HomeMy WebLinkAboutReso 95-20 Approving an Agreement Permitting Re-Allocation of Regional and Local Sewer Capacity RightsReso No. 95-20, Item 4.6, Adopted 09/15/2020 Page 1 of 2
RESOLUTION NO. 95 - 20
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * *
APPROVING AN AGREEMENT PERMITTING RE-ALLOCATION OF REGIONAL AND
LOCAL SEWER CAPACITY RIGHTS WITH THE HUNGRY FLOWER, LLC DOING
BUSINESS AS MIMI’S CHOCOLATES, TRALEE VILLAGE, LLC, AND DUBLIN SAN RAMON
SERVICES DISTRICT TO HELP OFFSET THE COST OF SEWER FEES
WHEREAS, state and local governments use economic development incentives to attract
or retain jobs and/or improve the local tax base; and
WHEREAS, on May 4, 2010, the City Council adopted Resolution 53-10 approving a Letter
Agreement with Dublin San Ramon Services District for the administration of unused City of
Dublin sewer capacity and the creation of a city-wide Sewer Capacity Assistance Program to
support businesses that require new or additional sewer capacity; and
WHEREAS, the District’s Board of Directors adopted Resolution 9-10 approving refunding
unused sewer capacity to the City in accordance with District Code Section 7.2.12.B, and
Resolution 14-10 approving and expanding the administrative procedure to reallocate unused
sewer capacity to the City as authorized by Resolution N9-10 to include residential units in
accordance with District Code Section 7.2.12.B; and
WHEREAS, the City Council subsequently amended the Program through adopted
Resolution 67-13 on May 21, 2013, adopted Resolution 33-14 on March 18, 2014, adopted
Resolution 161-14 on September 16, 2014, and Resolution 34-19 on April 16, 2019; and
WHEREAS, a new business, The Hungry Flower, LLC doing business as Mimi’s
Chocolates (Applicant) has leased space at 6601 Dublin Blvd, Suite N, in Dublin, CA 94568
(A.P.N. 941-2831-003, Tralee Village) and has requested to participate in the Program in order to
support the opening of their new confectionary shop and café; and
WHEREAS, the City Council finds that this Agreement serves a public purpose in that
increased revenues received from both sales tax revenue that it may not otherwise receive, and
from the increase in the property taxes as a result of improvements to the property benefit the
City and its residents; and
WHEREAS, the City Council further finds that the City and its residents may also benefit
from the creation of new jobs in the City that will occur when a new business is established, or an
existing business is expanded.
NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve an Agreement Permitting Re-Allocation of Regional and Local Sewer Capacity
Rights with The Hungry Flower, LLC doing business as Mimi’s Chocolates, Tralee Village, LLC,
and Dublin San Ramon Services District. to provide 0.32 Residential Discharge Equivalencies to
the Applicant.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
Agreement, attached hereto as Exhibit A to this Resolution, in substantially the form attached.
Reso No. 95-20, Item 4.6, Adopted 09/15/2020 Page 2 of 2
PASSED, APPROVED AND ADOPTED this 15th day of September 2020, by the following
vote:
AYES: Councilmembers Goel, Hernandez, Josey, Kumagai and Mayor Haubert
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
____________________________
City Clerk
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
AGREEMENT PERMITTING RE -ALLOCATION
OF REGIONAL AND LOCAL SEWER CAPACITY
AGREEMENT PERMITTING RE -ALLOCATION OF
REGIONAL AND LOCAL SEWER CAPACITY RIGHTS
This Agreement, made and entered into on September 15, 2020, by and between the DUBLIN SAN
RAMON SERVICES DISTRICT, a public agency in the Counties of Alameda and Contra Costa, California
("District"), CITY OF DUBLIN, a general law city in the County of Alameda ("City"), TRALEE VILLAGE, LLC
("Property Owner") and THE HUNGRY FLOWER, LLC doing business as MIMI'S CHOCOLATES
("Applicant");
WITNESSETH:
WHEREAS, on May 4, 2010, the City Council of the City of Dublin adopted Resolution No. 53-10
approving a Letter of Agreement with the District for the administration of unused City of Dublin sewer
capacity and the creation of a city-wide Sewer Capacity Assistance Program; and
WHEREAS, the District's Board of Directors adopted Resolution No. 9-10 approving refunding
unused sewer capacity to the City in accordance with District Code Section 7.2.12.B, and Resolution No.
14-10 approving and expanding the administrative procedure to reallocate unused sewer capacity to the City
as authorized by Resolution No. 9-10 to include residential units in accordance with District Code Section
7.2.12.B; and
WHEREAS, on May 21, 2013, the City Council of the City of Dublin adopted Resolution No. 67-13
amending the City's Sewer Capacity Assistance Program and Establishing Criteria for Program
Implementation; and
WHEREAS, the City Council of the City of Dublin subsequently amended the Program through
adopted Resolution No. 33-14 on March 18, 2014, adopted Resolution No. 161-14 on September 16, 2014,
Resolution No. 34-19 on April 16, 2019; and
WHEREAS, Applicant has requested and applied for a Certificate of Capacity Rights from the District
to receive service from the District's wastewater facilities; and
WHEREAS, City has agreed to allocate City wastewater capacity rights for Applicant's new,
expanding, or relocating business (hereinafter, "project" or "Applicant's Project"); and
WHEREAS, Owner acknowledges the benefits of using such an allocation to support Applicant's
Project, and believes that those benefits outweigh the risk that such an allocation could subsequently be
removed from the Owner's Property if Applicant's Project is unsuccessful; and
WHEREAS, Owner is therefore willing to agree that if Applicant's Project fails, City may recover the
full amount of City's wastewater capacity rights that City has allocated to Applicant's project; and
WHEREAS, under the circumstances specified in, and pursuant to the provisions of, Resolution No.
09-10, a portion of City's wastewater capacity rights may be allocated to Applicant's Project pursuant to
written agreement in a form approved by the District's Board of Directors; and
Agreement with Tralee Village, LLC and The Hungry Flower, LLC, dba Mimi's Chocolates Page 1 of 8
WHEREAS, City, Owner and Applicant desire to enter into such agreement in the form hereof as
heretofore approved by the District's Board of Directors;
NOW THEREFORE THE PARTIES HERETO AGREE AS FOLLOWS:
1. Definitions. The following words and terms as used herein shall have the meanings
respectively ascribed thereto except to the extent that any one or more of said definition(s) may from
time to time be amended or revised by the District's Board of Directors through amendment of the
District Code affecting (and/or renumbering) the provisions referenced below:
A. Applicant — hereinabove described.
B. Applicant's Project — Mimi's Chocolates, a confectionary shop and specialty cafe,
leasing approximately 900 square feet at The Shops at Tralee (APN: 941-2831-003)
C. BOD — defined in the District Code, Section 1.20.080, as follows:
"BOD (biochemical oxygen demand)" means the quantity of dissolved oxygen
utilized in the biochemical oxidation of organic matter measured using the standard
laboratory method therefor, usually expressed in milligrams per liter (mg/L).
D. Capacity Rights — defined in the District Code, Section 1.20.080, with respects to
wastewater connection, as follows:
"Capacity rights" means the flow, BOD and suspended solids (SS) capacity
purchased by a user upon obtaining a certificate of capacity rights, or, if such data
is not available, the average month loadings of a user during some prior calendar
year when it can be shown to the satisfaction of the District Engineer that such prior
year's average month loadings are more representative of a user's use of the
wastewater system.
E. Certificate of Capacity Rights — defined in the District Code, Section 1.20.080, as
follows:
"Certificate of capacity rights" (formerly known as "connection permit" or "sewer
permit") means a certificate granted by the District to an applicant reserving capacity
sufficient to provide potable and/or recycled water service through a specified
number of equivalent 5/8-inch water meters to be provided on the parcel which will
be served by the District, or to provide the wastewater capacity in terms of flow and
strength allocated to the parcel to be served by the District, or both.
F. District — hereinabove defined.
G. District Code — the District Code of the Dublin San Ramon Services District, as
adopted, and as amended from time to time by the District's Board of Directors.
Agreement with Tralee Village, LLC and The Hungry Flower, LLC, dba Mimi's Chocolates Page 2 of 8
H. Local Wastewater Capacity Fee — defined in the District Code, Section
3.70.010.C.2, as follows:
Local wastewater capacity reserve fees for service from and use of the District's
wastewater collection system, based on average daily flow proposed to be
discharged to the wastewater system, within the area served by the District or a
specified portion thereof, as estimated by the District Engineer.
I. Non -transferability of certificate of capacity rights — defined in the District Code,
Section 3.60.040, as follows:
Capacity rights, when a certificate therefor is issued, shall attach to and run with the
lot or parcel of land for which the certificate was issued; capacity rights for multiple
parcels, including landscaped parcels along roadways, under common ownership
and served by a single irrigation water meter shall attach to and run with the parcels
of land for which the certificate was issued. The certificate of capacity rights is not
transferable except with the land to which it is attached.
J. Owner - hereinabove defined.
K. Owner's Property — 6601 Dublin Blvd, Suite N, Dublin, CA 94568
Assessor's Parcel No. 941-2831-003
L. Regional Wastewater Capacity Reserve Fee — defined in the District Code, Section
3.70.010.C.1, as follows:
Regional wastewater capacity reserve fees for service from and use of the District's
regional wastewater treatment plant, as determined by the District Engineer, based
on the average daily flow, BOD and SS proposed to be discharged to the
wastewater system within the area served by the District or a specified portion
thereof as estimated by the District Engineer.
M. Residential Discharge Equivalency — as defined herein, as follows:
Residential discharge equivalency means a unit of wastewater discharge equal in
volume and strength to the discharge of a typical single-family residential user. This
shall be 220 gallons per day of flow, 0.42 Ib. per day of BOD, and 0.45 Ib. per day
of SS.
N. SS — defined in the District Code, Section 1.20.080, as follows:
"SS (suspended solids)" means solids, as measured using the standard laboratory
method therefor, that are in suspension in wastewater and which are largely
removable by laboratory filtration procedures.
Agreement with Tralee Village, LLC and The Hungry Flower, LLC, dba Mimi's Chocolates Page 3 of 8
Notwithstanding any implication to the contrary, this Agreement shall remain in
effect despite the revision or repeal of any of the sections of the District Code,
including without limitation those referenced above.
2. Allocated Wastewater Capacity Rights. In response to the Applicant's request City shall,
subject to the right to terminate set forth in Paragraph 4, allocate Wastewater Capacity
Rights to Owner's Property in the amount of 70 gpd (gallons per day) flow, 0.3438 pounds
per day BOD and 0.3678 pounds per day SS [or, 0.32 Residential Discharge Equivalencies,
as applicable]. Said allocation shall be provided to Applicant as an equivalent portion of
credit toward both Regional Wastewater Capacity Reserve Fee and Local Wastewater
Capacity Reserve Fee due for Applicant's Project. Said allocation shall become effective
upon Applicant's payment of the remainder of fees due and District issuance to Applicant a
Certificate of Capacity Rights for Applicant's Project. In recognition of the benefits flowing
from the allocation of additional Capacity Rights to Owner's Property as specified in this
Agreement, Owner expressly waives the protections that would otherwise be afforded to
Owner by the District Code, including without limitation those sections referenced above, to
the extent they are determined by the District to be inconsistent with the provisions of this
Agreement.
3. Term of Agreement: Effect of Termination. This Agreement shall become effective upon the
date first hereinabove written, or the date a lease is executed between the Applicant and
Owner, whichever date is later, and shall expire ten (10) years from the date of issuance of
a Certificate of Occupancy pertaining to the Applicant's Project located on Owner's Property,
unless earlier terminated pursuant to Paragraphs 4 or 6 hereof. If a lease is not executed
within six months of the signing of this Agreement, the Agreement shall become null and
void.
In the event of termination by District pursuant to Paragraph 4 or Paragraph 6 of this
Agreement, all rights and privileges of Owner and Applicant hereunder shall cease and
terminate, and all Wastewater Capacity Rights allocated pursuant to this Agreement shall
forthwith revert to City, and become the property of City, and the Certificate of Capacity
Rights issued hereunder shall be amended to reflect the re -allocation to City of all
Wastewater Capacity Rights allocated pursuant to this Agreement and the commensurate
reduction in Wastewater Capacity Rights allocated to Owner's Property. District or City may,
but shall not be required to, record a Notice of Termination against the Owner's Property
upon which the Applicant's Project is or was located.
Notwithstanding the foregoing, the Wastewater Capacity Rights allocated to Owner's
Property by virtue of the Wastewater Capacity Reserve Fees paid by Applicant shall remain
allocated to Owner's Property and shall run with such land, subject to the provisions of to
the District Code relating to the reduction, expiration, or termination of Sewer Permits and
Capacity Rights.
4. Allocation Expressly Conditional on Continuing Operations: During the term of this
Agreement, should the City determine that Applicant's Project has ceased operations, all
rights and privileges of Owner and Applicant under this Agreement, shall cease and, upon
the written request of City, the District may terminate this Agreement upon five (5) days'
Agreement with Tralee Village, LLC and The Hungry Flower, LLC, dba Mimi's Chocolates Page 4 of 8
written notice, whereupon all Wastewater Capacity Rights allocated pursuant to the
Certificate of Capacity Rights issued hereunder shall, as specified in Paragraph 3 (Term of
Agreement; Effect of Termination), revert to City, and become the property of City. District's
right of termination under this Paragraph 4 is in addition to, and separate from, District's right
of termination pursuant to Paragraph 6 (Hold Harmless).
5. Non -Assignability. Neither this Agreement, nor any interest herein, may be assigned,
conveyed, or in any manner transferred by Owner or Applicant to anyone, including any
successor to the Owner (of the Owner's Property) or any successor to the owner of
Applicant's Project, or to or by one or more tenants thereof, without the prior written consent
thereto signed by the City Manager and the District's General Manager, which consent may
be conditioned upon the signature of the successor(s) upon a recordable instrument by
which the successor(s) assume(s) all of the rights and obligations of its predecessor under
this Agreement, which shall, at the election of either the City of the District, be recorded
against the Owner's Property upon which the Applicant's Project is or was located. District
and City shall not unreasonably withhold its consent to an assignment to the successive
owner(s) of Owner's Property or to the successive owner(s) of Applicant's Project.
Notwithstanding the foregoing, no assignment of the Certificate of Capacity Rights issued
hereunder, or the Capacity Rights pertaining thereto, shall be made with respect to any other
property than Owner's Property hereinabove defined except as specified in Paragraphs 2 or
4 above.
6. Hold Harmless. Applicant shall hold harmless, defend, and indemnify District, its Board of
Directors, officers, employees, consultants, and agents from and against any and all claims,
suits, causes of action, or other proceedings for damages, injuries, losses, costs (including
attorneys' fees and costs of suit or other dispute resolution processes), or any other liability
arising out of, or in connection with, the performance, or failure to perform, any of the duties
and obligations of Applicant hereunder. The duty to defend shall include provision for all
costs and fees, including attorneys' fees, associated with such defense, and the selection of
defense counsel for District, its Board, officers, employees, consultants, and agents shall be
by District.
The duty of Applicant to indemnify District shall include the duty to defend as set forth in
California Civil Code Section 2778; provided that nothing herein contained shall require
Applicant to defend against claims for a liability excluded under the provisions of California
Civil Code Section 2782.
7. Successors. If, and to the extent, approved by the City Manager and the District's General
Manager pursuant to Paragraph 5 hereof, entitled Non -Assignability, the duties,
responsibilities, and rights pertaining and accruing to the parties hereto, shall run with the
land, and be binding upon and inure to the benefit of the successors, administrators, assigns,
and transferees of the respective parties hereto, subject to the provisions of to the District
Code relating to the reduction, expiration, or termination of Certificate of Capacity Rights and
Capacity Rights.
Agreement with Tralee Village, LLC and The Hungry Flower, LLC, dba Mimi's Chocolates Page 5 of 8
8. Notices. All notices, necessary or convenient to the performance of the parties hereunder,
shall be in writing, and may be given to the parties by personal delivery, or by mail, first class
(or equivalent) postage prepaid, addressed in the case of District as follows:
in the case of District, as follows:
Dublin San Ramon Services District
7051 Dublin Boulevard
Dublin, CA 94568-3018
Attention: General Manager
Telephone: (925) 828-0515
in the case of City, as follows:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
Telephone: 925-833-6650
Email: city.manager@dublin.ca.gov
in the case of Owner, as follows:
Tralee Village, LLC
P.O. Box 2053
Dublin, CA 94568
Attention: Tiana Jenkins, COO or Gabriel Chiu, Manager
Telephone: 925-997-8881
Email: tianacjenkins@gmail.com
and in the case of Applicant, as follows:
Mimi's Chocolates
309 Stanforth Court
San Ramon, CA 94582
Attention: Mia Fleury Jenkins, Owner
Telephone: 510-508-6727
Email: fleury.m@mimischocolates.com
9. Recordation. This Agreement shall be submitted by the District to the County Recorder's
Office for the county in which the Owner's Property is located, for recordation in the Official
Records thereof, to give notice of the Agreement in the public records. Upon recordation,
the terms, conditions and obligations of the Agreement shall run with such land, subject to
the provisions of to the District Code relating to the reduction, expiration, or termination of
Certificate of Capacity Rights and Capacity Rights.
Agreement with Tralee Village, LLC and The Hungry Flower, LLC, dba Mimi's Chocolates Page 6 of 8
10. Paragraph Headings. Paragraph headings as used herein are for convenience and shall
not be deemed to alter or amend the paragraphs headed thereby.
11. Integration. This Agreement comprises the entire agreement between the parties with
respect to the subject matter thereof, and supersedes and replaces any and all prior
understandings, oral or written, between the parties.
[No further text on this page.]
Agreement with Tralee Village, LLC and The Hungry Flower, LLC, dba Mimi's Chocolates Page 7 of 8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and effective as of
the date first hereinabove written.
[Countersigned as part of the Agreement Permitting Re -Allocation of
Regional and Local Sewer Capacity Rights entered into on September 15, 2020]
ATTEST:
By:
Nicole Genzale, District Secretary
ATTEST:
By:
Marsha Moore, City Clerk
DUBLIN SAN RAMON SERVICES DISTRICT,
a public agency of the State of California
By:
Daniel McIntyre, General Manager
Date:
CITY OF DUBLIN,
By:
Linda Smith, City Manager
Date:
TRALEE VILLAGE, LLC,
By:
Tiana Jenkins, COO
Date:
THE HUNGRY FLOWER, LLC
By:
Mia Fleury Jenkins, Owner
Date:
Agreement with Tralee Village, LLC and The Hungry Flower, LLC, dba Mimi's Chocolates Page 8 of 8