HomeMy WebLinkAboutItem 4.12 - 1442 Third Amendment to Dublin Crossing DA
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STAFF REPORT
CITY COUNCIL
DATE: May 16, 2017
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Amendment No. 3 to the Development Agreement Between the City of
Dublin and Dublin Crossing LLC Related to the Dublin Crossing Project
Prepared by: Gary Huisingh, Public Works Director
EXECUTIVE SUMMARY:
The City Council will consider the introduction of an Ordinance approving Amendment
No. 3 to the Development Agreement between the City of Dublin a nd Dublin Crossing
LLC. This third amendment to the Agreement proposes for the Developer (Dublin
Crossing LLC) to design and construct the Dublin Crossing Community Park.
Developer and Staff have agreed upon certain revisions to construction phasing and
timing of improvements in concert with components of the Development Agreement
Fee.
STAFF RECOMMENDATION:
Waive the reading and INTRODUCE the Ordinance Approving Amendment No. 3 to the
Development Agreement between the City of Dublin and Dublin Crossing LLC related to
the Dublin Crossing Project.
FINANCIAL IMPACT:
The total cost of the Dublin Crossing Community Park construction is estimated at
$21,600,000 (hard and soft costs), funding by the following sources:
Funding Sources Amount
Developer Contribution 12,857,142
City Public Facilities Fees 6,264,000
Unidentified 2,478,858
Total 21,600,000
The proposed amendment does not chan ge the amount the Developer will pay for the
park improvements, which is set at $12,857,142. However, the Developer may realize
some efficiency in utilizing the same contractor that is being used for the improvements
to Camp Parks as specified in the Developer’s land exchange agreement with the U.S.
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Army, which may result in a lower total construction cost and thus a lower City
contribution to the project.
DESCRIPTION:
Over the last several months, Staff has been meeting with the Developer of the Dublin
Crossing project to discuss the timing and development of the Community Park as the
Master Plan process concluded. In these meetings, Staff has expressed a desire to
have the Developer design and construct the Dublin Crossing Community Park and
proposes a third amendment the Development Agreement to allow such to occur.
The following summarizes the proposed revisions:
Improvement of Community Park
Developer shall, as specified in amended section 9.5 of the Agreement, improve the
three phases of the Community Park in accordance with City requirements, consistent
with the Dublin Crossing Community Park Master Plan adopted by the City Council on
November 15, 2016 (the “Dublin Crossing Park Master Plan”). This propose change
also modifies the condition of approval.
Construction Documents
Developer shall cause the preparation of construction plans, specifications, and
construction cost estimates for the park improvements that are described in the Dublin
Crossing Park Master Plan. The City shall have a ri ght to approve a list of a minimum of
two professional designers that Developer will have the right to retain to prepare the
construction documents.
In addition, the Developer shall provide the City with an opportunity to comment on and
shall incorporate the City’s comments into the following:
(a) Final Conceptual Plan.
(b) 50% construction documents for each phase, if construction is completed
in multiple phases.
If directed by the City, Developer shall incorporate a site for other uses (such as V alley
Children’s Museum) into the Conceptual Design. The City also reserves the right to
direct that certain portions of the site be excluded from the Conceptual Design. The
Final Conceptual Plan(s) shall be subject to Parks and Community Service Commiss ion
review and City Council approval. The final construction documents for each park phase
shall be subject to the City of Dublin standard procedure for subdivision improvement
plan review and shall be subject to approval by the City Engineer.
Project Costs
The current estimate of the total project cost (including hard and soft costs) for the
Community Park is approximately $21,600,000 (approximately $17,100,000 for
construction). The project costs do not and shall not include any costs associated with
the Chabot Creek Improvements and the Stormwater Improvements identified in
Section 9.3 of the agreement, which costs are the Developer’s sole responsibility.
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The Developer shall maintain evidence satisfactory to the City Engineer of the costs it
incurs in each phase, provide reasonable estimates of probable cost at each stage in
the City’s review of the documents (including line item budgets), and cooperate with the
City to modify the improvements in a manner that will reduce the estimates of probable
costs if they exceed the City’s expectations of total project costs. In addition, each
improvement agreement shall include a requirement that Developer enter into a fixed
price construction contract with the contractor(s) performing such improvements and
soft cost allocation that will be used to determine the amount the City will reimburse
Developer. Costs incurred by Developer in excess of the agreed -upon fixed price will be
the sole responsibility of the Developer, except to the extent that the City subseq uently
requests that the improvements be modified in a manner that involves change orders
approved by the City.
Public Art
The City intends to place public art in the park at its own expense. The Developer
agrees to cooperate with City on the City’s i nclusion of public art into the park design
and on the City’s installation of public art within the park.
ENVIRONMENTAL REVIEW
On November 5, 2013 (Resolution No. 186-13), the City Council certified the Dublin
Crossing Environmental Impact Report (FEIR). Subsequently, the City Council adopted
an Addendum to the EIR in approving Amendment No. 2 to the Development
Agreement on January 19, 2016. The environmental effects of the proposed
development were analyzed by the FEIR and the City Council adopted a Mitigation
Monitoring and Reporting Program. The mitigation measures for which the Developer is
responsible are incorporated into, and required by, the project approvals.
The changes reflected in this Amendment will not alter the physical improvements and
merely relate to the responsibility for completing them and therefore the Amendment is
within the scope of the environmental review previously performed for the Existing
Project Approvals and Subsequent Project Approvals, as those terms are defined in the
Agreement.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Ordinance Adopting Amendment No. 3 to Development Agreement
2. Amendment No. 3 to Development Agreement
ORDINANCE NO. xx-17
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
AMENDMENT NO. 3 TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
DUBLIN AND DUBLIN CROSSING VENTURE LLC RELATED TO THE
DUBLIN CROSSING PROJECT
PLPA-2015-00016
(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. The City and Dublin Crossing LLC are parties to that certain development
agreement for the Dublin Crossing Project, dated November 19, 2013, as amended June 16,
2015 and January 9, 2016. The Develop ment Agreement was adopted to facilitate the Dublin
Crossing project, which included 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; up to 200,000 square feet of retail, office and/or
commercial uses; a 30-acre Community Park; and a 12-acre school site to serve approximately
900 students; and
B. The Development Agreement provides (a) that Developer will dedicate, in three
separate phases, certain lands for a community park and make specified cash contributions in
conjunction with those dedication for the improvement of the park and (b) that City will complete
the park improvements within a specified period of time from receiving the dedication and
contributions. The parties now desire to amend the agreement to make Developer responsible
for designing and improving the community park, consistent with the City’s master plan for the
park.
C. The Developer has offered to design and construct the three phases of the
community park prior to its acceptance by the City, and the parties have negotiated Amendment
No. 3 to the Development Agreement to formalize the process for the Developer’s design and
construction of the three phases of the community park.
D. The Development 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 insu bstantial amendment.
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, as amended; (c) the Dublin Crossing Specific Plan, as
amended, (d) the Staff Report; (e) 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:
2
1. Amendment No. 3 to the Development Agreement is consistent with the
objectives, policies, general land uses and programs specified and conta ined in the City’s
General Plan and in the Dublin Crossing Specific Plan , as amended, in that it merely specifies
that the Developer, rather than the City, is responsible for designing and constructing the
community park consistent with the City’s master plan for the park.
2. Amendment No. 3 to the Development Agreement is compatible with the uses
authorized in, and the regulations prescribed for, the land use districts in whic h the real property
is located because Amendment No. 3 to the Development Agreement does not alter the uses or
regulations in the applicable land use district.
3. Amendment No. 3 to the Development Agreement is in conformity with public
convenience, general welfare, and good land use policies in that it will result in no changes to
the previously approved Project Approvals.
4. Amendment No. 3 to the Development Agreement will not be detrimental to the
health, safety, and general welfare in that it will result in no changes to the previously approved
Project Approvals.
5. Amendment No. 3 to the Development Agreement will not adversely affect the
orderly development of property or th e preservation of property values in that the project will be
consistent with the General Plan, the Dublin Crossing Specific Plan, as amended, and future
Project Approvals.
6. Amendment No. 3 to the Development Agreement 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. 3 to the Development Agreement
(Exhibit A-1 to the Ordinance) and authorizes the City Manager to execute it.
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Section 4. RECORDATION
Within ten (10) days after the Development Agreement is fully executed by all parties, the
City Clerk shall submit the Agreement to the County Recorder for recordation.
Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of
its 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 w ith Section 36933 of the
Government Code of the State of California.
PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 16th day of
May, 2017 by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________________
Mayor
ATTEST:
________________________________
City Clerk
2728393.3
RECORDING REQUESTED BY:
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. 3 TO DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
DUBLIN CROSSING, LLC
RELATING TO THE
DUBLIN CROSSING PROJECT
THIS AMENDMENT NO. 3 TO DEVELOPMENT AGREEMENT
( "Amendment ") is made and entered in the City of Dublin on this — day of
, 2017, 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's predecessor in
interest 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 ").
Subsequently, the parties to the Original Agreement entered into that certain
"Amendment No. 1 to Development Agreement Between the City of Dublin and
Dublin Crossing Venture LLC Relating to the Dublin Crossing Project," dated
June 16, 2015 and recorded in the Official Records on July 22, 2015 as
document number 2015202606 (the "First Amendment ") and the Parties
entered into that certain "Amendment No. 2 to Development Agreement Between
the City of Dublin and Dublin Crossing LLC Relating to the Dublin Crossing
Project," Dated February 14, 2016 and recorded in the Official Records on March
8, 2016 as document number 2016056821 (the "Second Amendment "). The
Original Agreement, as amended by the First Amendment and the Second
-- Amendment, is referred to as the "Agreement." Amendments to the Agreement
are permitted by the mutual consent of the Parties in accordance with Article 13.2
of the Agreement and by the Development Agreement Statutes.
3. The Agreement provides (a) that Developer will dedicate, in three
separate phases, certain lands for a community park and make specified cash
contributions in conjunction with those dedication for the improvement of the park
and (b) that City will complete the park improvements within a specified period of
time from receiving the dedication and contributions. The parties now desire to
amend the agreement to make Developer responsible for designing and
improving the community park.
Amendment No. 3 to Dublin /Dublin Crossing Venture LLC Development Agreement
for the Dublin Crossing Project
4. Section 13.3 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.
5. Section 13.3 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 by the Agreement; 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.
6. This Amendment does not relate to any Substantial Changes as
described in Recital 5 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.
7. 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 Project 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.
8. In conjunction with its review of the Subsequent Project Approvals,
the City prepared an addendum to the FEIR that concluded that none of the
conditions described in CEQA Guidelines section 15162 calling for the
preparation of a subsequent EIR have occurred.
9. The changes reflected in this Amendment will not alter the physical
improvements and merely relate to the responsibility for completing them and
therefore this Amendment is within the scope of the environmental review
previously performed for the Existing Project Approvals and Subsequent Project
Approvals, as those terms are defined in the Agreement.
Amendment No. 3 to Dublin /Dublin Crossing Venture LLC Development Agreement
for the Dublin Crossing Project 2
10. On 2016, the City Council of the City of Dublin
adopted Ordinance No. approving this Amendment No. 3 to the
Development Agreement ( "DA Amendment Approving Ordinance "). The
ordinance took effect on 2016 (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. Section 6.1 of the Agreement is amended to read in its
entirety as follows:
"6.1 Development Agreement Fee: Due On a Per -Unit Basis at Final
Map. Prior to the City's approval of each final map creating individual lots for
residential units, Developer shall pay the City a development agreement fee (the
"Development Agreement Fee ") calculated as follows: the number of residential
lots (or condominium parcels) that would be created by the specific final map
subject to approval multiplied by $18,656.25. For maps that create
condominiums, the tentative and final map shall indicate the maximum number of
units permitted by the final map, and the Development Agreement Fee paid shall
be based on the maximum number of units permitted by the final map. For maps
creating fewer than 40 lots or condominium units, the Development Agreement
Fee shall be based on 40 lots or condominium units. In the event that Developer
seeks a site development review ( "SDR ") approval for residential units for which
the per unit fee has not been paid (e.g. apartment projects), Developer shall pay
the per -unit fee amount at the time of SDR approval. The per -unit fee amount
($18,656.25 per residential unit) shall not be adjusted for inflation. At such point
as Developer has paid Development Agreement Fees or advances equal to
$29,850,000 in the aggregate, Developer shall no longer be obligated to pay the
Development Agreement Fee required by this subsection. As detailed in Exhibit
- E, the $18656.25 per residential unit fee generates $29,850,000 at the - point - when 1,600 units are mapped in the Project. The Development Agreement Fee
was determined based on five separate components described in this
Agreement: (a) Community Benefit, § 7; (b) Iron Horse Bridge Design, § 10.3.1;
(c) Iron Horse Bridge Construction; § 10.3.2; (d) ACSPA Property Acquisition
Contribution, § 9.8; and (e) Park Maintenance Endowment, § 9.7. The City is
requiring the payment of the Development Agreement Fee as a condition to
development of the Property. The Parties agree that the City shall be deemed
for all purposes to be requiring the payment of the Development Agreement Fee
as a condition to development of the Property and that the Development
Agreement Fee should be considered a supplemental fee and, in all aspects of
Amendment No. 3 to Dublin /Dublin Crossing Venture LLC Development Agreement
for the Dublin Crossing Project
its application and implementation, should not be deemed a waiver or fee
reduction of any kind. If at any point the City Council determines that at full
buildout, development on the Property will not or is unlikely to produce 1,600
units, the City may withhold further approvals, including final maps, until such
time as Developer provides adequate assurances that the City will receive the
entire $29,850,000 in Development Fee revenue."
Section 2. Section 6.2 is amended to read in its entirety as follows:
"6.2 Revised Fee if City Elects Not to Form Developer- Proposed
Community Facilities District. In the event that the City Council elects not to form
a community facilities district ( "CFW) proposed by Developer that meets the
requirements of Section 8 and applicable law, Section 6.1 shall not apply and
Developer shall pay a revised development agreement fee (the "Revised
Development Agreement Fee ") in the amount of $2,406.25 per unit that would
be created by the specific final map prior to the City's approval of such final map
and shall be relieved from any further obligations under Section 9.5 with respect
to the design, construction or funding for the Community Park. The Revised
Development Agreement Fee reflects the termination and retention of the
following components of the Development Agreement Fee:
Terminated Retained
Community Benefit, § 7 Iron Horse Bridge Design, § 10.3.1
Park Maintenance Endowment, § 9.7 Fair share of Iron Horse Bridge
Construction, § 10.3.2
ACSPA Property Acquisition Contribution,
§ 9.8
At such point as Developer has paid the Revised Development Agreement Fee in
sufficient amounts for the City to apply $50,000 toward the Iron Horse Trail
Grade Separated Crossing Design, $1,000,000 toward Iron Horse Trail Grade
Separated Crossing Construction, and $2,800,000 toward ACSPA Property
Acquisition Contribution, Developer shall be deemed to have fully satisfied its
obligation to pay the Revised Development Agreement Fee required by this
for inflation. Developer shall not be entitled to obtain a refund for Development
Agreement Fee or advances paid prior to the City Council election not to form a
CFD, but Developer shall be entitled to apply any such payment against future
Revised Development Agreement Fee. The Parties agree that, in the event this
section becomes applicable, the City shall be deemed for all purposes to be
requiring the payment of the Revised Development Agreement Fee as a
condition to obtaining final maps for individual lots to be developed on the
Property and that the Revised Development Agreement Fee shall be considered
a supplemental fee and, in all aspects of its application and implementation,
should not be deemed a waiver or fee reduction of any kind."
Amendment No. 3 to Dublin /Dublin Crossing Venture LLC Development Agreement
for the Dublin Crossing Project 4
Section 3. Section 9.4 is amended to read in its entirety as follows:
"9.4 Acceptance of Parkland. City will accept dedicated parkland,
subject to improvement guaranteed by an improvement agreement required by
Section 9.5.5, or will accept dedicated parkland upon completion of the
improvements required by Section 9.5, and completion of the street frontage
improvements as specified in the approved tentative map associated with the
dedication and upon receiving evidence, acceptable to the City Engineer,
demonstrating that the land to be conveyed (including any imported fill) meets
California Department of Toxic Substances Control standards applicable to
residential development or such lesser standard acceptable to the City."
Section 4. Section 9.5 is amended to read in its entirety as follows:
"9.5 Improvement of Community Park. Notwithstanding anything to the
contrary in the conditions of approval for the Project, Developer shall, as
specified in this section 9.5, improve the three phases of the Community Park in
accordance with City requirements, consistent with the Dublin Crossing
Community Park Master Plan adopted by the City Council on November 15, 2016
(the "Dublin Crossing Park Master Plan "). Minor deviations between the Dublin
Crossing Park Master Plan and the Construction Documents, as specified in
section 9.5.1, may be approved by the City Engineer.
9.5.1. Construction Documents. Developer shall cause the
preparation of construction plans, specifications, and construction cost estimates
( "Construction Documents ") for the park improvements that are described in the
Dublin Crossing Park Master Plan (the "Park Improvements "). The City shall
have a right to approve a list of a minimum of two professional designers that
Developer will have the right to retain to prepare the Construction Documents.
In addition, the Developer shall provide the City with an opportunity
to comment on and shall incorporate the City's comments into the following:
(a) Final Conceptual Plan.
(b) 50% construction documents for each phase, if
-- - construction is completed in multiple phases.
If so directed by the City, Developer shall incorporate a site for
other uses (such as Valley Children's Museum) into the Conceptual Design, The
City also reserves the right to direct that certain portions of the site be excluded
from the Conceptual Design. The City will provide such direction no later than
August 2, 2017. The quality level of the park design shall reflect the quality of the
City's existing community parks. The Final Conceptual Plan(s) shall be subject
to Parks and Community Service Commission review and City Council approval.
In conjunction with the submittal of the Final Conceptual Plan for review and
approval, Developer shall provide construction cost estimate and overall project
budget in a form acceptable to the City Engineer. The final Construction
Amendment No. 3 to Dublin /Dublin Crossing Venture LLC Development Agreement
for the Dublin Crossing Project 5
Documents for each park phase shall be subject to the City of Dublin standard
procedure for subdivision improvement plan review and shall be subject to
approval by the City Engineer.
9.5.2 Proiect Costs. The parties currently estimate that the
total project costs (including hard and soft costs) for the improvements to the 30-
net -acre Community Park (with the level of improvements described above) to be
approximately $21,600,000 (approximately $17,100,000 for construction). The
project costs do not and shall not include any costs associated with the Chabot
Creek improvements and the Stormwater Improvements identified in Section 9.3,
which costs are the Developer's sole responsibility. Previously, Developer was
obligated to contribute $12,857,142 in cash toward park improvements, and the
City was obligated to fund all additional costs and improve the park phases within
a specified period of time following each phase's dedication and contribution.
The parties now agree that the City shall reimburse Developer for that portion of
the total costs of the park improvements (including hard costs and soft costs,
including but not limited to architects, engineers, superintendents, utility costs,
temporary facilities, that exceed $12,857,142). The City desires to have a
measure of control over the amount it is required to reimburse the Developer. In
furtherance of this desire, the Developer shall: maintain evidence satisfactory to
the City Engineer of the costs it incurs in each phase; provide reasonable
estimates of probable cost at each stage in the City's review of the documents
(including line item budgets); and cooperate with the City to modify the
improvements in a manner that will reduce the estimates of probable costs if they
exceed the City's expectations of total project costs. Individual line item budget
increases shall require City approval unless the individual line item increase is
less than 10 %. In addition, each improvement agreement shall include a
requirement that Developer enter into a fixed price construction contract with the
contractor(s) performing such improvements and soft cost allocation that will be
used to determine the amount the City will reimburse Developer, and costs
incurred by Developer in excess of the agreed -upon fixed price will be the sole
responsibility of the Developer, except to the extent that the City subsequently
requests that the improvements be modified in a manner that involves change
orders approved by the City. City shall review and approve any commercially
reasonable change orders submitted by the Developer within 10 business days
of receipt. Lack of response within 10 days will be assumed consent to change
order and budget adjustment. In the event that unforeseen site conditions impose
additional costs on the project, Developer agrees to take commercially
reasonable steps to obtain remediation from the United States Army for such
costs and contribute any such reimbursements to the City.
9.5.3 Proiect Management and Implementation. The City Engineer
or designee shall:
Amendment No. 3 to Dublin /Dublin Crossing Venture LLC Development Agreement
for the Dublin Crossing Project 6
• Attend quarterly budget review meetings
• Attend weekly or biweekly progress meetings
• Have no authority over Developer's contractors or subcontractors
and their staff other than regular City regulatory and inspection
authority.
• Respond to Developer Requests for Information within 10 days.
• Review and approve or request modifications to change orders.
• Complete other tasks indentified by the City, and agreed to by the
Developer, during review of the Final Conceptual Plan and 50%
construction documents.
9.5.4. Public Art. The City intends to place public art in the park at
its own expense. Developer agrees to cooperate with the City on the City's
inclusion of public art into the park design during the preparation of the
construction documents and on the City's installation of public art within the park,
if such installation occurs concurrently with the construction of the Park
Improvements.
9.5.5. Improvement Agreement. Developer shall, prior to City
approval of the final map for each phase in which Parkland Dedication is
dedicated pursuant to Section 9. 1, enter into an otherwise standard park
improvement agreement that includes the following terms:
(a) Developer will provide security acceptable to the City
that secures payment of Developer's contribution to the applicable phase or
phases ($4,185,714 in Phase 1 and $4,285,714 in Phases 2 and 3) and will
complete the Construction Documents, in accordance with Section 9.5.1, for the
applicable phase or phases within 9 months. Upon completion of the
Construction Documents, Developer shall provide substitute security consistent
with that required by the City's standard improvement agreement, at which point
the City shall release the previously provided security for the applicable phase or
phases.
(b) Developer will commence construction within 90 days
of completion of the Construction Documents, in accordance with Section 9.5.1,
complete the improvements within 13 months of commencement of construction
unless the Completion Date is extended by force majeure events, including
weather delays as allowed for in the City's standard specifications. The City
Manager can authorize an extension of up to three months. Developer shall
maintain the improvements for three months following completion. Developer
shall provide a one -year warranty for all improvements. The warranty shall be
consistent with the City standard subdivision warranty.
Amendment No. 3 to Dublin /Dublin Crossing Venture LLC Development Agreement
for the Dublin Crossing Project 7
(c) Upon posting security for the completion of the
improvements specified in each park phase under the terms of the improvement
agreement, Developer shall be deemed to have satisfied its obligations to
contribute to Community and Neighborhood Park Improvements under the Public
Facilities Fee for 665 residential units or the number of units equivalent to the
portion of the 30 acres covered by the security.
(d) Upon delivery of a notice of completion of all the Park
Improvements and delivery of a set of final as -built plans and copies of
Construction Documents to City by Developer for a phase of the Community
Park, the City shall examine the Park Improvements without delay. If the Park
Improvements for that phase are found to be in accordance with said plans and
specifications and this Agreement, the City Engineer shall accept the Park
Improvements, and, upon such acceptance, shall notify Developer or its
designated agents of such acceptance. The City Engineer shall only accept the
improvements at 100% completion. Developer will cooperate in the City's efforts
to schedule a "ribbon cutting" event prior to the formal opening of each phase of
the Park.
(e) The City, within 30 days of receipt of invoice, shall
reimburse the Developer for that portion of the project cost, using the hard and
soft costs identified as fixed prices in the improvement agreement for that phase,
that exceed Developer's contributions as identified in the Development
Agreement. The Developer shall retain and provide to the City upon request the
invoices and other documentation that evidences the costs it has incurred on the
project.
9.5.6. Public Facilities Fee Payment Security. Developer's
obligation to improve the Community Park as specified above shall be deemed to
satisfy its obligation to contribute to Community and Neighborhood Park
Improvements under the Public Facilities Fee Program. If, however, at the time
Developer seeks to file a final map Developer has not entered into an
improvement agreement(s) that creates sufficient credits to satisfy the final map's
Park Construction obligation, Developer shall provide security acceptable to the
City that ensures payment of the community park improvements component of
Public Facilities Fee for the units and the neighborhood park improvement
component of the Public Facilities Fee applicable in Eastern Dublin. For the
purposes of this paragraph, Developer shall upon posting security under each
improvement agreement for one of the three phases be deemed to have satisfied
its obligations for 665 residential units. The credits pursuant to the improvement
agreement may be used to reduce previously posted security under this
paragraph and to avoid the requirement to post security under this paragraph."
Amendment No. 3 to Dublin /Dublin Crossing Venture LLC Development Agreement
for the Dublin Crossing Project
9.5.7. Right to Accelerate. Notwithstanding anything to the contrary
in the foregoing, Developer shall have the right to accelerate the design and
construction of the park in a manner that results in fewer than three phases of
park design and construction."
Section 5. Section 9.6 is amended to read in its entirety as follows:
The Park Improvements, including Developer's hard and soft costs, are
eligible for reimbursement through the CFD, subject to the requirements of
Exhibit G.
Section 6. Section 9.7 is amended to read in its entirety as follows:
9.7 Developer's Obligation to Provide Maintenace Endowment for Each
Community Park Phase. At or prior to the City's acceptance of the Park
Improvements on each phase of community park construction, pursuant to
Subsection 9.5.5(d) above, Developer shall make a contribution to fund the
maintenance costs of the community park. The contribution shall be $840,000
for each of the first two phases and $820,000 for the last phase. Upon request of
Developer, the City shall apply previously collected Development Agreement
Fees revenues, exclusive of Development Agreement Fee component payments
previously applied, toward the required contributions. If such application of
Development Agreement Fees is insufficient to satisfy the required contribution,
Developer may advance the necessary funds under Subsection 6.3. The
Developer shall not be required to make the contributions required by this
paragraph to the extent that they are due after the contingent event described in
6.2 above occurs.
Section 7. Exhibits E and F to the Agreement are replaced in their
entirety by revised Exhibits E and F attached hereto and incorporated by this
reference.
Section 8. Full Force
confirmed or modified herein,
according to its terms.
as specifically clarified,
the Agreement shall continue in full force and effect
Section 9. Defined Terms. Defined terms have the same meaning in
this Amendment as in the Agreement unless otherwise specified.
Section 10. Effective Date. This Amendment shall become effective
upon the date the ordinance approving this Agreement becomes effective (the
"Effective Date ").
Amendment No. 3 to Dublin /Dublin Crossing Venture LLC Development Agreement
for the Dublin Crossing Project 9
Section 11 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.
C�
CITY OF DUBLIN
M
Christopher L. Foss, City Manager
Attest:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
DUBLIN CROSSING, LLC,
a Delaware limited liability company
By: BrookCal Dublin LLC,
a Delaware limited liability company
Its: Member
Amendment No. 3 to Dublin /Dublin Crossing Venture LLC Development Agreement
for the Dublin Crossing Project 10
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:
Amendment No. 3 to Dublin /Dublin Crossing Venture LLC Development Agreement
forthe Dublin Crossing Project 11
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