HomeMy WebLinkAboutOrd 15-22 Approving a Development Agreement SCS Development Company Related to the SCS Dublin ProjectORDINANCE NO. 15 - 22
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND SCS
DEVELOPMENT COMPANY RELATED TO THE SCS DUBLIN PROJECT
(PLPA-2022-00005)
(APNs 985-0051-004, 985-0051-005, 985-0051-006, 985-0052-024, and 985-0052-025)
The Dublin City Council does ordain as follows:
SECTION 1. RECITALS
A. A request has been made by SCS Development Company to enter into a Development
Agreement with the City of Dublin for the property known as the SCS Dublin Project site,
which includes properties identified by Assessor Parcel Numbers 985-0051-004, 985-
0051-005, 985-0051-006, 985-0052-024, and 985-0052-025, an approximately 76.2-acre
site.
B. The Property Owner, SCS Development Company, is requesting a Planned Development
Rezoning with Stage 1 and Stage 2 Development Plans. The proposed Project includes up
to 500 market rate residential units and up to 100 affordable units, up to 265,000 square feet
of retail commercial development, and related infrastructure and landscape improvements.
Requested land use approvals include a General Plan Amendment and Eastern Dublin
Specific Plan Amendment, a Planned Development Rezoning with Stage 1 and Stage 2
Development Plans, and a Development Agreement, among other related actions. These
planning and implementing actions are collectively known as the "SCS Dublin Project" or the
"Project."
C. The Project site is approximately 76.2 acres generally bounded by Tassajara Road, Gleason
Drive, Brannigan Street and 1-580 (APNs 985-0051-004, 985-0051-005, 985-0051-006, 985-
0052-024, and 985-0052-025).
D. The project is the subject of an Environmental Impact Report (EIR), State Clearinghouse No.
2022040022. The activities under the Development Agreement do not result in any impacts
beyond what was previously analyzed in the EIR.
E. The proposed Development Agreement is attached to this Resolution as Exhibit A.
F. The Planning Commission held a public hearing on the proposed Development Agreement
on October 25, 2022, for which public notice was given by law.
G. The Planning Commission recommended that the City Council approve the SCS Dublin
Project including the Development Agreement by Resolution No. 22-13.
H. A public hearing on the proposed Development Agreement was held before the City Council
on November 15, 2022, for which public notice was given as provided by law.
Ord. No. 15-22, Item 4.8, Adopted 12/06/2022 Page 1 of 3
I. The City Council has considered the recommendation of the Planning Commission, including
the Planning Commission's reasons for its recommendation, the Agenda Statement, all
comments received in writing, and all testimony received at the public hearing.
SECTION 2: FINDINGS AND DETERMINATIONS
Therefore, on the basis of: (a) the foregoing Recitals which are incorporated herein, (b) the City
of Dublin General Plan; (c) the Eastern Dublin Specific Plan, (d) the SCS Dublin Project EIR; (e)
the Staff Report; (f) information in the entire record of proceeding for the Project, and on the basis
of the specific conclusions set forth below, the City Council finds and determines that:
A. The Development Agreement is consistent with the objectives, policies, general land uses
and programs specified and contained in the City's General Plan, and in the Eastern Dublin
Specific Plan in that: (a) the Development Agreement incorporates the objectives policies,
general land uses and programs in the General Plan and Specific Plan and does not amend
or modify them; and (b) the Project is consistent with the fiscal policies of the General Plan
and Specific Plan with respect to the provision of infrastructure and public services.
B. The Development Agreement is compatible with the uses authorized in, and the regulations
prescribed for, the land use districts in which the real property is located because the
Development Agreement does not amend the uses or regulations in the applicable land use
district.
C. The Development Agreement is in conformity with public convenience, general welfare, and
good land use policies in that the Developer's Project will implement land use guidelines set
forth in the Eastern Dublin Specific Plan and the General Plan as articulated in Resolution
No. 136-22, amending the General Plan and the Eastern Dublin Specific Plan, adopted by
the City Council on November 15, 2022.
D. The Development Agreement will not be detrimental to the health, safety, and general
welfare in that the Developer's proposed Project will proceed in accordance with all the
programs and policies of the General Plan, Eastern Dublin Specific Plan, and future Project
Approvals and any Conditions of Approval.
E. The Development Agreement will not adversely affect the orderly development of property
or the preservation of property values in that the project will be consistent with the General
Plan, the Eastern Dublin Specific Plan, and future project approvals.
F. The Development Agreement specifies the duration of the agreement, the permitted uses of
the property, and the obligations of the Applicant. The Development Agreement contains 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 the Development Agreement (Exhibit A to the Ordinance) and
authorizes the City Manager to execute it.
Ord. No. 15-22, Item 4.8, Adopted 12/06/2022 Page 2 of 3
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 with 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 6th day of
December, 2022 by the following votes:
AYES: Councilmembers Josey, Kumagai, McCorriston and Mayor Hernandez
NOES:
RECUSED: Councilmember Hu
ATTEST:
DocuSigned by:
D27F40A...
City Clerk
p- DocuSigned by:
ma7oz mom.
97C94F7A46A8461
Mayor
Ord. No. 15-22, Item 4.8, Adopted 12/06/2022 Page 3 of 3
RECORDING REQUESTED BY:
CITY OF DUBLIN
WHEN RECORDED MAIL TO:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA
Fee Waived per GC 27383
Space above this line for Recorder's use
DEVELOPMENT AGREEMENT
FOR THE SCS DUBLIN PROJECT
THIS DEVELOPMENT AGREEMENT (this "Agreement" or this
"Development Agreement") is made and entered into for reference purposes on
this day of , 2022, by and between the City of Dublin, a Municipal
Corporation (hereafter "City") and AWARD HOMES, INC., a California
corporation ("Award"), SCS DEVELOPMENT COMPANY, a California corporation
("SCS Development"), and SANTA CLARA VALLEY HOUSING GROUP, INC., a
California corporation ("SCV Housing") (Award, SCS Development, and SCV
Housing are collectively referred to herein as "Developer") pursuant to the
authority of §§ et seq. of the California Government Code and Dublin
Municipal Code, Chapter . . City and Developer are, from time -to -time,
individually referred to in this Agreement as a "Party," and are collectively
referred to as "Parties."
RECITALS
A. California Government Code §§ et seq. ("Development
Agreement Statute") and Chapter . of the Dublin Municipal Code (hereafter
"Chapter . ") authorize the City to enter into a Development Agreement for
the development of real property with any person having a legal or equitable
interest in such property in order to establish certain development rights in such
property.
B. Developer owns certain real property (the "Property") consisting of
approximately . acres of land, as more particularly described in Exhibit A,
Legal Description of Property, attached hereto and incorporated herein by
reference.
C. Developer has applied for, and City has approved, various land use
approvals in connection with a project consisting of up to 0o market rate
residential units, up to 100 affordable units, and up to 2 ,000 square feet of
retail commercial development (the "Project"), including, without limitation, a
General Plan and Eastern Dublin Specific Plan Amendment for the SCS Dublin
Project (Resolution No. 1 -22 adopted on November 1 , 2022) and a Stage 1 and
Stage 2 Planned Development Rezoning and Development Plan for the SCS
Dublin Project (Ord. No. __-22 adopted by the City Council on , 2022) (the
"PD"), and this Agreement (approved by the DA Approving Ordinance (defined
below)) (collectively the "Project Approvals").
D. Development of the Project will require additional approvals from
the City, including but not limited to a subdivision map or maps and Site
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Development Review approval or approvals (the "Subsequent Project
Approvals").
E. City desires the timely, efficient, orderly and proper development of
the Project.
F. City and Developer have reached agreement and desire to express
herein a Development Agreement that will facilitate development of the Project
subject to conditions set forth herein.
G. City has undertaken, pursuant to the California Environmental
Quality Act (Public Resources Code Section 21000 et seq., hereinafter "CEQA"),
the required analysis of the environmental effects that would be caused by the
Project and has determined those feasible mitigation measures which will
eliminate, or reduce to an acceptable level, the adverse environmental impacts
of the Project. The environmental effects of the proposed development of the
Property were analyzed by the Final Environmental Impact Report and certified
by the City Council on November 1 , 2022. City has also adopted a mitigation
monitoring and reporting program 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. City also has adopted findings of
fact and statements of overriding considerations for those adverse
environmental impacts of the Project that may not or cannot be mitigated to a
less than significant level.
H. City has given the required notice of its intention to adopt this
Development Agreement and has conducted public hearings thereon pursuant to
Government Code Section and Chapter . . As required by Government
Code Section . , City has found that the provisions of this Development
Agreement and its purposes are consistent with the goals, policies, standards
and land use designations specified in City's General Plan.
I. On October 2 , 2022, the City of Dublin Planning Commission, the
initial hearing body for purposes of development agreement review,
recommended approval of this Development Agreement pursuant to Resolution
No. 22-1 .
J. On , 2022, the City Council of the City of Dublin adopted
Ordinance No. ___ approving this Development Agreement (the "DA Approving
Ordinance"). The DA Approving Ordinance took effect on , 2022.
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
1. Description of Property. The Property that is the subject of this
Agreement is described in Exhibit A. Upon the City's vacation of the Northside
Drive PAi Property (as defined in Section .1 herein) pursuant to Section .1, the
Northside Drive PA1 Property automatically shall become part of the Property
and City and Developer shall execute and record a Clarification (as defined in
Section . ) of this Agreement in accordance with Section . to amend the legal
description of the Property attached hereto as Exhibit A to add such Northside
Drive PAi Property.
2. Interest of Developer. Developer has a legal interest in the Property
in that it is the owner of the Property.
Relationship of City and Developer. It is understood that this
Agreement is a contract that has been negotiated and voluntarily entered into by
the City and Developer and that neither City nor Developer is an agent of the
other. The City and Developer hereby renounce the existence of any form of joint
venture or partnership between them, and agree that nothing contained herein
or in any document executed in connection herewith shall be construed as
making the City and Developer joint venturers or partners.
Effective Date and Term
.1 Effective Date. The effective date of this Agreement ("Effective
Date") is the date upon which the DA Approving Ordinance takes effect.
.2 Term. The term of this Agreement shall commence on the
Effective Date and shall continue for five years thereafter, unless said term is
otherwise extended or terminated as provided in this Agreement (as so extended
or terminated, the "Term"). In the event that any third -party lawsuit is filed
challenging the City's issuance of the Project Approvals or its compliance with
CEQA, the Term of this Agreement shall be automatically extended for a
duration equal to the time from the filing of such lawsuit to the entry of a final
order dismissing or otherwise finally terminating such lawsuit, which duration
shall include any appeals ("Litigation Extension"). If required by one of the
parties, the other party shall enter into a Clarification pursuant to Section .
below memorializing the length of such Litigation Extension. This Agreement
shall terminate with respect to any for sale residential lot and such lot shall be
released and no longer subject to this Agreement, without the execution or
recordation of any further document, when a certificate of occupancy has been
issued for the building(s) on such lot.
. Optional Extension. Prior to the expiration of the Term of this
Development Agreement, as provided in Section .2, Developer may extend the
Term of the Development Agreement. To do so, Developer shall give City written
notice at least o days prior to the termination date of the Development
Agreement. At the time Developer provides such notice, Developer shall make a
payment to City in the amount of $2 0,000 (adjusted for inflation from the
Effective Date using the CPI-U, San Francisco -Oakland -San Jose Area) for each
year of extension requested under this provision. Upon receipt of the notice and
the contribution, the City Manager shall approve the extension and shall notify
the Developer in writing that the Term of the Development Agreement has been
automatically extended for an additional time period equal to the time period
requested by Developer under this provision, commencing on the date the
Development Agreement would otherwise have terminated; provided Developer
may exercise its option to extend the Development Agreement no more than five
times, for a maximum total Term of the Development Agreement of ten years
(plus any extensions pursuant to Sections .2 or . hereof). Provided there is an
extension period remaining, Developer may request the extension for multiple
years and provide the payment due for each year's extension. Each extension
shall apply to the entire Property upon payment of one $2 0,000 (as adjusted in
accordance with this Section . ) per year extension payment, even if the
Property is owned by multiple Developers at that time.
. Term of Project Approvals. The term of any Subsequent
Project Approvals (as defined in Recital D) for the Property or any portion
thereof, specifically including, without limitation, subdivision map or maps and
Site Development Review approval or approvals, shall be extended automatically
for the Term of this Agreement.
. .1 Termination of Agreement. In the event that this
Agreement is terminated prior to the expiration of the Term, the term of any
Project Approval and the vesting period for any final subdivision map approved
as a Project Approval shall be the term of the approval but for this Section . .
Vested Rights/Use of the Property/Applicable Law/Processing
.1 Right to Develop. Developer shall have the vested right to
develop the Project on the Property in accordance with the terms and conditions
of (i) this Agreement, the Project Approvals (as and when issued), and any
amendments to any of them as shall, from time to time, be approved pursuant to
this Agreement, and (ii) the City's ordinances, codes, resolutions, rules,
regulations and official policies governing the development, construction,
subdivision, occupancy and use of the Project and the Property including,
without limitation, the General Plan, the Dublin Municipal Code, and the
Specific Plan, the permitted uses of the Property, density and intensity of use of
the Property and the maximum height, bulk and size of proposed buildings, and
the provisions for reservation or dedication of land for public purposes that are
in force and effect on the Effective Date of this Agreement (collectively,
"Applicable Law"). In exercising its discretion when acting upon Subsequent
Project Approvals, City shall apply the Applicable Law as the controlling body of
law (within which Applicable Law such discretion shall be exercised). Upon
approval by the City, and provided that the specific Subsequent Project
Approvals are consistent with the Project Approvals, the subsequently approved
tentative map or maps and Site Development Review approval or approvals for
the Project shall become a Project Approval and shall become part of the law
Developer is vested into under this Agreement without the need to amend this
Agreement. Notwithstanding the foregoing or anything to the contrary herein,
any amendment to the Project Approvals shall not become part of the law
Developer is vested into under this Agreement unless an additional amendment
of this Agreement is entered into between Developer and City in accordance
with this Agreement. In the event that such amendments to the Project
Approvals are sought for any distinct portion of the Property or Project, such
amendments shall not require amendment of this Agreement with respect to any
other portion of the Property or Project, except to the extent set forth in such
amendment.
.2 Fees, Exactions, Dedications. The City shall not apply to the
Project any development impact fee or any application, processing or inspection
fee (collectively, "Fees") that the City first enacts after the Effective Date. Except
as otherwise set forth in this Agreement, City and Developer agree that this
Agreement does not limit the City's discretion to impose or require (a) payment
of any fees in connection with the issuance of any Subsequent Project Approvals
as necessary for purposes of mitigating environmental and other impacts of the
Project, (b) dedication of any land, or (c) construction of any public
improvement or facilities (collectively "Exactions"). Except as specifically
provided herein, nothing in this Agreement shall limit the City's ability to
impose existing development impact Fees at rates that are increased beyond the
amounts in effect on the Effective Date or limit Developer's ability to challenge
any such increases under state or local law.
. Construction Codes. Notwithstanding the provisions of
Section .1 above, to the extent Applicable Law includes requirements under the
state or locally adopted building, plumbing, mechanical, electrical and fire
codes (collectively the "Codes"), the Codes included shall be those in force and
effect at the time Developer submits its application for the relevant building,
grading, or other construction permits to City. In the event of a conflict between
such Codes and the Project Approvals, the Project Approvals shall, to the
maximum extent allowed by law, prevail. For construction of public
infrastructure, the Codes applicable to such construction shall be those in force
and effect at the time of execution of an improvement agreement between City
and Developer pursuant to Chapter .1 of the Dublin Municipal Code.
. New Rules and Regulations. During the Term of this
Agreement, the City may apply new or modified ordinances, resolutions, rules,
regulations and official policies of the City to the Property which were not in
force and effect on the Effective Date only to the extent they are not in conflict
with the vested rights granted by the Applicable Law, the Project Approvals or
this Agreement. In addition to any other conflicts that may occur, each of the
following new or modified ordinances, resolutions, rules, regulations or official
policies shall be considered a per se conflict with the Applicable Law:
. .1 Any application or requirement of such new or
modified ordinances, resolutions, rules, regulations or official policies that
would (i) cause or impose a substantial financial burden on, or materially delay
development of the Property as otherwise contemplated by this Agreement or
the Project Approvals, (ii) frustrate in a more than insignificant way the intent or
purpose of the Project Approvals or preclude compliance therewith including,
without limitation, by preventing or imposing limits or controls in the rate,
timing, phasing or sequencing of development of the Project; (iii) prevent or
limit the processing or procuring of Subsequent Project Approvals; or (iv) reduce
the density or intensity of use of the Property as a whole, or otherwise requiring
any reduction in the square footage of, or total number of, proposed buildings,
structures and other improvements, in a manner that is inconsistent with or
more restrictive than the limitations included in this Agreement and the Project
Approvals; and/or
. .2 If any of such ordinances, resolutions, rules,
regulations or official policies do not have general (City-wide) applicability.
. Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, if a City ordinance, resolution, policy, directive, or
other measure is enacted or becomes effective, whether by action of the City or
by initiative, and if it imposes a building moratorium which affects all or any
part of the Project, City agrees that such ordinance, resolution or other measure
shall not apply to the Project, the Property, this Agreement, or the Project
Approvals unless the building moratorium is imposed as part of a declaration of
a local emergency or state of emergency as defined in Government Code section
, provided that to the extent a moratorium applies to all or any part of the
Project then the Term shall automatically be extended for a period of time equal
to the period of the moratorium.
. Revised Application Fees. Notwithstanding section .2, any
existing application, processing, and inspection fees that are revised during the
Term of this Agreement shall apply to the Project provided that (1) such fees
have general applicability and are consistent with State law limitations that
processing fees not exceed the estimated reasonable cost of providing the
service for which they are charged; (2) the application of such fees to the
Property is prospective; and ( ) the application of such fees would not prevent,
impose a substantial financial burden on, or materially delay development in
accordance with this Agreement. By so agreeing, Developer does not waive its
rights to challenge the legality of any such application, processing and/or
inspection fees.
. New Taxes. This Agreement shall not prohibit the application
of any subsequently enacted city-wide taxes to the Project provided that (1) the
application of such taxes to the Property is prospective, and (2) the application of
such taxes would not prevent development in accordance with this Agreement.
By so agreeing, Developer does not waive its rights to challenge the legality of
any such taxes, facially or as applied to its Project or Property, or to claim
exemption from any taxes to the extent allowed by law.
. Development of the Project; Phasing, Timing. Since the
California Supreme Court held in Pardee Construction Co. v. City of Camarillo
(1 ) Cal. d that the failure of the parties therein to provide for the
timing of development resulted in a later adopted initiative restricting the timing
of development to prevail over such parties' agreement, it is the Parties' intent to
cure that deficiency by acknowledging and providing that this Agreement
contains no requirements that Developer must initiate or complete any action,
including without limitation, development of the Project within any period of
time set by City. Nothing in this Agreement is intended to create nor shall it be
construed to create any affirmative development obligations to develop the
Project, or liability in Developer under this Agreement if the development fails
to occur. It is the intention of this provision that Developer be able to develop
the Property in accordance with its own time schedules and the Project
Approvals.
Project Phasing. The Property will develop in phases and
ultimately will be subject to market conditions. Notwithstanding anything to the
contrary in this Agreement, Developer agrees to the following conditions on
phasing shall apply:
. .1 Phase 1 will consist of site preparation and mass
grading of the entire Project site.
. .2 Phase 2 is composed of the horizontal development (e.g.,
construction of streets, utilities, etc.) and vertical construction of the Project,
which will happen in sub -phases across all of the Project's Planning Areas.
However, to ensure that the residential portions of the Project do not wholly
develop in advance of the retail/commercial portions, the following restrictions
are imposed on the issuance of permits: No building permits shall be issued for a
for -sale, market rate residential unit on any portion of the Project site until
improvement plans have been approved, bonds posted, and a building permit
has been issued for construction of a non-residential building within the Finnian
Way Commercial area in Planning Area 2C (as defined, described, and depicted in
the PD).
.10 Processing. Nothing in this Agreement shall be construed to
limit the authority or obligation of City to hold necessary public hearings, nor to
limit the discretion of City or any of its officers or officials with regard to
Subsequent Project Approvals that require the exercise of discretion by City,
provided that such discretion shall be exercised consistent with the vested rights
granted by this Agreement, the Applicable Law and the Project Approvals.
. Community Benefit; Potential Formation of Community Facilities
District.
.1 Community Benefit Payment. Developer will make a cash
contribution of $1,000,000 to the City as a Community Benefit (the "Community
Benefit Payment"). The Community Benefit Payment shall be paid prior to the
issuance of the first building permit in the Project. Each Community Benefit
Payment in the amounts set forth above shall apply to the entire Property even if
the Property is owned by multiple Developers at that time. Notwithstanding
anything to the contrary herein, Developer agrees, on behalf itself and its
successors, that, should it fail to make any payments when due, the City may
withhold any permits or approvals within the Project until the payment or
payments have been made, even if the rights to those permits and approvals are
then held by Developer's successors.
.2 Community Facilities District.
.2.1 Developer intends to propose the formation of a
community facilities district or districts by the City pursuant to the Mello -Roos
Community Facilities District Act of 1 2 (Gov. Code §§ 11- . ) (the
"Mello -Roos Act") to finance public facilities. The City agrees to, upon
Developer's presentation of a landowner's petition and Developer's payment of a
fee, as described in subdivision (d) of Government Code section 1 , use its
best efforts to commence proceedings to form a CFD to finance certain public
facilities, so long as Developer's proposal is consistent with the City's CFD Goals
(Resolution No. 0-1 ) and would not, if approved, allow the effective tax rate to
exceed 1. % or the term of the bonds to exceed years. The City Council is
not obligated to approve the CFD.
.2.2 If the City approves the CFD and issues bonds, the
amount of the Community Benefit Payment shall be increased by an amount that
would result in the City receiving io% of the aggregate face value of all bonds
issued less $1,000,000.
. Affordable Housing.
.1 Units Required by Regulations. The Project includes up to 00
residential units. Pursuant to the City's Inclusionary Zoning Regulations
(Chapter . of the Dublin Municipal Code) (the "Regulations"), developers of
more than 20 residential units are required to set aside 12. % of the units in the
project as affordable units as specified. Based on oo units and the currently
anticipated mix of rental and for sale units, the Developer's inclusionary zoning
obligation would be units broken down as follows: moderate income units
and 2 low income.
.2 Alternative Compliance Authorized. Under the Regulations,
certain exceptions permit developers to satisfy the obligation other than through
on -site construction. For instance, part of this obligation can be satisfied
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through the payment of a fee in -lieu of construction of units. In addition,
developers can satisfy their affordable housing obligations by, among other
mechanisms, obtaining City Council approval of an alternative method of
compliance that the City Council finds meet the purposes of the Regulations.
. Alternative Compliance for the Project. Developer shall satisfy
its -unit affordable housing obligation through the following "alternative
method of compliance" under Section . .o o.E of the Regulations:
. .1 Affordable Accessory Dwelling Units. While Developer
is contemplating Subsequent Projects Approvals that would include the
production of io detached accessory dwelling units ("ADUs"), the processing of
those Subsequent Project Approvals could result in a decrease in the number of
ADUs. Therefore, as may be specified in the Subsequent Project Approvals
authorizing the development of market rate housing, Developer shall enter into
an otherwise standard affordable housing agreement that requires it to provide
approximately no (and not less than ) deed -restricted detached ADUs, with
half in the moderate -income category and half in the low-income category.
. .2 Contribution of Affordable Housing Site. As may be
specified in the Subsequent Project Approvals authorizing the development of
market rate housing, with respect to the . ± acre Public/Semi-Public site within
Planning Area 2 (as defined, described, and depicted in the PD) (the "P/SP Site"),
Developer shall elect to either:
(a) Enter into an agreement with the City that
ensures, to the satisfaction of the City, that Developer or its successor will
complete a multi -family project on the P/SP Site that, upon completion, would
allow the City to report on its next annual report prepared pursuant to
Government Code section oo the completed project as having satisfied the
City's regional housing needs obligation for ioo lower -income units; or
(b) Dedicate the P/SP Site to the City or its designee
on the applicable final map (or by other instrument) prior to the Project's first
residential building permit. If Developer elects to dedicate the P/SP Site, it shall,
prior to the dedication, complete the rough grading of the P/SP Site and
associated improvements (including street frontage improvements, including,
but not limited to, curb, gutter, sidewalk, landscape, irrigation, and access
roadways on all sides of the dedicated parcel that are adjacent to current and
future roadways) all as specified in the approved tentative map associated with
the dedication, if any, and provide evidence acceptable to the City Engineer
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demonstrating that the land to be conveyed (including any imported fill) meets
applicable environmental standards for residential development or such lesser
standard acceptable to the City.
. . Moderate -Income Units or Contribution to First Time
Homebuyer Program. As may be specified in the Subsequent Project Approvals
authorizing the development of market rate housing, Developer shall, prior to
issuance of the first residential building permit, (a) enter into an otherwise
standard affordable housing agreement that requires it to provide moderate -
income, for -sale, entry-level townhome units within Planning Area A of the
Project and (b) contribute $1,000,000 to the City's first-time homebuyer program,
with such agreement requiring that the City set aside such funds to assist first-
time homebuyers purchasing homes within the Property, until such time as all
for -sale units in the Project have been sold at least once.
. . Satisfaction of City Requirements. Through its approval
of this Agreement, the City Council hereby finds that the "alternative method of
compliance" in this section . meets the purposes of the Regulations and will
promote the City's affordability and Housing Element goals.
. Additional Market -Rate Units. Any additional market -rate
residential development on the Property above oo units shall be subject to the
requirements of the Regulations, notwithstanding the Inclusionary Zoning
Regulations limitation to projects of 20 or more units.
Dedications; Vacations.
.1 Northside Drive. As part of this Agreement, the City shall take
the necessary actions to vacate Northside Drive. Provided that City has vacated
Northside Drive, Developer shall acquire the portion Northside Drive within
Planning Area 1 (the "Northside Drive PAi Property"), as depicted in Exhibit B,
from the City for its "Fair Market Value" (determined in accordance with Section
. .1 herein), prior to the issuance of a building permit for Planning Area 1.
.1.1 Determination of Fair Market Value. City shall have the
Northside Drive PAi Property appraised and deliver to Developer a written
notice (the "Fair Market Value Notice") setting forth the proposed fair market
value of the Northside Drive PAi Property based on the appraisal (the "Fair
Market Value"). Developer, within ten business days after Developer's receipt of
the Fair Market Value Notice, shall either (i) deliver to City written notice (the
"Acceptance Notice") that Developer accepts the Fair Market Value set forth in
the Fair Market Value Notice, or (ii) if Developer disagrees with City's
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determination of the Fair Market Value, deliver to City written notice of rejection
(the "Rejection Notice"). If Developer fails to provide City with an Acceptance
Notice or Rejection Notice within such ten business day period, Developer shall
be deemed to have delivered an Acceptance Notice.
(b) If Developer delivers a Rejection Notice,
Developer and City shall meet and confer in good faith regarding the Fair Market
Value. In the event Developer delivers a Rejection Notice and the Parties are not
able to agree in writing on the Fair Market Value by the date that is twenty
business days after City's delivery of the Fair Market Value Notice, then
Developer may elect to prepare its own appraisal.
(c) Upon completion of its appraisal, Developer shall
deliver City a written notice setting forth the proposed fair market value
("Developer's Fair Market Value Notice"). If the Parties are not able to agree in
writing on the Fair Market Value by the date that is twenty business days after
the delivery of the Developer's Fair Market Value Notice, then within five
business days the Parties shall attempt to agree on an appraiser to determine the
Fair Market Value. If the Parties are unable to agree in that time, then each Party
shall designate an appraiser within five days thereafter. Should either Party fail
to so designate an appraiser within that time, then the appraiser designated by
the other Party shall determine the Fair Market Value. Should each of the Parties
timely designate an appraiser, then the two appraisers so designated shall
appoint a third appraiser who shall, acting alone, determine the Fair Market
Value. Any third party appraiser designated hereunder shall have an M.A.I.
certification or equivalent with not less than years' experience in the valuation
of commercial property in Alameda County, California.
(d) Within five business days following the selection
of the appraiser, Developer and City shall each submit in writing to the appraiser
its determination of the Fair Market Value (respectively, the "Developer
Determination" and the "City Determination"). Should either Party fail timely
to submit its Fair Market Value determination, then the determination of the
other Party shall be conclusive and binding on the Parties. The appraiser shall
not disclose to either party the Fair Market Value determination of the other
party until the expiration of that five business day period or, if sooner, the
appraiser's receipt of both the Developer Determination and the City
Determination.
(e) Within twenty days following the selection of the
appraiser and such appraiser's receipt of the Developer Determination and the
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City Determination, the appraiser shall determine whether the Fair Market Value
determined by Developer or by City more accurately reflects the fair market
value of the property. Accordingly, either the Developer Determination or the
City Determination shall be selected by the appraiser as the Fair Market Value.
At any time before the decision of the appraiser is rendered, either Party may, by
written notice to the other Party, accept the Fair Market Value submitted by the
other Party, in which event such value shall be deemed adopted as the agreed
Fair Market Value. The fees of the appraiser(s) shall be shared equally by the
Parties.
.2 Brannigan Extension. The Project Approvals anticipate an
extension of Brannigan Street that would extend south of Dublin Boulevard (the
"Brannigan Extension"). Future approvals of development of the portion of the
Property south of Dublin Boulevard will require Developer to construct the
Brannigan Extension and to make good faith efforts to acquire the necessary
land title and interests from the adjoining property owner. Government Code
section 2. ("Section 2. ") provides that, under circumstances in which
neither the City nor the Developer has the necessary property interests to
complete an improvement required by the tentative map conditions, the City
shall either (a) require Developer to enter into an agreement that requires the
completion of the improvement at such time as it has acquired the interests or
(b) acquire the necessary interests within i2o days of filing the map or waive the
condition requiring the improvement. Developer desires more certainty
regarding when the improvements will be completed, and the City desires that a
diligent, good -faith effort be made by the Developer to acquire the necessary
interests with the agreement of the adjacent property owner. Accordingly, the
City agrees, upon Developer's demonstration of such diligent, good faith efforts
to the satisfaction of the City Manager, to commence the process described
under Section 2. within o days of providing such evidence to the City
Manager. All costs associated with acquisition shall be the obligation of
Developer. Notwithstanding the foregoing, in the event of acquisition of the
Brannigan Extension right-of-way by City through negotiation or settlement
(rather than by final judgment in an eminent domain action), City shall not pay
more than ten percent (io%) above the fair market value of the Brannigan
Extension right-of-way (determined in accordance with the procedures set forth
in Section .i.i herein) without Developer's prior written consent, in Developer's
sole discretion.
. Community Center. As may be specified in the Subsequent
Project Approvals authorizing the development of any portion of Planning Area 2
(as defined, described, and depicted in the PD), Developer shall construct and
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dedicate (or permanently make available free of charge) to the City community
center/event space (improved to a "warm shell") (the "Community Center") for
use as the Community Center. The Community Center shall consist of a
minimum of 1, oo square feet of indoor space and serve as event space and for
City programming and will contribute to the City's effort to add additional
community space as defined in the City's Parks and Recreation Master Plan. The
Community Center shall be dedicated (or permanently made available) to the
City, via deed or final map. Development of the Community Center shall be
subject to an improvement agreement to be entered into at a later date between
City and Developer that shall address the details, delivery, timing and
maintenance of the Community Center. As part of the any transfer of property to
the City, the Developer shall record a public parking easement on the adjoining
parcel(s) to ensure adequate public parking for the facility. Developer shall
receive a credit against its parkland and facilities fees from the Public Facility
Fee Program for the dedication of the Community Facility.
Amendment or Cancellation.
.1 Modification Because of Conflict with State or Federal Laws.
The Project and Property shall be subject to state and federal laws and
regulations and this Agreement does not create any vested right in state and
federal laws and regulations in effect on the Effective Date. In the event that state
or federal laws or regulations enacted after the Effective Date of this Agreement
prevent or preclude compliance with one or more provisions of this Agreement
or require changes in plans, maps or permits approved by the City, the parties
shall meet and confer in good faith in a reasonable attempt to modify this
Agreement to comply with such federal or state law or regulation. Any such
amendment or suspension of the Agreement shall be subject to approval by the
City Council (in accordance with Chapter . ). Each Party agrees to extend to
the other its prompt and reasonable cooperation in so modifying this Agreement
or approved plans.
.2 Amendment of Development Agreement by Mutual Consent.
This Agreement may be amended in writing from time to time by mutual
consent of the Parties hereto and in accordance with the procedures of the
Development Agreement Statute and Chapter . . Review and approval of an
amendment to this Development Agreement shall be strictly limited to
consideration of only those provisions to be added or modified. No amendment,
modification, waiver or change to this Development Agreement or any provision
hereof shall be effective for any purpose unless specifically set forth in a writing
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that expressly refers to this Development Agreement and signed by the duly
authorized representatives of both Parties.
.2.1 Partial Amendment. When a Party seeking such an
amendment owns or has an equitable right to only a portion of the whole of the
Property ("Portion"), then such Party may only seek amendment of this
Agreement as directly relates to the Portion, and the Party owning any other
Portion shall not be required or entitled to be a signatory or to consent to an
amendment that affects only another Party's Portion.
. Amendments. Any amendments to this Agreement which
relate to (a) the Term; (b) the permitted uses of the Property as provided in
paragraph .1; (c) provisions for "significant" reservation or dedication of land;
(d) conditions, terms, restrictions or requirements for subsequent discretionary
actions; (e) an increase in the density or intensity of use of the overall Project; (f)
the maximum height or size of proposed buildings; or (g) monetary
contributions by Developer as provided in this Agreement, shall be deemed an
"Amendment" and shall require notice or public hearing before the Planning
Commission and the City Council before the Parties may execute an amendment
hereto. The City's Public Works Director shall determine whether a reservation
or dedication is "significant" in the context of the overall Project.
. Clarifications. If and when, from time to time, during the Term
of this Agreement, City and Developer agree refinements and clarifications are
necessary or appropriate with respect to the details of performance of City and
Developer hereunder, City and Developer shall effectuate such clarifications
through letter agreements (each, a "Clarification") approved by City and
Developer, which, after execution, shall be attached hereto as addenda and
become a part hereof, and may be further clarified from time to time as
necessary with future approval by City and Developer. No such Clarification
shall constitute an amendment to this Agreement requiring public notice or
hearing. The City Manager or his or her designee shall have the authority to
determine on behalf of City whether a requested clarification is of such a
character to constitute an Amendment subject to Section . above or a
Clarification subject to this Section . . The City Manager shall have the
authority to review, approve, and execute Clarifications to this Agreement
provided that such Clarifications are not Amendments.
. Cancellation by Mutual Consent. Except as otherwise
permitted herein, this Agreement may be canceled in whole or in part only by
the mutual consent of the parties or their successors in interest, in accordance
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with the provisions of the Development Agreement Statute and Chapter
. . Any fees paid pursuant to this Agreement prior to the date of cancellation
shall be retained by the City.
10. Annual Review.
10.1 Review Date. The annual review date for this Agreement shall
be between July 1 and August 1 , 202 , and thereafter between each July 1 and
August 1 during the Term. Review shall be conducted in accordance with
Section . .1 0 of Chapter . and the provisions of this Section 11.
10.2 Initiation of Review. The City's Community Development
Director shall initiate the annual review, as required under Section . .1 0 of
Chapter . , by giving to Developer thirty days' prior written notice that the City
intends to undertake such review. Not less than thirty days after receipt of the
notice, Developer shall provide evidence to the Director, as reasonably
determined necessary by the Director, to demonstrate good faith compliance
with the material terms and provisions of the Agreement as to the whole or
relevant portion of the Property owned by Developer. The burden of proof by
substantial evidence of compliance is upon Developer.
10. Staff Reports. To the extent practical, the City shall deposit in
the mail to Developer a copy of all staff reports, and related exhibits concerning
contract performance at least five days prior to any public hearing addressing
annual review.
10. Costs. Costs reasonably incurred by the City in connection
with the annual review shall be paid by Developer in accordance with the City's
schedule of fees in effect at the time of review.
11. Default.
11.1 Remedies Available. Upon the occurrence of an event of
default, the parties may pursue all remedies at law or in equity which are not
otherwise provided for in this Agreement or in the City's regulations governing
development agreements, expressly including, but not limited to, the remedy of
specific performance of this Agreement.
11.2 Notice and Cure. Upon the occurrence of an event of default
by either party, the nondefaulting party shall serve written notice of such default
upon the defaulting party. Subject to a Mortgagee's right to cure pursuant to
Section 1 . hereof, if the default is not cured by the defaulting party within
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thirty days after service of such notice of default, the nondefaulting party may
then commence any legal or equitable action to enforce its rights under this
Agreement; provided, however, that if the default cannot be cured within such
thirty day period, the nondefaulting party shall refrain from any such legal or
equitable action so long as the defaulting party begins to cure such default
within such thirty day period and diligently pursues such cure to completion.
Any notice of default given hereunder shall specify in detail the nature of the
failures in performance that the noticing Party claims constitutes the event of
default, all facts constituting substantial evidence of such failure, and the
manner in which such failure may be satisfactorily cured in accordance with the
terms and conditions of this Agreement. During the time periods herein
specified for cure of a failure of performance, the Party charged therewith shall
not be considered to be in default for purposes of (a) termination of this
Agreement, (b) institution of legal proceedings with respect thereto, or (c)
issuance of any approval with respect to the Project. Failure to give notice shall
not constitute a waiver of any default.
11. No Damages against City. Notwithstanding anything to the
contrary contained herein, in no event shall damages be awarded against the
City upon an event of default or upon termination of this Agreement.
12. Estoppel Certificate. Either party may, at any time, and from time to
time, request written notice from the other party requesting such party to certify
in writing that, (a) this Agreement is in full force and effect and a binding
obligation of the Parties, (b) this Agreement has not been amended or modified
either orally or in writing, or if so amended, identifying the amendments, and
(c) to the knowledge of the certifying Party, the requesting Party is not in default
in the performance of its obligations under this Agreement, or if in default, to
describe therein the nature and amount of any such defaults. A Party receiving a
request hereunder shall execute and return such certificate within thirty days
following the receipt thereof, or such longer period as may reasonably be agreed
to by the Parties. The City Manager of the City shall be authorized to execute any
certificate requested by Developer. Should the Party receiving the request not
execute and return such certificate within the applicable period, this shall not be
deemed to be a default, provided that such Party shall be deemed to have
certified that the statements in clauses (a) through (c) of this Section are true,
and any Party may rely on such deemed certification. City acknowledges that a
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certificate hereunder may be relied upon by Transferees (as defined in Section
1 .2) and Mortgagees (as defined in Sectioni .i).
1 . Mortgagee Protection; Certain Rights of Cure.
1 .1 Mortgagee Protection. This Agreement shall be superior and
senior to any lien placed upon the Property, or any portion thereof after the date
of recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat,
render invalid, diminish or impair the lien of any Mortgage made in good faith
and for value, but all the terms and conditions contained in this Agreement shall
be binding upon and effective against any person or entity, including any deed of
trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property,
or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure,
or otherwise.
1 .2 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 1 .1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to
construct or complete the construction of improvements, or to guarantee such
construction of improvements, or to guarantee such construction or completion,
or to pay, perform or provide any fee, dedication, improvements or other
exaction or imposition; provided, however, that a Mortgagee shall not be entitled
to devote the Property to any uses or to construct any improvements thereon
other than those uses or improvements provided for or authorized by the Project
Approvals or by this Agreement.
1 . Notice of Default to Mortgagee and Extension of Right to Cure.
If the City receives notice from a Mortgagee requesting a copy of any notice of
default given Developer hereunder and specifying the address for service
thereof, then the City shall deliver to such Mortgagee, concurrently with service
thereon to Developer, any notice given to Developer with respect to any claim by
the City that Developer has committed an event of default. Each Mortgagee shall
have the right during the same period available to Developer to cure or remedy,
or to commence to cure or remedy, the event of default claimed set forth in the
City's notice. The City, through its City Manager, may extend the thirty -day cure
period provided in paragraph 12.2 for not more than an additional sixty days
upon request of Developer or a Mortgagee.
1 . Severability. The unenforceability, invalidity or illegality of any
provisions, covenant, condition or term of this Agreement shall not render the
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other provisions unenforceable, invalid or illegal; provided that, if the
unenforceability, invalidation, or illegality would deprive either City or
Developer of material benefits derived from this Development Agreement, or
make performance under this Development Agreement unreasonably difficult,
then City and Developer shall meet and confer and shall make good faith efforts
to amend or modify this Development Agreement in a manner that is mutually
acceptable to City and Developer.
1 . Attorneys' Fees and Costs.
1 .i Prevailing Party. If the City or Developer initiates any action at
law or in equity to enforce or interpret the terms and conditions of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and costs in addition to any other relief to which it may otherwise
be entitled.
1 .2 Third Party Challenge. If any person or entity not a party to
this Agreement initiates an action at law or in equity to challenge the validity of
any the Project Approvals (including this Agreement), the Parties shall cooperate
in defending such action. The Parties hereby agree to affirmatively cooperate in
defending said action and to execute a joint defense and confidentiality
agreement in order to share and protect information, under the joint defense
privilege recognized under applicable law. Developer shall bear its own costs of
defense as a real party in interest in any such action, and shall reimburse the
City for all reasonable court costs and attorneys' fees expended by the City in
defense of any such action or other proceeding
1 . Transfers and Assignments.
1 .1 Agreement Runs with the Land. All of the provisions, rights,
terms, covenants, and obligations contained in this Agreement shall be binding
upon and inure to the benefit of the Parties and their respective heirs, successors
and assignees, representatives, lessees, and all other persons acquiring the
Property, or any portion thereof, or any interest therein, whether by operation of
law or in any manner whatsoever. All of the provisions of this Agreement shall
be enforceable as equitable servitude and shall constitute covenants running
with the land pursuant to applicable laws, including, but not limited to, Section
1 of the Civil Code of the State of California. Each covenant to do, or refrain
from doing, some act on the Property hereunder, or with respect to any owned
property, (a) is for the benefit of such properties and is a burden upon such
properties, (b) runs with such properties, and (c) is binding upon each party and
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each successive owner during its ownership of such properties or any portion
thereof, and shall be a benefit to and a burden upon each party and its property
hereunder and each other person succeeding to an interest in such properties.
1 .2 Right to Assign. Developer may wish to sell, transfer or assign
all or portions of its Property to other developers (each such other developer is
referred to as a "Transferee"). In connection with any such sale, transfer or
assignment to a Transferee, Developer shall have the right to sell, transfer or
assign to such Transferee any or all rights, interests and obligations of Developer
arising hereunder and that pertain to the portion of the Property being sold or
transferred, to such Transferee, provided, however, that: except as provided
herein, no such transfer, sale or assignment of Developer's rights, interests and
obligations hereunder shall occur without prior written notice to City and
approval by the City Manager, which approval shall not be unreasonably
withheld, conditioned, or delayed.
1 . Approval and Notice of Sale, Transfer or Assignment. The City
Manager shall consider and decide on any transfer, sale or assignment of this
Agreement within ten days after Developer's notice, provided all necessary
documents, certifications and other information are provided to the City
Manager to enable the City Manager to determine whether the proposed
Transferee can perform Developer's obligations hereunder. Notice of any such
approved sale, transfer or assignment (which includes a description of all rights,
interests and obligations that have been transferred and those which have been
retained by Developer) shall be recorded in the official records of Alameda
County, in a form acceptable to the City Manager, concurrently with such sale,
transfer or assignment.
1 . Considerations for Approval of Sale, Transfer or Assignment.
In considering the request, the City Manager shall base the decision upon the
proposed assignee's reputation, experience, financial resources and access to
credit and capability to successfully carry out the development of the Property to
completion. The City Manager's approval shall be for the purposes of: a)
providing notice to City; b) assuring that all obligations of Developer are
allocated as between Developer and the proposed purchaser, transferee or
assignee as provided by this Agreement; and c) assuring City that the proposed
purchaser, transferee or assignee is financially capable of performing
Developer's obligations hereunder not withheld by Developer. Notwithstanding
the foregoing, the City Manager's approval shall not be required for an
assignment to Landsea Homes of California, Inc. ("Landsea"), an entity or
entities controlling Developer or Landsea, controlled by Developer or Landsea,
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or under common control with Developer or Landsea, provided that Developer
or Landsea, as the case may be, owns and controls no less than fifty percent of
such successor entity or controls the day-to-day management decisions of such
successor entity.
1 . Release upon Transfer. Upon the transfer, sale, or assignment
of all of Developer's rights, interests and obligations hereunder pursuant to
Section 1 .2 of this Agreement, Developer shall be automatically released from
the obligations under this Agreement, with respect to the Property transferred,
sold, or assigned, arising subsequent to the date of City Manager approval of
such transfer, sale, or assignment; provided, however, that if any transferee,
purchaser, or assignee approved by the City Manager expressly assumes all of
the rights, interests and obligations of Developer under this Agreement,
Developer shall be released with respect to all such rights, interests and assumed
obligations. In any event, the transferee, purchaser, or assignee shall be subject
to all the provisions hereof and shall provide all necessary documents,
certifications and other necessary information prior to City Manager approval.
1 . Developer's Right to Retain Specified Rights or Obligations.
Developer may withhold from a sale, transfer or assignment of this Agreement
or any portion of the Property transferred, certain rights, interests and/or
obligations which Developer wishes to retain, provided that Developer specifies
such rights, interests and/or obligations in a written document to be appended to
this Agreement and recorded with the Alameda County Recorder prior to the
sale, transfer or assignment of the Property. Developer's purchaser, transferee
or assignee shall then have no interest or obligations for such rights, interests
and obligations and this Agreement shall remain applicable to Developer with
respect to such retained rights, interests and/or obligations.
1 . Partial Assignment. In the event of a partial Transfer, City
shall cooperate with Developer and any proposed Transferee to allocate rights
and obligations under the Development Agreement and the Project Approvals
among the retained Property and the transferred Property. Provided that City
receives a copy of the assignment and assumption agreement by which
Transferee assumes the Transferred rights and obligations associated with the
transferred Property: (i) any subsequent breach with respect to the Transferred
obligations shall not constitute a breach with respect to the retained rights and
obligations of such transferor (or any other Transferee) under the Development
Agreement; (ii) and any subsequent breach with respect to the retained
obligations of transferor (or any other Transferee) shall not constitute a breach
with respect to the Transferred rights and obligations of a Transferee under the
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Development Agreement. The transferor and the Transferee each shall be solely
responsible for the reporting and annual review requirements relating to the
portion of the Property owned by such transferor/Transferee. Any amendment
to the Development Agreement between City and a transferor or Transferee shall
only affect the portion of the Property owned by such transferor or Transferee.
1 . Bankruptcy. The obligations of this Agreement shall not be
dischargeable in bankruptcy.
1 . Indemnification. Developer agrees to indemnify, defend and hold
harmless the City, and its elected and appointed councils, boards, commissions,
officers, agents, employees, and representatives from any and all claims, costs
(including legal fees and costs) and liability for any personal injury or property
damage which may arise directly or indirectly as a result of any actions or
inactions by Developer, or any actions or inactions of Developer's contractors,
subcontractors, agents, or employees in connection with the construction,
improvement, operation, or maintenance of the Project, provided that Developer
shall have no indemnification obligation with respect to negligence or wrongful
conduct of the City, its contractors, subcontractors, agents or employees or with
respect to the maintenance, use or condition of any improvement after the time
it has been dedicated to and accepted by the City or another public entity (except
as provided in an improvement agreement or maintenance bond). If City is
named as a party to any legal action, City shall cooperate with Developer, shall
appear in such action and shall not unreasonably withhold approval of a
settlement otherwise acceptable to Developer.
1 . Insurance.
1 .1 Commercial General Liability Insurance. During the Term of
this Agreement, Developer shall maintain in effect a policy of commercial
general liability insurance with a per -occurrence combined single limit of not
less than $i,000,000. The policy so maintained by Developer shall name the City
as an additional insured and shall include either a severability of interest clause
or cross -liability endorsement. City and Developer agree that such insurance
may include alternative risk management programs, including self-insurance or
a combination of self-insurance and insurance, provided that such alternative
risk management programs provide protection equivalent to that specified
under this Agreement.
1 .2 Workers Compensation Insurance. During the Term of this
Agreement Developer shall maintain Worker's Compensation insurance for all
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persons employed by Developer for work at the Project site. Developer shall
require each contractor and subcontractor similarly to provide Worker's
Compensation insurance for its respective employees. Developer agrees to
indemnify the City for any damage resulting from Developer's failure to
maintain any such insurance.
1 . Evidence of Insurance. Prior to issuance of any permits for the
Project, including grading permits, Developer shall furnish the City satisfactory
evidence of the insurance required in Sections 1 .1 and 1 .2 and evidence that
the carrier is required to give the City at least fifteen days prior written notice of
the cancellation or reduction in coverage of a policy unless replaced with similar
coverage. The insurance shall extend to the City, its elective and appointive
boards, commissions, officers, agents, employees and representatives and to
Developer performing work on the Project.
20. Sewer and Water. Developer acknowledges that it must obtain water
and sewer permits from the Dublin San Ramon Services District ("DSRSD")
which is another public agency not within the control of the City. City agrees that
it shall not take any action with DSRSD opposing Developer's efforts to reserve
water and sewer capacity sufficient to serve the Project described herein.
21. Notices. All notices required or provided for under this Agreement
shall be in writing. Notices required to be given to the City shall be addressed as
follows:
follows:
City Manager
City of Dublin
10o Civic Plaza
Dublin, CA
Fax No. ( 2 ) - 1
Email: linda.smith@dublin.ca.gov
Notices required to be given to Developer shall be addressed as
Daniel M. Ikeda, Chief Financial Officer
SCS Development Co
o Saratoga Ave. Suite 100
Santa Clara, CA o 0
Phone No.: o - - 000
FaxNo.: o- -oo
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Email: dikeda@scsdevelopment.com
A Party may change address by giving notice in writing to the other Party
and thereafter all notices shall be addressed and transmitted to the new address.
Notices shall be deemed given and received upon personal delivery, or if mailed,
upon the expiration of hours after being deposited in the United States Mail.
Notices may also be given by overnight courier, which shall be deemed given the
following day or by facsimile transmission or email, which shall be deemed
given upon verification of receipt.
22. Agreement is Entire Understanding. This Agreement, including its
exhibits, constitutes the entire understanding and agreement of the Parties and
supersedes all negotiations or previous agreements between the Parties with
respect to all or any part of the subject matter hereof.
2 . Exhibits. The following documents are referred to in this
Agreement and are attached hereto and incorporated herein as though set forth
in full:
Exhibit A Legal Description of the Property
Exhibit B Northside Drive PAS Property
2 . Recitals. The foregoing Recitals are true and correct and are made a
part hereof.
2 . Counterparts. This Agreement may be executed by each Party on a
separate signature page, and when the executed signature pages are combined,
shall constitute one single instrument. This Agreement is executed in two
duplicate originals, each of which is deemed to be an original.
2 . Recordation. The City shall record a copy of this Agreement within
ten days following execution by all Parties. Thereafter, if this Agreement is
terminated, modified or amended, the City Clerk shall record notice of such
action with the Alameda County Recorder.
2 . No Third Party Beneficiaries. Nothing contained in this Agreement
is intended to or shall be deemed to confer upon any person, other than the
Parties and their respective permitted successors and assigns, any rights or
remedies hereunder.
2 . Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
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2 . Time is of the Essence. Time is of the essence for each provision of
this Agreement for which time is an element.
o. Further Actions and Instruments. Each Party to this Development
Agreement shall cooperate with and provide reasonable assistance to the other
Party and take all actions necessary to ensure that the Parties receive the
benefits of this Development Agreement, subject to satisfaction of the conditions
of this Development Agreement. Upon the request of any Party, the other Party
shall promptly execute, with acknowledgment or affidavit if reasonably required,
and file or record such required instruments and writings and take any actions
as may be reasonably necessary under the terms of this Development
Agreement to carry out the intent and to fulfill the provisions of this
Development Agreement or to evidence or consummate the transactions
contemplated by this Development Agreement.
1. Section Headings. Section headings in this Development
Agreement are for convenience only and are not intended to be used in
interpreting or construing the terms, covenants or conditions of this
Development Agreement.
2. Construction of Agreement. This Development Agreement has
been reviewed and revised by legal counsel for both Developer and City, and no
presumption or rule that ambiguities shall be construed against the drafting
Party shall apply to the interpretation or enforcement of this Development
Agreement.
. Authority. The persons signing below represent and warrant that
they have the authority to bind their respective Party and that all necessary
board of directors', shareholders', partners', city councils', or other approvals
have been obtained.
. Non -Intended Prevailing Wage Requirements. Except for public
improvements constructed by the Developer and to be dedicated to the City
(which will or may be required by conditions of approval on Subsequent Project
Approvals) and as may be required by Section .2 ("Community Facilities
District"), nothing in this Development Agreement shall in any way require, or
be construed to require, Developer to pay prevailing wages with respect to any
work of construction or improvement within the Project (a "Non -Intended
Prevailing Wage Requirement"). But for the understanding of the Parties as
reflected in the immediately preceding sentence, the Parties would not have
entered into this Development Agreement based upon the terms and conditions
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set forth herein. Developer and City have made every effort in reaching this
Development Agreement to ensure that its terms and conditions will not result
in a Non -Intended Prevailing Wage Requirement. These efforts have been
conducted in the absence of any applicable existing judicial interpretation of the
recent amendments to the California prevailing wage law. If, despite such
efforts, any provision of this Development Agreement shall be determined by
any court of competent jurisdiction to result in a Non Intended Prevailing Wage
Requirement, such determination shall not invalidate or render unenforceable
any provision hereof; provided, however, that the Parties hereby agree that, in
such event, this Development Agreement shall be reformed such that each
provision of this Development Agreement that results in the Non -Intended
Prevailing Wage Requirement will be removed from this Development
Agreement as though such provisions were never a part of the Development
Agreement, and, in lieu of such provision(s), replacement provisions shall be
added as a part of this Development Agreement as similar in terms to such
removed provision(s) as may be possible and legal, valid and enforceable but
without resulting in the Non -Intended Prevailing Wage Requirement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year first above written.
-2 -
CITY OF DUBLIN DEVELOPER
By:
Linda Smith, City Manager
Attest:
Marsha Moore, City Clerk
Approved as to form
John Bakker, City Attorney
Award Homes, Inc., a California
corporation
By:
Name:
Its:
SCS Development Company, a California
corporation
By:
Name:
Its:
Santa Clara Valley Housing Group, Inc.,
a California corporation
By:
Name:
Its:
(NOTARIZATION ATTACHED)
-2 -
Exhibit A
Legal Description of the Property
Exhibit A
Order Number: 0131-621984a1a
Page Number: 7
LEGAL DESCRIPTION
Real property in the City of Dublin , County of Alameda, State of California, described as follows:
PARCEL ONE:
PARCEL A OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13 THROUGH 18,
INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
ALSO EXCEPTING THEREFROM, ALL THOSE CERTAIN PIECES OR PARCELS OF LAND DESCRIBED UNDER
EXHIBIT "C" OF THE AMENDED FINAL ORDER OF CONDEMNATION, BEING DUBLIN BOULEVARD,
CENTRAL PARKWAY, GLEASON DRIVE AND WIDENING OF TASSAJARA ROAD. SAID ORDER RECORDED
FEBRUARY 04, 2004, SERIES NO. 2004050348, ALAMEDA COUNTY RECORDS.
PARCEL TWO:
PARCEL 3 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13 THROUGH 18,
INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
PARCEL THREE:
PARCEL 4 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13 THROUGH 18,
INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
PARCEL FOUR:
PARCEL 1 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13 THROUGH 18,
INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
PARCEL FIVE:
PARCEL 2 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308,. PAGES 13 THROUGH 18,
INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
APN: 985-0051-004 (Affects Parcel One), 985-0052-024 (Affects Parcel Two), 985-0052-025 (Affects
Parcel Three), 985-0051-005 (Affects Parcel Four) and 985-0051-006 (Affects Parcel Five)
First American Title
Page 7 of 15
Exhibit B
Northside Drive PAi Property
G \✓062017\171026\CAD FILES\00-EXHIBITS\NORTSIDE DRIW VACA770N.DWC 1/30/2018 1:32:07 PM DOMINIC CARUCCI
RIGHT OF WAY TO
BE DEDICATED
EX PA-1 BOUNDARY
PA-1
RIGHT-OF-WAY TO
BE VACATED
(SQFT)
NORTHSIDE DRIVE R/W
(WITHIN PA-1)
69,265± SOFT
NORTHSIDE DRIVE R/W
(OUTSIDE OF PA-1)
73,030E SQFT
LEGEND
EX FACE OF CURB
NORTHSIDE DRIVE VACATION
SCS DUBLIN
CITY OF DUBLIN, ALAMEDA COUNTY, CALIFORNIA
EXHIBIT B
PRELIMINARY CALTRANS RIGHT OF WAY
PER BART TO LIVERMORE EXTENSION
BART ROADWAY ALIGNMENT ALTERNATIVE
#1 PLANS DATED 06/24/2016
PUBLIC ACCESS EASEMENT (PAE) &
PUBLIC UTILITY EASEMENT (PUE)
EX FIBER OPTIC
EX AT&T
PARCEL 1
PARCEL MAP 9003
292 PM 89
29' PUE & PAE
i
0
150
300
1 inch = 150 ft.
\i/T ;
gUGGERI-JENSEN-AZAR
xENGINEERS • PLANNERS • SURVEYORS
=4690 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94588
PHONE: (925) 227-9100 FAX: (925) 227-9300
cr
DATE: JANUARY f2'9, 2018 JOB NO.: 171026E SHEET: 1 OF 1
ORDINANCE NO. 16 — 22
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AMENDMENTS TO THE PLANNED DEVELOPMENT ZONING STAGE 1
DEVELOPMENT PLAN AND APPROVING A STAGE 2 DEVELOPMENT PLAN FOR SITES
D-2 AND E-2 OF THE DUBLIN TRANSIT CENTER
(APNs: 986-0034-012-00 AND 986-0034-014-00)
(PLPA-2022-00036)
The Dublin City Council does ordain as follows:
SECTION 1. RECITALS
A. The State of California requires cities and counties to adopt a comprehensive, long-term
General Plan for the physical development of the City.
B. The Housing Element is one of seven mandated elements of the General Plan and must
address the existing and projected housing needs for all economic segments of the
community.
C. State law requires Housing Elements to be updated and certified by the California
Department of Housing and Community Development (HCD) every eight years.
D. The City of Dublin prepared the 2023 — 2031 Housing Element in accordance with State
law.
E. The Housing Element must include an inventory of specific sites or parcels that are suitable
for residential development and available for use in the planning period to accommodate
the City's Regional Housing Needs Allocation (RHNA), which is included as Appendix D:
Adequate Sites Analysis in the 2023 — 2031 Housing Element.
F After accounting for pipeline projects, accessory dwelling units, and existing zoning to
accommodate the RHNA, the Adequate Sites Analysis identified a "remaining need" of 755
units.
G. A portion of the remaining need is proposed to be accommodated on Sites D-2 and E-2
(APNs: 986-0034-012-00 and 986-0034-014-00) at the Dublin Transit Center.
H. On December 3, 2002, the City Council adopted Ordinance No. 21-02 approving a Planned
Development Rezone with a Stage 1 Development Plan for the Dublin Transit Center, which
among other approvals, established a maximum of 1,800 residential units for the Transit
Center and specified Sites D-2 and E-2 shall be developed with a Campus Office use.
The City proposes to amend Ordinance No. 21-02 to change the allowed land use on Sites
D-2 and E-2 from Campus Office to Campus Office/High-Density Residential and increase
the maximum residential density from 1,800 units to 2,515 units ("the Project").
Ord. No. 16-22, Item 4.9, Adopted 12/06/2022 Page 1 of 6