HomeMy WebLinkAbout6.1 Kingmill Group Diamont Heightsor
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DATE:
TO:
FROM:
STAFF REPORT
CITY COUNCIL
December 4, 2012
Honorable Mayor and City Councilmembers
Joni Pattillo City Manager""'
CITY CLERK
File #600 -60
SUBJECT: PUBLIC HEARING: PLPA- 2012 - 00060, Community Benefit Agreement and
Development Agreement between the City of Dublin and the Kingsmill
Group /Diamond Heights Investments
Prepared by Linda Smith, Economic Development Director /Public Information
Officer
EXECUTIVE SUMMARY:
The Kingsmill Group /Diamond Heights Investments seeks to develop the former Crown
Chevrolet site located in Downtown Dublin. Under the Downtown Dublin Specific Plan, a
Community Benefit Agreement is required in order to allocate units from the Development Pool.
Additionally, Kingsmill Group /Diamond Heights Investments has requested a Development
Agreement to secure the future entitlements. In exchange for the allocation of residential units
and the benefits in the Agreement, the developer is offering to donate a portion of their land to a
non - profit affordable housing developer.
FINANCIAL IMPACT:
The basic five year term for the Development Agreement may be extended for up to an
additional five years. If this occurs the City would receive $100,000 for each year the
agreement is extended, to a maximum payment of $500,000. Additionally, the City will retain
ownership of any excess Affordable Housing Credits, which will be determined once the
Kingsmill Apartments and the Eden Housing (Veteran's Project) have final permits. The number
and value of the credits would be determined at a future date.
RECOMMENDATION:
Staff recommends that the City Council conduct the public hearing, deliberate, waive the
reading and introduce an Ordinance approving a Community Benefit Agreement and
Development Agreement between the City of Dublin and the Kingsmill Group /Diamond Heights
Investments for a Mixed -Use Retail /Residential Project.
Submitted By Reviewed By
Economic Development Director Assistant City Manager
Page 1 of 4 ITEM NO. 6.1
DESCRIPTION:
The Kingsmill Group /Diamond Heights Investments, a residential development company, plans
to develop the former Crown Chevrolet site at the corner of Dublin Boulevard and Golden Gate
Drive. The parcel includes two sites — a 4.97 -acre site to the north and a 1.37 -acre site south of
St. Patrick Way.
Staff met with the Kingsmill Group /Diamond Heights Investments and their representatives on
several occasions to discuss the potential project, which is envisioned to be a mixed -use
residential development that will help to reshape the Downtown area. Kingsmill Group /Diamond
Heights Investments has formally submitted an application to the Community Development
Department and it is currently being reviewed by City Staff.
The project includes two components: 1) Kingsmill Group /Diamond Heights Investments
proposes to develop 314 apartment units on the northern 4.97 -acre site, along with
approximately 17,000 of retail space on the first floor facing towards Dublin Blvd; and 2) On the
southern 1.37 -acre piece, Kingsmill Group /Diamond Heights Investments proposes to partner
with Eden Housing to entitle a 76 -unit veteran's housing project that Eden Housing will develop,
own and manage over the long term. The development of veterans housing is a key City
Council Strategic Initiative.
Staff presented the proposed terms of an agreement to the City Council at their June 19, 2012
meeting. The City Council directed Staff to proceed with negotiation of an agreement. Since
that time, the developer has requested two minor changes to the terms. The first is the addition
of four additional units on the larger parcel, which may be offset by a reduction in units for the
veteran's project, as Eden may opt for different bedroom counts internal to the project. The
second is the reduction of the extensions allowed from seven years to five years. This is due to
Kingsmill Group /Diamond Heights Investments opting not to process a condominium map with
the project submittal.
On November 13, 2012, a public hearing was held at the Planning Commission to review the
proposed Community Benefit/Development Agreement including the modifications identified
above. The Planning Commission adopted Resolution 12 -39 (Attachment 1) recommending
that the City Council adopt an Ordinance approving the Community Benefit/Development
Agreement. A copy of the draft minutes are attached as well (Attachment 2).
The purpose of a development agreement is to "lock in" the land -use rules in effect at the time
the agreement becomes effective. The agreement give developers the certainty that they can
proceed with their projects, even if the City's land use policies change in the future. While
typically the City has not processed a Development Agreement in advance of a project
entitlement, it is not unprecedented. The City and the Lin Family entered into a Master
Development Agreement for Dublin Ranch that preceded individual development applications.
This agreement would lock in the rules in effect at the present time and, further provides that, if
the project is eventually approved, the developer would have a right to proceed with the project
notwithstanding any subsequent changes in City rules.
Staff is recommending that the City Council approve the Community Benefit/Development
Agreement at this time in order to assist Eden Housing with their timeframe for tax credit
financing, which will occur in late winter /early spring 2013. The agreement will not prevent the
City from exercising the discretion it has to review the project. In other words, the City could
Page 2 of 4
still, notwithstanding the agreement, deny the project if it does not meet the standards set out in
the rules currently in effect.
ANALYSIS:
The following is an overview of the terms of the proposed Community Benefit/Development
Agreement:
• Kingsmill Group /Diamond Heights Investments will receive a Development Agreement for
an initial five -year term with options to extend for five additional years. The Development
Agreement will vest the current General Plan land use and zoning designations and the
proposed entitlement, if and when it is approved by the City.
• If the agreement is extended for years 6 through 10, Kingsmill Group /Diamond Heights
Investments will pay the City $100,000 annually.
• The term of the units obtained from the Development Pool is two years from the City
approval of the Agreement (as further described below), unless extended by the City.
• Kingsmill Group /Diamond Heights Investments will reserve 390 units of the Downtown
Specific Plan's Development Pool (314 units for their market rate project and 76 units for
the proposed Eden Housing veteran's housing project).
• As the community benefit for receiving units from the Specific Plan's Development Pool
and as consideration for the development agreement, Kingsmill Group /Diamond Heights
Investments will transfer ownership of the southern 1.37 -acre site (southeast corner of
Golden Gate Drive and St. Patrick Way) to Eden Housing for a nominal fee to allow for
the development and construction of veteran's housing.
• Kingsmill Group /Diamond Heights Investments will satisfy its affordable housing
obligation by way of the dedication of the land to Eden Housing for the veteran's project.
Projects within the Downtown Dublin Specific Plan (DDSP) require a Community Benefit
Agreement between the Developer and the City. The Specific Plan identifies the number of
residential units that may be constructed in the Plan area and establishes a pool of these units.
A developer must pull units from this pool and provide a benefit to the community for the use of
these units. A Community Benefit Agreement is required to ensure that a benefit is provided
and establishes a timeframe in which the developer must construct the units. The units are
returned to the pool at the end of the established timeframe if not constructed. A Development
Agreement is not required, although there is nothing prohibiting a Developer from seeking one
for their proposed project. California Government Code §§ 65864 et seq. and Chapter 8.56 of
the Dublin Municipal Code (hereafter "Chapter 8.56 ") authorize the City to enter into an
agreement for the development of real property with any person having a legal or equitable
interest in such property in order to obtain certain commitments and establish certain
development rights for the property. The proposed Development Agreement addresses the
entire 6.34 -acre area which includes the 4.97 -acre site at the southeast corner of Dublin Blvd.
and Golden Gate Drive and the 1.37 -acre parcel at the southeast corner of St. Patrick Way and
Golden Gate Drive. Subsequent proposals for development on the two parcels remain subject
to the requirement for future Site Development Review (SDR) approvals.
Page 3 of 4
Development Agreements are approved by an Ordinance of the City Council upon
recommendation by the Planning Commission. The proposed Community Benefit/Development
Agreement (Exhibit A to Attachment 3) was drafted with input from City Staff, the developer, and
the City Attorney.
ENVIRONMENTAL REVIEW:
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 Agreement and 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.
NOTICING REQUIREMENTS /PUBLIC OUTREACH:
In accordance with State law, a Public Notice was mailed to all property owners and occupants
within 300 feet of the proposed Project as well an expanded area which includes surrounding
developments. A Public Notice was also published in the Valley Times and posted at several
locations throughout the City. To date, the City has received no objections from surrounding
property owners regarding the Project. A copy of this Staff Report was also forwarded to the
Applicant.
ATTACHMENTS: 1. Planning Commission Resolution 12 -39
2. Planning Commission Draft Minutes from November 13, 2012
3. 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
4. Exhibit A to Attachment 3 - Community Benefit/Development
Agreement
Page 4 of 4
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:
Page 2 of 3
ABSENT: O'Keefe, Bhuthimethee
ABSTAIN:
Planning Commission Chairperson
ATTEST:
Assistant Community Development Director
G: tPAM2012tPLPA- 2012 -00060 Kingsmill Mixed Use SDROevelopment AgreemenhPC Reso DA 11- 13- 2012.doc
Page 3 of 3
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Planning Commission Minutes
Tuesday, November 13, 2012
CALL TO ORDER /ROLL CALL
A regular meeting of the City of Dublin Planning Commission was held on Tuesday, November
13, 2012, in the City Council Chambers located at 100 Civic Plaza. Chair Wehrenberg called
the meeting to order at 7:00:24 PM
Present: Chair Wehrenberg; Commissioners Schaub and Brown; Jeff Baker, Assistant
Community Development Director; Kit Faubion, Assistant City Attorney; Kristi Bascom, Principal
Planner; Linda Smith, Economic Development Director; and Debra LeClair, Recording
Secretary.
Absent: Vice Chair O'Keefe and Cm. Bhuthimethee
ADDITIONS OR REVISIONS TO THE AGENDA — NONE
MINUTES OF PREVIOUS MEETINGS — Vice Chair O'Keefe and Cm. Bhuthimethee were
absent from the meeting and Cm. Schaub was absent from the October 9, 2012 meeting,
therefore, the minutes of the October 9, 2012 meeting were not approved as there was no
quorum.
On a motion by Cm. Brown and seconded Chair Wehrenberg the minutes from the October 30,
2012 Study Session were approved as written.
ORAL COMMUNICATIONS — NONE
CONSENT CALENDAR — NONE
WRITTEN COMMUNICATIONS — NONE
PUBLIC HEARINGS —
8.1 PLPA 2011 -00003 — Moller Ranch (Braddock & Logan Services, Inc.) General Plan and
Eastern Dublin Specific Plan Amendments, Planned Development rezone with related Stage 1
and Stage 2 Development Plan, Vesting Tentative Tract 8102, a Development Agreement and a
Supplemental Environmental Impact Report.
Jeff Baker, Assistant Community Development Director, briefly discussed the project and
recommended that the Planning Commission continue the item to a date uncertain in order to
finish the response to comments on the Supplemental EIR.
Chair Wehrenberg opened the public hearing and having no speakers, closed the public
hearing.
On a vote of 3 -0 -2, with Vice Chair O'Keefe and Cm. Bhuthimethee being absent, the Planning
Commission voted to continue the item to a date uncertain.
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8.2 PLPA- 2012 -00060 Community Benefit Agreement and Development Agreement for
the Kingsmill Group Mixed -Use Retail /Residential project at the former Crown Chevrolet site in
Downtown Dublin.
Linda Smith, Economic Development Director, presented the project as outlined in the Staff
Report.
Cm. Brown asked about income qualifications of the applicants for the affordable housing
portion of the project.
Ms. Smith answered that she did not have income level information but stated the project would
primarily serve special needs veterans, as well as those veterans eligible for housing vouchers
through the Alameda County Housing Authority.
Cm. Brown asked if the 76 affordable housing units will continue to be affordable housing
restricted to veterans.
Ms. Smith responded that there is a typical 55 year deed restriction on the affordable units. She
added that the project will be primarily marketed to special needs veterans and veterans and
their families. She stated that they will also ensure there will be a supply of multi- bedroom
apartments for veterans with families, not only those veterans in transition.
Cm. Schaub asked how many units are planned for the Dublin Blvd side of the project.
Ms. Smith answered, there are 314 units planned.
Cm. Schaub asked, with this type of development agreement, would a future Planning
Commission be able to reduce the number of units in the project if they felt it was too dense for
Dublin Blvd or would they be bound by the number of units mentioned in the agreement. He
was concerned with the number of units in a nearby project and asked what the unit count was
for that project.
Ms. Smith answered the Essex project has 309 units on 3.8 acres.
Cm. Schaub was concerned with building units close to Dublin Blvd and asked if a future
Planning Commission could reduce the number of units in the project or would the development
agreement lock in the number of units.
Mr. Baker answered that the unit count would be allocated to the developer but the design of the
building would not. He compared this project to the Essex project which is 3.8 acres with 309
units; this project is 314 units on 5 acres, which is a larger site.
Cm. Schaub felt the design could be stepped back to keep the units back from the street.
Mr. Baker referred to Cm. Brown's question regarding income requirements for the affordable
units; Section 6.2.2 of the agreement states "...restricts the use of Parcel B to the provision of
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affordable housing for low- income households whose incomes do not exceed eighty percent
(80 %) of the area median income as adjusted for actual household size..."
Cm. Schaub felt that it may be harder to rent to veterans in the future, but the units could be
offered to other low- income residents who are not veterans.
Ms. Smith agreed and stated that while the project will be marketed to veterans, the goal would
be to ensure that the units are occupied with low- income residents.
Chair Wehrenberg opened the public hearing.
Woodie Carp, Senior Project Developer, Eden Housing, spoke in favor of the project. He stated
that Eden housing was asked to participate in the project and was happy to. He stated that the
project will primarily serve veterans and the families of veterans as a rental project. The project
will be restricted to residents with income at or below 80% Area Median Income (AMI) but stated
that EDEN Housing targets populations with incomes which are much lower and could be below
50% AMI, with some units as low as 30% of AMI. He stated that the specific funding program
being requested would be to serve a special needs population, which in this situation would be
disabled veterans. The specific program requires that at least 50% of the total units be rented to
the special needs population. The units may be rented to veterans and their families but will
also be offered to low- income households.
Chair Wehrenberg asked if they would be offering any other services to the veterans other than
housing.
Mr. Carp answered no; Eden has executed a Memorandum of Understanding (MOU) with
Sentinels of Freedom, an organization that works with disabled veterans for on -site services.
Chair Wehrenberg asked if the project would be strictly housing with no group rooms for
meetings or for the resident's use.
Mr. Carp responded that all their projects are designed to include a services office as well as a
counseling office that would be available for the Sentinels of Freedom or other service providers
to utilize. He stated there is also a community room for the residents to use for other programs
as well as programs provided by Eden. He stated that through the tax credit program, Eden is
required to provide services for the residents.
Ms. Smith added that the project is located across from the Chabot/Las Positas College site that
has done work with returning veterans. She stated Staff has started initial discussions with
Chabot/Las Positas College regarding how the college can support the project.
Cm. Brown asked how mobility /accessibility issues will be dealt with in the project.
Mr. Carp answered that the concept will be a 4 -story structure with an elevator and an adjacent
4 -story garage structure that will be accessible from every level. Every unit will be built so that it
can be converted to a fully accessible unit and there will be fully equipped, ADA accessible units
per the code. He stated Eden will determine how many additional accessible units will be built
in order to meet the needs of the population.
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Cm. Schaub felt the project was located in an ideal area which is close to amenities and
transportation. He asked if active service members and their families would also be eligible for
this project and given priority.
Mr. Carp answered yes; it is being evaluated and Eden will work closely with the Fair Housing
Attorney to ensure compliance with all fair housing rules and regulations. If possible, Eden
would consider a priority for families of veterans and families of active service members, but
stated that a minimum of 50% of the units would have to be reserved for the special needs
population.
Chair Wehrenberg closed the public hearing.
Chair Wehrenberg agreed that the project is in a perfect location, and stated she is in support of
the project.
Cm. Brown felt this was the first Community Benefit Agreement in the Downtown Dublin Specific
Plan (DDSP).
Ms. Smith stated this project is the first agreement under the adopted DDSP.
Cm. Brown felt this is a good model and is in support of the project.
On a motion by Cm. Schaub and seconded by Cm. Brown, on a vote of 3 -0 -2, with Vice Chair
O'Keefe and Cm. Bhuthimethee absent, the Planning Commission adopted:
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
8.3 PLPA- 2012 -00061 Commercial Corridor Design Guidelines. Creation of design
guidelines for commercial and industrial properties, amendments to the Zoning Ordinance
(Chapter 8.33 and Chapter 8.104), and an amendment to the Zoning Map for the purposes of
project implementation.
Kristi Bascom, Principal Planner, presented the project as outlined in the Staff Report.
Chair Wehrenberg opened the public hearing and having no speakers, closed the public
hearing.
The Planning Commission was in support of the project and the revisions made at the Planning
Commission Study Session on October 30, 2012.
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On a motion by Cm. Brown and seconded by Cm. Schaub, on a vote of 3 -0 -2 with Vice Chair
O'Keefe and Cm. Bhuthimethee absent, the Planning Commission adopted:
RESOLUTION NO. 12 - 40
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING CITY COUNCIL APPROVAL OF THE COMMERCIAL CORRIDOR
DESIGN GUIDELINES AND RECOMMENDING THAT THE CITY COUNCIL ADOPT AN
ORDINANCE ADDING CHAPTER 8.33 TO THE DUBLIN MUNICIPAL CODE (ZONING
ORDINANCE) ESTABLISHING THE COMMERCIAL CORRIDOR OVERLAY ZONING
DISTRICT AND AMENDING SECTION 8.104.040 RELATING TO THE COMMERCIAL
CORRIDOR OVERLAY ZONING DISTRCT SITE DEVELOPMENT REVIEW AND AMENDING
THE ZONING MAP TO ADD AN OVERLAY ZONING DISTRICT DESIGNATION TO THE
COMMERCIAL CORRIDOR AREA
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8.4 Eastern Dublin Specific Plan Amendment to Eliminate the Requirement for
Development Agreements and related Financing Plans and Infrastructure Sequencing
Programs.
Kit Faubion, Assistant City Attorney, presented the project as outlined in the Staff Report.
The Planning Commission was in support of the project.
Chair Wehrenberg opened the public hearing and having no speakers, closed the public
hearing.
On a motion by Cm. Schaub and seconded by Cm. Brown, on a vote of 3 -0 -2, with Vice Chair
O'Keefe and Cm. Bhuthimethee absent, the Planning Commission adopted:
RESOLUTION 12 - 41
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL AMEND THE EASTERN DUBLIN SPECIFIC
PLAN TO ELIMINATE THE REQUIREMENT FOR DEVELOPMENT AGREEMENTS AND
RELATED FINANCING PLANS AND INFRASTRUCTURE SEQUENCING PROGRAMS
NEW OR UNFINISHED BUSINESS — NONE
OTHER BUSINESS - NONE
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10.1 Brief INFORMATION ONLY reports from the Planning Commission and /or Staff,
including Committee Reports and Reports by the Planning Commission related to
meetings attended at City Expense (AB 1234).
10.2 Mr. Baker mentioned there will be a Study Session regarding the Economic Development
Element of the General Plan scheduled for Tuesday, December 11, 2012 at 6:00 pm.
10.3 Mr. Baker discussed the upcoming agendas for future Planning Commission meetings.
10.4 Chair WehrenbergR mentioned that the Downtown Regional Sign Appeal will be heard at
the November 20t City Council meeting. Mr. Baker agreed.
ADJOURNMENT — The meeting was adjourned at 7:34:05 PM
Respectfully submitted,
Doreen Wehrenberg
Planning Commission Chair
ATTEST:
Jeff Baker
Assistant Community Development Director
G:IMINUTESI201ZPLANNING COMMISSIOM 11. 13.12 DRAFT PC MINUTES. docx
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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
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 Community Benefit/Development Agreement
was held before the City Council on December 4, 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 Staff
Report, 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
2
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 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:
ATTEST:
City Clerk
3
Mayor
RECORDING REQUESTED BY:
CITY OF IDUBU N
Men Recorded mail -ro..
City, Clerk
City of DUblin
100 Civic P'laza
Dublin, CA 94568
Fee Waived per, GC 27383
Space above fts line for Recorder's use
COMMU NUJ, I-I"Y BENEFIT AGREEMENT AND DEVELOPMENT A(':')REEI\AEN-f'
BY AND BETWEEN
THE CITY 017 DI BI-IN
w=
DIAMOND FIEIGH-rs INVESTMENTS IV, LLC
RELATING TO THE
DEVELOPMENT OF -1-11E CROWN CHEVROLET SITE
A11111111111m
DOWNTOWN DUBLIN SPECIFIC PLAN
w
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
E, DEVELOPER anticipates that, upon, or in anticipation of, receiving all
entitlements, it will transfer DEVELOPER's interest in [3arcel A to Fair-field Residential
Cornpany U.-C (or ilts affiliated entity) ("Fairfield ResidenfiM"), and it will transfer
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DEVELOPER's interest in Parcel:l B to Eden FIOUsinig Inc., a California non.-profit public
benefit corporation (or its controlled affiliate, or similar affordable housing provider)
("Eden"),
-FY �s processing, variMs nd use
F IDEVELOPEF� has applied for, and: Cl I la
approvals in connection with the development of the Project, including, without
limitation, a Site Development Review approvW, applicable to Parcel A, and a Site
Development Review approval, applicable to Parcel B. AH such approvals collectively,
together with any approvals, or perrnits now or hereafter iSSUed with respect to tfle
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, whiich, if granted by
C1 f"Y, shall autornaticMly become part of the Project Approvals.
Id . CITY desires the timely, efficient, orderly and proper developrnent of the
Project and the Property.
L The City Council has fot.md that, arnon other attributes, this Developrnerit
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 InCILISionary Zoning Regulations, Chapter 8.68.
1.1, CITY and DE"'VELOPER 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.
L On 2012, the City Council of the City of DUblirl adopted Ordinance
No, approving this CornmUnity Benefit Ag ream ent and [)eveloprnent
Agreement ("Approving Ordiriance"). TIIEa Approving Ordinance will ta,ke effect on
. . . .. ..... . ..... I,--- ("Approval Date").
TERMS AND CONDITIONS
De.s.cription of Prop y,
The Property which is the subject of this Development, Agreement is described in
the F�ecitals,
2. Interest of DEVELOPER.
The DEVEI-OPER has a legal or equitable interest in the Property,
1 Re1atiqnfhip_.o,f,, CITY _and _DEVELOPER..
4, Effective Date and 1"erm.
4A Effective Date, The effective date of this Agreement, ("Effective
Date") shall be the Approval Date of the Approving Ordinaince as defined in Recital! L.
4-2 -rerm of Agreement. The "Term" of this Development Agreement
shal,l commence on the Effective Date and shall continUe for five (5) years from the
Eff ective Date, unless otherwise extended or terminated as provided in Section 4, 2.
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applies to Parcel B and Ederi as set forth in thin SUbsec6on 4. ?.1 but WiHIOLa the
payment of any extension contribution.
4.3 Terrn Of Proj,�j _�NpA)r`QV IS. PUrsuarit to the Subdivision Map Act
qL
(Gov't Code § 66410 et sec/.), and in pardCUlar, Government Code Section 66,452.6(a),
the term of any subdivision rnap (parcel, t entative or otherwise) shall be extended
aUtOrnatiCall Y for file 'Term of this Agreemerit, and shall all so be extended by any other
extension(s), granted under the Subdivision Map Act and/or CITY ordinance consistent
with the StAbdivisiorr Map Act.
4A Termi of Residential Allocations.
4.4.1 Consisterit with Section 6 of this Agreernent, the "Residential
Allocation "Terrn" for the "Residerifial Allocations" (as that term is defined by this
Agreeinvent) 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
Notwithstanding the foregoing, it is acknowledged that DEVELOPER shall riot have a
right to the Residential Allocations Until SlAch time as it has sold Parcel B in accordance
with Subsection 6.2.
5. Vested Rights/Use of the f ��Lfty/ApLficable Law/E rouge ,§,,,jng-
5.2 f(
te, s, E cp tic rr s Dedications. CITY arid DEVEI OPER agree that
this Agreem nt does not limit the CITY's discretion to irnpose or require payment of any
fees, in connection with the developrrient cif t1le Prqje(.,.t for purposes of mitigating
environmental and other irripacts of the ProJect, dedication of any land, or constrUction
W
moratoriUrn applies to all or any part of the Project then the Terrn shall al-itornaticpally be
extendedfear a period of time equal to the Moratorium period.
53 Revised Appligqlion Fees,. Notwithstanding section 5.2 above, arly
existing application, processing arid inspection fees that ar ,g revised dUring the Darren of
this Agreement shall apply to the Project provided that (1) SUCII fees have general
applicability, (2) the application of such fees to, -the Property is prospective, and (3) the
appfication 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 legafity of any sk.tch
application, processing arid/or inspectionfees,
51.8 New Taxes,. This, Agreement shall not prohibit the applicatiorl of
any subsequently enacted city-wide taxes to the Project provided that (1) the application
of such taxes to the Property is pro tive, and (2) the application of sucl-i -taxes would
not prevent development in accordance with this Agreement. By so agreeing,
DEVELOPER does not waive its rights to chalIenge the legality of any SLAGII taxes.
5®9 P si Ui il Lit i -1 6, this Agreement
_11�L_ _Ii _g.. Except as specified in Sectioi
contains no reqUiremerits -that DEVELOPER must initiate or coryiplete developrnent of
the Project within any period of time set by CITY. It is the intention of -this provisiort that
DEVELOPER be able to develop the Property in accordance With its own time
schedules and the Project Approvals,.
5.10 Processing.
5.1 C).1 Nothing iri this Agreement shall be cons true ed to limit the
authority or obligation of CITY to hold necessary public hear-irigs, nor to firnit 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 shial1l 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
respons,ibilities regarding approvals already given for the Specific Plan, provides certain
vested rights to laws and approvais already in place, provides a protocol by which later
Project Approvals may be pro d by DEVELOPER and later included into this
Agreernent, if applicable if and only if such Project Approvals are corripliant with all
controlling California law (includirig proper, Planning arid Zoning Lam/ and CE QA
cornpliliance), have secured approval of t[ie Part.ies, and are a(Jopted/approved by the
cl_ry.
6. Comrnun_ity ELnefit �Ireernerit,
L . . ........ . _b
61 enet- ally. As stated above, fi'ie Specific, Plan contemplates a
"Cornmunity Benefit Agreement" whenever Residential Allocations are given by CH'Y
01.11t of the Residential Allocation "PoO" establi shed by die Specific Plari. This Section 6
of the Agreement contains that Cornrnunity Benefit Agreement. The term "ResidentiM
Allocation" as used in the Agreement means an allocation of the right to construct
residential units frorTithe Residential Allocatioirl 1`)ool established by the Specific Pian,
6,2 Affordable I F:�
1 o u L (1q,
6.2.1 Nominal-Price Sale - of "" Parcel __ B _. DEVELOPER shall sell,
ParcO B for a "Norninal Price" to Eden Housing, Inc,._______
nc. or one of its affiliates (or another
entity on City Manager approval) to facilitate the development of Parcel B as deSGribed
in Recital D with affordable rental hOUsing units primarily intended for households with
veterans of the United States, Arrned Forces, For the purposes of this Agreernent, a
"Norninal Price" shall be any sales price that is Orle-thOUsand dollars ($1000) or less
(not including, and riot limiting, the purchaser's share of escrow fees, title insurance
costs, 'transfer taxes, prorated taxes and assessments and other custorriary closing
costs).
6. 2.2 Use Restriction on Parcel . Cori cui rre ntly with the recording
of the grant deed transferring Parcel B to Eden (or other transferee approved by tfie
City), Eden (or other approved tram,,feree) and the City s,halil record a use restriction in
favor of the City that restricts the use of Parcel B to the provision of affordable housing
for low--incorne households whose incornes do not exceed eighty percent (80%) of'true
area mediurn incorne 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 i rrip rove rnents
on Parcel B, regardless of who shall be the owner of Parcel B.
6.2.3 Compliance with lnclu, iloriar zonjiLng ELeggigtJons for
pevelqp_qiet1t.. 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 payrnent 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 dedicatiori, or the
use of credits, Under the Regulations, if DEVELOPER constructs the maximurn nurriber.
Of units on Parcel A contemplated by this Agreement, its affordable housing reqWrernent
Would be 39 units. DEVELOPER intends to fully satisfy its obligations by way of the
norninal-price sale of land reqUired by this Section 6. The City agrees that this norninal-
price sale shall be deemed to satisfy DEVELOPER's affordable housing obligations
under, the linclusionary Zoning Regulations for the development Of UP to 314 i.,inits on
Parcel A. More specifically, pursuant to section 8.68,040.0 of the DiA:flin MUnicipal
Code, the DEVELOPER's affordable unit Obligation with respect to tl-ie residential
development of up to 314 market.-rate units proposed on Parcel A wiH be satisfied by
virtue of the proposed nominal price sale. Any developrTient on l"Darcel A in excess of
314 units will be Subject to 'the reqUirernents of Chapter 8.68 of the Dublin MlAnicipW
Code. The City (".OUncil [-ias separately rnade the findings required by Section
8.,6,8,040.0 or has waived such requirements in whole or part under Section 8.68,040 E.
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6. 2.4 Treatryient of fford bl R.Mit Credits Created, b
-0-2y--Pel —VE-1 I on
merit on Parcel B, The parties agreethat any "aff ordable unit credits" created by virtue
of the WnStr'LlCti011 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 8,6 8.0160 of the Dublin Murflcipal Code and
any such credits shall be deemed irnmediately transferred to CITY once they have been
created.
63 Corrirriuriity "Ing
_�Qpnefit From Affordable Housit CITY recognizes
,that DEVELOPER'S sale of Flarcel B for a Nominal Price to Eden for the use described
above is as qualifying "Gornmurlity Benefit" under the, Specific Plan, as it will assist Eden
, or its successor, to pursue successfully the develop rnent 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 frorn the provision of such
affordable housing, as set forth in greater detafl in the Dublin GeneraI Plan's HOUSirrg
Element. No other Community Benefit payrnents or requirement s shall be irnposed on
DEVELOPER in exchange for the residential allocations specified iri Section 6A below.
6A Grant of f s,idential 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 1Re sidential 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 arid
discretionary Project Approvals are approved by the City. C11-Y may rnake the right to
construct residential units tinder the Project Approvals conditional upon the sale of
Parcel B, as contemplated under Subsection 6,2 above.
6.4A 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, riot to exceed 76.
'7. Amendment or Cancelliation.
7.1 Modification Because of Conflict with State Federal ederal Laws, If
. . .........
state or federal laws or regullations, enacted after, the Effective Date of this, Agreement
prevent or preclude cornpliance with one or more provisions of this Agreernent or,
require changes in plans,, maps or permits approved by the crry, the Parties shall meet
and confer in good faith in as reasonable attempt to modify this Agreement to comply
with such federal or, state laws or regulations. Arty such amendment of the Agreernent
shall be consented to by DEVELOPER arid approved by the City Council (in
accordance with Chapter 8.56).
7,2 Amendrnent.,t� uWntu ql Conserit, This Agreernent rnay be amended
(in whole or part) in writing from time to firne by mutual corisent of the Parties hereto (or
their Successors), and in accordance with the procedi.ires of State law arid Chapter
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8,5 6. When a Party seeking such an arnendrnent owns only a portion of the whole of
the Property ("Portion"), then such Party may only seek amendryient of this Agreeryient
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 constrt,mtion or
reconstruction on or of the same, then the association shall be deerned to be the
''owner" of that Portion of the Property for the pt,irpose of amending this Agreement,
T3 insubstantial Amen dirrierits, Notwithstanding the proviisions, of the
preceding section 7. 2, any arnendnients to this Agreement which do not relate to (a) the
term of the Agreement as provided iin 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 I Exhibit B; (d) conditions, terms, restrictions or requirements for
SUbsequent discretionary actions; (e) the density or interisity of use of the Project; (f) the
maxinlUrn 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 eit[-ier the Planning Commission
or the City Council before the parties wiay exect.de an anieridn"ient hereto, CITY's
Public Works Director shall determine whether a reservation or dedication is
"significant".
7A Cancellation 1)y Mutt,!gj, Consent, Except as otherwise permitted
herein, this Agreement may be canceled in whole or iin part only by an amendment
which complies with Section 7.2. Any fees paid pursuant to Paragrapl,-i 5.3 of this
Agreement prior to the date of cancellation shall be retained by C1W
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. Tl"ie C11"Y's Community Development Director
shalli 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. DEVEL0121ER shall provide evidence to the Gornalunity
Development Director prior to the hearing on the annual review, as and when
reasonably determined necessary by the CornmUnity Development Director, to
demonstrate good faith efforts to corriply with the provisions of tl)is Agreernent. The
burden of proof, by substantial evidence, is upon the DEVELOPER.
8.3 Staff rts. 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 ci ry iri corinection witl,-) tile
annual review shall be paid by DEVELOPER in accordance with the CITY's schedule of
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fees in effect at the tirne of review. Frorn and aft-er -the time Parcel B is transferred to
Eden, this subdivision 8.4 shall riot apply to Parcel B or Eden,
9. Defi.i u It.
9.1 Othe ' r R ' emedie,s Available, Upon the oc currence 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 Agreernent or in CITY's regulations governing
development agreements, expressly including, without lirnitation, 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 Edein 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 conditiori affecting only Parcel A shall not COnStitUte a
default by the owner of Parcel B and no action, rernedy, attorney:'s fees or other costs
may be sought against the owner of Parcel B or Parcel B. Similarly, after Parcel A arid
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 air Parcel A, From and after the time that 11"'arcel A and Parcel B are owned by
different Parties, there shall be no joint or- several liability between or are the
different owners.
9.2 Notice end 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 riot cured by the defaulting Flarty within thirty (30) days
after service cif such notice of default, the nondefaulting Party may then commence any
legal or equitable action -to enforce its rights under this Agreement; providled, however,
that if the default cannot be cured within SUCh thirty (30) day period, the riondefaulting
piarty shall refrain from any Such legal cur. eqUitable action so long as the defaUffirIg party
begins to cure SUch default within sucl ithirty (3,0) day perioid arid diligently PUrSUeS Such
cure to completion. Failure to give notice shall not constitute a waiver of any default,
9.3 No Damagg Aqg_�njs� .. . IT o Y, In n event shall damages be
awarded against CITY upon an event of default o:r upon tern-iination of this Agreernent
except as otherwise expressly provided herein,
M E§top.)L el Certificate.
101.1 Any Party may, at any firne, and from time to time, request written
notice frorri the other Party requesting Such party to certify in writing ffiat, (a) this
Agreerrient is in -full force and effect and a binding obligation of the Parties, (b) this
Agreement has riot been arriended or rnodified either orally or in writing, or if so
arriended, identifying the aryiendryients, and (c), to the knowledge of the certifying Party
the requesting Party is not iri deft)Ult in the perforrnance of its obligationS Under. this
Agreement, or, if in default, to describe therein the nature and arriount of any such
defaults,
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10.2 A Party receiving a request heret.inder shall exeCUte and retUrn
i
such certificate within twenty (20), days following the rec6pt thereof, or such longer
period as may reasonably be agreed to iin 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.
1. Mojqgq@e Protection �Lt -,§,�of Qum,
_.L q hj,
M
1Z Severabilitv- Conflict. The unenforceability, invalidity or illegality
(collectively, "illegali-ty" or "illegal") of any provisions, covenant, condition or term of this
Agreement (collectively, "provision(s)") shall not render the other provisions of this
Agreernent illegal, and shall Nye corisidered "severed" frorri 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 Agreerflent shall control.
13. Attornen' Fee and o
s Qzs t;,S.
..........
13.1 If CITY or DEVELOPER initiates array action at law r in equity to
enforce or to interpret the terrTIS 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 Agreernent, 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, reirnbUrse CI'TY for all reasonable court costs and attorneys' fees expended Icy the
City in defense of any Stich action.
14, "I"ransfers and '. 8,s
. . . ..... _L jsiqnrLients.
'14.1; Lq_reernent Runs with the Land. All of the provisions, rights, terryls,
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 conSfitUte
covenants running with the land PLAI'Swant to applicable laws, includirig, but not limited
to, Section 1468 of the Civil Code of the State of California, Each covenant 'to do, or
refrairr frorn 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
proper-ties, and (d) is binding upon each Party and each successive owner during its
ownership of such properties or, any portion thereof, and shWI be a benefit to and a
burden upon each I Party and its property hereunder and each other person Succeeding
to an interest in Such properties. -rhe provisions of this Secti�on 14.1 are subJect and
subordinate to the provisions of Section 7.2 which permit aa-ieridment of this
Agreement.
14.2 DEVELOPER's Rig_!jtL(?6ssj.0, All of DEVEL OPER'S rights,
interests and obligations hereunder (or any portion Of SUch rights which DEVELOPER
wishes to transfer) may be transferred, sold or assigned in WnjUnGtion with the transfer,
sale, or assignment of the Property subject hereto, or any poilion! thereof, at any tirne
during the term of this Agreement, provided that no transfer, sale or assignin,-ient of
DEVELOPER's rights, interests and obligations hereurlder shall occur Without the prior
written notice to UTY arid approval by the City Manager, which approval shall not be
Unreasonably withheld or delayed, The City Manager shall corisider arid decide the
rnatter withiri ten (10) business days, aft er DEVELOPER's notice provided and rec6pt
-13--
by City Manager, of all necessary d0CUments, 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, experierice,
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 CFFY; b) assuring that all obligations of
DEVELOPER are allocated as between DEVELOPER and the proposed purchaser,
transferee or assignee as provided by this Agreernent; and c) assuring C FFY t[iat the
proposed PlArchaser, transferee or assignee is financially capable of performing the
DEVELOPER's obligations hereunder not withheld by DEVELOPER.
14.3 Notwilt[istanding 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;
()zany 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;
(4) Fairfield Residential in conjunction with the sale of Parcel A, provided that
DEVELOPER has, at the tirne of the transfer, con-iplied 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 arid its transferee; or (5) Eden Housing Inc., its affiliates or a lirnited
partner of which the gienerall, partner is an affiliate of Eden ("Eden"), in conjUnCti011 with
the sale of Parcel B.
14.4 Release Upon -Bra!2§jer, Upon the transfer, sale, or assignment of
Parcel A DEVE LC, PER's rights, interests and obligations hereunder pursuant to
sections 14.2 or 14.3 of this Agreement, DEVELOPER fu ill be released frown 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 DEVEI:.-OPER 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 SUbjectto all the
provisions hereof pertaining to the portion of the Property transferred to Such
transferree, purchaser or assignee, and shall provide all necessary d0CUrnents,
certifications and other necessary inforrnationi prior to City Manager approval if required
by the provisions of this Agreement.
14.5 DEVELOPER Ri [it to Retain S ep_fified Ri i�s or O.Llig,-gip
p2 -11 gL _ _ t _Q
DEVELOPER may withhold fro1T1 ',)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 iin a written, document to be appended to this Agreement
and recorded witl--r the Alameda County Recorder prior to the sale, transfer or
assignment of the Property. DEVELOPER',,, purchaser, transferee or, assignee shall
then have no interest or obligations for si.ich rights, interests and obligations and this
Agreeffient shall remain applicable to DEVEL..OPE with respect to such retained rigl'rts,
interests and/or obligations.
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15. Bankr��tc ,
The obligations ofthis Agreerrier-it shMl riot be dischargeable in [.)ankruptcy.
'16, Indemriffication.
DEVELOPER agrees 'to indemnify, defend and hold harmless C11"Y, and its
elected and appointed councils, boards, corrimissions, officers, agents, employees, and
riepresentatives frOrni any arid all clairns, CO S (inClUding legal fees and costs) and
liability for any personal injUry Or pl,operty darnage which may arise directly or indirectly
as a resulit of any actions or inactions by tf-ie DEVELOPER, or any actions or inactions
of DEVELOPER's contractors, subcontractors, agents, or ernployees in c(:mi rection with
the construction, improvement, ope ratio n: !P o m
r ainten ce an of the Project, 1,,)rovided that
,
DEVELOPER shall have no obligation under tl,,iiis Section 16 with respect to negligence
or wrongfid condUCt of CITY, its contractors, subcontractors, agents or ernployees or
with respect to the maintenance, use or condition of any, improvement after, the lime it
has been delivered or dedicated to and accepted by the C11"Y or another public entity
(except as provided in an improvement agreement or maintenance bond). If CITY is
narned as as party to any legal action for which I tsV ELOPER has a duty to defend or
inden,inify CITY then CITY will cooperate with DEVELOPER, will appear in such action
and will not unreasonably withhold approval of as settlernent 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 SUCCeSS0ror transferee
of Developer is providing the indemnities described in this Section 16 as to its
respective development on its respective Portion only,
,17. Insurance.
17.2 Workers' Coo moens aft ion Insurance, At all firries fl ,iat DEVELOPER
is, constructing any improvements that will become public irnprovements, DI MELOPER
shaH maintai!n 'Workers' Compensation insurance for all per; ons, employed by
DEV ELOPE F- for work at the Project site. DEVELOPER shall reqUire each contractor
and subcoritractor similarly to provide., Workers' Compensation inSUrance for its
respective employees. DEVELOPER agrees to indernnify the CITY for any daniage
reSUItir1g from DEVEI....OPER's failure to maintain any such inSUrance,
17,3 Evidence of InSUrance, Prior to cornmencernent of corlstruction of
any improvernents v�hOh Wil m____ become PUbIic irnprovernents, DEVELOPER shiall furnish
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CITY satisfactory evidence of the inSUrance required in Sections 17.1 and 1 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.
M Sewer and Water.
DEVELOPER acknowledges that tl,-ie Project reqOres water and sewer permits
from the Dublin San Ramon Services District ( "C SIB which is another t ibllic agency
not within 'the control of CITY.
19. Notices.
All notices re(JUired or provided for under this Agree urn erit 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 foflows�
0=1
Eden, l-IOUsing, Inc.
22645 Grand Street
1--layward, CA 9454.1-5031
Attention-. President
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20,, Recitals.
. ....... . . . . .........
The foregoing Recitals are true and correct and are aiade a part hereof.
21,. ?, qLqerneqt is Entire UnderstandLtIg.
This Agreement constitutes the entire understanding and agreernent of tile
parties with respect to this Agreernent,
22, Exhibits.
The following documents, are referred to in this Agreerrient and are attached
hereto and incorporated herein as though set forth in fulll:
Exhibit A Legal Description of Property
23. Qoui:rterpAr[,,s.
This Agreement k, 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 DEVEI...OPER
providing CITY notice that a grant deed conveying the F roperty from the owner of
record as of the Effective Date to DEVELOF-IER is recorded in the Official Records of
Alameda County.
25. ��3)aLate )� e-Ment Upon TrELnsfer ot,p -_rcel B.,
glt_ _g
Notwithstanding any other provision to the contrary contained herein, the Parties
acknowledge arid agree that upon transfer of Parcel B to Eden or other approved
transferee, the covenants, obl:igation!s 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 owneir of Parcel F3, as if there were) two separate
agreements for Parcel A and Parcel B, Nothing herein is interided or shall be construed
as making the owirer of Parcel A arid the owner of Parcel B agents oat. the other- or joint
venturers or partners.
,1T.
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
By:
Joni Pattillo, City Manager
Attest:
Caroline Soto, City Clerk
Approved as to"form
John Bakker-, City Attorney
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DEVELOPER
Diamond Heights Investments IV, LLC,
a California firnited liability company
By: Seagirt Management, LL. C,
a California limited liability company
Its: Manager
7
By:__
Keith Fichtner
Its,- President
Beginning at the intersection of the Northeastern line of the land described as Parcel 2 in the Deed by I
Clayton (5rr, etal., to Motel Interstate Systerns, Inc,, dated April 30, 1959, recorded June 8, :1959 in Book 90,52
of Official Records of Alameda County Page 82, Instrument No. AQ/67605, with a llne 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 lline, South 690 08' 15" West 35532
feet; thence tangent to the last irrarned line 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 20151'45'
Fast 502.50 feet; thence North 6911 08' 15" East 400 feet to said Northeastern line of said land; and thence
along the last named line, North 210 05' 30" West 544,5(1 feet to the point of beginning.,
Exceptifig therefrom that portion described in the Final Order of Conderrinatior) repo�r
.qefJ ApHl B, 1997 a!s
Instrument No. 97090524.
A P N : 941-1500-015-09
AL TA (arnmillnent —'2006
. . . . . . . . ..... . ............ .......
copytight American Land Me Assoclatlom All rights reserved. The use of this Form Is restrided to
AU'A licensees and ALTA mernbers In good standlnqa5 of the date of use. All other use-, are prohlbitted. Reprinted under
he frorn the Anwrican land Title Assoclatlon,
Pare el D , Parcel Map 2.621, recorded December 20, 1978, Parcel Map Book :107, Page 50, Aiameda County
Records.
B(cepting therefrom that portion described in the Deeds to the County of Aiameda recorded February 14,
2002, as Instruments Nos. 2002973138, and 2002073439,
APN: 944-1500-032-02
ALTA ComrnfteO- 2006
Tjpv9Wt Ameo"k;n LaWl"Itle Awoclatlom All rights merved."The use of this Form Is rostrided to
AurA kensees and ALTA mernbers In good standing as of the date of use, All Wier um are piohlbited. Reprinted Under
11cense front the Amadcan Land -Rde Assoclation,