin Unified School District.
Subsection f.
Fire Impact Fees.
DEVELOPER shall pay a fire facilities fee established by City of Dublin
Resolution No. 12-03 including any future amendments to such fee. DEVELOPER will
pay such fees no later than the time of issuance of building permits and in the amount
of the fee in effect at time of building permit issuance.
Subsection a. Tri-Vallev Transportation Development Fee.
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DEVELOPER shall pay the Tri-Valley Transportation Development Fee in
the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any
subsequent resolution which revises such fee. DEVELOPER will pay such fees no later
than the time of issuance of building permits and in the amount of the impact fee in
effect at time of building permit issuance.
Subparaaraph 5.3.6 -- Credit
Subsection a.
Traffic Impact Fee Improvements Credit
CITY shall provide a credit to DEVELOPER for those improvements
described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such
improvements are constructed by the DEVELOPER in their ultimate location pursuant
this Agreement. All aspects of credits shall be governed by CITY's then-current
Administrative Guidelines regarding credits.
Subsection b. Traffic Impact Fee Riaht-of-Wav Dedications Credit
CITY shall provide a credit to DEVELOPER for any TIF area right-of-way
dedicated by DEVELOPER to CITY which is required for improvements which are
described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All
aspects of credits shall be governed by CITY's then-current Administrative Guidelines
regarding credits.
Subparaaraph 5.3.7 -- Miscellaneous
Subsection a.
Maintenance of Street Liahtina
COUNTY has asked CITY to form an assessment district pursuant to the
Lighting and Landscaping Act of 1972 to pay for street lighting in order to satisfy the
obligation of future developers to pay for street lighting in the Dublin Transit Center
Property. In addition, COUNTY agreed in the Master Development Agreement to
record a Declaration of Covenants, Conditions and Restrictions or a similar document
("CC&Rs") that covers the Dublin Transit Center Property, whereby COUNTY, on behalf
of itself and its successors (including DEVELOPER), has covenanted to pay a "Deed
Assessment" to CITY for maintenance of street lighting and street light maintenance in
the event that the assessment for street light costs and maintenance is not levied
against the Dublin Transit Center Property, or any portion of it, in any year.
DEVELOPER acknowledges that the City intends to form (or annex the Property to) a
landscaping and lighting district and impose an assessment on the Property for such
purposes. DEVELOPER hereby waives its right to protest the formation of or the
Property's annexation to the district and the imposition of the annual assessment. In
addition, DEVELOPER hereby covenants to pay a Deed Assessment, pursuant to the
terms of CC&Rs.
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