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HomeMy WebLinkAboutItem 8.3 Sewer Capacity Assistance , '.,l , ' " ," e STAFF REPORT ", CITY COUNCIL 'CITYCLERK File;ti .~go-yo DATE: November 15, 2011 TO: Honorable Mayor and City Council members FROM: Joni Pattillo, City Man~ger~ ~ SUBJECT: Request for Sewer Capacity Assistance Prepared by Linda' Smith-Maurer, Economic Development Director/Public Information Officer EXECUTIVE SUMMARY: , The City received a request to participate in the' Sewer Capacity Assistance Program by Stanforth Holdings, LLC, owners of Fallon Gateway, to offset a portion of the costs for BJ's Brewhouse and Restaurant FINANCIAL IMPACT: None ~ . RECOMMENDATION: , Staff recommends that the City Council authorize, by motion, the allocation of sewer capacity to Stanforth Holdings, ("'//'/,/I~ "',,, /r~~;'AdA/ .' "\://1'1,(>;[, ' I .\ (,/,/ \, Submitted By Economic Development Director (JL~c~ Revi~wed By' Assistant City Manager DESCRIPTION: On May 4, 2010, the City Council approved a Letter Agreement with the Dublil:l San Ramon Services District (DSRSD) for the Administration of Unused Sewer Capacity for the City ot Dublin (Attachment 1). . Commonly referred to as the Sewer Capacity Assistance Program, the Program allows the City to market its excess sewer capacity as an economic development incentive program, to h~lp stimulate ecohornicgrowth in the community. The Program is designed to support large an'd , small businesses and encourage the recruitment, renoyation or re-use of properties in Dublin.' The Program allows the City to provide a credit of up to twenty-five percent (250io) of the DSRSD connection fees that would otherwise be paid by the,applicant Page 1 of2 ITEM NO. 8.3 The City received a letter request (Attachment 2) from Stanforth Holdings, LLC, owners of Fallon Gateway, to participate in the program. The City Council is being asked to consider this request seeking sewer capacity assistance for the BJs Brewhouse and Restaurant project. Through the Program, the City would be able to assist Stanforth with approximately $95,000 in fees or approximately six (6) dwelling unit equivalents (DUEs) of the 66 DUEs of excess sewer capacity that the City holds. Staff believes that the investment of sewer capacity at this location will further assist in the City's economic development efforts to bring high quality restaurants to the Dublin community and will help to support retail attraction activities for Fallon Gateway that will likely result in higher sales tax revenues to the City. Staff presented the request and recommendation to the Economic Development Ad-Hoc Committee (Sbranti and Biddle) on November 7, 2011 and the Committee supported Staff's recommendation and requested the item be brought to the full City Council for consideration. Staff will prepare the necessary agreements between the City, DSRSD, and the property owner/applicant for the City Manager to execute per Resolution 53-10 (Attachment 3). As it relates to the procedure of evaluating Sewer Capacity Assistance Program requests, Staff is recommending that all future requests be brought to the Economic Development Ad-Hoc Committee and that the Committee provide direction to Staff to present these requests to the City Council for consideration. The Committee's purview includes development of incentives under which the Sewer Capacity Assistance Program falls. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None ATTACHMENTS: 1. May 4, 2010 Staff Report 2. Letter from Stanforth Holdings, LLC 3. Resolution 53-10 Page 2 of 2 G~~~ OF Dp~l f~ ~9`~;~/2 STAFF REPORT CITY CLERK // DUBLIN CITY COUNCIL File # ^®^0©-[~^® O~LIFO~~~ DATE: May 4, 2010 TO: Honorable Mayor and City Councilmembers FROM: Joni Pattillo, City Manager SUBJE Letter of Agreement with the Dublin San Ramon Services District (DSRSD) for the creation of a Sewer Capacity Assistance Program Prepared By: Linda Maurer, Assistant to the City Manager EXECUTIVE SUMMARY: The City Council will consider authorizing the City Manager to execute a Letter of Agreement with the Dublin San Ramon Services District (DSRSD) to authorize the City to transfer the City's unused sewer capacity to third parties for economic development purposes. FINANCIAL IMPACT: The approval of the proposed program is intended to be revenue positive to the City through the generation of additional sales and property taxes. RECOMMENDATION: Staff recommends that the City Council adopt the resolution approving the agreement between the City of Dublin and the Dublin San Ramon Services District (DSRSD) for the administration of the unused City of Dublin sewer capacity. /~/ Y Submitted By Re iewed By Assistant to the City Manager Assistan anager Page 1 of 3 ITEM NO. DESCRIPTION: For the past several months, staff from the City and the Dublin San Ramon Services District (DSRSD) have discussed the potential for a joint economic development incentive program to help stimulate economic growth in the community. The City of Dublin, through the purchase of the existing Civic Center site (100 Civic Plaza) and the current Dublin Senior Center (former Alameda County Library site - 7600 Amador Valley Boulevard), has over 66 Dwelling Unit Equivalents (DUE) of sewer capacity in excess of the City's use requirement. Both City and DSRSD staff designed an economic incentive program that allows the City to transfer unused sewer capacity at City-owned facilities to private properties to encourage the recruitment, renovation or re-use of properties in Dublin. The program would allow the City to provide a credit of up to twenty-five percent (25%) of the connection fees that would otherwise be paid by the applicant. For example, a new restaurant is looking to move to Dublin and their sewer capacity requirement is 20 DUE (cost: approximately $300,000). Under this program, the City could provide up to 25% of the required DUE (or 5 DUE) that could save the new business approximately $75,000 in costs. The City of Dublin /DSRSD Liaison Committee met on November 4, 2009 to discuss the program and the DSRSD members supported a recommendation that its Board authorize the investigation into the feasibility of the program. The DSRSD Board of Directors approved the Sewer Capacity Assistance Program at its March 2, 2010 meeting and the agreement with the City of Dublin to allow the re-allocation of regional and local sewer capacity rights. Following the Board's action on March 2, 2010, City staff requested that the program also extend to residential development projects that the City believes would have a economic benefit to Dublin. An example of this could be a small infill residential project in the downtown, whereby the residential project would create a higher and better use for the property, and also possibly provide opportunities for better commercial development projects in its vicinity. The DSRSD Board of Directors approved the requested change on April 20, 2010. The City Council is being asked to consider a Letter of Agreement between the City of Dublin and DSRSD (attached as Exhibit A to Attachment 1) which defines the procedures required for the administration of the program. The criteria of the program are as follows: 1. The program will create a "deposit account" of the 66.2 DUE that will be held by the District. 2. The City shall designate, through a letter to DSRSD, the name of the applicant for the new, expanding or relocating business, the name of the property owner, and the number of Dwelling Unit Equivalents (DUE) the City desires to allocate to the project. 3. District shall determine the wastewater flow characteristics of the business identified by the City, and the DSRSD will decide whether the City's allocation request is consistent with the wastewater flow characteristics for the project. 4. Prior to and as a condition of DSRSD issuing a Sewer Permit authorizing the project to proceed, the City shall sign an agreement with DSRSD, the applicant and the landowner (if the person is different than the applicant) regarding management of the DUEs allocated for the project. The agreement between the City, District, applicant and/or property owner(s) shall expressly authorize the District to sever, from the specific parcel Page 2 of 3 of land, the specific number of DUEs having been designated by the City should the new, expanding, or relocating business fail. 5. The aggregate of the net credits to the deposit account at any one time shall not exceed the total of sixty six and two-tenths (66.2) DUEs. The City Council is being asked to consider adopting approving the Letter of Agreement with the Dublin Sa authorizing the City Manager to execute the agreement. NOTICING REQUIREMENTS/PUBLIC OUTREACH: the proposed resolution (Attachment 1) n Ramon Services District (DSRSD) and If the agreement is approved, Staff will begin marketing the program to interested commercial tenants. ATTACHMENTS: Resolution of the City Council of the City of Dublin Approving the Letter of Agreement between the City of Dublin and the Dublin San Ramon Services District (DSRSD) for the Administration of the Unused City of Dublin Sewer Capacity. o Exhibit A -Letter of Agreement between City of Dublin and the Dublin San Ramon Services District for the Administration of the Unused City of Dublin Sewer Capacity (with DSRSD Board Resolution Nos. 09-10 and 14-10 and Agreement for Permitting Reallocation of Regional and Local Sewer Capacity Rights as Attachment A, B and C, respectively, to the letter). Page 3 of 3 l~ ai RESOLUTION NO. XX - 10 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A LETTER OF AGREEMENT WITH THE DUBLIN SAN RAMON SERVICES DISTRICT (DSRSD) FOR THE ADMINISTRATION OF UNUSED CITY OF DUBLIN SEWER CAPACITY WHEREAS, the City Council of the City of Dublin (the "City") is desirous of improving the economic viability of the community through the establishment of certain economic incentive programs; and WHEREAS, in an attempt to attract new businesses or retain and/or expand existing businesses that will provide additional jobs and generate additional.tax revenues for the City, as well as for certain residential projects that will likely result in greater economic activity in Dublin, Staff is requesting City Council consideration of an agreement with the Dublin San Ramon Services District (DSRSD) that will allow the City to provide unused City sewer capacity rights to new and/or existing businesses and/or projects; and WHEREAS, the proposed program would require the City, DSRSD, property owner and applicant to enter into a agreement permitting the re-allocation of regional and local sewer capacity rights, and the agreement will be recorded with the Alameda County Recorder's Office, and WHEREAS, the City Council finds it is in the public interest to enter into this agreement because the City and its residents will benefit from 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; 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; and WHEREAS, the City Council further finds that the City and its residents may also benefit from the creation of construction jobs created from residential projects that are developed. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Letter of Agreement with the Dublin San Ramon Services District (DSRSD) for the Administration of Unused City of Dublin Sewer Capacity (attached as Exhibit A). BE IT FURTHER RESOLVED that the City Manager is authorized to execute the agreement substantially in the form attached hereto and to undertake such action as may be necessary and desirable to carry out the intent of this resolution. PASSED, APPROVED AND ADOPTED this _th day of , 2010, by the following vote: py /}~~ i~} ~~°h~ ~bf~ ~ ~~~Ar./ ATTACHMENT 1 ~~a~ AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor ATTACHMENT 1 3aG al DUBLIN SAN RAMON SERVICES DISTRICT Apri121, 2010 Ms. Joni Pattillo City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 Subject: Letter of Agreement for the Administration of Unused City of Dublin Sewer Capacity Dear Joni: 7051 Dublin Boulevard Dublin, California 94568 Phone: 925 828 0515 FAX: 925 829 1180 w~cvw.dsrsd.com As you are aware, at the request of the City of Dublin (City), on March 2, 2010, the Board of Directors of Dublin San Ramon Services District (District) adopted Resolution No. 9-10 (Attachment A) authorizing the City to transfer unused sewer capacity allocated to City properties to commercial properties where the City would like to stimulate economic growth. The resolution requires a Letter of Agreement between the City and District to define the administrative procedures for the administration of the program. In addition, on April 20, 2010, the District Board of Directors adopted Resolution No. 14-10 (Attachment B) authorizing the City to also transfer unused sewer capacity to residential development. Upon the City's approval and acceptance, evidenced by your signature below, this letter will serve as the required Letter of Agreement. The procedures for administering the unused capacity transfer program shall be as follows: • City shall provide to District Engineer, David A. Requa, a letter providing the name of (and contact information for) the applicant for the new, expanding, or relocating business (hereinafter, "commercial project") or residential development project (hereinafter, "residential project" or collectively "project") the City is supporting, the name of (and contact information for) the owner(s) of the property on which the project is located (if different than the applicant for the project) and the number of dwelling unit equivalents ("DUES") the City desires to allocate to the project. • The District Engineer shall have the discretion to determine whether the number of DUES the City desires to allocate to the project are consistent with the wastewater flow characteristics, including volume and strength in terms of BOD and SS, for the proposed use. Such determination will be based, in the sole discretion of the District Engineer, on o~b„n San Ron sen2~es Dsstri~t s a ~b~« Ent;Ty EXHIBIT A Ms. Joni Patillo Page 2 Apri121, 2010 Y~~ information concerning the wastewater flow characteristics provided by the Applicant, and/or on a schedule of wastewater flow characteristics for the category or categories of use classifications determined by the District Engineer to be most applicable to the proposed use. • The Applicant shall be responsible for complying with the District Codel with respect to commencing wastewater service, including the acquisition of all additional DUES determined to be necessary, the application for a Sewer Permit and compliance with all conditions thereto, and for paying all fees and charges attributable to the project. Prior to and as a condition of District issuance of a Sewer Permit .authorizing a commercial project to proceed, City shall sign an agreement with the District, the applicant, and the landowner (if a person different from the applicant) regarding management of the DUES allocated for the project, which agreement shall be in the form attached hereto as Attachment C, which form of agreement shall be revised to conform to changes made from time to time to pertinent portions of the District Code. City shall provide District written notification should the applicant's commercial project fail and the City desires to transfer the allocated DUES back to the City from the owner of the property. • The aggregate total of DUES allocated under this program shall not exceed sixty-six and two-thirds (66 2/3) DUEs at any time. No letter request dated after December 31, 2011 by the City to allocate DUEs will be honored by District unless approved by the District Board of Directors. If this Letter of Agreement is satisfactory to the City, please sign and return one copy to the District. The District is pleased to have this opportunity to assist the City in these challenging economic times. Sincerely, ,,. / r ,' BERT L. MICHALCZYK General Manager ACCEPTED for CITY OF DUBLIN JONI PATTILLO Date City Manager 1. This is the District Code of the Dublin San Ramon Services District, which contains the pertinent rules and regulations as adopted by the District's Board of Directors from time to time. Ms. Joni Patillo Page 3 April 21, 2010 Attachments: (A) DSRSD Board Resolution No. 9-10 (B) DSRSD Board Resolution No. 14-10 (C) Dublin Sewer Capacity Transfer Agreement cc: D. Requa S~ a i H:\ENGDEPT\Dept Items\ENGMGR\DLTBLIN\DL7E Allocation\Letter of Agreement -Dublin Fina] draft.doc ~~~~~ Attachment A RESOLUTION NO. 9-10 RESOLUTION OF THE BOARD OF DIRECTORS OF DUBLIN SAN RAMON SERVICES DISTRICT APPROVIl~tG REFUNDING UN LJSED SEWER CAPACITY TO CITY OF DUBLIN IlV ACCORDANCE WITH DISTRICT CODE SECTION 7.2.12.B. WHEREAS, Section 7.2.18 of the District Code of Regulations authorizes the District, in accordance with the public health, welfare, safety, necessity and convenience, to issue permits for future connections to the District's wastewater system; and WI-IEREAS, Section 7.5.13 of the District Code of Regulations authorizes the District to enter into an agreement with a govenunental agency to provide :wastewater collection and/or treatment services in exchange for special rates and charges representing an equitable share of the costs thereof; and WHEREAS, Section 7.2.17 of the District Code of Regulations authorizes the District, in accordance with the public health, welfare, safety, necessity and convenience, to enter into an agreement with a governmental agency for priority governmental connections to the District's wastewater system to facilitate the governmental agency's performance of necessary governmental functions or services under its jurisdiction; and WHEREAS, Section 7.2.12 of the District Code provides for the acquisition by governmental agencies of capacity rights in the District's wastewater system; and WHEREAS, Section 7.2.12.8 of the District Code authorizes the District to refund, to governmental agencies, fees paid for the acquisition of capacity rights in excess of the agencies' requirements, as determined by the District; aild WHEREAS, City of Dublin ("City")has purchased, for the Civic Center parcel, fifty and two tenths (50.2) dwelling unit equivalents ("DUES") of excess sewer capacity as determined by the District, and City has purchased, for the Senior Center parcel, an additional sixteen (16)-DUES of ~a~ al Res. No. 9-10 excess sewer capacity as determined by the District; and WHEREAS, the City is experiencing an unprecedented severe redaction in economic development resulting in adverse impacts to the public health, welfare, safety, necessity and convenience and a reduction of revenues available to the City to support stimulating economic development and investment; and WHEREAS, the City, in the exercise of its police powers to advance the public health, welfare, safety, necessity and convenience, desires to support and stimulate economic development and investment within the City by providing assistance to specific new, expanding, or relocating businesses that the City deems eligible for such assistance because the business will create jobs, generate revenue for the City, or otherwise stimulate economic and cultural activity; and WHEREAS, the City has requested that the District, in lieu of refunding fees paid by the City for the acquisition of capacity rights in excess of the City's requirements, as determined by the District ("excess fees"), allow said excess fees to be used instead as a credit against up to twenty-five percent (25%) of the connection fees that otherwise would be paid by the new, expanding, or relocating business; and WHEREAS, the contemplated development within the City will also benefit the District due to the increase in rate revenue as the result of the addition of each new sewer customer. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF DUBLIN SAN RAMON SERVICES DISTRICT, a public agency located in the counties, of Alameda and Contra Costa, that the General Manager or his designee is hereby authorized and directed as follows: l . To execute for and on behalf of the District a letter agreement with the City of Dublin to develop and implement an administrative procedure to credit sewer connection fees to the City for its use through creation and administration of a City "deposit account" held by the District in 2 g~ a~ Res. Noe 9-10 accordance with the following criteria: , a. Credits to the deposit account shall be for a specific number of DUEs for a specific development on a specific parcel of land, as designated in writing by the City. b. Debits to the deposit account shall be for the specific number of DUEs having been so designated by the City in writing, effective when the construction permit is issued by the District for the specific development designated by the City. c. District shall issue such a construction permit only after a suitable written agreement, among District, City and the property owner(s) of the specific parcel of land, duly signed and acknowledged, is delivered to the District for recordation. d. The aggregate of all net credits to the deposit account at any one time shall not exceed a total of sixty-six and two-tenths DUEs. e. No credits to the account may be made after December 31, 2011 without approval by subsequent Resolution of the Board. 2. To develop a standard form of a written agreement that suitably protects the respective interests of District and City for use as specified in the preceding provisions, and to present the form for approval by the' Board. At a minimum, such agreement shall expressly authorize the District to sever, from the specific parcel of land, the specific number of DUEs having been designated for use on that parcel by the City in accordance with the preceding provisions, should the new, expanding, or relocating businesses fail, and should the City, in writing, designate those DUEs for a specific development on a different parcel of land to provide assistance to another new, expanding, or relocating business that the City deems eligible for such assistance because the business will create jobs, generate revenue for the City, or otherwise stimulate economic and cultural activity. 3. To execute for and on behalf of the District, and submit for recordation as appropriate, 3 q~dai Res. No. 9-10 any and all additional documents as may be necessary to implement the procedure, each in a form approved by legal counsel. ADOPTED by the Board of Directors of Dublin San Ramon Services District, a public agency in the State of California, counties of Alameda and Contra Costa, at its regular meeting held on the 2nd day of March 2010, and passed by the following vote: AYES: 5 -Directors Daniel Je Scannell, Georgean Me Vonheeder-Leopold, Richard M, Halket, DeL, (Pat) Howard, Jeffrey G, Hansen NOES: 0 AB ATTEST: H:~Boarcfl03-02 ~~R ~ ~4 ~'~~~ 4 /oab~l Attachment B RESOLUTION N0. 14-10 RESOLUTION OF THE BOARD OF DIRECTORS OF DUBLIN SAN RAMON SERVICES DISTRICT APPROVING AND EXPANDING THE AD1VIIIVISTRATIVE PROCEDURE TO REALLOCATE UNUSED .SEWER CAPACITY TO CITY OF DUBLIN AS AUTHORIZED BY RESOLUTION.NO. 9-10 TO INCLUDE RESIDENTIAL UNITS IN ACCORDANCE WITH' DISTRICT CODE SECTION 7.2.12.B. WHEREAS; Section 7.2.18 of the District-Code of Regulations ("District Code")authorizes the.. District; in accordance with the public health, welfare, safety, necessity and convenience, to issue permits for future connections to the District's wastewater system; and WHEREAS, Section 7.5.13 of the District Code authorizes the District to enter into an agreement with a governmental agency to provide wastewater collection and/or treatment services in exchange for special rates and charges representing an equitable share of the costs thereof; and WHEREAS, Section 7.2.17 of the District-Code authorizes the District; in accordance with: .the. public health, welfare, safety, necessity and convenience, to enter into an agreement with a governmental agency for priority governmental connections to the District's wastewater system to facilitate the governmental agency's performance of necessary governmental functions or services under its jurisdiction; and WHEREAS; .Section 7.2.12 of the District Code provides for the. acquisition by governmental. agencies.. of capacity rights in the District's.. wastewatersystem; and WHEREAS, Section 7.2.12.B of the District Code authorizes the District to refund, to ~o`~ernniental agencies, fees paid for the acquisition of capacity rights in, excess of the .agencies'., requirements, as determined by the District; and WHEREAS, City of Dublin ("City")has purchased, for the Civic Center parcel, fifty-and two tenths (50:2) dwelling unit equivalents ("DUES") of excess Local and Regional sewer capacity; and City has. purchased, .for the Senior Center and: Senior Housing parcels, an additional sixteen (16); DUES of excess Local and Regional sewer capacity; and /~a6 a I Res. No. 14-10 WHEREAS, City is experiencing an unprecedentedly severe reduction in economic development resulting in adverse ,impacts to the public health, welfare, safety, necessity and convenience and a reduction of revenues available to City to support stimulating economic development and investment; and WHEREAS, City, in the exercise of°its police powers to advance the public health, welfare, safety, necessity and convenience; determined that it desired to support and stimulate economic development and investment within the City by providing assistance to specific new, expanding, or relocating businesses that the City deemed eligible for. such assistance because the business will create jobs, generate revenue for the City, or otherwise stimulate economic and cultural activity; and WHEREAS, District approved Resolution No. 9-10 authorizing .the development and implementation of an administrative procedure to allow City to credit excess connection fees paid for the acquisition of capacity rights in excess ofthe City's requirements, as determined by the District, for new, expanding or relocating businesses that the City deemed. eligible for such assistance; and WHEREAS, City desires to further support and stimulate economic development and investment within the City by also providing assistance to specific residential housing proj ects that the City deemed eligible for such assistance because the construction and related activities will create jobs, provide housing, generate revenue for the City, or otherwise stimulate economic and. cultural activity; and has requested that the District's administrative procedure be expanded to include residential units of importance to City; and WHEREAS, the expanded residential development within City will also benefit District due to the increase in rate revenue as the result of the addition of each new sewer customer. 2 iasd ~~ Res. No. 14-10 NOW, THEREFORE, BE TT RESOLVED BY THE BOARD OF DIRECTORS OF DUBLIN SAN RAMON SERVICES DISTRICT, a public agency located in the counties of Alameda and Contra Costa, California, that the administrative procedure authorized byResolution No. 9-10 shall be revised as specified herein to include residential units that the City deemed important to City. BE IT FURTHER RESOLVED that the letter agreement, which Resolution No. 9-10 authorizes and directs the. General Manager or his designee to execute for and on behalf of the District, shall .provide the following additional criterion with respect to residential projects: a. Once DUES are designated by the City for use on a specific parcel of land to provide assistance to a residential proj ect, those DUES will not be severed from the specific parcel for use on a different parcel of land (subject to the provisions of to the District Code relating to the reduction, expiration, or termination of Sewer Permits and Capacity Rights), nor will the allocated DUEs be transferred back to the City. ADOPTED by the Board of Directors of the Dublin San Ramon Services District, a public agency in the State of California, counties of Alameda and Contra Costa, at its regular meeting held on the 20th day of Apri12010, and passed by the following vote: AYES: 5 -Directors Daniel J. Scannell, Georgean M. Vonheeder-Leopold, Richard M. Halket, D.L. (Pat) Howard, Jeffrey G. Hansen NcT~ AF ATTEST: DUBLIN SAN RAMQN SERVICES DlSittK.? Secretary (~ ~C~~J~ / d ~ ~ ~ H:\BOard\04-20-10\DuhlinResale of Capacity for ResidenfiaAResolution -Dublin DUE Refund residentual_rvv.dbc 3 13 ~b a~ Attachment C AGREEMENT PERMITTING REALLOCATION OF REGIONAL AND LOCAL SEWER CAPACITY RIGHTS This Agreement, made and entered into this day of , 20_, 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"), PROPERTY OWNER'S NAME IN ALL CAPS ("Owner") and APPLICANT'S NAME IN ALL CAPS ("Applicant"); WITNESSETH: WHEREAS, Applicant has requested and applied for a Sewer Permit from the District to receive service from the District's sewer facilities; and WHEREAS, City has agreed to allocate City 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 capacity rights that City has allocated to Applicant's project; and WHEREAS, under the circumstances specified in, and pursuant to the provisions of, District Resolution No. 9-10, a portion of City's 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 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 - (DESCRIPTION OF PROJECT) C. BOD -defined in the District Code, Section 7.l .O1.E, as follows: Page 1 of 9 H:\Board\04-20-10\Resale of Sewer Capacity by Dublin- Agmt\Dublin Sewer Capacity Allocation Agreement Finat.doc i~b6a~ "BOD (biochemical oxygen demand) means the quantity of dissolved oxygen utilized in a biochemical oxidation of organic matter under standard laboratory procedure in five days at 20 degrees centigrade." D. Capacity Rights -defined in the District Code, Section 7.1.O1.F, as follows: "Capacity rights means the flow, BOD and SS capacity purchased by a user upon obtaining a sewer permit, or, if such data is not available, the peak month loadings of user during some prior calendar year when it can be shown to the satisfaction of the district engineer that the prior year's peak month loadings are more representative of a user's use of the wastewater system." E. District -hereinabove defined. F. 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. G. Local Sewer Connection Fee -defined in the District Code, Section 7.6.02.A, as follows: "Local sewer connection fees: For each single family dwelling unit; for each second dwelling unit; and for all other users, [are] as determined by the district engineer, based on peak month flow to be discharged to the sewer system." H. Non-transferability of permits -defined in the District Code, Section 7.2.13, as follows: "Each sewer permit issues and the capacity rights conferred run with the land, subject to the provisions relating to the termination of a permit for failure to connect to the district's sewerage system within the time provided, and shall not be terminated to, or used for, any property other than the property for which the permit was originally issued." L Owner -hereinabove defined. J. Owner's Property -Assessor's Parcel No. K. Regional Sewer Connection Fee -defined in the District Code, Section 7.6.02.B, as follows: "Regional sewer connection fees: For each single family dwelling unit; each second dwelling unit; and for all other users, [are] as determined by the district engineer, based on peak month flow, BOD and SS to be Page 2 of 9 H:\Board\04-20-10\Resale of Sewer Capacity by Dublin- Agmt\Dublin Sewer Capacity Allocation Agreement Final.doc isa6 ai discharged to the sewer system." L. Residential Discharge Equivalency - as defined in the District Code, Section 7.1.O1.TT, 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, 0.421b. per day of BOD, and 0.45 lb. per day of SS." M. SS -defined in the District Code, Section 7.l .O1.DDD, as follows: "SS (suspended solids) means solids that either float on the surface of or are in suspension in water, sewage or other liquids and which are largely removable by laboratory filtration procedures." N. Sewer Permit - defined in the District Code, Section 7. l .Ol .LL.1, as follows: "The sewer permit confers upon the premises to which it relates the capacity rights stated in the permit, and if not stated, the capacity rights equivalent to a single-family dwelling." 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 Capacity Rights. In response to the Applicant's request City shall, subject to the right to terminate set forth in Paragraph 4, allocate Capacity Rights to Owner's Property in the amount of xxxxx gpd (gallons per day) flow, xxxxx pounds per day BOD and xxxxx pounds per day SS [or, xx.xx Residential Discharge Equivalencies, as applicable]. Said allocation shall be provided to Applicant as an equivalent portion of credit toward both Regional Sewer Connection Fee and Local Sewer Connection 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 Sewer Permit 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 and, unless earlier terminated pursuant to Paragraphs 4 or 6 hereof, shall expire ten (10) years from the date of Page 3 of 9 H:\Board\04-20-IOUtesale of Sewer Capacity by Dublin- AgmflDublin Sewer Capacity Allocation Agreement Final.doc i6~ai issuance of a Certificate of Occupancy pertaining to the Applicant's Project located on Owner's Property. 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 Capacity Rights allocated pursuant to this Agreement shall forthwith revert to City, and become the property of City, and the Sewer Permit issued hereunder shall be amended to reflect the reallocation to City of all Capacity Rights allocated pursuant to this Agreement and the commensurate reduction in 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 Capacity Rights allocated to Owner's Property by virtue of the Connection 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' written notice, whereupon all Capacity Rights allocated pursuant to the Sewer Permit 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 maybe 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 or 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 Sewer Permit 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 Page 4~ of 9 H:\Board\04-20-IOUtesale of Sewer Capacity by Dublin- Agmt\Dublin Sewer Capacity Allocation Agreement Final.doc i7~~~~ 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 Sewer Permits and Capacity Rights. 8. Notices. All notices, necessary or convenient to the performance of the parties hereunder, shall be in writing, and maybe given to the parties by personal delivery, or by mail, first class (or equivalent) postage prepaid, addressed in the case of District as follows: Dublin San Ramon Services District 7051 Dublin Boulevard Dublin, CA 94568-3018 Attention: General Manager in the case of City, as follows: City of Dublin 100 Civic Plaza Dublin, CA 94568 Attention: City Manager Page 5 of 9 H:\Board\04-20-10\Ftesale of Sewer Capacity by Dublin - Agmt\Dublin Sewer Capacity Allocation Agreement Final.doc 1~~~ ~l in the case of Owner, as follows: Applicant Company Name Applicant Street Address , Applicant City, State, and Zip Attention: Applicant Contact Person and Title and in the case of Applicant, as follows: Applicant Company Name Applicant Street Address Applicant City, State, and Zip Attention: Applicant Contact Person and Title 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 Sewer Permits and Capacity Rights. 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.J Page 6 of 9 H:\Board\04-20-10\Itesale of Sewer Capacity by Dublin- Agmt\Dublin Sewer Capacity Allocation Agreement Final.doc l9 ~6 al IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and effective as of the date first hereinabove written. DUBLIN SAN RAMON SERVICES DISTRICT, a public agency of the State of California By: Bert Michalczyk, General Manager ATTEST: Nancy G. Hatfield, District Secretary City of Dublin, By: Title ATTEST: Title [TYPE Owners's Name & Title Here] Date [TYPE Applicant's Name & Title Here] Date Page 7 of 9 H:\Board\04-20-10\Resale of Sewer Capacity by Dublin- Agm[\Dublin Sewer Capacity Allocation Agreement Final.doc ~o ~a~ IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and effective as of the date first hereinabove written. APPLICANT COMPANY NAME By: Applicant Contact Person, -Title Page 8 of 9 H:\Board\04-20-10\Resale of Sewer Capacity by Dublin- Agmt\Dublin Sewer Capacity Allocation Agreement Final.doc t.~/~ ....x:~ 7 FOR DSRSD USE ONLY State of California ) County of Alameda ) On before me, ,personally (name and title of officer) appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same inhis/her/their authorized capacity(ies), and that byhis/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal Signature of Notary Public Page 9 of 9 H:\Board\04-20-10\Resale of Sewer Capacity by Dublin- Agmt\Dublin Sewer Capacity Allocation Agreement Final.doc Stanforth Holding Company, LLC November 1, 2011 Ms. Linda Smith Economic Development Dir. City of Dublin 100 Civic Plaza Dublin, CA 94568 Re: Sewer Capacity Assistance Program Dear Linda; Please accept this request to participate in the City's Sewer Capacity Assistance Program for the BJ's Brewery restaurant to be constructed at the Fallon Gateway Shopping Center in Dublin. The APN for the parcel where the restaurant will be located is 985-0079-004-01. Attached for your reference is DSRSD's fee estimate invoice for the restaurant. Thank you for your consideration. Should you need any additional information, please feel free to contact me. Very truly yours, Debby Milichichi Operations & Asset Manager dlm Enc. 4690 CHABOT DRIVE, SUITE 100, PLEASANTON, CA 94588 TEL: 925-463-1666 FAX; 925-463-1861 RESOLUTION NO. 53 -10 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN *********** APPROVING A LETTER OF AGREEMENT WITH THE DUBLIN SAN RAMON SERVICES DISTRICT (DSRSD) FOR THE ADMINISTRATION OF UNUSED CITY OF DUBLIN SEWER CAPACITY WHEREAS, the City Council of the City of Dublin (the "City") is desirous of improving the economic viability of the community through the establishment of certain economic incentive programs; and WHEREAS, in an attempt to attract new businesses or retain and/or expand existing businesses that will provide additional jobs and generate additional tax revenues for the City, as well as for certain residential projects that will likely result in greater economic activity in Dublin, Staff is requesting City Council consideration of an agreement with the Dublin San Ramon Services District (DSRSD) that will allow the City to provide unused City sewer capacity rights to new and/or existing businesses and/or projects; and WHEREAS, the proposed program would require the City, DSRSD, property owner and applicant to enter into a agreement permitting the re-allocation of regional and local sewer capacity rights, and the agreement will be recorded with the Alameda County Recorder's Office, and WHEREAS, the City Council finds it is in the public interest to enter into this agreement because the City and its residents will benefit from 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; 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; and WHEREAS, the City Council further finds that the City and its residents may also benefit from the creation of construction jobs created from residential projects that are developed. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Letter of Agreement with the Dublin San Ramon Services District (DSRSD) for the Administration of Unused City of Dublin Sewer Capacity (attached as Exhibit A). BE tT FURTHER RESOLVED that the City Manager is authorized to execute the agreement substantially in the form attached hereto and to undertake such action as may be necessary and desirable to carry out the intent of this resolution. Page 1 of 2 PASSED, APPROVED AND ADOPTED this 4th day of May, 2010, by the following vote: AYES: Councilmembers Biddle, Hart, Scholz, and Mayor Sbranti NOES: None ABSENT: Councilmember Hildenbrand ABSTAIN: None ,~ .. ~~~ Mayor ATTES ~~ City Clerk Reso No. 53-10, Adopted 5-4-10, Item 8.1 Page 2 of 2 3aG ~l DUBLIN SAN RAMON SERVICES DISTRICT Apri121, 2010 Ms. Joni Pattillo City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 Subject: Letter of Agreement for the Administration of Unused City of Dublin Sewer Capacity Dear Joni: 7051 Dublin Boulevard Dublin, California 94568 Phone: 925 828 0515 FAX: 925 829 1180 aRVw.dsrsd.com As you are aware, at the request of the City of Dublin (City), on March 2, 2010, the Board of Directors of Dublin San Ramon Services District (District) adopted Resolution No. 9-10 (Attachment A) authorizing the City to transfer unused sewer capacity allocated to City properties to commercial properties where the City would like to stimulate economic growth. The resolution requires a Letter of Agreement between the City and District to define the administrative procedures for the administration of the program. 'In addition, on April 20, 2010, the District Board of Directors adopted Resolution No. 14-IO (Attachment B) authorizing the City to also transfer unused sewer capacity to residential development. Upon the City's approval and acceptance, evidenced by your signature below, this letter will serve as the required Letter of Agreement. The procedures for administering the unused capacity transfer program shall be as follows: • City shall provide to District Engineer, David A. Requa, a letter providing the name of (and contact information for) the applicant for the new, expanding, or relocating business (hereinafter, "commercial project") or residential development project (hereinafter, "residential project" or collectively "project") the City is supporting, the name of (and contact information for) the owner(s) of the property on which the project is located (if different than the applicant for the project) and the number of dwelling unit equivalents ("DUES"} the City desires to allocate to the project. The District Engineer shall have the discretion to determine whether the number of DUEs the City desires to allocate to the project are consistent with the wastewater flow characteristics, including volume and strength in terms of BOD and SS, for the proposed use. Such determination will be based, in the sole discretion of the District Engineer, on Dublin San Ramon Sendces Dis[nct is a Public En[ity EXHIBIT A Ms. Joni Patillo Page 2 Apri121, 2010 Y (~l • information concerning the wastewater flow characteristics provided by the Applicant, and/or on a schedule of wastewater flow characteristics for the category or categories of use classifications determined by the District Engineer to be most applicable to the proposed use. • The Applicant shall be responsible for complying with the District Codel with respect to commencing wastewater service, including the acquisition of all additional DUES determined to be necessary, the application for a Sewer Permit and compliance with all conditions thereto, and for paying all fees and changes attributable to the project. • Prior to and as a condition of District issuance of a Sewer Permit .authorizing a commercial project to proceed, City shall sign an agreement with the District, the applicant, and the landowner (if a person different from the applicant) regazding management of the DUEs allocated for the project, which agreement shall be in the form attached hereto as Attachment C, which form of agreement shall be revised to conform to changes made from time to time to pertinent portions of the District Code. • City shall provide District written notification should the applicant's commercial project fail and the City desires to transfer the allocated DUES back to the City from the owner of the property. • The aggregate total of DUEs allocated under this program shall not exceed sixty-six and two-thirds (66 2/3) DUEs at any time. No letter request dated after December 31, 2411 by the City to allocate DUES will be honored by District unless approved by the District Boazd of Directors. If this Letter of Agreement is satisfactory to the City, please sign and return one copy to the District. The District is pleased to have this opportunity to assist the City'in these challenging economic times. Sincerely, ACCEPTED for CITY OF DUBLIN JONI PATTILLO City Manager ,., .,,, /, f A r.'~ /4~ '' ~%G'~ ~ .~ .rte, ~.L ~: ~~ i BERT L. MICHALCZYK General Manager Date 1. This is the District Code of the Dublin San Ramon Services District, which contains the pertinent rules and regulations as adopted by the District's Board of Directors from time to time. Ms. Joni Patillo Page 3 April 21, 2010 Attachments: (A)DSRSD Board Resolution No. 9-10 (B) DSRSD Board Resolution No. 14-10 (C) Dublin Sewer Capacity Transfer Agreement cc: D. 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