HomeMy WebLinkAboutPC Reso 14-50 The Green Mixed Use rec to CC DA 1
RESOLUTION NO. 14-50
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE APPROVING A
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND
STOCKBRIDGE/BHV EMERALD PLACE LAND COMPANY LLC RELATING TO
THE GREEN MIXED USE PROJECT
PLPA-2013-00013
(APNS 986-0033-004-00, 986-0033-005-00, 986-0033-006-00)
WHEREAS, a request has been made by Stockbridge/BHV Emerald Place Land
Company LLC ("Applicant") to enter into a Development Agreement with the City of Dublin for
the property known as The Green Mixed Use Project site, which includes properties identified
by Assessor Parcel Numbers 986-0033-004-00, 986-0033-005-00, and 986-0033-006-00,
encompassing approximately 27.5 acres; and
WHEREAS, the Applicant is proposing to obtain approvals for a development project that
includes the construction of six residential neighborhoods with 372 units in multiple buildings
and a complementary commercial district with approximately 37,000 square feet of future retail
and restaurant buildings with associated outdoor seating areas and a full range of site
improvements; and
WHEREAS, the project is the subject of a Supplemental Environmental Impact Report
(SEIR), State Clearinghouse No. 2013072032. On August 26, 2014, the Planning Commission
approved Resolution 14-xx, recommending that the City Council certify the Final SEIR for the
project, and adopt CEQA findings, a Statement of Overriding Considerations, and Mitigation
Monitoring and Reporting Program for the Project. The Development Agreement was part of the
Project analyzed in the SEIR and the impacts of the activities under the Development
Agreement were analyzed in the SEIR; and
WHEREAS, the proposed Development Agreement is attached to this Resolution as
Exhibit A-1; and
WHEREAS, on August 26, 2014, the Planning Commission held a public hearing on the
proposed 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 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 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 (as amended);
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.
2. 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.
3. 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. xx-14, amending the Eastern Dublin Specific Plan, adopted by the City Council
on , 2014.
4. 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 Conditions of Approval.
5. 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 (as amended), the Eastern Dublin Specific Plan (as amended), and future Project
Approvals.
6. The Development Agreement specifies the duration of the agreement, the
permitted uses of the property, the density or intensity of use, the maximum height and size of
proposed buildings, and provisions for reservation or dedication of land for public purposes.
The 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.
NOW, THEREFORE, BE IT FURTHER RESOLVED THAT the City of Dublin Planning
Commission does hereby recommend that the City Council adopt the Ordinance, attached as
Exhibit A, approving the Development Agreement between the City of Dublin and
Stockbridge/BHV Emerald Place Land Company LLC related to The Green Mixed Use Project.
PASSED, APPROVED AND ADOPTED this 26nd day of August 2014.
AYES: Bhuthimethee, O'Keefe, Do
NOES: Goel, Kohli
ABSENT:
ABSTAIN:
Page 2 of 3
Plan in Commission Chairperson
ATTEST. f
Assistant C$m ity Development Director
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Page 3 of 3
ORDINANCE NO. XX - 14
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND
STOCKBRIDGE/BHV EMERALD PLACE LAND COMPANY LLC RELATING TO
THE GREEN MIXED USE PROJECT
PLPA-2013-00013
(APNS 986-0033-004-00, 986-0033-005-00, 986-0033-006-00)
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. A request has been made by Stockbridge/BHV Emerald Place Land Company
LLC ("Applicant") to enter into a Development Agreement with the City of Dublin for the property
known as The Green Mixed Use Project site, which includes properties identified by Assessor
Parcel Numbers 986-0033-004-00, 986-0033-005-00, and 986-0033-006-00, encompassing
approximately 27.5 acres; and
B. The Applicant is proposing to obtain approvals for a development project that
includes the construction of six residential neighborhoods with 372 units in multiple buildings
and a complementary commercial district with approximately 37,000 square feet of future retail
and restaurant buildings with associated outdoor seating areas and a full range of site
improvements; and
C. The project is the subject of a Supplemental Environmental Impact Report (SEIR),
State Clearinghouse No. 2013072032. On , the City Council approved
Resolution xx-14, certifying the Final SEIR for the project, and adopting CEQA findings, a
Statement of Overriding Considerations, and Mitigation Monitoring and Reporting Program for
the Project. The Development Agreement was part of the Project analyzed in the SEIR and the
impacts of the activities under the Development Agreement were analyzed in the SEIR; and
D. The Applicant has applied for a Development Agreement which will vest the
Project Approvals.
E. The Planning Commission held a public hearing on the proposed Development
Agreement on August 26, 2014, for which public notice was given by law; and
F. The Planning Commission made its recommendation to the City Council for
approval of the Development Agreement by Resolution.
G. A public hearing on the proposed Development Agreement was held before the
City Council on , 2014 for which public notice was given as provided by law.
H. 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.
EXHIBIT A TO
ATTACHMENT 6
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 Green Mixed Use
Project SEIR; (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:
1. 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 (as amended);
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.
2. 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.
3. 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. xx-14, amending the Eastern Dublin Specific Plan, adopted by the City Council
on , 2014.
4. 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 Conditions of Approval.
5. 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 (as amended), the Eastern Dublin Specific Plan (as amended), and future Project
Approvals.
6. The Development Agreement specifies the duration of the agreement, the
permitted uses of the property, the density or intensity of use, the maximum height and size of
proposed buildings, and provisions for reservation or dedication of land for public purposes.
The 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.
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Section 4. RECORDATION
Within ten (10) days after the Development Agreement takes effect and 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
2014 by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
2316834.1
G:IPA120131PLPA-2013-00013 The Green GPA-SPA-PDIPC 08.26.141Att 6-Exhibit A-DA Ord.docx
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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
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DUBLIN
AND
STOCKBRIDGE/BHV EMERALD PLACE LAND COMPANY, LLC
FOR "THE GREEN" PROJECT
I EXHIBIT A
THIS DEVELOPMENT AGREEMENT ("Agreement" or "Development Agreement") is
made and entered into in the City of Dublin on this day of 2014, by and
between the CITY OF DUBLIN, a Municipal Corporation ("City") and BHV/STOCKBRIDGE
EMERALD PLACE LAND COMPANY, LLC, a Delaware Limited Liability Company, its
successors and assigns ("Developer") pursuant to the authority of§§ 65864 et seq. of the
California Government Code and Dublin Municipal Code, Chapter 8.56. City and Developer
are, from time-to-time, individually referred to in this Agreement as a"Party," and are
collectively referred to as "Parties."
RECITALS
A. California Government Code §§ 65864 et seq. ("Development Agreement
Statute") and Chapter 8.56 of the Dublin Municipal Code ("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 owns certain real property ("the Property") consisting of
approximately 27.5 acres of land at the south side of Martinelli Way between Hacienda Drive to
the east and Arnold Drive to the west, (APNs 986-0033-004-00; 986-0033-005-02 and 986-003-
006-00) and that is more particularly described in Exhibit A attached hereto and is incorporated
herein by reference.
C. Developer, or its predecessor in interest, has applied for, and City has approved or
is processing, various land use approvals in connection with the development of the proposed
project (the "Project"), including, without limitation, a General Plan Amendment and Eastern
Dublin Specific Plan Amendment (Resolution. No. , adopted by the City Council on
2014); a Planned Development Zoning and Stage 1 and Stage 2 Development Plan
and Rezoning Ordinance (Ordinance No. , adopted by the City Council on
2014), Site Development Review (for the commercial portion or the project and the
residential portion of the project as separate applications) and a Vesting Tentative Map and this
Development Agreement. All such approvals, collectively, together with any approvals or
permits now or hereafter issued with respect to the Project, are referred to as the "Project
Approvals."
D. The Project includes construction of a mixed-use residential and commercial
project including up to 40,000 gross square feet of retail and restaurant floor area and up to 400
residential dwelling units on the site, landscaped plazas and open spaces as well as grading of the
site, extension of utilities, and related improvements.
E. City desires the timely, efficient, orderly and proper development of the Project.
F. The City Council has found that, among other things, this Development
Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan as
amended and has been reviewed and evaluated in accordance with the Development
Agreement Statute and Chapter 8.56.
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G. 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.
H. The Project is located within the Eastern Dublin Specific Plan area, which was the
subject of a Program Environmental Impact Report for the General Plan Amendment and Eastern
Dublin Specific Plan (SCH# 91103064), certified by the City Council in Resolution No. 51-93
("`Eastern Dublin EIR"). The Eastern Dublin EIR identified Significant impacts from
development of the Eastern Dublin area, including the Property site, some of which could not be
mitigated to less than significant. Upon approval of the Eastern Dublin General Plan
Amendment and Specific Plan, the City Council adopted mitigations, a mitigation monitoring
program, and a Statement of Overriding Considerations.
I. In 2004, the City approved amendments to the General plan and Eastern Dublin
Specific Plan to change the land use designation on the 27.5 acre site from Campus Office to
general Commercial that would have allowed an IKEA furniture store and other commercial
uses on the site. The City certified a Supplemental EIR (the "IKEA EIR") SCH# 2003092076
to assess the impacts of that land use change, and that SEIR was certified on March 16, 2004 by
City Council Resolution No. 44-04. In 2008, the City approved a Stage 2 Planned
Development Rezoning, Site Development review and a Development Agreement for a 305,000
square foot shopping center on the site. An Addendum was adopted along with the approval of
the Stage 1 Planned Development Rezoning in 2007. The Addendum concluded that the
potentially significant impacts of developing the site had been adequately described and
analyzed in the Eastern Dublin EIR and the IKEA EIR and that no new or more severe
significant impacts would result from future development of the site.
J. For the Project, the City prepared an Initial Study to determine if additional
review of the proposed Project was required pursuant to CEQA Guidelines section 15162.
Based on the Initial Study, the City prepared a Supplemental EIR, dated
(Resolution. No. adopted by the City Council on ), describing the
Project and identifying new impacts of the Project, some of which could not be mitigated to a
less than significant level, as well as new mitigation measures for the proposed Project in
addition to those addressed in the Eastern Dublin EIR and the IKEA EIR. Upon approval of
the Dublin General Plan Amendment and Specific Plan Amendment, Stage I and Stage 2
Development Plan and PD Rezoning, Site Development Review (Commercial Buildings only),
Vesting Tentative Subdivision Map and this Development Agreement, the City Council
adopted mitigations, a mitigation monitoring program and a Statement of Overriding
Considerations.
K. On 2014, the City Council adopted Ordinance No.
approving this Development Agreement ("the Approving Ordinance"). The
Approving Ordinance will take effect on ("the Approval Date").
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained, City
and Developer agree as follows:
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AGREEMENT
1. DESCRIPTION OF PROPERTY.
The Property that is the subject of this Agreement is described in Exhibit A attached
hereto ("Property").
2. INTEREST OF DEVELOPER.
The Developer has a legal interest in the Property in that it is the owner of the Property.
3. 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.
4. EFFECTIVE DATE, TERM, COMMUNITY BENEFIT CONTRIBUTION, AND
AFFORDABLE HOUSING OBLIGATIONS
4.1 Effective Date. The effective date of this Agreement shall be the Approval Date
("Effective Date"),
4.2 Term. The term of this Agreement shall commence on the Effective Date and
extend five (5) years thereafter.
4.3 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 ninety (90) days prior to the termination of
the date of the Development Agreement. At the time Developer provides such notice, Developer
shall make a contribution to City in the amount of Two Hundred Thousand Dollars ($200,000).
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 one-year period, commencing on the date the
Development Agreement would otherwise have terminated. The Developer may exercise its
option to extend the Development Agreement no more than five (5) times, for a maximum total
term of the Development Agreement of ten years. The total contribution for maximum extension
of five (5) years will be One Million Dollars ($1,000,000).
4.4 Termination on Sale of Individual Lots. Notwithstanding the foregoing Sections
4.2 and 4.3, the provisions of this Agreement shall terminate with respect to any individual lot
and such lot shall be released from and shall no longer be subject to this Agreement (without the
execution or recordation of any further document or the taking of any further action) upon the lot
being finally subdivided and sold or leased (where the lease is for a period longer than one (1)
year) to a member of the public or any other ultimate user. City shall cooperate with Developer,
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at no cost to City, in executing in recordable form any document that Developer (including any
successor to the title of the Developer in and to any of the afore described lots) may submit to
confirm the termination of this Agreement as to any such lot.
4.5 Community Benefit Contribution and Affordable Housing. The Developer shall
provide a Community Benefit Payment in accordance with Exhibit B (the "Community Benefit
Contribution Schedule") attached hereto and made a part hereof. The Developer shall meet its
obligations for the provision of affordable housing under the Dublin Municipal Code in
accordance with the provisions of Exhibit C (the "Affordable Housing Schedule") attached
hereto and made a part hereof. The provisions of this Section 4.5 survive the expiration of this
Agreement. The provisions Exhibit B, Community Benefits, shall survive the termination of this
Agreement.
4.6 Term of Map and Project Approvals. The term of any Project Approvals and
(pursuant to California Government Code Section 66452.6(a)), the term of any vesting tentative
map described above shall automatically be extended until the later of the following: (1) the end
of the term of this Agreement; or (2) the end of the term or life of such vesting tentative map
otherwise given pursuant to the Subdivision Map Act or local regulation not in conflict with the
Subdivision Map Act.
5. USE OF THE PROPERTY.
5.1 Right to Develop. Developer shall have the vested right to develop the Project on
the Property in accordance with the terms and conditions of 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. Such amendments, such as to Site Development
Review or Tentative Map project approvals, once effective, shall become part of the law
Developer is vested into without an additional amendment of this Agreement.
5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of
use, the maximum height, bulk, and size of proposed buildings, the location and maintenance of
on-site and off-site improvements, parking standards, procedures for and standards governing
building design, the location of public utilities (operated by the City), and other terms and
conditions of development applicable to the Property, shall be those set forth in this Agreement,
the Project Approvals and any amendments to this Agreement or the Project Approvals, subject
to the provisions of Section 5.1.
5.3 Rules Regarding Permitted Uses. For the term of this Agreement, the City's
ordinances, resolutions, rules, regulations and official policies governing the permitted uses of
the Property and governing density and intensity of use of the Property and the maximum height,
bulk and size of proposed buildings shall be those in force and effect on the Effective Date of the
Agreement.
5.4 Rules Regarding Engineering and Construction. Unless otherwise expressly
provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and
official policies governing engineering, improvement and construction standards and
specifications applicable to the Project shall be those in force and effect at the time of the
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applicable discretionary approval, whether the date of that approval is prior to or after the date of
this Agreement. Ordinances, resolutions, rules, regulations and official policies governing
design, improvement and construction standards, and specifications applicable to public
improvements to be constructed by Developer shall be those in force and effect at the time of the
applicable discretionary approval, whether the date of that approval is prior to or after the date of
this Agreement.
5.5 Uniform Codes Applicable. The Project shall be constructed in accordance with
the provisions of the Uniform Building, Mechanical, Plumbing, Electrical, and Fire Codes and
Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the
time of approval of the appropriate building, grading, encroachment or other construction
permits for the Project.
5.6 Phasing, Timing. The parties agree that the Project will generally be constructed
in phases, in accordance with Exhibit D ("Phasing Plan"), attached hereto and made a part
hereof. Subsequently Enacted Rules and Regulations. The parties agree that pursuant to
California Government Code Section 66456.1, Developer may file multiple final maps.
5.7 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 of this Agreement and
which are not in conflict with those applicable to the Property as set forth in this Agreement only
if. (a) the application of such new or modified ordinances, resolutions, rules, regulations or
official policies would not prevent, or otherwise require any reduction in the square footage or
total number or location of buildings, residential units, other improvements or parking spaces,
change or limit the land uses or limit the density or intensity of the Project or any part thereof or
impose a substantial financial burden on, or materially delay development of the Property, all as
contemplated by this Agreement and the Project Approvals and (b) if such ordinances,
resolutions, rules, regulations, or official policies have general applicability. Consistent with
Government Code Section 66498.2 (applicable to vesting tentative maps), in the event City
subsequently changes its ordinances, policies or standards during the term of this Agreement,
such changed ordinances, policies, or standards shall automatically apply to secure the vested
right for Developer to proceed with the Project under such changes, provided Developer notifies
City in writing that it elects to apply such changes and clearly specifies such changes to the
City's ordinances, policies and standards.
5.8 Approval of Application. Nothing in this Agreement shall prevent the City from
denying or conditionally approving any subsequent land use permit or authorization for the
Project on the basis of such new or modified ordinances, resolutions, rules, regulations, and
policies except that such subsequent actions shall be subject to any conditions, terms,
restrictions, and requirements expressly set forth herein.
5.9 Moratorium Shall Not Apply. Notwithstanding anything to the contrary
contained herein, in the event an ordinance, resolution or other measure is enacted, whether by
action of the City, by initiative, referendum or otherwise, that imposes a building moratorium, a
limit on the rate of development or a voter-approval requirement which affects the Project on all
or any part of the Property, the City agrees that such ordinance, resolution or other measure shall
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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 § 8558.
6. SUBSEQUENTLY ENACTED OR REVISED FEES, ASSESSMENTS AND
TAXES.
6.1 Impact 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, the dedication of any land, or the construction of any public
improvement or facilities. City agrees, however, that it will not impose any such fees other than
those that were already in effect on the Effective Date. Furthermore, Developer agrees that,
notwithstanding any rights it may obtain under its vesting tentative map, the City may increase
any such existing fees applicable to the Project, payment of which are typically required at
building permit or final map approval, even if those fees or charges were increased after the
Effective Date or after Developer's application for the vesting tentative map was deemed
complete.
6.2 Revised Application Fees. 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 only; and (3) the application of such fees would not prevent, impose a substantial
financial burden on, or materially delay development in accordance with this Agreement.
6.3 New Taxes. Any subsequently enacted city-wide taxes shall apply 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.
7. AMENDMENT OR CANCELLATION.
7.1 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 8.56.
7.2 Amendment 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 state law and Chapter 8.56.
7.3 Insubstantial Amendments. Notwithstanding the provisions of the preceding
Paragraph 7.2, any amendments to this Agreement that do not relate to (a) the term of the
Agreement as provided in Paragraph 4.2; (b) the permitted uses of the Property as provided in
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Paragraph 5.2; (c) the density or intensity of use of the Project; (d) the maximum height or size
of proposed buildings; or (e) 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.
7.4 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 with the provisions of Chapter 8.56. Any fees paid pursuant
to this Agreement prior to the date of cancellation shall be retained by the City.
8. ANNUAL REVIEW.
8.1 Review Date. The annual review date for this Agreement shall be between June 1
and July 1, 2015 and thereafter between each June 1 and July 1 during the Term.
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
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 compliance with the provisions of the Agreement. The burden of
proof by substantial evidence of compliance is upon the Developer.
8.3 Staff Reports. To the extent practical, the City shall deposit via electronic mail to
Developer a copy of all staff reports, and related exhibits concerning contract performance at
least three (3) days prior to any annual review.
8.4 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.
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 that are not otherwise provided for in
this Agreement or in the City's regulations governing development agreements, expressly
including the remedy of specific performance of this Agreement. The foregoing
notwithstanding, the Parties agree that the remedy of termination may only be exercised in the
event of a material breach of this Agreement after notice and a public hearing as set forth in
Dublin Municipal Code Chapter 8.56; and provided further, that a default by any Transferee
approved by the City shall not be deemed a default by Developer or any other Transferee
hereunder.
9.2 Notice and Cure. Upon the occurrence of an event of default by either party, the
non-defaulting 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 non-defaulting party may then commence any legal or equitable action to enforce its
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rights under this Agreement; provided, however, that, if the default cannot be cured within such
thirty (30) day period, the non-defaulting 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. 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.
10. 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 (30) days following the receipt thereof, or such longer period as may reasonably be
agreed to by the parties. 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.
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 Obli gated. 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 the 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. A breach of any obligation secured
by any mortgage or the lien against the mortgaged interest or a foreclosure under any mortgage
9
or other lien shall not by itself defeat, diminish, render invalid or unenforceable, or otherwise
impair the obligations or rights of Developer under this Agreement,
11.3 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, at its option, 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 grant a sixty (60) day cure period which can
be extended for not more than an additional one-hundred and twenty (120) days upon request of
Developer or a Mortgagee.
12. SEVERABILITY.
The unenforceability, invalidity, or illegality of any provision, covenant, condition, or
term of this Agreement shall not render the other provisions unenforceable, invalid, or illegal.
13. 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 or the Project Approvals, 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 the City for all reasonable court
costs and attorneys' fees expended by the City in defense of any such action or other proceeding.
14. TRANSFERS AND ASSIGNMENTS.
14.1 Right to Assign. Developer may wish to sell, transfer, or assign all or portions of
its Property to another entity (each such other entity 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 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: 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. In determining the reasonableness of any consent or failure to consent, the City
Manager shall consider whether the proposed Transferee has sufficient development experience
and creditworthiness to perform the obligations to be transferred. The foregoing
notwithstanding, the following shall not be deemed a "Transfer" for purposes of this Agreement:
(i) any sale, pledge, assignment or other transfer of the entire Project Site to an affiliate of
Developer and (ii) any change in the corporate form of Developer or its Affiliates such that a
transfer from a limited liability company to a corporation or partnership that does not affect or
10
change the beneficial ownership of the Project Site; provided, however that Developer shall
provide to the City written notice of such permitted change with such backup materials or
information reasonably requested by the City. In addition, Developer has the right to enter into
service contracts with third parties, including but not limited to construction and other service
contracts, to perform work required by Developer under this Agreement. No such contract shall
be deemed a Transfer under this Agreement.
14.2 Approval and Notice of Sale. Transfer or Assignment. The City Manager shall
consider and decide on any transfer, sale, or assignment within ten (10) 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 the 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 reasonably acceptable to the City Manager, concurrently
with such sale, transfer, or assignment.
14.3 Release Upon Transfer. Upon the transfer, sale, or assignment of all or a portion
of Developer's rights, interests, and obligations hereunder pursuant to Paragraph 14.1 of this
Agreement, Developer shall be 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
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, certifi cations, and
other necessary information prior to City Manager approval. If a Transferee assumes the
obligations of Developer with respect to a portion of the Developer's rights, interests and
obligations hereunder, if such Transferee defaults under this Agreement, such default shall not
constitute a default by Developer or its Affiliates or any other Transferee not affiliated with the
defaulting party and no default by Developer or its Affiliates with respect to its remaining
obligations hereunder shall constitute a default by any Transferee not affiliated with Developer..
14.4 Developer's Right to Retain Specified Rights or Obligations. Notwithstanding
Paragraph 14 of this Agreement, Developer may withhold from a sale, transfer, or assignment of
this Agreement certain rights, interests, and/or obligations, which Developer shall 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 Transferee 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.
15. AGREEMENTS RUN 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 assigns,
representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or
11
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 1468 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 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.
16. BANKRUPTCY.
The obligations of this Agreement shall not be dischargeable in bankruptcy.
17. 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
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 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.
18. INSURANCE.
18.1 Public Liability and Property Damage Insurance. During the term of this
Agreement, Developer shall maintain in effect a policy of comprehensive general liability
insurance with a per-occurrence combined single limit of not less than one million dollars
($1,000,000.00) with a One Hundred Thousand Dollar ($100,000) self-insurance retention 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.
18.2 Workers Compensation Insurance. During the term of this Agreement Developer
shall maintain Worker's Compensation insurance for all 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.
183 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
12
in Sections 18.1 and 18.2 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. 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.
19. 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:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Facsimile: (925) 833-6651
Notices required to be given to Developer shall be addressed as follows:
Stockbridge/BHV Emerald Place Land Company, LLC
c/o Stockbridge Real Estate Funds
4 Embarcadero Center, Suite 3300
San Francisco, CA 94111
Attention: Mr. Stephen Pilch
Telephone: (415) 658-3349
Facsimile: (415) 658-3449
With copies to:
Gibson, Dunn & Crutcher LLP
555 Mission Street, Suite 3000
San Francisco, CA 94105
Attention: Mary G. Murphy, Esq.
Telephone: (415) 393-8257
Facsimile: (415) 374-8480
A party may change its address by giving notice in writing to the other party. Thereafter,
all notices shall be addressed and transmitted to the new address. Notices shall be deemed given
and received upon personal delivery, electronic mail, or, if mailed, upon the expiration of 48
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 which shall
be deemed given upon verification of receipt.
20. EXTENSION DUE TO LEGAL ACTION, REFERENDUM OR EXCUSABLE
DELAY.
20.1 Litigation Challenging Agreement. If any litigation is filed challenging this
Agreement (including, but not limited to any CEQA determinations) or the validity of this
Agreement or any of its provisions, or if this Agreement is suspending pending the outcome of
13
an electoral vote on a referendum, then the Term shall be extended and Developer's
performance of any obligations hereunder for the number of days equal to the period starting
from the commencement of the litigation or the suspension to the end of such litigation or
suspension.
20.2 Excusable Delay. In the event of changes in state or federal laws or regulations,
inclement weather, delays due to strikes, inability to obtain materials, civil commotion war acts
of terrorism, fire, acts of God, litigation, or other circumstances beyond the control of Developer
and not proximately caused by the acts or omissions of Developer that substantially interfere
with carrying out the Project or any portion thereof or with the ability of Developer to perform
its obligations under this Agreement (collectively, along with the matters set forth in Section
20.1 above, "Excusable Delay"), the parties agree to extend the time periods for the performance
of Developer's obligations impacted by the Excusable Delay. In the event an Excusable Delay
occurs, Developer shall notify the City in writing of its belief of the existence of an Excusable
Delay within thirty (30) days after the beginning of any such Excusable Delay. If the Parties
agree that an Excusable Delay exists, the time or times for performance of obligations of
Developer, as well as the Term of this Agreement, shall be extended for the period of the
Excusable Delay. This provision shall not apply to Developer's obligations under Exhibit C.
21. AGREEMENT IS ENTIRE UNDERSTANDING.
This Agreement constitutes the entire understanding and agreement of the parties.
22. 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 Property
Exhibit B Community Benefits
Exhibit C Affordable Housing
Exhibit D Phasing Plan
23. COUNTERPARTS.
This Agreement is executed in three (3) duplicate originals, each of which is deemed to
be an original.
24. RECORDATION.
The City shall record a copy of this Agreement within ten (10) days following execution
by all parties.
[Execution Page Follows)
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
STOCKBRIDGE/BHV EMERALD PLACE
CITY OF DUBLIN LAND COMPANY, LLC, a Delaware limited
liability company
By: By: STOCKBRIDGE FUND II/EMERALD
Christopher L. Foss, City Manager PLACE INVESTMENT COMPANY, LLC,
STOCKBRIDGE PLACE INVESTMENT
COMPANY, LLC, STOCKBRIDGE FUND
E/EMERALD PLACE INVESTMENT
COMPANY, LLC, each a Delaware limited
liability company and a"Stockbridge
Member"
By: STOCKBRIDGE REAL ESTATE
PARTNERS I1, LLC, a Delaware limited
liability company, manager of each of the
foregoing
By:
Stephen Pilch
Managing Director
Attest:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
(NOTARIZATION ATTACHED)
15
Exhibit A
Legall D.............dt)tion
The Gretar7 at
for
St
Land DiezrIptlon of real ptoperty,situate in the Cip,,of Dublin,County of Alameda, State of California,
being more particularly described as folluv.,s:
Parcels 1,2, and A.of Parcel Map 5262, filed brihne IQ,2CX)?.,in Book 299 of Parcel Maps at Pages 69
through 79,inclusive, Official Records of Alameda County
Excepting therefrom,that portion of Parcel I conveyed to the State of California, recorded on
September 27, 2012 as Instrument No, W12-316-939, Official Records of Alameda County.
END OF DESCRIPTION
APN 966-4')33-4x15-02 Affects Parcel I
APN Affects Parcel A.
APN Affects Parcel
Exhibit B
COMMUNITY BENEFITS
The Developer shall provide a community benefit contribution in the aggregate amount
equal to the number of dwelling units in the project (currently estimated at 372) multiplied by
$7,500. The aggregate amount of the Community Benefit Contribution, based on the current
estimated unit count of 372 units, is Two Million Seven Hundred Ninety Thousand Dollars
($2,790,000) (the "Community Benefit Aggregate Contribution") and shall be paid in the
following amounts and manner, subject to Excusable Delay. The number of units attributable to
any particular neighborhood or parcel may increase up to 400 units or decrease from the
representative amounts shown on the vesting tentative map. If the number of units proposed for
Site Development Review increases or decreases, as the case may be, the Community Benefit
Contribution shall increase or decrease, by $7,500 per additional unit, and the contribution
amount below shall by increased or decreased, to reflect the number of units in each
neighborhood. The number of units shall be determined at the time a purchase and sale
agreement with a third party buyer is consummated or (if Developer or an affiliate is developing
the neighborhood),a permit is issued for the construction of a vertical building (the "Vertical
Building Permit").
1. Method and Timing of Payment.
The Project currently is planned for 372 residential units and additional commercial
development. Developer has identified six neighborhoods in the project that are depicted in the
attached diagram. The following table identifies the lots shown on the approved tentative map
that are in each neighborhood along with the proposed number of approved units in each
neighborhood:
Neighborhood Lot Nos. on No. of Units Contribution
Tentative Map Amount
1 1-16 84 $630,000
2 17-24, 27-32 93 $697,500
3 50-60 60 $450,000
4 37-42, 44-48 72 $540,000
5 33-34, 42-43 39 $292,500
6 25-26, 35-36 24 $180,000
Totals 372 $2,790,000.00
If Developer or an affiliate is developing the building, such party shall contribute the amount
associated with each neighborhood prior to issuance of the first Vertical Building Permit within
1
the neighborhood, or if a third party buyer is purchasing a portion of the Project Site, within
thirty (30) days following the close of escrow of the sale of any portion of the applicable
neighborhood.
2. Use of Community Benefit Contribution.
Initially, Developer shall pay the City forty percent (40%) of the required contributions
and deposit the remaining sixty percent (60%) of the required contribution in an escrow account
controlled by the City and Developer (the "Escrow Account"). The funds in the Escrow Account
are to be used to pay the Dublin San Ramon Services District capacity reserve fees for local and
regional sewage systems for restaurant users within the Project as directed by City and
Developer. The contributions shall be apportioned in such manner until such time as the
aggregate amount of contributions to the Escrow Account equals Eight Hundred and Fifty
Thousand Dollars ($850,000). Thereafter, one hundred percent (100%) of the required
contributions shall be paid directly to the City. Any funds remaining in the Escrow Account one
year after the issuance of building permits in the project that would result in the construction of
190 or more units shall be paid to the City.
All provisions in this Exhibit B, Community Benefits, shall survive the expiration of this
Agreement.
2
Exhibit C
AFFORDABLE HOUSING
Developer proposes the development of 372 residential units on the Property. Pursuant to
the City's Inclusionary Zoning Regulations (Chapter 8.68 of the Dublin Municipal Code) ("the
Regulations"), developers of more than 20 residential units are required to set aside 12.5% of the
units in the project as affordable units as therein specified. Developer is therefore obligated to
provide forty-seven (47) affordable units ("Affordable Housing Obligation").
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
through the payment of a fee in-lieu of construction ("In-Lieu Fees"). 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. Developer shall satisfy its Affordable Housing Obligation through
the following "alternative method of compliance" under City Code Sec. 8.68.040E:
1. On-Site Affordable Units. The Developer shall provide over the course of the
development of the Project Site fourteen (14) affordable units within the project (the "On-Site
Units"), which number shall be adjusted to reflect thirty percent (30%) of Developer's 12.5%
affordable unit obligation, should the total number of residential units in the project increase or
decrease. Unless the Community Development Director otherwise finds that the On-Site Units
will be reasonably dispersed through the Project, the individual neighborhoods shall contain the
following number of units: Neighborhood 1, 3 units; Neighborhood 2, 4 units; Neighborhood 3,
2 units; Neighborhood 4, 3 units; Neighborhood 5, 1 unit; and Neighborhood 6, 1 unit. Dublin
Municipal Code Section 8.68.030.13 shall govern the allocation between low and moderate units
within the On-Site Units and Section 8.68.030.E shall govern unit mix and design of the On-Site
Units. Developer shall enter into an Affordable Housing Agreement within 180 days of the
Effective Date of this Agreement.
2. In Lieu Fee Payments. The Developer shall pay to the City a Fee In Lieu of
Construction for 16 units of the Affordable Housing Obligation in either of the following
amounts:
(1) $1,600,000 no later than one hundred and eighty (180) days after the Effective Date
of this Agreement(subject to Excusable Delay); or
(2) An amount equal to the then-applicable Affordable Housing In-Lieu Fee for 16 units
in the amount and at the time required by Resolution 56-02,
3. Affordable Housing Credits. The Developer shall purchase directly from
Eden Housing seventeen (17) affordable housing credits in an amount equal to $100,000 per
credit, or One Million Seven Hundred Thousand Dollars in the aggregate. ($1,700,000). The
Developer shall purchase the Affordable Housing Credits from Eden no later than one hundred
and eighty (180) days from the Effective Date of this Agreement, subject to Excusable Delay
I
(the "Credit Deadline"). The credits shall be immediately applied to satisfy 17 units of the
Affordable Housing Obligation. If Eden Housing does not have such credits when Developer is
required to satisfy this obligation, then Developer will pay the City One Million Seven Hundred
Thousand Dollars ($1,700,000) within five (5) calendar days of the Credit Deadline. This
payment will satisfy Developer's obligation for 17 units of the Affordable Housing Obligation.
The City will use such funds to acquire affordable housing credits directly from Eden, if they are
created, and apply them retroactively to satisfy 17 units of the Affordable Housing Obligation.
4. Adjustment Based on Total Unit Count. If, for whatever reason, the total number
of dwelling units constructed on the Project Site is less than 372, the number of On-Site Units
and In-Lieu fees shall be proportionately reduced , such that the Aggregate Affordable Housing
Obligation equals 12.5% of the total number of dwelling units in the Project except that the
Aggregate Affordable Housing Obligation shall not be reduced as to In-Lieu Fees already paid or
housing credits already purchased and applied. If, for whatever reason, the total number of
dwelling units constructed on the Project Site is more than 372, the number of On-Site Units and
In-Lieu fees shall be proportionately increased, such that the Aggregate Affordable Housing
Obligation equals 12.5% of the total number of dwelling units in the Project.
5. Affordable Housing Agreement. In order to ensure compliance with Chapter 8.68
of the Dublin Municipal Code,_Developer shall enter into an Affordable Housing Agreement
prior to the issuance of the first Vertical Building Permit for the Project. The City Manager is
authorized to enter into such an agreement that is consistent with the requirements of this exhibit.
2
Exhibit D
PHASING PLAN
The Parties agree that the Project may be developed in phases and that Developer shall have the
right to develop the Project in development phases in such order and time, and with such
characteristics (subject to the Project Approvals) as Developer determines in the exercise of its
selective business judgment, except as specifically provided below:
The City may withhold building permits that would result in the development of more than 190
residential units on the Project Site until such time as Developer has obtained occupancy for
buildings 400, 500, 600, 700, and 800 as illustrated in attached diagram. The Parties
acknowledge and agree that Developer cannot control the timing of the leasing or tenancy of
such retail buildings and Developer's obligations hereunder shall not include the completion of
tenant improvements or furniture, fixtures, and equipment.
3
ATTACHMENT TO EXHIBIT D
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