HomeMy WebLinkAboutPC Reso 12-39 Kingsmill DA RESOLUTION NO. 12-39
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT
AN ORDINANCE APPROVING A COMMUNITY BENEFIT/DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF DUBLIN AND DIAMOND HEIGHTS INVESTMENTS IV, LLC. FOR A
MIXED-USE RETAIL/RESIDENTIAL PROJECT
PLPA-2012-00060
WHEREAS, a request has been made by the Kingsmill Group/Diamond Heights
Investments ("Applicant") to enter into a Community Benefit/Development Agreement with the
City of Dublin for the property known as the former Crown Chevrolet site, comprised of APNs
941-1500-015-09 and 941-1500-032-02, a 6.34-acre site; and
WHEREAS, the project is located within the Downtown Dublin Specific Plan area; and
WHEREAS, the Kingsmill Group/Diamond Heights Investments is proposing to construct
314 residential units with 17,000 square feet of commercial/retail space on a 4.9-acre site and a
76-unit affordable housing project with preference for households with military veterans on a
1.37-acre site within the Downtown Dublin Specific Plan area; and
WHEREAS, the Applicant is requesting approval of a Community Benefit/Development
Agreement in advance of the consideration of project approvals in order to meet upcoming
funding cycles for affordable housing at the State; and
WHEREAS, the project is located within the Downtown Dublin Specific Plan area,
which was the subject of an Environmental Impact Report (EIR), State Clearinghouse number
20100022005. The Downtown Dublin Specific Plan Final EIR was certified by City Council
Resolution No. 08-11 dated February 1, 2011. Pursuant to the California Environmental
Quality Act (CEQA) Guidelines section 15168, the Community Benefit/Development
Agreement is within the scope of the project analyzed in the Specific Plan EIR and no further
CEQA review or document is required. A Community Benefit Agreement/Development
Agreement to allocate residential development is authorized under the DDSP. The
environmental impacts of the residential development authorized by such an allocation were
analyzed in the Specific Plan EIR. There is no substantial evidence in the record that any of
the conditions triggering supplemental environmental review under CEQA Guidelines section
15162 exists; and
WHEREAS, the proposed Community Benefit/Development Agreement is attached to
this Resolution as Attachment 1 to Exhibit A; and
WHEREAS, on November 13, 2012, the Planning Commission held a public hearing on
the proposed Community Benefit/Development Agreement; and
WHEREAS, proper notice of the public hearing was given in all respects as required by
law; and
WHEREAS, the Staff Report was submitted recommending that the Planning
Commission recommend that the City Council adopt an Ordinance approving the Community
Benefit/Development Agreement; and
WHEREAS, the Planning Commission did hear and use their independent judgment and
considered all reports, recommendations, and testimony hereinabove set forth.
NOW, THEREFORE, BE IT RESOLVED THAT the City of Dublin Planning Commission
does hereby recommend that the City Council make the following findings and determinations
regarding the proposed Development Agreement:
1. The proposed Community Benefit/Development Agreement is consistent with the
objectives, policies, general land uses and programs specified in the General Plan and
Downtown Dublin Specific Plan in that: a) the General Plan and Downtown Dublin Specific Plan
land use designation for the subject site is Downtown Dublin — Transit Oriented District and is
consistent with those designations; and b) the project is consistent with the fiscal policies in
relation to provision of infrastructure and public services of the City's Downtown Dublin Specific
Plan/General Plan.
2. The proposed Community Benefit/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.
3. The proposed Community Benefit/Development Agreement is in conformity with
public convenience, general welfare, and good land use practice in that the Applicant's
proposed project will implement land use guidelines set forth in the Downtown Dublin Specific
Plan/General Plan.
4. The proposed Community Benefit/Development Agreement will not be detrimental
to the health, safety, and general welfare in that the development will proceed in accordance
with the General Plan, Downtown Dublin Specific Plan, Project Approvals, and any Conditions
of Approval for the proposed project.
5. The proposed Community Benefit/Development Agreement will not adversely
affect the orderly development of the property or the preservation of property values in that the
development will be consistent with the City of Dublin General Plan, Downtown Dublin Specific
Plan, and future Project Approvals.
NOW, THEREFORE, BE IT FURTHER RESOLVED THAT the City of Dublin Planning
Commission does hereby recommend that the City Council adopt the Ordinance, included as
Exhibit A, approving the Community Benefit/Development Agreement between the City of
Dublin and Diamond Heights Investments for the Mixed-Use Retail/Residential project at the
former Crown Chevrolet site in Downtown Dublin.
PASSED, APPROVED AND ADOPTED this 13th day of November 2012.
AYES: Wehrenberg, Schaub, Brown
NOES:
ABSENT: O'Keefe, Bhuthimethee
Page 2 of 3
ABSTAIN: 4�
1 /• '
Planning Commission Chaim- 'n
ATTEST:
Assistant dorm ty Development Director
G:IPA#120121PLPA-2012-00060 Kingsmill Mixed Use SDRIDevelopment Agreement\PC Reso DA 11-13-2012.doc
Page 3 of 3
ORDINANCE NO. XX - 12
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING A COMMUNITY BENEFIT/DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF DUBLIN AND DIAMOND HEIGHTS INVESTMENTS IV, LLC. FOR A MIXED-USE
RETAIL/RESIDENTIAL PROJECT
PLPA-2012-00060
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. A request has been made by the Kingsmill Group/Diamond Heights Investments
("Applicant") to enter into a Community Benefit/Development Agreement with the City of Dublin
for the property known as the former Crown Chevrolet site, comprised of APNs 941-1500-015-
09 and 941-1500-032-02, a 6.34-acre site; and
B. The project is located within the Downtown Dublin Specific Plan area; and
C. The Kingsmill Group/Diamond Heights Investments is proposing to construct 314
residential units with 17,000 square feet of commercial/retail space on a 4.9-acre site and a 76-
unit affordable housing project with preference for households with military veterans on a 1.37-
acre site within the Downtown Dublin Specific Plan area; and
D. The Applicant is requesting approval of a Community Benefit/Development
Agreement in advance of the consideration of project approvals in order to meet upcoming
funding cycles for affordable housing at the State; and
E. The project is located within the Downtown Dublin Specific Plan area, which was
the subject of an Environmental Impact Report (EIR), State Clearinghouse number
20100022005. The Downtown Dublin Specific Plan Final EIR was certified by City Council
Resolution No. 08-11 dated February 1, 2011. Pursuant to the California Environmental Quality
Act (CEQA) Guidelines section 15168, the Community Benefit/Development Agreement is within
the scope of the project analyzed in the Specific Plan EIR and no further CEQA review or
document is required. A Community Benefit Agreement/Development Agreement to allocate
residential development is authorized under the DDSP. The environmental impacts of the
residential development authorized by such an allocation were analyzed in the Specific Plan
EIR. There is no substantial evidence in the record that any of the conditions triggering
supplemental environmental review under CEQA Guidelines section 15162 exists; and
F. The Applicant has applied for a Community Benefit/Development Agreement
which will vest the Site Development Review and allocation from the Downtown Dublin
Development Pool.
G. The Planning Commission held a public hearing on the proposed Community
Benefit/Development Agreement on November 13, 2012 for which public notice was given by
law; and
EXHIBIT A TO
ATTACHMENT 1
K. The Planning Commission made its recommendation to the City Council for
approval of the Community Benefit/Development Agreement by Resolution.
L. A public hearing on the proposed Development Agreement was held before the
City Council on , 2012 for which public notice was given as provided by law.
M. 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 Downtown Dublin Specific Plan, (d) the Downtown
Dublin EIR; (e) the Staff Report and on the basis of the specific conclusions set forth below, the
City Council finds and determines that:
1. The Community Benefit/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 Downtown Dublin Specific Plan in that: (a) the General Plan and Specific Plan land
use designation for the site is Downtown Dublin — Transit Oriented District; (b) the proposed
project is consistent with the designated land uses; and (c) 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.
2. The Community Benefit/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.
3. The Community Benefit/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 Downtown Dublin Specific Plan and the General
Plan.
4. The Community Benefit/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, Downtown Dublin Specific
Plan, Project Approvals and any Conditions of Approval for the Project.
5. The Community Benefit/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 Downtown Dublin Specific Plan, and Project Approvals.
6. The project is located within the Downtown Dublin Specific Plan area, which was
the subject of an Environmental Impact Report (EIR), State Clearinghouse number
20100022005. The Downtown Dublin Specific Plan Final EIR was certified by City Council
Resolution No. 08-11 dated February 1, 2011. Pursuant to the CEQA Guidelines section 15168,
the City finds that the Community Benefit/Development Agreement is within the scope of the
project analyzed in the Specific Plan EIR and no further CEQA review or document is required.
2
A Community Benefit Agreement/Development Agreement to allocate residential development is
authorized under the DDSP. The environmental impacts of the residential development
authorized under the Agreement were analyzed in the Specific Plan EIR. The City finds that
there is no substantial evidence in the record that any of the conditions triggering supplemental
environmental review under CEQA Guidelines section 15162 exists. The environmental impacts
of the Community Benefit/Development Agreement will not result in new or substantially more
severe significant impacts than those identified and analyzed in the Downtown Dublin EIR.
There is no substantial evidence showing new information of substantial importance or
substantial changes in circumstances that would result in new or substantially more severe
impacts or meet any other standards in Public Resources Code Section 21166 and related
CEQA Guidelines Sections 15162 and 15163. Therefore, no further environmental review is
required under CEQA for the Community Benefit/Development Agreement.
Section 3. APPROVAL
The City Council hereby approves the Community Benefit/Development Agreement
(Exhibit A to the Ordinance) and authorizes the City Manager to execute it.
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 day of
, 2012 by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
3
RECORDING REQUESTED BY:
CITY OF DUBLIN
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waived per GC 27383
Space above this line for Recorder's use
COMMUNITY BENEFIT AGREEMENT AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DUBLIN
AND
DIAMOND HEIGHTS INVESTMENTS IV, LLC
RELATING TO THE
DEVELOPMENT OF THE CROWN CHEVROLET SITE
WITHIN THE
DOWNTOWN DUBLIN SPECIFIC PLAN
-�- ATTACHMENT 1 TO
EXHIBIT A
THIS COMMUNITY BENEFIT AGREEMENT AND DEVELOPMENT
AGREEMENT ("Development Agreement" and sometimes "Agreement") is made and
entered in the City of Dublin on this day of , 2012, by and between the
CITY OF DUBLIN, a Municipal Corporation (hereafter "CITY") and Diamond Heights
Investment IV, LLC, a California limited liability company (hereafter "DEVELOPER")
pursuant to the authority of§§65864 et seq. of the California Government Code and the
Dublin Municipal Code, Chapter 8.56. CITY and DEVELOPER are, from time-to-time,
individually referred to in this Agreement as.a "Party," and are collectively referred to as
the "Parties."
NOW, THEREFORE, with reference to the Recitals below, and in consideration
of the mutual promises, obligations and covenants herein contained, CITY and
DEVELOPER agree as follows:
RECITALS
i
A. California Government Code §§65864 et seq. ("Development Agreement
Statute") and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56")
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 desires to develop and holds an equitable interest in, in that
it has the right to purchase, certain real property consisting of approximately 6.34 acres
of land, located in the City of Dublin, County of Alameda, State of California, which is
more particularly described in Exhibit A attached hereto and incorporated herein by this
reference, and which real property is hereafter called the "Property." As shown in detail
on Exhibit A, the Property is comprised of two separate but adjacent parcels: (i) "Parcel
A," which consists of approximately 4.97 acres; and (ii) "Parcel B," which consists of
approximately 1.37 acres.
C. In 2011, the City Council adopted the Downtown Dublin Specific Plan by
Resolution No. 9-11 ("Specific Plan"), which Specific Plan is applicable to the Property.
The Specific Plan contemplates a "Community Benefit Agreement" whenever residential
allocations are given by City out of the residential allocation "pool" established by the
Specific Plan. This Agreement includes such a Community Benefit Agreement.
D. DEVELOPER proposes the development of the Property into two separate
but related project components: (i) The development of Parcel A with 314 market-rate
residential rental units and approximately 17,000 square feet of general commercial
uses on the first floor of the residential structure(s), along the Dublin Boulevard frontage
(as required by Specific Plan); and (ii) The development of Parcel B with approximately
76 units of affordable rental housing (collectively the "Project").
E. DEVELOPER anticipates that, upon, or in anticipation of, receiving all
entitlements, it will transfer DEVELOPER's interest in Parcel A to Fairfield Residential
Company LLC (or its affiliated entity) ("Fairfield Residential'), and it will transfer
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DEVELOPER's interest in Parcel B to Eden Housing Inc., a California non-profit public
benefit corporation (or its controlled affiliate, or similar affordable housing provider)
("Eden").
F. DEVELOPER has applied for, and CITY is processing, various land use i
approvals in connection with the development of the Project, including, without
limitation, a Site Development Review approval, applicable to Parcel A, and a Site
Development Review approval, applicable to Parcel B. All such approvals collectively,
together with any approvals or permits now or hereafter issued with respect to the j
Project are referred to as the "Project Approvals."
G. Additionally, development of the Property by DEVELOPER may be subject
to other future discretionary and non-discretionary CITY approvals, which, if granted by
CITY, shall automatically become part of the Project Approvals.
H. CITY desires the timely, efficient, orderly and proper development of the
Project and the Property.
1. The City Council has found that, among other attributes, this Development
Agreement is consistent with its General Plan and the Specific Plan and has been
reviewed and evaluated in accordance with the Development Agreement Statute and
Chapter 8.56 Dublin Municipal Code and lnclusionary Zoning Regulations Chapter 8.68.
J. CITY and DEVELOPER have reached agreement and desire to express
herein a Community Benefit Agreement and Development Agreement that will facilitate
development of the Project subject to conditions set forth herein.
K. The Project is subject to and in compliance with the Specific Plan, for
which a Specific Plan a Program EIR was certified by CITY in Resolution No. 8-11
("Specific Plan EIR") pursuant to the California Environmental Quality Act, and the
CEQA Guidelines promulgated thereunder (collectively, "CEQA"). Pursuant to CEQA
Guidelines section 15168, this Agreement is within the scope of the project analyzed in
the Specific Plan EIR and no further CEQA review or document is required. The Project
is subject to further discretionary approvals by the City. The City will determine the
environmental review required under CEQA for those future Project Approvals at the
time it considers those Approvals. This Agreement does not impede, impair or otherwise
seek to truncate or limit the City discretion in considering those future Project Approvals
or conducting any future CEQA review as required by applicable law.
L. On , 2012, the City Council of the City of Dublin adopted Ordinance
No. approving this Community Benefit Agreement and Development
Agreement ("Approving Ordinance"). The Approving Ordinance will take effect on
("Approval Date").
I
TERMS AND CONDITIONS
1. Description of Property.
The Property which is the subject of this Development Agreement is described in
the Recitals.
2. Interest of DEVELOPER.
The DEVELOPER has a legal or equitable interest in the Property.
3. Relationship of CITY and DEVELOPER.
This Agreement has been negotiated and voluntarily entered into by CITY and
DEVELOPER. The DEVELOPER is not an agent of CITY. The CITY is not the agent of
the DEVELOPER. 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.
4. Effective Date and Term.
4.1 Effective Date. The effective date of this Agreement ("Effective
Date") shall be the Approval Date of the Approving Ordinance as defined in Recital L.
42 Term of Agreement. The "Term" of this Development Agreement
shall commence on the Effective Date and shall continue for five (5) years from the
Effective Date, unless otherwise extended or terminated as provided in Section 4.2.
4.2.1 Optional Extension. Prior to the termination of this
Development Agreement, as provided in Section 4.2, DEVELOPER may extend the
term of the Development Agreement. To do so, DEVELOPER shall give CITY written
notice at least 90 days prior to the termination date of the Development Agreement. At
the time DEVELOPER provides such notice, DEVELOPER shall make a contribution to
CITY in the amount of One Hundred Thousand Dollars ($100,000) 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. Provided there is an extension
period remaining Developer may request the extension for multiple years including the
payment due. The total contribution for the maximum extension will be Five Hundred
Thousand Dollars ($500,000). From and after the time Parcel B is transferred to Eden,
Eden shall have the right to extend the term of the Development Agreement as it
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applies to Parcel B and Eden as set forth in this subsection 4.2.1 but without the
payment of any extension contribution.
4.3 Term of Project Approvals. Pursuant to the Subdivision Map Act
(Gov't Code § 66410 et seq.), and in particular, Government Code Section 66452.6(a),
the term of any subdivision map (parcel, tentative or otherwise) shall be extended
automatically for the Term of this Agreement, and shall also be extended by any other
extension(s) granted under the Subdivision Map Act and/or CITY ordinance consistent
with the Subdivision Map Act.
4.4 Term of Residential Allocations.
4.4.1 Consistent with Section 6 of this Agreement, the "Residential
Allocation Term" for the "Residential Allocations" (as that term is defined by this
Agreement) provided by the Community Benefit Agreement provisions of this
Agreement shall be two (2) years from the Effective Date as defined in Section 4.1 j
Notwithstanding the foregoing, it is acknowledged that DEVELOPER shall not have a I
right to the Residential Allocations until such time as it has sold Parcel B in accordance j
with Subsection 6.2.
4.4.2 However, if a building permit for a residential structure has
been issued by CITY, and if the construction of a structure related to residential uses
has been commenced on Parcel A and/or Parcel B within said two-year Residential
Allocation Term, then the Residential Allocation Term for the development on the
particular parcel for which the permit was issued shall be extended for the life of the
building permit and any extensions thereto up to the Term of this Agreement.
5. Vested Rights/ se of the Property/Applicable Law/Processing.
5.1 Right to Develop. DEVELOPER shall have the vested right to
develop the Project on the Property in accordance with, and subject only to, the terms
and conditions of 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 the CITY's ordinances, codes, resolutions, rules, regulations and
official policies governing the development, construction, occupancy and use of the
Project and the Property including, without limitations, the permitted uses of the
Property, density and intensity of use of the Property and the maximum height, bulk and
size of proposed buildings, that are in force and effect on the Effective Date of this
Agreement (collectively, "Applicable Law"). In exercising its discretion when acting
upon the Project Approvals, CITY shall apply the then-existing Applicable Law as the
controlling body of law (within which Applicable Law such discretion shall be exercised).
5.2 Fees Exactions Dedications. CITY and DEVELOPER agree that
this Agreement does not limit the CITY's discretion to impose or require payment of any
fees in connection with the development of the Project for purposes of mitigating
environmental and other impacts of the Project, dedication of any land, or construction
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i
I
of any public improvement or facilities, except that the City may not apply to the Project
any development impact fee that it first enacted after the Effective Date.
5.3 Construction Codes. Notwithstanding the provisions of Section 5.1
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 the
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 9.16 of
the Dublin Municipal Code.
5.4 Rights Under Vesting Tentative Map. Except as otherwise
specified (as for example in Subsection 5.2), this Agreement shall not supersede any
rights DEVELOPER obtains pursuant to DEVELOPER'S application for and the CITY's
subsequent approval of a vesting tentative map(s) for the Project, or any portion thereof;
provided Developer in its sole discretion may waive in whole or part the application of
the foregoing provision.
5.5 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
Approval Date and which are not in conflict with the Applicable Law. 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:
5.5.1 Any application or requirement of such new or modified
ordinances, resolutions, rules, regulations or official policies that would 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; and/or
5.5.2 If any of such ordinances, resolutions, rules, regulations or
official policies do not have general (City-wide) applicability.
5.6 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, if an ordinance, resolution, policy, directive or other measure
is enacted or becomes effective, whether by action of CITY, by initiative, referendum, or
otherwise, 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 8558, provided that to the extent a
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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 Moratorium period
5.7 Revised Application Fees. Notwithstanding section 5.2 above, 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, (2) the application of such fees to the Property is prospective, and (3) the
application of such fees would not prevent, impose a substantial financial burden on, or
materially delay development of the Project 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.
5.8 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.
5.9 Phasing, Timing. Except as specified in Section 6, this Agreement
contains no requirements that DEVELOPER must initiate or complete development of
the Project within any period of time set by CITY. 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.
5.10 -Processing.
5.10.1 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 those Project Approvals
that require the exercise of discretion by CITY, provided that such discretion shall be
exercised consistent with the laws contained with the Applicable Law.
5.10.2 At its approval and execution, this Agreement does not
provide DEVELOPER with any right to develop or construct any project or to secure any
Project Approval; instead, it simply provides for example certain rights and
responsibilities regarding approvals already given for the Specific Plan, provides certain
vested rights to laws and approvals already in place, provides a protocol by which later
Project Approvals may be processed by DEVELOPER and later included into this
Agreement, if applicable — if and only if such Project Approvals are compliant with all
controlling California law (including proper Planning and Zoning Law and CEQA
compliance), have secured approval of the Parties, and are adopted/approved by the
CITY.
6. Community Benefit Agreement.
6.1 Generally. As stated above, the Specific Plan contemplates a
"Community Benefit Agreement" whenever Residential Allocations are given by CITY
out of the Residential Allocation "Pool" established by the Specific Plan. This Section 6
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...kn-...,.Mnva.Yq vuwe`ani-us,.
of the Agreement contains that Community Benefit Agreement. The term "Residential
Allocation" as used in the Agreement means an allocation of the right to construct
residential units from the Residential Allocation Pool established by the Specific Plan.
6.2 Affordable Housing.
6.2.1 Nominal-Price Sale of Parcel B. DEVELOPER shall sell
Parcel B for a "Nominal Price" to Eden Housing, Inc. or one of its affiliates (or another
entity on City Manager approval) to facilitate the development of Parcel B as described
in Recital D with affordable rental housing units primarily intended for households with
veterans of the United States Armed Forces. For the purposes of this Agreement, a
"Nominal Price" shall be any sales price that is one-thousand dollars ($1000) or less
(not including, and not limiting, the purchaser's share of escrow fees, title insurance
costs, transfer taxes, prorated taxes and assessments and other customary closing
costs).
6.2.2 Use Restriction on Parcel B. Concurrently with the recording
of the grant deed transferring Parcel B to Eden (or other transferee approved by the
City), Eden (or other approved transferee) and the City shall record a use restriction in
favor of the City that restricts the use of Parcel B to the provision of affordable housing
for low-income households whose incomes do not exceed eighty percent (80%) of the
area medium income as adjusted for actual household size for a period of at least fifty-
five (55) years from the date a certificate of occupancy is issued for the improvements
on Parcel B, regardless of who shall be the owner of Parcel B.
6.2.3 Compliance with Inclusionary Zoning Requlations for
Development on Parcel A. Chapter 8.68 of the Dublin Municipal Code, known as the
Inclusionary Zoning Regulations ("the Regulations"), requires that residential projects
with 20 or more units contain 12.5% affordable units as defined. Forty percent of a
development's obligation may be satisfied through the payment of a fee in lieu of
construction, and the remainder of the obligation (7.5% of the units in the project) must
be satisfied through the on-site or off-site production of the units, land dedication, or the
use of credits. Under the Regulations, if DEVELOPER constructs the maximum number
of units on Parcel A contemplated by this Agreement, its affordable housing requirement'
would be 30 units. DEVELOPER intends to fully satisfy its obligations by way of the
nominal-price sale of land required by this Section 6. The City agrees that this nominal-
price sale shall be deemed to satisfy DEVELOPER's affordable housing obligations
under the Inclusionary Zoning Regulations for the development of up to 314 units on
Parcel A. More specifically, pursuant to section 8.68.040.0 of the Dublin Municipal
Code, the DEVELOPER's affordable unit obligation with respect to the residential
development of up to 314 market-rate units proposed on Parcel A will be satisfied by
virtue of the proposed nominal-price sale. Any development on Parcel A in excess of
314 units will be subject to the requirements of Chapter 8.68 of the Dublin Municipal
Code. The City Council has separately made the findings required by Section
8.68.040.0 or has waived such requirements in whole or part under Section 8.68.040 E.
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6.2.4 Treatment of Affordable Unit Credits Created by Develop-
ment on Parcel B. The parties agree that any "affordable unit credits" created by virtue j
of the construction of affordable housing on Parcel B shall accrue to CITY. In further-
ance of this agreement, DEVELOPER shall take reasonable efforts to create the
"affordable unit credits" pursuant to section 8.68.060 of the Dublin Municipal Code and
any such credits shall be deemed immediately transferred to CITY once they have been
created.
6.3 Community Benefit From Affordable Housing. CITY recognizes
that DEVELOPER'S sale of Parcel B for a Nominal Price to Eden for the use described
above is a qualifying "Community Benefit" under the Specific Plan, as it will assist Eden
, or its successor, to pursue successfully the development of affordable rental housing
units primarily for veterans and low income households on Parcel B. The Dublin
community and the specific plan area will benefit significantly from the provision of such
affordable housing, as set forth in greater detail in the Dublin General Plan's Housing
Element. No other Community Benefit payments or requirements shall be imposed on
DEVELOPER in exchange for the residential allocations specified in Section 6.4 below.
6.4 Grant of Residential Allocations. As of the Effective Date, as
defined in Section 4.1, and for the term specified in Section 4.4, CITY shall grant the
following Residential Allocations out of the Residential Allocation Pool established by
the Specific Plan. Notwithstanding the foregoing, Developer shall not have a right to
use the allocations until the sale contemplated under Section 6.2 above has closed and
discretionary Project Approvals are approved by the City. CITY may make the right to
construct residential units under the Project Approvals conditional upon the sale of
Parcel B, as contemplated under Subsection 6.2 above.
6.4.1 Parcel A. Parcel A shall receive an allocation of the
residential units proposed thereon in the Project Approvals, not to exceed 314.
6.4.2 Parcel B. Parcel B shall receive an allocation of residential
units proposed thereon in the Project Approvals, not to exceed 76.
7. Amendment or Cancellation.
7.1 Modification Because of Conflict with State or.Federal Laws. If
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 laws or regulations. Any such amendment of the Agreement
shall be consented to by DEVELOPER and approved by the City Council (in
accordance with Chapter 8.56).
7.2 Amendment by Mutual Consent. This Agreement may be amended
(in whole or part) in writing from time to time by mutual consent of the Parties hereto (or
their successors), and in accordance with the procedures of State law and Chapter
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8.56. When a Party seeking such an amendment owns 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 the other Portion shall not be
required or entitled to be a signatory or to consent to an amendment that affects only
the other Party's Portion. If any Portion of the Property is subject to a document which
creates an association which oversees common areas and any construction or
reconstruction on or of the same, then the association shall be deemed to be the
"owner" of that Portion of the Property for the purpose of amending this Agreement.
7.3 Insubstantial Amendments. Notwithstanding the provisions of the
preceding section 7.2, any amendments to this Agreement which do not relate to (a) the
term of the Agreement as provided in section 4.2; (b) the permitted uses of the Property
as provided in section 5.1; (c) provisions for "significant" reservation or dedication of
land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for
subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the
maximum height or size of proposed buildings; or (g) monetary contributions by
DEVELOPER as provided in this Agreement, shall not, except to the extent otherwise
required by law, require notice or public hearing before either the Planning Commission
or the City Council before the parties may execute an amendment hereto. CITY's
Public Works Director shall determine whether a reservation or dedication is
"significant".
7.4 Cancellation by Mutual Consent. Except as otherwise permitted
herein, this Agreement may be canceled in whole or in part only by an amendment
which complies with Section 7.2. Any fees paid pursuant to Paragraph 5.3 of this
Agreement prior to the date of cancellation shall be retained by CITY.
8. Annual Review.
8.1 Review Date. The annual review date for this Agreement shall be
between July 15 and August 15, 2013 and each July 15 to August 15 thereafter.
8.2 Initiation of Review. The CITY's Community Development Director
shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by
giving to DEVELOPER at least thirty (30) days' written notice that the CITY intends to
undertake such review. DEVELOPER shall provide evidence to the Community
Development Director prior to the hearing on the annual review, as and when
reasonably determined necessary by the Community Development Director, to
demonstrate good faith efforts to comply with the provisions of this Agreement. The
burden of proof, by substantial evidence, is upon the DEVELOPER.
8.3 Staff Reports. To the extent practical, CITY shall deposit in the
mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning
contract performance at least five (5) days prior to any annual review.
8.4 Costs. Costs reasonably incurred by CITY in connection with the
annual review shall be paid by DEVELOPER in accordance with the CITY's schedule of
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fees in effect at the time of review. From and after the time Parcel B is transferred to
Eden, this subdivision 8.4 shall not apply to Parcel B or Eden.
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9. Default.
9.1 Other Remedies Available. Upon the occurrence of an event of
default, the Parties may pursue all other remedies at law or in equity which are not
otherwise provided for in this Agreement or in CITY's regulations governing
development agreements, expressly including, without limitation, the remedy of specific
performance of this Agreement; provided the non-defaulting Party has complied with the
provisions of Section 9.2 hereof. From and after the transfer of Parcel B to Eden or
other approved transferee, there shall be no cross defaults between the owner of Parcel
A and the owner of Parcel B. A default by Developer, Developer's successor or
transferee for Parcel A and/or a condition affecting only Parcel A shall not constitute a
default by the owner of Parcel B and no action, remedy, attorney's fees or other costs
may be sought against the owner of Parcel B or Parcel B. Similarly, after Parcel A and
Parcel be owned by different Parties, a default by owner of Parcel B or a condition
affecting only Parcel B shall not constitute a default by the owner of Parcel A and no
action, remedy, attorney's fees or other costs may be sought against the owner of
Parcel A or Parcel A. From and after the time that Parcel A and Parcel B are owned by
different Parties, there shall be no joint or several liability between or among the
different owners.
9.2 Notice and Cure. Upon the occurrence of an event of default by
any Party, the nondefaulting Party shall serve written notice of such default upon the
defaulting Party. If the default is not cured by the defaulting Party within thirty (30) 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 (30) 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 (30) day period and diligently pursues such
cure to completion. Failure to give notice shall not constitute a waiver of any default.
9.3 No Damages Against CITY. In no event shall damages be
awarded against CITY upon an event of default or upon termination of this Agreement
except as otherwise expressly provided herein.
% Estoppel Certificate.
10.1 Any 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 farce 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.
10.2 A Party receiving a request hereunder shall execute and return
such certificate within twenty (20) days following the receipt thereof, or such longer
period as may reasonably be agreed to in writing by the Parties. City Manager of CITY
shall be authorized to execute any certificate requested by DEVELOPER. The
certificate shall be addressed to and may be relied upon by the requesting Party.
11. Mortgagee Protection; Certain Rights of Cure.
11.1 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.
11.2 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 11.1 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 or as may be otherwise
authorized by the City.
11.3 Notice of Default to Mortgagee and Extension of Right to Cure. If
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 CITY shall
deliver to such Mortgagee, concurrently with service thereon to DEVELOPER, any
notice given to DEVELOPER with respect to any claim by 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. CITY, through its City
Manager, may extend the thirty-day cure period provided in section 9.2 for not more
than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee.
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12. Severability; Conflict. The unenforceability, invalidity or illegality
(collectively, "illegality" or "illegal") of any provisions, covenant, condition or term of this
Agreement (collectively, "provision(s)") shall not render the other provisions of this
Agreement illegal, and shall be considered "severed" from this Agreement. In the event
of a conflict between this Agreement or any provision hereof and the Project Approvals
or any provision thereof this Development Agreement shall control.
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13. Attorneys' Fees and Costs.
111 If CITY or DEVELOPER initiates any action at law or in equity to
enforce or to 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 in any such action, and
shall reimburse CITY for all reasonable court costs and attorneys' fees expended by the
City in defense of any such action.
14. Transfers and Assignments.
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14.1 Agreement Runs with the Land. All of the provisions, rights, terms,
covenants, and obligations contained in this Agreement shall be binding upon 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 servitudes and shall constitute
covenants running with the land pursuant to applicable laws, including, but not limited
to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or
refrain from doing, some act on all or any part of the Property, (a) is a burden upon such
property, (b) is for the benefit of each other portion of the Property, (c) runs with such
properties, and (d) is binding upon each Party and 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. The provisions of this Section 14.1 are subject and
subordinate to the provisions of Section 7.2 which permit amendment of this
Agreement.
14.2 DEVELOPER's Right to Assign. All of DEVELOPER'S rights,
interests and obligations hereunder (or any portion of such rights which DEVELOPER
wishes to transfer) may be transferred, sold or assigned in conjunction with the transfer,
sale, or assignment of the Property subject hereto, or any portion thereof, at any time
during the term of this Agreement, provided that no transfer, sale or assignment of
DEVELOPER's rights, interests and obligations hereunder shall occur without the prior
written notice to CITY and approval by the City Manager, which approval shall not be
unreasonably withheld or delayed. The City Manager shall consider and decide the
matter within ten (10) business days after DEVELOPER's notice provided and receipt
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by City Manager of all necessary documents, certifications and other information
required by City Manager to decide the matter. 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 the
DEVELOPER's obligations hereunder not withheld by DEVELOPER.
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14.3 Notwithstanding the foregoing, provided notice is given as specified
in Section 19, no CITY approval shall be required for any transfer, sale, or assignment
of this Agreement to: (1) any entity which is an affiliate or subsidiary of DEVELOPER;
(2) any Mortgagee for Parcel A or Parcel B or a tax credit investor for Parcel B; (3) any
transferee of a Mortgagee for Parcel A or Parcel B or a tax credit investor for Parcel B; j
(4) Fairfield Residential in conjunction with the sale of Parcel A, provided that
DEVELOPER has, at the time of the transfer, complied with all obligations of this
Agreement then outstanding or provided evidence satisfactory to the City Manager
demonstrating that the remaining obligations have been allocated between
DEVELOPER and its transferee; or (5) Eden Housing Inc., its affiliates or a limited
partner of which the general partner is an affiliate of Eden ("Eden"), in conjunction with
the sale of Parcel B.
14.4 Release Upon Transfer. Upon the transfer, sale, or assignment of
Parcel A DEVELOPER's rights, interests and obligations hereunder pursuant to
sections 14.2 or 14.3 of this Agreement, DEVELOPER shall be released from the
obligations under this Agreement, with respect to the Property transferred, sold, or
assigned; provided, that the transferee, purchaser, or assignee expressly assumes all
of the rights, interests and obligations of DEVELOPER under this Agreement, pertaining
to the portion or all of the Property transferred to such transferee, purchaser or
assignee. In any event, the transferee, purchaser, or assignee shall be subject to all the
provisions hereof pertaining to the portion of the Property transferred to such
transferree, purchaser or assignee, and shall provide all necessary documents,
certifications and ether necessary information prior to City Manager approval if required
by the provisions of this Agreement.
14.5 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.
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15. Bankruptcy.
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The obligations of this Agreement shall not be dischargeable in bankruptcy.
16. Indemnification.
DEVELOPER agrees to indemnify, defend and hold harmless 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 the 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 obligation under this Section 16 with respect to negligence
or wrongful conduct of 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 delivered or 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 for which DEVELOPER has a duty to defend or
indemnify CITY then CITY will cooperate with DEVELOPER, will appear in such action
and will not unreasonably withhold approval of a settlement otherwise acceptable to
DEVELOPER. Notwithstanding anything to the contrary set forth in this Section 16 or
elsewhere in this Agreement, it is understood that each Party or successor or transferee
of Developer is providing the indemnities described in this Section 16 as to its
respective development on its respective Portion only.
17. Insurance.
17.1 Public Liability and Property Damage Insurance. At all times that
DEVELOPER is constructing any improvements that will become public improvements,
DEVELOPER shall maintain in effect a policy of commercial general liability insurance
with a per-occurrence combined single limit of not less than one million dollars
($1,000,000.00) and a deductible of not more than ten thousand dollars ($10,000.00)
per claim. 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.
17.2 Workers' Compensation insurance. At all times that DEVELOPER
is constructing any improvements that will become public improvements, DEVELOPER
shall maintain Workers' Compensation insurance for all persons employed by
DEVELOPER for work at the Project site. DEVELOPER shall require each contractor
and subcontractor similarly to provide Workers' 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.
17.3 Evidence of Insurance. Prior to commencement of construction of
any improvements which will become public improvements, DEVELOPER shall furnish
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CITY satisfactory evidence of the insurance required in Sections 17.1 and 17.2 and
evidence that the carrier is required to give the CITY at least fifteen (15) days prior
written notice of the cancellation or reduction in coverage of a policy.
18. Sewer and Water.
DEVELOPER acknowledges that the Project requires water and sewer permits
from the Dublin San Ramon Services District (°DSRSD") which is another public agency
not within the control of CITY,
19. Notices.
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All notices required or provided for under this Agreement shall be in writing.
Notices required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fax No: 925.833.6651
Notice required to be given to DEVELOPER shall be addressed as follows:
Diamond Heights Investment IV, LLC
c/o The Kingsmill Group
4900 Hopyard Rd., Suite 100
Pleasanton, CA 94588
Attn: Keith Fichtner
E-mail: keithfichtner�7a thekingsmillgroup.com
Phone: 925-463-4880
With copies to: Steven L. Hammond
Hammond Law Group, PC
One Embarcadero Center
Suite 2360
San Francisco, CA 94111
Attn: Steven L. Hammond, Esq,
Facsimile No.: 415-955-1976
Telephone: 415-955-1915
Email: sh @hammondlg.com
And
Eden Housing, Inc.
22645 Grand Street
Hayward, CA 94541-5031
Attention: President
_1 g_
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
48 hours after being deposited in the United Mates Mail. Notices may also be given by
overnight courier which shall be deemed given the following business day or by
facsimile transmission which shall be deemed given upon verification of receipt.
20. Recitals.
The foregoing Recitals are true and correct and are made a part hereof.
21. Agreement is Entire Understanding.
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This Agreement constitutes the entire understanding and agreement of the
parties with respect to this Agreement.
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22. Exhibits.
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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 Property
23. Counterparts.
This Agreement is executed in three (3) duplicate originals, each of which is
deemed to be an original.
24. Recordation.
CITY shall record a copy of this Agreement within ten days of DEVELOPER
providing CITY notice that a grant deed conveying the Property from the owner of
record as of the Effective Date to DEVELOPER is recorded in the Official Records of
Alameda County.
25. Separate Agreement Upon Transfer of Parcel B.
Notwithstanding any other provision to the contrary contained herein, the Parties
acknowledge and agree that upon transfer of Parcel B to Eden or other approved
transferee, the covenants, obligations and liabilities applicable to Parcel A or the owner
of Parcel A shall be separate and independent from the covenants, obligations and
liabilities applicable to Parcel B or the owner of Parcel B, as if there were two separate
agreements for Parcel A and Parcel B. Nothing herein is intended or shall be construed
as making the owner of Parcel A and the owner of Parcel B agents of the other or joint
venturers or partners.
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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
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Diamond Heights Investments IV, LLC,
By: a California limited liability company
Joni Pattillo, City Manager
By: Seagirt Management, LLC,
a California limited liability company
Attest:
Its: Manager
Caroline Soto, City Clerk By Keith Fichtner
Approved as to form Its: President
John Bakker, City Attorney
Title No, 11-59038605-A-SC
PARCEL A Locate No.CACT17701-7707-2386-0059038605
LEGAL DESCRIPTION
EXHIBIT"A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED CITY OF DUBLIN,COUNTY OF ALAMEDA,STATE=OF
CALIFORNIA,AND IS DESCRIBED AS FOLLOWS:
Beginning at the Intersection of the Northeastern line of the land described as Parcel 2 in the Deed by J.
Clayton Orr,etal.,to Motel Interstate Systems,Inc.,dated April 30,1959,recorded June 8,1959 in Book 9052
of Official Records of Alameda County Page 82,Instrument No.AQ167605,with a line drawn parallel with the
center line of Dublin Boulevard,formerly Dublin Road,60 feet in width,and distant Southeasterly 42 feet,
measured at right angles therefrom,running thence along said parallel line,South 690 08' 15"West 355.82
feet;thence tangent to the last named tine Southwesterly along a curve to the left having a radius of 42 feet,
through an angle of 900,a distance of 65.97 feet;thence tangent to the last named curve,South 200 51'45'
East 502.50 feet;thence North 690 08'15"East 400 feet to said Northeastern line of said land;and thence
along the last named line,North 210 05'30"West 544.50 feet to the point of beginning.
Excepting therefrom that portion described in the Final Order of Condemnation recirr„ded April 8, 1997 as
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Instrument No.97090524.
APN:941-1500-015-09
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2 ALTA Commitment—2006
ANI pIC�M
Copyright American Land Tide Association.All rights reserved.The use of this Form is restricted to
ALTA licensees and ALTA members In good standing as of the date of use.All other uses are prohibited.Reprinted under
license from the American Land'ntle Association.
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PARCEL B Locate No.CACTt7Title No. U-S941637-A-SC
701-7707-2386-0059041637
I
LEGAL DESCRIPTION
EXHIBIT"A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF DUBLIN,COUNTY OF ALAMEDA,
STATE OF CALIFORNIA,AND IS DESCRIBED AS FOLLOWS:
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Parcel D, Parcel Map 2621,recorded December 20, 1978,Parcel Map Book 107, Page 50,Alameda County
Records.
Excepting therefrom that portion described in the Deeds to the County of Alameda recorded February 14,
2002,as Instruments Nos.2002073438 and 2002073439.
APN:941-1500-032-02
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2 ALTA Commitment-•2006
M1!u!�,CtN
Copyright American Lend Tide Association.Atl tights reserved.The use or this Form Is resMcted to
ALTA gcensees and ALTA members in good standing as of the date of use.AN other uses are prohlbited.Reprinted under
license from the American Land Title Assodation.
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