HomeMy WebLinkAboutReso 165-16 Avesta Development Group Community Benefit Agreement RESOLUTION NO. 165 — 16
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROVING A COMMUNITY BENEFIT AGREEMENT BETWEEN THE CITY OF
DUBLIN AND AVESTA DEVELOPMENT GROUP
WHEREAS, Avesta Development Group has proposed the construction of a senior care facility
in Downtown Dublin at 7601 Amador Valley Blvd. (the northwest corner of Donohue Drive and
Amador Valley Blvd); and
WHEREAS, the facility is 66,787 square feet and consists of 35 senior apartments, 13 high-
acuity assisted living units, 32 memory care units and supporting common spaces; and
WHEREAS, Avesta applied for and received approval for the project by the Planning
Commission on March 22, 2016, pending approval of the Community Benefit Agreement by the City
Council; and
WHEREAS, Avesta is seeking 35 units from the residential development pool and 10,329
square feet from the commercial development pool. In exchange for this allocation, Avesta will pay a
community benefit payment of$490,000 prior to the occupancy of the building; and
WHEREAS, Avesta has agreed to satisfy the requirements of Chapter 8.68 (Inclusionary
Zoning Regulations) through the purchase of four Affordable Unit Credits through the City for
$100,000 per Affordable Unit Credit; and
WHEREAS, if Avesta fails to obtain the building permit for the Project within two years after the
Effective Date of this Agreement, the Excess Capacity reserved for Avesta shall revert to the Pool
maintained by the City.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin hereby
approve the Community Benefit Agreement between the City of Dublin and Avesta Development
Group, as attached as Exhibit A to this Resolution.
BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to execute the
Agreement and gives the City Manager authority to execute any minor amendments to the
Agreement, as needed, to carry out the intent of this Resolution.
PASSED, APPROVED AND ADOPTED this 15th day of November 2016 by the following
vote:
AYES: Councilmembers Biddle, Gupta and Wehrenberg
NOES: Councilmember Hart
ABSENT: Mayor Haubert
ABSTAIN:
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City Clerk
Reso No. 165-16, Adopted 11/15/2016, Item No. 4.14 Page 1 of 1
CITY OF DUBLIN COMMUNITY BENEFIT PROGRAM AGREEMENT
This Community Benefit Program Agreement("Agreement") is entered into on this day of
, 2016, by and between the City of Dublin, a municipal corporation ("City") and Avesta
Development Group LLC, a California limited liability company ("Developer"). 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. On February 1, 2011, the City adopted Resolution No. 9-11 establishing a "Downtown Dublin
Specific Plan" (the "Specific Plan"), which sets forth a comprehensive set of guiding principles,
standards, and design guidelines for the implementation of future development in Downtown
Dublin ("the Specific Plan Area").
B. The Specific Plan regulates the density of development allowed in the Specific Plan Area by
establishing a "Base Floor Area Ratio(FAR)"for development in each of the three districts within
the Specific Plan Area.
C. The Specific Plan also establishes a pool of additional development potential, in the form of
1,320,220 square feet of non-residential development, 150 hotel rooms, and 2,500 residential
dwelling units (collectively"the Excess Capacity") apportioned between the three districts in the
Specific Plan Area. The pool can be used by developers that wish to develop a project that
exceeds the Base FAR up to a defined "Maximum FAR" and by developers that wish to develop
residential dwelling units. Developers wishing to utilize said Excess Capacity must participate in
the Community Development Program and enter into a Community Benefit Program Agreement
with the City.
D. Developer proposes to develop certain property at 7601 Amador Valley Boulevard ("the
Property"), which is within the Retail District of the Specific Plan Area, and as part of its proposal
desires to develop a project consisting of 35 senior apartments within a larger Community Care
Facility that includes an additional 13 high acuity assisted living units and 32 memory care suites.
The project also includes the related parking, landscape, hardscape, and on-site amenities ("the
Project"). In exchange for the use of excess development capacity in the form of 35 residential
units and 10,329 square feet of commercial square footage to enable development of the
Project, Developer proposes to provide$490,000("the Community Benefit").
E. Developer proposes to satisfy the requirements of Chapter 8.68 (Inclusionary Zoning
Regulations) by applying Affordable Unit Credits that this agreement obligates it to purchase
through the City for$100,000 per Affordable Unit Credit. The inclusionary requirement for the
35 senior apartments is four units, and therefore the Applicant will deposit $400,000 with the
City to purchase the Affordable Unit Credits to fully satisfy the requirements of Chapter 8.68.
This payment will be due at the time of building permit issuance.
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F. Developer has applied for, and the Planning Commission has approved, contingent upon City
Council approval of a Community Benefit Program Agreement, a Site Development Review
(Planning Commission Resolution No. 16-04), a Conditional Use Permit for a Community Care
Facility/Residential Care Facility for the Elderly(Planning Commission Resolution No. 16-02),and
a Conditional Use Permit for a Parking Reduction (Planning Commission Resolution No. 16-03)
which approvals,together with any approvals or permits now or hereafter issued with respect to
the Project,are referred to as the"Project Approvals."
G. The City and Developer have reached agreement with respect to the Community Benefit and
desire to express herein a Community Benefit Program Agreement clearly setting forth the
Community Benefit to be provided by the Developer, the scope and nature of excess
development capacity to be granted to Developer in exchange for said Community Benefit, the
Developer's obligation to purchase Affordable Unit Credits to satisfy its affordable housing
obligation, and the City Council's approval of the use of the Affordable Unit Credits under City
Code Section 8.68.040(D).
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. 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 the Developer is not an agent of the City. The
City and Developer hereby renounce the existence of any form of joint venture or partnership
between them, and agree that nothing contained herein or in any document executed in
connection herewith shall be construed as making the City and Developer joint venturers or
partners.
2. Effective Date and Term.
2.1 Effective Date. The effective date of this Agreement is the first date on which all of the
following have occurred: (a) its execution by Developer,and(b) its execution by City.
2.2 Term. The term of this Agreement shall commence on the Effective Date and shall
extend until the earlier of the following: 1) the Developer has provided the Community
Benefit and deposited funds with the City for the purchase of Affordable Unit Credits as
provided in Section 3 of this Agreement, 2) any of the Project Approvals expires, or 3)
two years after the Effective Date if no building permit has been issued for the Project.
3. Community Benefit to Be Provided By Developer.
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3.1 Developer shall provide a$490,000 Community Benefit to the City,specifically in the
amounts of$350,000 for the 35 units of residential housing capacity and$140,000 for
the 10,329 square feet of commercial allocation. The contribution shall be made prior
to issuance of the certificate of occupancy for the Project; provided,however,that the
City and Developer may mutually agree that a portion of the$490,000 Community
Benefit shall be supplied by Developer constructing mutually agreed upon physical
improvements that benefit a geographic area or individuals or interests beyond the
Property and the Project. In no event shall the City be required to allow occupancy of
the building unless the$490,000 Community Benefit contribution has been provided to
the City.
3.2 Notwithstanding anything to the contrary in Chapter 8.68 of the Dublin Municipal Code
(the"Inclusionary Zoning Regulations"), Developer shall satisfy its four-unit affordable
housing obligation for the 35 senior apartments and for the Project as a whole through
the application of the four Affordable Unit Credits which may, at City's election,be
purchased from either the City or Dublin Family, L.P.,an affiliate of Eden Housing, Inc.
("Eden") created as a result of Eden's construction of an affordable housing
development in Dublin ("Eden Project"). Developer shall purchase such credits by
depositing$400,000 with the City no later than issuance of building permit.The City will
use the deposited funds to purchase the Affordable Unit Credits from either the City or
Eden on Developer's behalf in accordance with the terms of the Eden Project Regulatory
Agreement. Nothing in this Agreement amends the terms of the Eden Project
Regulatory Agreement with respect to Eden's rights to the Affordable Unit Credits or
funds from the proceeds of the sale of such credits. Deposit of the$400,000 fully
satisfies Developer's obligation under the Inclusionary Zoning Regulations for the 35
senior apartment units.
4. Security Deposit.
Within 14 days of the effective date of this Agreement, Developer shall provide to the City a
deposit in the amount of 10% ($49,000). Said deposit is intended to secure the provision by the
Developer of the Community Benefit described in Section 3 of this Agreement. The City will
return the full amount of the deposit within 5 days of Developer's provision of said Community
Benefit as required by Section 3 of this Agreement.
If Developer fails to provide the Community Benefit during the term of this Agreement,the
deposit shall be forfeited,and City shall have no obligation to return it to Developer. However,
City shall return the entire deposit if this Agreement expires without any development of the
Project by the Developer or if the Developer elects in writing to abandon its rights under the
Project Approvals and this Agreement at any time prior to the expiration of this agreement,in
which case the Agreement shall automatically terminate.
5. Reservation of Excess Development Capacity.
5.1 Reservation of Excess Capacity. During the term of the Agreement, and so long as each
of the Project Approvals remain in effect, City shall reserve 35 units of residential
housing and 10,329 square feet of commercial space allocated to the Retail District of
the Specific Plan Area and the Affordable Unit Credits for Developer's use. If Developer
fails to obtain the building permit for the Project within two years after the Effective
Date of this Agreement(as such time may be extended by any events of force majeure),
the Excess Capacity reserved for Developer shall revert to the pool maintained by the
City.
5.2 Limitation on City's Obligation. This Agreement shall not be construed to require the
City to issue any Project Approval to the Developer. City is solely required to reserve the
Excess Capacity and Affordable Unit Credits identified in Section 5.1 of this Agreement.
Other than this obligation, nothing in this Agreement shall prevent the City from
denying or conditionally approving any subsequent land use permit or authorization for
the Project. Unless otherwise specified by this Agreement or the Project Approvals, all
of City's applicable ordinances, resolutions, rules, regulations and official policies shall
apply to the Project including, but not limited to,those governing the permitted uses of
the Property, design and construction of the Project, density and intensity of use of the
Project, and the maximum height, bulk and size of proposed buildings within the
Project.
6. Amendment or Cancellation.
6.1 Amendment by Mutual Consent.This Agreement may be amended in writing from time
to time by mutual consent of the parties.
7. Severability.
The unenforceability, invalidity or illegality of any provisions,covenant, condition or term of this
Agreement shall not render the other provisions unenforceable, invalid or illegal, unless a
Party's consideration materially fails as a result.
8. Attorneys' Fees and Costs.
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. If
any person or entity not a party to this Agreement initiates an action at law or in equity to
challenge the validity of any provision of this Agreement, the parties shall cooperate in
defending such action. Developer shall bear its own costs of defense as a real party in interest
it
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.
9. Assignment.
Developer may wish to sell, transfer or assign all or portions of the 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 may sell,transfer or assign to such Transferee
its rights and obligations under this Agreement, so long as said transfer would not result in
development of the Property in excess of the FAR permitted by the Project Approvals. Affiliates
of Developer, including ventures in which Developer is the development partner but not the
majority owner,will not be considered Transferees for these purposes. No such transfer, sale or
assignment of Developer's rights, interests and obligations hereunder shall occur without prior
written approval by the City Manager. The City Manager shall not unreasonably withhold
approval of any transfer and the sole criterion shall be that the proposed Transferee possesses
the financial ability to satisfy the obligations of Developer pursuant to Sections 3.1 and 3.2 of
this Agreement. Developer shall submit to the City Manager any notice of Developer's intent to
transfer, sell or assign its interest, which shall include documentation that the Transferee
satisfies the criterion. Within five (5) business days after Developer submits its notice, the City
Manager may request any commercially reasonable documents, certifications and other
information necessary to determine whether the criterion is met, and the City Manger's failure
to request such additional information shall constitute a determination that no such further
information is needed. The City Manager will make a written determination on any transfer,
sale or assignment on or before the later of: 1) five (5) days after Developer's submission of
additional information if requested by the City Manager, or ten (10) calendar days after
Developer's notice of the proposed transfer, and the City Manager's failure to object in writing
to the transfer, sale or assignment within such time period shall constitute approval of the
transfer.
10. Notices.
All notices required to be given to City under this Agreement shall be in writing and shall be
addressed as follows:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
FAX No. (925)833-6651
All notices required to be given to Developer under this Agreement shall be in writing and shall
be addressed as follows:
Avesta Development Group
c/o Mohammad Javanbakht
13922 Quito Rd.
Saratoga,CA 95070
Tel: (925)899-8981
Email:mjavan @avestadev.com
11. Agreement is Entire Understanding.
This Agreement constitutes the entire understanding and agreement of the parties.
12. Legal Authority.
Each individual executing this Agreement hereby represents and warrants that he or she has full
power and authority under the entity's governing documents to execute and deliver this
Agreement in the name of and on behalf of the company and to cause the entity to perform its
obligations under this Agreement.
13. No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of
the Parties and their successors and assigns. No other persons shall have any right of action
based upon any provision of this Agreement.
[Execution Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
CITY OF DUBLIN DEVELOPER
AVESTA DEVELOPMENT GROUP, LLC
By: By: -- `/�%�i�
Christopher L. Foss, City Manager Moha ad Javanbakht
It's Manager
Attest:
Caroline Soto,City Clerk
Approved as to form
� 2
J n Bakker, City Attorney
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