HomeMy WebLinkAbout98-007 GenMotorsAutomall DACITY OF DUBLIN
PLANNING COMMISSION
AGENDA STATEMENT/STAFF REPORT for April 13, 1999
SUBJECT:
PUBLIC HEARING PA 98-007 General Motors Automall Development
Agreement
PREPARED BY:
Eddie Peabody, Jr., Director of Community Development
DESCRIPTION:
An Ordinance approving a Development Agreement between the City of Dublin,
Argonaut Holding, Inc, and Alameda County Surplus Property Authority. The
Development Agreement is required by the Eastern Dublin Specific Plan. Items
included in the Development Agreement include, but are not limited to, the
financing and timing of infrastructure; payment of traffic, noise and public
facilities impact fees; oversizing of roads and general provisions.
RECOMMENDATION:
Recommend that the City Council adopt an Ordinance approving a Development
Agreement for the General Motors Automall.
BACKGROUND:
This project is located at the southwest comer of Miller Court and Dublin Boulevard, within the Eastern Dublin
Specific Plan area. The Specific Plan was adopted by the City of Dublin in November 1993, and established
land use designations for approximately 3,300 acres of land east of the Camp Parks military reserve. The
project site was given a land use designation of"General Commercial/Campus Office/Stream Corridor and
Open Space" in the Specific Plan.
The project site is part of the 800+ acre property known as the Santa Rita Property, owned by the Alameda
County Surplus Property Authority, formerly used for U. S. Army military activities. All structures from
previous uses have been removed.
ANALYSIS:
Procedural Background:
One of the implementing actions of the Eastern Dublin Specific Plan calls for the City to enter into
Development Agreements with developers in the plan area. The Development Agreement provides security to
the developer that the City will not change its zoning and other laws applicable to the project for a specified
period of time. Additionally, it is a mechanism for the City to obtain commitments from the developer that the
City might not otherwise be able to obtain. The Development Agreement is one means the City has to assure
that the Specific Plan goal, that new development fund the costs of infrastructure and service, is met.
COPIES TO: Applicant: Koll Development Company
Property Owner: Alameda County Surplus
PA File: 98-047
City procedure requires that there be three public hearings on Development Agreements. The purpose for the
hearing before the Planning Commission is to recommend the approval for the Agreement to the City Council.
DEVELOPMENT A GREEMENT:
Attached to this Staff Report is a Development Agreement (Attachment 1) between the City of Dublin,
Argonaut Holding, Inc. and Alameda County Surplus Property Authority. This Development Agreement is
based on the standard Development Agreement developed by the City Attorney and adopted by the City Council
for Eastern Dublin Projects. In general, the Agreements reflect what has been determined to be the
infrastructure needs for the specific project. These needs are determined based on submittal of engineering
studies and plans.
The Agreement: The City Attorney drafted the proposed Development Agreement with input from City staff,
Argonaut Holding, Inc. and Alameda County Surplus Property Authority Staff and their attorneys. The
Development Agreement sets forth the agreements between the parties in relation to many items, including, but
not limited to, infrastructure construction and phasing, and the payment of various required impact fees.
The Development Agreement becomes effective for a term of five years from the date it is recorded. The
Development Agreement runs with the land and the rights thereunder can be assigned. The main points of the
Development Agreement can be found in Exhibit B of Attachment 1 of the Development Agreement and are
highlighted below:
Infrastructure Construction and Traffic Impact Fees: The City requires that Developers in Eastern Dublin pay
traffic impact fees for certain City wide improvements to the circulation system. Additionally, fees are charged
for certain circulation improvements specific to Eastern Dublin. Developers are also required to make certain
improvements to the circulation system that is required as a result of their project. The City determines the
direct project impact through a traffic study that is conducted.
Based on the traffic study conducted for the General Motors Automall, it was determined that certain
improvements were required to the cimulation system as a result of the projected future traffic from the project.
These improvements include:
1. Widening of Tassajara Road offramp from 1-580 to create additional lanes
2. Construction of the Dublin Boulevard over Tassajara Creek
Other improvements that were identified could be phased and put in as required by traffic warrants or when
other projects come on line. The Agreement sets forth the City, Argonaut Holding, Inc. and Alameda County's
understanding in relation to the phasing of infrastructure construction.
Other Infrastructure Improvements: The Development Agreement also provides for the construction of
certain other improvements to serve the project site such as off-site sewer, water, storm drainage and other
utility services as required by the tentative tract map approval.
CONCLUSION:
Approval of this Development Agreement will implement provisions of the Eastem Dublin Specific Plan. The
proposal is consistent with both the General Plan and Specific Plan.
GENERAL INFORMATION:
APPLICANT:
PROPERTY OWNER:
LOCATION:
LEGAL DESCRIPTION:
GENERAL PLAN
DESIGNATION:
SPECIFIC PLAN
DESIGNATION:
EXISTING ZONING
AND LAND USE:
Argonaut Holding, Inc.
C/0 GM Worldwide Real Estate
39465 Paseo Padre Parkway, Suite 3700
Fremont, California 94538
Surplus Property Authority of Alameda County
224 West Winton Avenue, Room 151
Hayward, CA 94544
Southwest comer of Miller Court and Dublin Boulevard
Parcels A, B & C of Tract Map 7250
General Commercial (GC)/Campus Office (CO) and Stream Corridor and Open Space
General Commercial (GC)/Campus Office (CO) and Stream Corridor and Open Space
PD General Commercial/Campus Office/Stream Corridor and Open Space
Land Use: Presently Vacant
(A:gm pc da st)
RESOLUTION NO. 99-__
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING THAT THE CITY COUNCIL ADOPT A DEVELOPMENT AGREEMENT
FOR PA 98-007 THE GENERAL MOTORS AUTOMALL PROJECT
WHEREAS, Argonaut Holding, Inc., and the County of Alameda Surplus Property Authority (Alameda
County) has requested approval of a Development Agreement for the General Motors Automall Project on15 +_
acres at the southwest corner of Dublin Boulevard and Miller Court in the Eastern Dublin Specific Plan area;
and
WHEREAS, a Development Agreement is required as an implementing measure of the Eastern Dublin
Specific Plan; and
WHEREAS, This project is within the scope of the Eastern Dublin Specific Plan and General Plan
Amendment, for which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration (SCH
86082092) has been approved for the Santa Rita Specific Plan Amendment of which this project is a part.
That Mitigated Negative Declaration together with the Program EIR adequately describes the total project for
the purposes of CEQA.
WHEREAS, the Planning Commission did hold a public hearing on said application on April 13, 1999;
and
WHEREAS, proper notice of said 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 approve the Development Agreement; and
WHEREAS, the Planning Commission did hear and use their independent judgment and considered all
said reports, recommendations and testimony hereinabove set forth.
NOW THEREFORE BE IT RESOLVED THAT THE Dublin Planning Commission does hereby make
the following findings and determinations regarding said proposed Development Agreement:
1. Said Agreement is consistent with the objectives, policies, general land uses and programs
specified in the City of Dublin General Plan and the Eastern Dublin Specific Plan in that, a) the General Plan
and Eastern Dublin Specific Plan land use designation for the subject site is General Commercial/Campus-
Office/Stream Corridor/Open Space and that this is a series of three automobile dealerships consistent with
that designation; b) the project is consistent with the fiscal policies in relation to provision of infrastructure and
public services of the City's General Plan and Eastern Dublin Specific Plan; c) the Agreement sets forth the
rules the Developer and City will be governed by during the development process which is required by the
Eastern Dublin Specific Plan; and the Mitigation Monitoring Program of the Eastern Dublin Specific Plan.
2. Said Agreement is compatible with the uses authorized in, and the regulations prescribed for,
the land use district in which the real property is located in that the project approvals include a Planned
Development Rezoning adopted specifically for the General Motors Automall Project.
3. Said Agreement is in conformity with public convenience, general welfare and good land use
practice in that the Project will implement land use guidelines set forth in the Eastern Dublin Specific Plan and
City of Dublin General Plan which have planned for a automall development at this location.
4. Said Agreement will not be detrimental to the health, safety and general welfare in that the
development will proceed in accordance with the Agreement and any Conditions of Approval for the Project;
and
5. Said Agreement will not adversely affect the orderly development of the properly or the
preservation of property values in that the development will be consistent with the City of Dublin General Plan
and Eastern Dublin Specific Plan.
NOW, THEREFORE, BE IT FURTHER RESOLVED THAT THE Dublin Planning Commission does
hereby recommend that the City Council approve the Development Agreement between Argonaut Holding,
Inc., Alameda County Surplus Property Authority and the City of Dublin (Attachment A) for PA 98-007, The
General Motors Automall Project.
PASSED, APPROVED AND ADOPTED this 13th day of April, 1999.
AYES:
NOES:
ABSENT:
Planning Commission Chairperson
ATTEST:
Community Development Director
A:gm da pc res
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DUBLIN
APPROVING THE DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF DUBLIN,
ARGONAUT HOLDING, INC. (PA 98-007) and
ALAMEDA COUNTY SURPLUS PROPERTY AUTHORITY
FOR THE GENERAL MOTORS AUTOMALL PROJECT
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The proposed General Motors Automall Project (PA 98-007) is located within the
boundaries of the Eastern Dublin Specific Plan ("Specific Plan") in an area which is designated on the
General Plan Land Use Element Map and Eastern Dublin Specific Plan Land Use Map as General
Commercial (GC), Campus Office (CO) and Stream Corridor/Open Space uses.
B. This project is within the scope of the Eastern Dublin Specific Plan and General Plan
Amendment, for which a Program EIR was certified (SCH 91103064). A Mitigated Negative Declaration
(SCH 86082092) has been approved for the Santa Rita Specific Plan Amendment of which this project is
a part. That Mitigated Negative Declaration together with the Program EIR adequately describes the total
project for the purposes of CEQA. The analysis indicated that no new effects could occur and no new
mitigation measures would be required for the General Motors Automall Project that were not addressed
in the FEIR or Mitigated Negative Declaration. Further, that analysis found that the project is in
conformity with the Eastern Dublin Specific Plan.
C. Implementing actions of the Specific Plan, including Chapter 11 thereof, require that all
projects within the Specific Plan area enter into development agreements with the City.
D. Argonaut Holding, Inc., have filed an application requesting approval of a development
agreement for the General Motors Automall project.
E. A Development Agreement between the City of Dublin, Argonaut Holding, Inc., and
Alameda County Surplus Property Authority has been presented to the City Council, a copy of which is
attached to the Staff Report as Attachment 1.
F. A public hearing on the proposed Development Agreement was held before the Planning
Commission on April 13, 1999, for which public notice was given as provided by law.
G. The Planning Commission has made its recommendation to the City Council for approval
of the Development Agreement.
Council on
A public hearing on the proposed Development Agreement was held before the City
.... 1999, for which public notice was given as provided by law.
ATTACHMENT 2
J. The City Council has considered the recommendation of the Planning Commission at the
,1999 meeting, including the Planning Commission's reasons for its recommendation, the
Agenda Statement, all comments received in writing and all testimony received at the public hearing.
Section 2. FIND1NGS AND DETERMINATIONS
Therefore, on the basis of(a) the foregoing Recitals which are incorporated herein, (b) the City of
Dublin's General Plan, (c) the Eastern Dublin General Plan Amendment, (d) the Specific Plan, (e) the
EIR, (f) the Agenda Statement, 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, as amended by the Eastern Dublin
General Plan Amendment, and in the Specific Plan in that (a) the General Plan and Specific Plan land use
designation for the site is General Commercial (GC), Campus Office (CO) and Stream Corridor/Open
Space uses and the proposed project is a series of automobile dealerships consistent with that land use,
(b) the project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to
provision of infrastructure and public services, and (c) the Development Agreement includes provisions
relating to financing, construction and maintenance of public facilities, and similar provisions set forth in
the Specific Plan.
2. The Development Agreement is compatible with the uses authorized in, and the regulations
prescribed for, the land use district in which the real property is located in that the project approvals
include a Planned Development Rezoning, Parcel Map and Site Design Review adopted specifically for
the General Motors Automall Project.
3. The Development Agreement is in conformity with public convenience, general welfare
and good land use policies in that the General Motors Automall Project will implement land use
guidelines set forth in the Specific Plan and the General Plan which have planned for office uses at this
location.
4. The Development Agreement will not be detrimental to the health, safety and general
welfare in that the project will proceed in accordance with all the programs and policies of the Eastern
Dublin Specific Plan.
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 and with
the Specific Plan.
.Section 3. APPROVAL
The City Council hereby approves the Development Agreement (Attachment 1 to the Staff Report)
and authorizes the Mayor to sign it.
Section 4. RECORDATION
Within ten (10) days after the Development Agreement is executed by the Mayor, the City Clerk
shall submit the Agreement to the County Recorder for recordation.
ATTACHMENT 2
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 o£the Government Code of the State
of California.
PASSED AND ADOPTED BY the City Council of the City of Dublin, on this __ day of __
1999, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
MAYOR
CITY CLERK
A:gmdaord
ATTACHMENT 2
The draft Development Agreement was not attached to the file
copy of this Agenda Statement. Following is a copy of the
recorded Development Agreement.
City of Dublin
When Recorded Marl To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Space above this line for Recorder's Use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
THE SURPLUS PROPERTY AUTHORITY
OF THE COUNTY OF ALAMEDA
AND
ARGONAUT HOLDING, INC.
FOR THE GENERAL MOTORS AUTOMALL
TABLE OF CONTENTS
99251789
2.
3.
4.
Description of Property ......... ' ................................ 3
Interest of DEVELOPER and COUNTY ............................. 3
Relationship of City and Developer ................................ 3
Effective Date and Term ......................................... 3
4.1 ~ ............................................ 3
4.2 Term ................................................... 3
5.1 ......................................... 3
5.2 ~ ........................................... 4
5.3 Additional Conditions ..................................... 4
Applicable Rules. Regulations and Official Policies .................... 5
6.1 Rules re Permitted Uses .................................... 5
6.2 Rul¢~ re Desi~t~a and Construction ............................ 5
6.3 Uniform Codes Aovlicable .................................. 5
Subsequently Enacted Rules and Re~mflations ......................... 6
7.1 New Rules and Regulations ...................... · ~ .......... 6
7.2 Approval of Application .................................... 6
7.3 Moratorium Not Applicable ................................. 6
Subsequently Enacted or Revised Fees. Assessments and Taxes ........... 6
8. ! Fees. Exactions. Dedications ................................ 6
8.2 Revised Aoolication Fees ................................... 7
8.3 New Taxes .............................................. 7
8.4 ASsessments ............................................. 7
8.5 Vote on Future Assessments and Fees ......................... 7
Amendment or Cancellation ...................................... 7
9.1 Modification Because of Conflict with State or Federal Laws ....... 7
9.2 Amendment by Mutual Consent ............................. 8
9.3 Insubstantial ~anendments .................................. 8
Dublin/Alameda Development Agreement Table of Contents - Page i of iii
General Motors Automall March 30, 1999
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I0.
11.
12.
13.
15.
16.
17.
18.
19.
20.
9.4 Amendment of Proiect Anvrovals ............................. 8
9.5 Cancellation by Mutual Consent ............................. 8
Term of Pro!ect Approvals ....................................... 8
11.1 Review Date ............................................. 9
11.2 Initiation of Review ....................................... 9
1 1.3 Staff Reports ............................................ 9
1 1.4 Costs .................................................. 9
Default ...................................................... 9
IZ 1 Other Remedies Available .................................. 9
12.2 2:ttt~,e,~lgl~[~l~ .......................................... 9
12.3 No Damages Against CITY .............................. ,. 10
Mgrtgagee Protection: Certain Rights of Cure ....................... 10
14.1 lnggagr xam ..................................... 10
14.2 Mortgagee Not Obligated .................................. 10
14.3 Notice of Default to Mortgagee and Extension of Right to Cure .... 11
Severability .................................................. I 1
A~omeys' Fees and Costs ....................................... 11
Trlmsfers and Assismments ...................................... 11
17. I DEVELOPER's Right to Assi~tm ............................. 12
17.2 Release Upon Transfer .................................... 12
17.3 Developer's Right to Retain Specified Rights or Obligations ....... 12
17.4 Permitted Transfer. Purchase or Assi~tmment ................... 12
17.5 COUNTY's Right to Assi~tm ................................ 13
Agr~ eement Runs with the Land .................................. 13
Bankruptcy .................................................. 13
Dublin/Alameda Development Agreement Table of Contents - Page ii of iii
General Motors Automall March 30, 1999
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21. IIlsurance ................................................... 14
21.1 P~blic Liability and Property Damage Insurance ................ 14
21.2 Workers Compensation Insurance ........................... 14
21.3 ' e o a ce .................................... 15
22. Sewer and Water ............................................. 15
23. Notices ..................................................... 15
24. Redtals ..................................................... 17
25. A~eement is Entire Understanding ............................... 17
26. Exhibits .................................................... 17
27. ~ ................................................ 17
28. ~ ................................................. 17
Dublin/Alameda Development Agreement Table of Contents - Page iii of iii
General Motors Automall March 30, 1999
99Z51789
THIS DEVELOPMENT AGREEMENT is made and entered in the City of
Dublin on this 4th day of May, 1999, by and between the CITY OF DUBLIN, a
Municipal Corporation (hereafter "CITY"), the Surplus Property Authority of
Alameda County, a public corporation (hereafter "COUNTY"), and ARGONAUT
HOLDING, INC., a Delaware corporation (hereafter "DEVELOPER") pursuant to
the authority of §§ 65864 et seq. of the California Government Code and Dublin
Mtmicipal Code, Chapter 8.56.
KE(~ITALS
A. 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 establish certain developmem
rights in such property; and
B. The City Coundl adopted the Eastern Dublin Spedfic Plan by
Resolution No. 53-93 which Plan is applicable to the Property; and
C. The Eastern Dublin Specific Plan requires DEVELOPER to enter
into a development agreement; and
D. DEVELOPER desires to develop and holds legal interest in certain
real property consisting of approximately 14.49 acres of land, located in the City of
Dublin, County of Alameda, State of California, which is more particularly described
in Exhibit A attached hereto and incorporated herein by this reference, and which
real property is hereafter called the "Property"; and
E. DEVELOPER acquired its interest in the Property from COUNTY
pursuant to a purchase and sale agreement which allocates rights and obligations as
between COUNTY and DEVELOPER. COUNTY is a party to this Agreement
because COUNTY will dedicate certain land and receive certain credits;
F. DEVELOPER proposes the development of the Property for
automotive uses (the "Project"); and
G. DEVELOPER has applied for, and CITY has approved or is
processing, various land use approvals in connection with the development of the
Project, including a PD District rezoning (Ordinance No. 16-98), £mal parcel map
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9925t789
7250, Conditional Use Permit and Site Development Review (Planning Commission
Resolution No. 98-33), (collectively, together with any approvals or permits now or
hereafter issued with respect to the Proiect, the "Proiect Approvals"); and
H. Development of the Property by DEVELOPER may be subject to
certain future discretionary approvals including site development review, which, if
granted, shall automatically become part of the Project Approvals as each such
approval becomes effective; and
I. CITY desires the timely, efficient, orderly and proper development
of said Project; and
J. The City Council has found that, among other things, this
Development Agreement is consistent with its General Plan and the Eastern Dublin
Specific Plan and has been reviewed and evaluated in accordance with Chapter 8.56;
and
lC CITY, COUNTY 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; and
L. Pursuant to the California Environmental Quality Act (CEQA) the
City has found, pursuant to CEQA Guidelines section 15182, that the Project is
within the scope of the Final Environmental Impact Report for the Eastern Dublin
General Plan Amendment and Specific Plan which was certified by the Council by
Resolution No. 51-93 and the Addenda dated May 4, 1993 and August 22, 1994
(the "EIR") and found that the EIR and Mitigated Negative Declaration were
adequate for this Agreement; and
M2 On May 4, 1999, the City Council of the City of Dublin adopted
Ordinance No. 12-99 approving this Development Agreement. The ordinance took
effect on lune 3, 1999.
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained,
CITY, COUNTY and DEVELOPER agree as follows:
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for General Motors Automall March 30, 1999
1. Description of Property.
The Property which is the subject of this Development Agreement is
described in ~ attached hereto ("Property").
2. Interest of DEVELOPER and COUNTY.
The DEVELOPER has a legal or equitable interest in the Property in
that it owns the Property in fee simple.
The COUNTY has legal or equitable interest in the Property in that
it holds an option to repurchase the Developer's fee simple interest in 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 CITY, COUNTY, and DEVELOPER and
that neither the DEVELOPER nor COUNTY is an agent of CITY. The CITY,
DEVELOPER and COUNTY 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 consttued as making the
CITY, COUNTY and DEVELOPER joint vemurers or partners.
Effective Date and Tenn.
4.1 ~. The effective date of this Agreement shall
be the date upon which this Agreement is signed by CITY.
4.2 Tenn. The term of this Development Agreement shall
commence on the Effective Date:and extend five (5) year~ thereafter, unless said term
is otherwise terminated or modified by circumstances set forth in this Agreement.
5.1 ~. DEVELOPER shall have the vested
tight 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
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amendments to any of them as shall, from time to time, be approved pursuant to this
Agreement.
5.2 P. grmitItd_U_~. The permitted uses of the Property, the
density and intensity of use, the maximum height, bulk and size of proposed
buildings, provisions for reservation or dedication of land for public purposes and
location and maintenance of on-site and off-site improvements, location of public
utilities (operated by CITY) and other terms and conditions of development
applicable to the Property, shall be those set forth in this Agreement, the Proiect
Approvals and any amendments to this Agreement or the Project Approvals.
5.3 Additional Conditions. Provisions for the following
("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated
herein by reference.
5.3.1 Subsequent Discretionary Approvals.
Conditions, terms, restrictions, and requirements for subsequent
discretionary actions. (These conditions do not affect
DEVELOPER's responsibility to obtain all other land use approvals
required by the ordinances of the City of Dublin.)
Not Applicable
5.3.2 Mitigation Conditions. Additional or modified
conditions agreed upon by the part/es in order to eliminate or
mitigate adverse environmental impacts of the Project or otherwise
relating to development of the Project.
See Exhibit B
5.3.3 ~. Provisions that the Proiect be
constructed in specified phases, that construction shall commence
within a specified time, and that the Project or any phase thereof be
completed within a specified time.
See Exlxibit B
5.3.4 ~. Financial plans which identify
necessary capital improvements such as streets and utilities and
sources of funding.
See Exhibit B
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5.3.5 ~[~K~a~. Terms relating to payment of
fees or dedication of property.
See Exhibit B
5.3.6 Reimbursement. Terms relating to subsequent
reimbursement over time for financing of necessary public facilities.
See Exhibit B
5.3.7
Miscellaneous. Miscellaneous terms.
See Exhibit B
Applicable Rules. Regulations and Offidal Policies.
6.1 Rules re Permitted Uses. For the term of this Agreement,
the Cit3es ordinances, resolutions, rules, regulations and official policies governing the
permitted uses of the Property, 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 this Agreement.
6.2 Rules re Design and Construction. Unless otherwise
expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions,
rules, regulations and official policies governing design, improvement and
construction standards and specifications applicable to the Project shall be those in
force and effect at the time of the applicable discretionary Project Approval.
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 permit approval.
6.3 U~form Codes Applicable. Unless expressly provided in
Paragraph 5 of this Agreement, 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, or
other construction permits for the Project.
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7. Subsequently Enacted Rules and R%mlations.
7. I 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 if: (a) the application
of such new or modified ordinances, resolutions, rules, regulations or official policies
would not prevent, impose a substantial financial burden on, or materially delay
development of the Property as contemplated by this Agreement and the Project
Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies
have general applicability.
7.2 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.
7.3 Moratorium Not Applicable. Notwithstanding anything to
the contrary contained herein, in the event an ordinance, resolution or other measure
is enacted, whether by action of CITY, by initiative, referendum, or othenvise, that
imposes a building moratorium which affects the Project on all or any part of the
Property, CITY agrees that such ordinance, resolution or other measure shall not
apply to the Project, the Property, this Agreement or the Project Approvals unless the
building moratorium is imposed as part of a declaration of a local emergency or state
of emergency as defined in Government Code § 8558.
· 8. Subsequently Enacted or Revised Fees. Assessments and Taxes.
8.1 Fees. Exactions. Dedications. CITY and DEVELOPER
agree that the fees payable and exactions required in connection with the
development of the Project for purposes of mitigating environmental and other
impacts of the Project, providing infrastructure for the Project and complying with
the Specific Plan shall be those set forth in Ordinance No. 16-98, Resolution No. 98-
33 and in this Agreement (including ~). The CITY shall not impose or
require payment of any other fees, dedications of land, or construction of any public
improvement or facilities, shall not increase or accelerate existing fees, dedications of
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land or construction of public improvements, in connection with any subsequent
discretionary approval for the Property, except as set forth in Ordinance No. 16-98,
Resolution No. 98-33, and the tentative parcel map and this Agreement (including
~, subparagraph 5.3.5).
8.2 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; and (3) the application of
such fees would not prevent development in accordance with this Agreement. By so
agreeing, DEVELOPER does not waive its rights to challenge the legality or amounts
of any such application, processing and/or inspection fees.
8.3 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. By so agreeing. DEVELOPER does not waive its
rights to challenge the legality of any such taxes.
8.4 ~. Nothing herein shall be construed to relieve
the Property from assessments levied against it by CITY pursuant to any statutory
procedure for the assessment of property to pay for infrastructure and/or services
which benefit the Property.
8.5 Vote on Future Assessments and Fees. In the event that
any assessment, fee or charge which is applicable to the Property is subject to Article
XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER
agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's
ballot as affirmatively voting in favor of such assessment, fee or charge.
9. AIBcndment or Cancellation.
9.1 Modification Because of Conflict with State or Federal
_~_~s. 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 modification of the Agreement shall be approved by the City Council
Dublin/Alameda Development Agreement Page 7 of 18
for General Motors Automall March 30, 1999
in accordance with Chapter 8.56.
9.2 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.
9.3 Insubstantial Amendments. Notwithstanding the
provisions of the preceding paragraph 9.2, any amendments to this Agreement which
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 paragraph 5.2; (c) provisions for
"significant" reservation or dedication of land as provided in Exhibit B; (d) conditions,
terms, restrictions or requirements for subsequent discretionary actions; (e) the
density or intensity of use of the Project; (f) the maximum height or size of proposed
buildings; or (g) monetary contributions by DEVELOPER as provided in this
Agreement, shall not, except to the extent othenvise required by law, require notice or
public hearing before either the Planning Commission or the City Council before the
parties may execute an amendment hereto. CITY's Public Works Director shall
determine whether a reservation or dedication is "significant".
9.4 Amendment of Project Approvals. Any amendment of
Project.Approvals relating to: (a) the permitted use of the Property; (b) provision for
reservation or dedication of land; (c) conditions, terms, restrictions or requirements
for subsequent discxetionary actions; (d) the density or intensity of use of the Project;
(e) the maximum height or size of proposed buildings; (f) monetary contributions by
the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER
shall require an amendment of this Agreement. Such amendment shall be limited to
those provisions of this Agreement which are implicated by the amendment of the
Project Approval. Any other amendment of the Project Approvals, or any of them,
shall not require amendment of this Agreement unless the amendment of the Project
Approval(s) relates specifically to some provision of this Agreement.
9.5 Cancellation by MutuM Consent. Except as othenvise
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 Paragraph 5.3 and ~
of this Agreement prior to the date of cancellation shall be retained by CITY.
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10. Term of Project Approvals.
The term of any Pro}ect Approval shall be extended only if so
provided in
11.1 Review Date. The annual review date for this Agreement
shall be August 15, 2000 and each August 15 thereafter.
11.2 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 ptior 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 Development Agreement. The burden of proof by substantial evidence of
compliance is upon the DEVELOPER.
11 .B JS_tafLl?w_p_ox~. 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 ptior to any annual review.
11.4 Costs. Costs reasonably incurred by CITY in connection
with the annual review shall be paid by DEVELOPER in accordance with the City's
schedule of fees in effect at the time of review.
12.1 Other Remedies Available. Upon the occurrence of an
event of default, the parties may pursue all other remedies at law or in equity which
are not othenvise provided for in this Agreement or in City's regulations governing
development agreements, expressly including the remedy of specific performance of
this Agreement.
12.2 Notice and Cure. Upon the occmxence of an event of
default by any party, the nondefaulting party shall serve written notice of such
default upon the defaulting party. If the default is not cured by the defaulting party
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within thirty (30) days after service of such notice of default, the nondefaulting party
may then commence any legal or equitable action to enforce its rights under this
Agreement; provided, however, that if the default cannot be cured within such thirty
(30) day period, the nondefaulting party shall refrain from any such legal or equitable
action so long as the defaulting party begins to cure such default within such thirty
(30) day period and diligently pursues such cure to completion. Failure to give notice
shall not constitute a waiver of any default.
12.3 No Damages Against CITY. In no event shall damages be
awarded against CITY upon an event of default or upon termination of this
Agreement.
any party may, at any time, and from time to time, request written
notice from the other party requesting such party to certify in writing that, (a) this
Agreement is in full 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, identif34ng 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 City shall be
authorized to execute any certificate requested by DEVELOPER or COUNTY.
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.
14. Mortgagee Protection: Certain Rights of Cure.
! 4. ! ~. 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
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99Z51789
mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof,
by foreclosure, trustees sale, deed in lieu of foreclosure, or otherwise.
14.2 Mortgagee Not Obligated. Notwithstanding the provisions
of Section 14. i above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or
complete the construction of improvements, or to guarantee such construction of
improvements, or to guarantee such construction or completion, or to pay, perform or
provide any fee, dedication, improvements or other exaction or imposition; provided,
however, that a Mortgagee shall not be entitled to devote the Property to any uses or
to construct any improvements thereon other than those uses or improvements
provided for or authorized by the Project Approvals or by this Agreement.
14.3 Notice of Default to Mortgagee and Extension of Right to
Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of
default given DEVELOPER hereunder and specifying the address for service thereof,
then CITY shall deliver to such Mortgagee, concurrently with service thereon to
DEVELOPER, any notice given to DEVELOPER with respect to any dalm by CITY
that DEVELOPER has committed an event of default. Each Mortgagee shall have
the right during the same period available to DEVELOPER to cure or remedy, or to
commence to cure or remedy, the event of default claimed set forth in the CITY's
notice. CITY, through its City Manager, may extend the thirty-day cure period
provided in paragraph 12.2 for not more than an additional sixty (60) days upon
request of DEVELOPER or a Mortgagee.
15. Severability.
The unenforceability, invalidity or illegality of any provisions,
covenant, condition or term of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
16. Attorneys' Eees and Costs.
If CITY or DEVELOPER initiates any action at law or in ~quity 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
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99Z51789
in defending such action. DEVELOPER shall bear its own costs of defense as a real
party in interest in any such action, and shall reimburse CITY for all reasonable court
costs and attorneys' fees expended by CITY in defense of any such action or other
proceeding.
17. Transfers and Assi~naments.
17.1 DEVELOPER's Right to Assign. All of DEVELOPER'S
rights, interests and obligations hereunder may be transferred, sold or assigned in
conjunction with the transfer, sale, or assignment of all of the Property subject hereto
at any time during the term of this Agreement, provided that no transfer, sale or
assignment of DEVELOPER's rights, interests and obligations hereunder shall occur
without the prior written notice to CITY and approval by the City Manager, which
approval shall not be unreasonably withheld or delayed. The City Manager shall
consider and decide the matter within l0 working days after DEVELOPER's notice,
provided all necessary documents, certifications and other information are provided
to the City Manager. Approval by the City Manager shall not be necessary for a
transfer or assignment to General Motors Corporation or any of its affiliates.
17.2 ~.~9~alff~. Upon the transfer, sale, or
assignment of all of DEVELOPER's rights, interests and obligations hereunder
pursuant to subparagraph 17.1 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, purchaser, or
assignee approved by the City Manager expressly assumes all of the rights, interests
and obligations of DEVELOPER under this Agreement, DEVELOPER shall be
released with respect to all such rights, interests and assumed obligations. In any
event, the transferee, purchaser, or assignee shall be subject to all the provisions
hereof and shall provide all necessary documents, certifications and other necessary
information prior to City Manager approval.
17.3 Developer's Right to Retain Specified Rights or
~. Notwithstanding subparagraphs 17.1 and 17.2 and paragraph 18,
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
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purchaser, transferee or assignee shall then have no interest or obligations for such
rights, interests and obligations and this Agreement shall remain applicable to
DEVELOPER with respect to such retained rights, interests and/or obligations.
17.4 Permitted Transfer. Purchase or Assignment. The sale or
other transfer of any interest in the Property to a purchaser ("Purchaser") pursuant to
the exercise of any right or remedy under a deed of trust encumbering
DEVELOPER'S interest in the Property or by way of a deed in lieu of the exercise of
such rights or remedy shall not require City Manager approval pursuant to the
provision of paragraph 17.1. Any subsequent transfer, sale or assignment by the
Purchaser to a subsequent transferee, purchaser, or assignee shall be subiect to the
provisions of paragraph 17.1.
17.5 COUNTY's Right toAssi~t~n.
COUNTY shall not assign its rights, interests or obligations
hereunder, without the prior consent of the CITY.
18. Agreement Runs with the Land.
All of the provisions, rights, terms, covenants, and obligati0ns
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 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 prope~ies 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 itt such properties.
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
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99251789
DEVELOPER agrees to indemnify, defend and hold harmless CITY,
and its elected and appointed councils, boards, commissions, officers, agents,
employees, and representatives from any and all claims, costs (including legal fees and
costs) and liability for any personal iniuW 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 Proiect, provided that DEVELOPER shall have no
indemnification obligation with respect to negligence or wrongful conduct of CITY,
its contractors, subcontractors, agents or employees or with respect to the
maintenance, use or condition of any improvement after the time it has been
dedicated to and accepted by the CITY or another public entity (except as provided
in an improvement agreement or maintenance bond).
COUNTY agrees to indemnify, defend and hold harmless CITY, and
its elected and appointed councils, boards, commissions, officers, agents, employees,
and representatives from any and all claims, costs (including legal fees and costs) and
liability for any personal injury or property damage which may arise directly or
indirectly as a result of any actions or inactions by the COUNTY, or any actions or
inactions of COUNTY's contractors, subcontractors, agents, or employees in
connection with the construction, improvement, operation, or maintenance of the
Project, provided that COUNTY shall have no indemnification obligation with
respect to negligence or wrongful conduct of CITY, its contractors, subcontractors,
agents or employees or with respect to the maintenance, use or condition of any
improvement after the time it has been dedicated to and accepted by the CITY or
another public entity (except as provided in an improvement agreement or
maintenance bond).
21. Insurance.
21.1 public I .iahility 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) and a deductible of not more
than ten thousand dollars ($10,000.00) per claim. The policy so maintained by
DEVELOPER shall name the CITY as an additional insured and shall include either a
severability of interest clause or cross4iability endorsement. As long as DEVELOPER
Dublin/Alameda Development Agreement Page 14 of 18
for General Motors Automall March 30, 1999
99251789
is a participant in General Motors Corporation's self-insurance program
DEVELOPER may self-in-sure.
21.2 Workers Compensation Insurance. During the term of this
Agreement DEVELOPER shall maintain Workers Compensation insurance for all
persons employed by DEVELOPER for work at the Project site. DEVELOPER shall
require each contractor and subcontractor similarly to provide Workers
Compensation insurance for its respective employees. DEVELOPER agrees to
indemnify the City for any damage resulting from DEVELOPER's failure to maintain
any such insurance.
21.3 ' . Prior to City Council approval of
this Agreement, DEVELOPER shall furnish CITY satisfactory evidence of the
insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required
to give the CITY at least fifteen days prior written notice of the cancellation or
reduction in coverage of a policy. 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.
DEVELOPER acknowledges that it must obtain water and sewer
permits from the Dublin San Ramon Services District ("DSRSD") which is another
public agency not within the control of CITY.
23. Notices.
All notices required or provided for under this Agreement shall be in
writing. Notices required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
P.O. Box 2340
Dublin, CA 94568
Notices required to be given to COUNTY shall be addressed as follows:
Dublin/Alameda Development Agreement Page 15 of 18
for General Motors Automall March 30, 1999
99251789
and
Patrick Cashman
Project Director
Surplus Property Authority of Alameda County
225 W. Winton Avenue, Room 151
Hayward, CA.94544
Adolph Martinelli
Director of Planning
County of Alameda
399 Elmhurst Street
Hayward, CA 94544
Notice required to be given to DEVELOPER shall be addressed as follows:
Argonaut Holdings, Inc.
cio GM Worldwide Real Estate
39465 Paseo Padre Parkway, Suite 3700
Fremont, CA 94538
Attention: Timothy R. Miller, Western Regional Manager
and
Argonaut Holdings, Inc.
485 West Milwaukee Avenue
c/o Worldwide Real Estate
Detroit, Michigan 48202
Attention: Director of Real Estate
and
Danner & Man)m, LLP
707 Wilshire Boulevard, Suite 5050
Los Angeles California 90017
Attention: Robert C. Danner, Esq.
A party may change address by giving notice in writing to the other party and
thereafter all notices shall be addressed and transmitted to the new address. Notices
shall be deemed given and received upon personal delivezy, or if mailed, upon the
Dublin/Alameda Development Agreement Page ! 6 of 18
for General Motors Automall · March 30, 1999
99 §[789
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.
24. Recitals.
hereof.
25.
of the parties.
26.
The foregoing Recitals are true and correct and are made a part
Agreement is Entire Understanding.
This Agreement constitutes the entire understanding and agreement
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
~ Additional Conditions
27.
This Agreement is executed in three (51) duplicate originals, each of
which is deemed to be an original.
28.
CITY shall record a copy of this Agreement within ten days
following execution by all parties.
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:
Dublin/Alameda Development Agreement Page 17 of 18
for General Motors Automall March 30, 1999
By:
Mayor
Date:
Attest:
Approved as to Form:
/q 9
City Attorney
SURPLUS PROPERTY AUTHORITY
OF ALAMEDA COUNTY:.
Axlo]ph//Clartinelli ' - -
Its Manager
Date:
Approved as to Form:
~Kttor~ fo--r Su~lus Property
i~ycl~l~li~q~,County of Alameda
ARGONAUT HOLDING, INC.
Its:
Rw~ X. McCI,~
Vice President
(NOTARIZATION ATTACHED)
EHS:rja:
J :\WPDhMNRSWM 14\115~AGREE~GMAUTODA.330
Dublin/Alameda Development Agreement Page 18 of 18
for General Motors Automall March 30, 1999
CALIFOBNI& ALL.PIJR~OSE _~CKNOWLED~GI~ENT
personally appeared Name(s) of SigneT(s)
~ personally known to me - OR - [] proved to me on the basis of satisfactory evidence to be the person(~
whose name{~)/is/gtr~subscribed to the within instrument
and acknowledged to me that he/.sh~/~ executed the
same in his/J~1?~,h'STr authorized capacity..0es), and that by
his/,l~h'gTr signature,~')'on the instrument the person.(s~,
or the entity upon behalf of which the person.~3"acted,
executed the instrument.
WITNESS my hand and official seal.
OPTIONAL
Though the infon'nation below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reatta~hment of this form to another document.
Desc ripti on of Attached Doc u ment .~OT'~/~_.Z~'~/'~ 42/.~Y/~]·
Title or Type of Documen~..~
Documem Date:
Signer(s) Other Than Named lbove: ~/~~'~
Capa~ity(ies)~.aimed b.y Signer(s)
[] Individual 0
[] Corporate Officer
Title(s):
[] Partner-- [] Limited ~ General
~ Attorney-in-Fact
~ Trustee
~ Guardian or Conservator ~
[] Other: Top ofthumb here
./n. er Is Represer]ting:
[]
Title(s):
-I Trustee
[] Guardian or
[] Other:
Officer
imited []General
Top of thumb nme
Signer Is Representing:
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
County of . _ _
On ~ t.~. ,~.~'? beforeme,:"~[J~l~-~ ~3'~ ]~V'(-,, ~~
personally appeared ~~ m~',5~- ' ,
~sonally known to me - OR - ~ proved to me on the basis of ~tisfacto~ evidence
to be the person~whose name~ is/~
subscribed to the within instrument and ac-
knowledged to me that he/~t~ executed
the same in his/~/t~ authorized
capacity~, and that by his/~t~
signature~ on the instrument the person~
or the entity upon behalf of which the
perso~ acted, executed the instrument.
WITNESS my hand and official seal.
I OPTIONAL I I
Though the data below is not required by law, it may prove valuable to persons relying on the document end could prevent
fraudulent reattachrnent of this form.
CAPACrrY CLAIMED BY SIGNER
[] INDIVIDUAL
[] CORPORATE OFFICER
[] PARTNER(e) '[] LiMiTED
[] GENERAL
[] ATrORNEY-IN-FACT
[] TRUSTEE(S)
[] GUARDIAN/CONSERVATOR
[] OTHER:
DESCRIPTION OF ATrACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
eIGNER(e) OTHER THAN NAMED ABOVE
SIGNER IS REPRESEN'nNG:
~1993 NA'nONAL NOTARY ASSOCIATION · 8236 Remmet Ave., P.O. Box 7184 · Canega park, CA 91309'7184
99251789
State of~ )
Countyof~ )) ss.
On (~o_~)I(~0-~ beforeme, a Notary Public,
personally appearedU' /~c~)4/44c~
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(les), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of ~vhich the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
NOTARY PUBLIC
SHARON E. BOON
Nota~/Public, Wayne County, MI
My Commission Expires 12/17/2002
99251789
Legal Description
Parcels A, B & C on tract map 7250, recorded on December 23, 1998 at 98449709.
99251789
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to
'Paragraph 5.3 above.
Subparagraph 5.3. I -- Subsequent Discretionary. Approvals
None.
Subparagraph 5.3.2 -- Mitigation Conditions
Infrastructure Sequencing Pro~trram
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of dedication)
described below and those identified in Resolution No. 98-33 of the Planning
Commission Approving Tentative Parcel Map 7250, Conditional Use Permit and Site
Development Review shall be completed by DEVELOPER to the satisfaction of the
Public Works Director at the times and in the manner specified in Resolution No.
98-33 unless otherwise provided below. All such roadway improvements shall be
constructed to the satisfaction and requirements of CITY's Public Works Director.
A. Dublin Boulevard Bridge (Condition 59~
COUNTY shall construct the im~provements required by Condition
No. 59 of Resolution No. 98-33 when determined necessary by the Public Works
Director. -
Bo
1-580 at Santa Rita Road/rassa!ara Road Eastbound Off
Ramp
Condition No. 68 of Resolution No. 98-33 shall be revised to
delete such subparagraph (F) "Santa Rita Road/I-580 Eastbound Ramps/Pimlico Drive
improvements (Condition 63)".
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99251789
C. Miscellaneous
The obligations of Condition Nos. 61, 63, 64, 65 and 66 of
Resolution No. 98-33 and any other conditions of such resolution which are to be
completed '~vhen determined necessary by the Public Works Director' ('q~he Deferred
Conditions") shall be of no force or effect until DEVELOPER obtains the first
building permit for the Project. Once effective, such obligations shall survive
termination of this Agreement.
Unless already provided, within sixty (60) days of the Effective
Date, COUNTY shall provide CITY with security for the costs of design and
construction of The Deferred Conditions in an amount satisfactory to the Public
Works Director. The security may consist of a document, satisfactory to the City
Attorney, pledging COUNT, S existing credits against payment of the traffic impact
fees as security. The security required by the preceding sentences is not a substitute
for the Improvement Agreement and bonds required by Subparagraph 5.3.2,
subsection (b) (ii) and (iii) below.
DEVELOPER and COUNTY shall be responsible for transitioning
existing improvements to match improvements required by this Agreement, including
dedications, to the satisfaction of the CITY's Public Works Director.
(ii) Sewer
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with the tentative
subdivision map and DSRSD requirements.
(iii) Water
An all weather roadway and an approved hydrant and water supply
system shall be available and. in service at the site in accordance with the tentative
subdivision map to the satisfaction and requirements of the CITY's fire department.
All potable water system components to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with the tentative
subdivision map and DSRSD requirements.
Recycled water lines shall be installed in accordance with the tentative
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99251789
subdivision map.
(iv)
Prior to issuance of the first Certificate of Occupancy for any building
which is part of the Project, the storm drainage systems off site, as well as on site
drainage systems to the areas to be occupied, shall be improved to the satisfaction
and requirements of the Dublin Public Works Department applying CITY's and Zone
7 (Alameda County Flood Control and Water Conservation District, Zone 7)
standards and policies which are in force and effect at the time of issuance of the
permit for the proposed improvements and shall be consistent with the Drainage
Plan. The site shall also be protected from storm flow from off site and shall have
erosion control measures in place to protect downstream facilities and properties from
erosion and unclean storm water consistent with the Drainage Plan. As used herein,
"Drainage Plan" shall refer to CITY's master drainage plan.
(v) Other Utilities (e.g. gas. electricity., cable televisions, telephone)
Construction shall be complete by phase prior to issuance of the first
Certificate of Occupancy for any building within that specific phase of occupancy.
Miscellaneous
(i) Completion May be Deferred.
Notwithstanding the foregoing, CITY's Public Works Director may, in
his or her sole discretion and upon receipt of documentation in a form satisfactory to
the Public Works Director that assures completion, allow COUNTY to defer
completion of discrete portions of any of the public improvements required for the
Project until after issuance of Certificate of Occupancy for the first building for the
Project if the Public Works Director determines that to do so would not jeopardize
the public health, safety or welfare.
(ii) Improvement A~t~reement
Prior to constructing the Improvements described in Subparagraph
5.3.2(a) above (including The Deferred Conditions), DEVELOPER or COUNTY
shall submit plans and specifications to CITY's Public Works Director for review and
approval and shall enter into an improvement agreement with CITY for construction
Dublin/Alameda Development Agreement Page 3 of 10
for General Motors Automall - Exhibit B March 30, 1999
and dedication of the public facilities. All such improvements shall be constructed in
accordance with City's standards and policies which are in force and effect at the time
of issuance of the permit for the proposed improvements including, but not limited
to, "Precise Plans" for Eastern Dublin Santa Rita Area prepare for the Surplus
Property Authority by Brian I~angas Foulk ("Precise Plans"). With respect to the
Deferred Improvements, the Improvement Agreements required herein are not
required until the Deferred Conditions are determined to be necessary by the Public
Works Director.
(iii) Bonds
Prior to execution of the Improvement Agreement, DEVELOPER or
COUNTY (or its assignee) shall provide a cash monument bond, a performance bond
and labor and materials bond or other adequate security to insure that the
Improvements described in Subparagraph 5.3.2(a) above (induding The Deferred
Conditions) will be constructed prior to the times specified above. The performance
bond or other security shall be in an amount equal to 100% of the engineer's estimate
of the cost to construct the improvements (including design, engineering,
administration, and inspection) and the labor and materials bond shall be in an
amount equal to 50% of the engineer's estimate. The bonds shall be written by a
surety licensed to conduct business in the State of California and approved by CITY's
City Manager. With respect to the Deferred Improvements, the bonds required
herein are not required until the Deferred Conditions are determined to be necessary
by the Public Works Director.
(iv) Right to Construct Additional Road Improvements
With the prior written consent of CITY's Public Works Director,
DEVELOPER or COUNTY may construct roadway improvements which are not
described in this Exhibit B if such improvements are described in the resolution
establishing the Eastern Dublin Traffic Impact Fee and if such improvements are
constructed in their ultimate4ocation.
DEVELOPER or COUNTY shall be required to enter into an Improvement
Agreement and provide bonds for such improvements, as provided in Subsection
(b)(ii) and (iii) above, prior to construction. CITY shall provide a credit to
DEVELOPER or COUNTY for the cost of such improvements in the manner and
subiect to the conditions provided in Subparagraph 5.3.6, Subsections (a), (b) and
(c).
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(v) ,l.und~caping Along 1-580 Frontage
No later than issuance of the first Certificate of Occupancy, for Parcel "C" (the
7.536 acre parcel adjacent to 1-580 on Tentative Map No._7250) DEVELOPER will
install landscaping along the frontage of the Property adjacent to 1-580. Such
landscaping will be installed within the Caltrans' right-of-way and will be as approved
by CITY and, if necessary, by Caltrans. Following installation of the landscaping,
CITY will enter into an agreement with Caltrans for maintenance of the landscaping,
and DEVELOPER will enter into an agreement with CITY simultaneously whereby
DEVELOPER will satisfy CITY's maintenance obligation pursuant to CITY's
agreement with Caltrans.
(vi) Landscaping Along Perimeter of Property.
No later than issuance of the ftrst Certificate of Occupancy for the
Property, DEVELOPER will prepare a plan satisfactory to CITY's Community
Development Director showing all perimeter landscaping for the property. The
perimeter landscaping for Parcels A, B and C, shall be as follows: a minimum of 20'
wide transitional landscaping adjacent to the Tassajara Creek Corridor; a minimum of
20' wide landscaping buffer adjacent to 1-580; a minimum of 10' wide landscaping
adjacent to the north/south street (shown as "Miller Court" on the parcel map
[officially named lohn Monegu Court]); and a minimum of 15' landscaping adjacent
to Dublin Boulevard. The landscaping that is associated with Parcels A, B and/or C
shall be installed prior to Certificate of Occupancy for each such parcel consistent
with the landscaping plan.
If a Certificate of Occupancy is issued for Parcels A and/or B prior to insurance
of one for Parcel "C," DEVELOPER shall maintain the 20' wide landscaping buffer
adjacent to 1-580 in a weed-free and litter-free manner until it is landscaped.
(vii)
DEVELOPER will ensure that no loudspeakers or amplified music shall be
permitted in association with the normal use or operation of any business on this site.
DEVELOPER agrees that CITY will append the foregoing language to the end of
the Conditional Use Permit (Planning Commission R~esolution No. 98-33).
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Subpara~raph 5.3.3 - Phasin~. Timin~
With the exception of the road improvements described in Subparagraph
5.3.2(a)(i) this Agreement contains no requirements that DEVELOPER must initiate
or complete development of the Project within any period of time set by CITY. It is
the intention of this provision that DEVELOPER be able to devdop the Property in
accordance with its own time schedules and the Project Approvals.
Subpara~vraph 5.3.4 -- Financing Plan
DEVELOPER wiI1 install all street improvements necessary for the Project at its
own cost (subject to credits for certain improvements as provided in Subparagraph
5.3.6 below).
Other infrastructure necessary to provide sewer, potable water, and recycled
water services to the Project will be made available by the Dublin San Ramon
Services District. COUNTY has entered into an "Area Wide Facilities Agreement"
with the Dublin San Ramon Services District to pay for the cost of extending such
services to the Project. Such services shall be provided as set forth in Subparagraph
5.3.2(a)(ii) and (iii) above.
Subparagraph 5.3.5 -- Fees. Dedications
Traffic Impact Fees.
DEVELOPER shall pay all traffic impact fees applicable to the Project
which are in effect at the time of issuance of any building permit for the Project.
Such fees include the Traffic Impact Fee for Eastern Dublin established by Resolution
No. 41-96, induding any future amendments to such fee.
DEVELOPER, COUNTY and CITY acknowledge that COUNTY is entitled
to certain credits ("1991 Credits") against payment of the Traffic Impact Fee for
Eastern Dublin by separate agreements previously entered into between COUNTY
and CITY in 1991. COUNTY is also entitled to certain other credits ("Prior
Agreement Credits") against payment of the Traffic Impact Fee for Eastern Dublin by
other development agreements entered into between COUNTY and CITY.
COUNTY agrees that, notwithstanding its entitlement to such 1991 Credits, its
1991 Credits cannot be applied against payment of the "Section 2" portion of the
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99251789
Traffic Impact Fee for Eastem Dublin for the Project. DEVELOPER (and its
assignee) will, rather, pay the "Section 2" portion of the fee in cash.
COUNTY further agrees that it (and its assignee) will use the 1991 Credits
and/or Prior Agreement Credits against one-half (1/2) of the "Section l" portion of the
Traffic Impact Fee for Eastern Dublin for the Project provided that it has sufficient
such credits. CITY shall determine which of the 1991 Credits and/or Prior
Agreement Credits shall be used pursuant to this paragraph.
Notwithstanding anything herein to the contrary, DEVELOPER further
agrees that it (and its assignee) will pay at least seven percent (7%) of the "Section 1"
portion of the Traffic Impact Fee for Eastern Dublin in cash.
Traffic Impact Fee to Reimburse Pleasanton for Freeway
DEVELOPER shall pay the Eastern Dublin 1-580 Interchange Fee
established by City of Dublin Resolution No. ! 1-96 as amended by Resolution No.
155-98 and by any subsequem resolution which revises such Fee.
DEVELOPER shall pay a Public Facilities Fee in the amounts and at the
times set forth in City of Dublin Resolution No. 32-96, adopted by the City Council
on March 26, 1996, or in the amounts and at the times set forth in any resolution
revising the amount of the Public Facilities Fee.
Subsection d. ~ll~laF_~.
DEVELOPER shall pay a Noise Mitigation Fee in the amounts and at the
times set forth in City of Dublin Resolution No. 33-96, adopted by the City Council
on March 26, 1996, and any~amendments thereto.
School Impact Fees.
School impact fees shall be paid by DEVELOPER in accordance with
Government Code section 53080 and the existing agreement between COUNTY and
the Dublin Unified School District.
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for General Motors Automall - Exhibit B Maxch 30, 1999
99251789
DEVELOPER shall pay a fire facilities fee in the amounts and at the times
set forth in City of Dublin Resolution No. 37-97 or any subsequent resolution which
revises such fee.
~ Txi-Valley Transportation Development Fee.
DEVELOPER shall pay the Tri-Valley Transportation Development Fee in
the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any
subsequent resolution which revises such fee. COUNTY agrees that its 1991 Credits
and Prior Agreement Credits cannot be applied against payment of this fee.
COUNTY agrees to dedicate the following property required for roadway
improvements to CITY and both the land and groundwater shall be free of hazardous
substances:
1. Approximately 31' on the west side of Tassajara Road from Dublin
Boulevard to Gleason Drive, as shown in the "Precise Plans".
Subparagraph 5.3.6 -- Credit
_$_q_b.l.~lio. ll~. Troffic Impact Fee Improvements Credit
CITY shall provide a credit to COUNTY for the those improvements
described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such
improvements are constructed by the DEVELOPER in their ultimate location
pursuant this Agreement.
All aspects of use of the credits shall be governed by CITY's
Administrative Guidelines governing traffic fee credits and reimbursements
(Resolution No. 23-99).
Traffic Impact Fee Right-of-Way Dedications Credit
CITY shall provide a credit to COUNTY for the following TIF area right-of-
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way to be dedicated by COUNTY to CITY which is required for roadway
improvements which are described in the resolution establishing the Eastern Dublin
Traffic Impact Fee:
I. Any portions of Tassaiara Road (from Dublin Boulevard to
Gleason Drive) and Dublin Boulevard (from Tassajara Creek to Tassajara Road)
which are in the TIF area.
All aspects of use of the credits shall be governed by CITY's Administrative
Guidelines governing traffic fee credits and reimbursements (Resolution No. 23-99).
Subparagraph 5.3.7 -- Miscellaneous
~ Landscapin~e Maintenance Along Streets and Creek
CITY has formed a landscape maintenance district known as the
"Landscape Maintenance Assessment District No. 97-1 (Santa Rita Area)" pursuant
to a petition from COUNTY, and imposed an assessment against the Property to pay
for street and creek landscape maintenance. In addition, on September 24, 1996,
COUNTY recorded a Declaration of Covenants, Conditions and Restrictions which
covers the Property, whereby COUNTY, on behalf of itself and its successors, has
covenanted to pay a "Deed Assessment" to CITY for maintenance of street and creek
landscaping.
Subsection b. One-time Increase in Credits and TIF Fees
It is contemplated that CITY will amend the TIF to increase the amotmt of
the TIF fee due to increases in construction costs and land values. In the event that
CITY so amends the TIF in 1999, and notwithstanding CITY's Administrative
Guidelines, CITY will make a one-time adjustment to the amount of any credit which
COUNTY has previously been given pursuant to this agreement so that the amount
of the credit shall be based on the construction costs used by CITY in its updated TIF
if the credit is for constructing improvements and/or on the land values used by CITY
in its updated TIF if the credit is for dedicating land. The revised credit shall not be
increased for inflation nor shall interest accrue on it.
If DEVELOPER has paid any TIF fees prior to the date the credit is
increased, DEVELOPER will pay to CITY the difference between the TIF fees
previously paid and the amount that DEVELOPER would have paid if the revised
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for General Motors Automall - Exhibit B March 30, 1999
TIF fees had been in effect at the time of payment.
The following example illustrates the provisions of the preceding
paragraphs. Assume that COUNTY dedicated land for Dublin Boulevard (a Section
I improvement) on May 1, 1999 and that the amount of credit COUNTY received
was $2,000,000, which amount was based on the land value included in the TIF as of
May 1, 1999. Assume further than on May 15, 1999, the City Council amends the
TIF, to be effective on July 15, 1999, to increase land values. Assume further that
the land value for the dedicated land in the revised TIF is $3,000,000. On July 15,
1999, CITY will increase the amount of credits for COUNTY from $2,000,000 to
$3,000,000. In this example, DEVELOPER pulled a building permit on May 5,
1999 for a I0,000 - square foot building and had paid Section 1 TIF fees in the total
amount of $300,000 ($300 per 1,000 square feet). If the Section 1 TIF fee is
increased to $400 per 1,000 square feet effective July 15, 1999, DEVELOPER will
owe CITY an additional $100,000 on July 15.
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for General Motors Automall - Exhibit B March 30, 1999