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HomeMy WebLinkAbout6.3 GM Automall AGMT,2 .-. . CITY CLERK File # D~[Q]E5J-~~ . AGENDA STATEMENT CITY COUNCil MEETING DATE: May 4,1999 SUBJECT: PUBLIC HEARING PA 98-007 General Motors Automall Development Agreement (Second Reading) Prepared by Eddie Peabody, Jr., Community Development Director A TT ACHMENTS: 1. Development Agreement for General Motors Automall. 2. Ordinance adopting Development Agreement for General Motors Automall (Argonaut Holding, Inc.) RECOMMENDATION: 1. Open Public Hearing. ....-... i)/ 2. Receive Staff presentation and receive public testimony. ( \~ 3. Question Staff and the public 4. Close Public Hearing and deliberate. 5. Waive reading and adopt Ordinance _-99 (Attachment 2) approving the Development Agreement. FINANCIAL STATEMENT: . DESCRIPTION: No financial impact anticipated. 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. BACKGROUND: The City Council approved an Amendment to the Eastern Dublin Specific Plan for the entire Santa Rita area (primarily owned by the Alameda County Surplus Property Authority) in October 1996. As a part of that action, this site was given a Specific Plan and General Plan Land Use Designation of "General Commercial/Campus Office Stream Corridor and Openspace. The project site is located at the southwest comer of John Monego Court and Dublin Boulevard. 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. ------------------------------------------------------------------------------------------------------------- . COPIES TO: General Motors Alameda County Surplus Property Authority In House Distribution ~ ~ ITEM NO. ----M# * Planning Commission Action: On April 13, 1999, the Planning Commission reviewed the Staff report for the proposed development agreement and adopted a Resolution recommending that the City Council adopt an ordinance accepting a . Development Agreement with Argonaut Holding, Inc., and Alameda County for the General Motors Automall project City Council Action: At the Public Hearing of April 20, 1999, the City Council head a presentation from Staff and the applicant, took public testimony and waived the first reading of the Ordinance adopting a Development Agreement with Argonaut Holding, Inc., and Alameda County for the General Motors AutomaIl project. ANAL YSIS: As required by the City of Dublin Municipal Code, a second reading of the proposed Ordinance is necessary prior to final adoption of the Development Agreement. The Ordinance would become effective 30 days after the second reading. RECOMMENDATION: Staff recommends that the City Council open the Public Hearing, take testimony from Staff and the public, deliberate waive the second reading and adopt the Ordinance approving a Development Agreement with Argonaut Holding, Inc., and Alameda County for the General Motors Automall project, PA 98-007. . G:98007 2'"' cc da gm . ~- I".. ,". ., , . ... .\ I ,- I City of Dublin .. '.. - '. ......- . .' " " " . ~. . .". . . \-\'hen Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 /~ :!J-1 - - Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND THE SURPLUS PROPERTY AUTHORITY OFTHECOUNTYOF~EDA AND ARGONAUT HOLDING, INC. FOR THE GENERAL MOTORS AUT01v1ALL ATTACHMENT 1 . , ;? 06. '3-7, TABLE OF CONTENTS . I. Description of Property. ........................................ 3 2. IT"!terest of DEVELOPER and COUN1Y. . . . . . . . . . . . . . . . . . : . . . . . . . . . . 3 3. Relationship of City and Developer .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. Effective Date and Term. ........................................ 3 4.1 Effective Date. ........................................... 3 4.2 Term.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 .). Use' of the Property. ............................................ 3 5.1 Right to Develop ................................. _ . . . . . . . 3 5.2 Permitted Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . -1 5.3 Additional Conditions .................... _ . . . . . . . . . . . . . . . . -1 6. Applicable Rules. Re~lations and Official Policies ..... - . . . . . - . . . . . . . . 5 6.1 Rules re Permitted Uses . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . 5 6.2 Rules re Desi~ and Construction ................ - . . . . . . . . . . . 5 . 6.3 Uniform Codes Applicable . . . . . . . . . . . . . . . . . . . . - . . . . . . . . - . . . . 5 7. Subsequently Enacted Rules and Regulations. . . . . . . . . . . . . . . . . . . . . . . . . 6 7.1 New Rules and ReV1lations ................................. 6 7.2 Approval of Application ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 7.3 Moratorium Not Applicable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 8. Subsequently Enacted or Re\ri.sed Fees. Assessments and Taxes . . . . . . . . . . . 6 8.1 Fees. Exactions. Dedications ................................ 6 8.2 Revised Application Fees ................................... 7 8.3 New Taxes .............................................. 7 8.4 Ac;sessments. . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8.5 Vote on Future Assessments and Fees ......................... 7 9. Amendment or Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 9.1 Modification Because of Conflict wi.th State or Federal Laws ....... 7 9.2 Amendment bv Mutual Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.3 Insubstantial Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Dublin! .Alameda Development Agreement General Motors Automall Table of Contents - Page i of Hi March 30. 1999 . fu "-" ". . . . 8~3'/ 9.4 An1endment of Project Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.5 Cancellation by Mutual Consent .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 10. Term of Project Approvals ....................................... 8 II. Annual Review .......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 11.1 Review Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 11.2 Initiation of Review . . . . . . . . . . . . . . . '.' . . . . . . . . . . . . . . . . . . . . . . 9 11.3 Staff Reports ............................................ 9 11.4 Costs .................................................. 9 12. Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.1 Other Remedies Available .................................. 9 12.2 Notice and Cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12.3 No Dama~es A~ainst CITY ........... ~ . . . . . . . . . . . . . . . . . . . . 10 13. Estop!1el Certificate........................................... 10 14. Mortp"avee Protection: Certain Rights of Cure ....................... 10 - ~ ~ 14.1 Mortg-a~ee Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 14.2 jv1ortga~ee Not ObIi~ated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 14.3 Notice of Default to Mort~aree and E>.:tension of Rirht to Cure.... II 15. Severabilitv . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II 16. Attorneys' Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II -, 17. Transfers and Assi~ments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II 17.1 DEVELOPER's Ri~ht'to AssiVl ............................. 12 17.2 Release Upon Transfer . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . 12 17.3 Developer's Right to Retain Specified RiEhts or Obligations ....... 12 17.4 Permitted Transfer. Purchase or Ac:;si ~ment ................... 12 17.5 COUNlYs Right to Assign. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 18. Agreement Runs 'with the Land .................................. 13 19. Bankruptcy- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 20. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Dublin/Alameda Development Agreement General Motors Automall Table of Contents. Page ii of iii March 30, 1999 t/~.3? 21. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . 14 . 21.1 Public Liability and Property Damage Insurance. . . . . . . . . . . . . . . . 14 21.2 Workers Compensation Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 21.3 Evidence of Insurance .............,...................... 15 22. 23. 24. ?- _:J. 26. 1- _I, 28. Sewer and VVater .........,.................................... 15 Notices................. .....,............................... 15 Recitals . . . . . . . . . . . . . ., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 A~eement is Entire Understanding .............................., 17 Exhibits ..................................................... 17 CounTerpartS ................................................ 1 7 Recordation ............................................ - . . . . 17 Dublin/Alameda Development Agreement General Motors Automall Table of Contents. Page iii of ill March 30, 1999 . . ,l~::.." _. . . _.~ :. . . ," -- ,- - -. - - - -.. ... "".., 5 '7J :3'1 THIS DEVELOPMENT AGREEMENT is made and entered in the City of Dublin on this day of , 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 ss 65864 et seq. of the California Government Code ana Dublin Municipal Code, Chapter 8.56. RECITALS A. California Government Code ss 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the CrTY to enter into an Agreement for the development of real property ",ith any person having a legal or equitable interest in such property in order to establish certain development lights in such property; and B. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Properry; 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 ~ity 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 ac4uired 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), fmal parcel map Dublinl..6Jameda Development Agreement for General Motors Automall Page 1 of 18 March 30, 1999 , b~.3? 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 \\rith respect to the Project, the "Project Approvals"); and H. Development of the Property by DEVELOPER may be subject to certain future discretionary approv;ps including site development re\riew, \vhich, if granted, shall automatically become part of the Project Approvals as each such approyal becomes effective; and 1. 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 :\rith its General Plan and the Eastern Dublin Specific Plan and has been reviewed and evaluated in accordance viith Chapter 8.56; and K. CITY, COUNTY and DEVELOPER have reached agreement and desire to eA-press herein a Development Agreement that 'i'iiII facilitate development of the Project subject to conditions set forth herein; and . 1. Pursuant to the California Environmental Quality Act (CEQA) the City has found, pursuant to CEQA Guidelines section 15182, that the Project is 'i'irithin the scope of the Final Environmental Impact Report for the Eastern D:ublin General Plan Junendment and Specific Plan which was certified by the Council by Resolution No. 51-93 and the Addenda dated May 4, 1993 atl.d August 22, 1994 (the "ErR") and found that the EIR and Mitigated Negative Declaration were adequate for this Agreement; and , 1999, the City Council of the City of Dublin approving this Development Agreement. The , 1999. M. On adopted Ordinance No. ordinance took effect on NOW, THEREFORE, \\rith reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, CITY, COUNTY and DEVELOPER agree as follows: Dublin/Alameda Development Agreement for General Motors Automall Page 2 of 18 March 30, 1999 . I ,.. . . . '711:7 ? AGREEMENT L Description of Propeny. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). 2: Interest of DEVELOPER and COUNn'. The DEVELOPER has a legal or equitable interest in the Property in that it O"wns the Propeny 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 \'enture or partnership benveen them, and agree that nothing contained herein or in any document executed in connection herevvith shall be construed as making the CITY, COUNTY and DEVELOPER joint venturers or panners. 4. Effective Date and Tenn. 4.1 Effective Date. The effective date of this Agreement shall be the date upon which this Agreerilent is signed by CITY. 4.2 Ienn. The term of this Development Agreement shall commence on the Effective Date and e>...'tend five (5) years thereafter, unless said teml is othenvise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Property. 5.1 Right to Develop. DEYELOPER shall have the vested right to develop the Project on the Property in accordance V'lrith the ternl$ and conditions of this Agreement, the Project Approvals (as and when issued), and any DublinlAlameda Development Agreement for General Motors AutomaIl Page 3 of 18 March 30, 1999 %#3? amendments to any of them as shall, from time to time, be approved pursuant to this ~~~ . 5.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, 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 Project Approvals and any amendments to this Agreement or the Project Approvals. 5.3 Additional Conditions. Provisions for the followincr .::> ("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 parties 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 ; Phasine. Timing. Provisions that the Project 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 Exhibit B 5.3.4 Financing Plan. Financial plans which identify necessary capital improvements such as streets and utilities and sources of funding. See Exhibit B DublirJAlameda Development Agreement for General Motors Automall Page 4 of 18 March 30, 1999 . . . . f1:f3? 5.3.5 Fees. Dedications. 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. 1\1iscellaneous tenns. See Exhibit B 6. Applicable Rules. Regulations and Official Policies. 6.1 Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing the permitted uses of the Propeny, governing density and intensity of use of the Properry and the rna..\imurn 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 Desi~ and Construction. Unless othernise e.\,..pressly prmided 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. i 6.3 Uniform Codes Applicable. Unless eA'Pressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance Virith 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. Dublin/Alameda Development Agreement for General Motors Automall Page 5 of 18 March 30, 1999 /0 t:6 '5- '/ 7. Subsequently Enacted Rules and RegJ-llations. 7.1 New Rules and RegJ-llations. 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 "\vhich "\vere not in force and effect on the effective date of this Agreement and which ar.e not in conflict "ith 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 eAl'ressly 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 otherwise, that imposes a building moratorium which affects the Project on all or any part of the Propeny, 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 pan of a declaration oof a local emergency or state of emergency as defined in Government Code ~ 8558. 8. Subseauentlv Enacted or Revised Fees. Ac;sessments and Taxes. 4 . 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 Exhibit B). 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 Dublin/Alameda Development Agreement for General Motors Automall Page 6 of 18 March 30, 1999 . . . . . . // &j 3 '1 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 Exhibit B, subparagraph 5.3.5). 8.2 ~evised Application Fees. Any f:)jsting application, processing and inspection fees that are revised during the teml 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 ,,,,ould 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-v\':ide taxes shall apply to the Project provided that: (1) the application of such taxes to the Propeny is prospective; and (2) the application of such taxes ,,,,ould not prevent development in accordance v.rith this Agreement. By so agreeing. DEVELOPER does not waive its rights to challenge the legality of any such taxes. 8.4 Ac:;sessments. 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 vi,hich benefit the Propeny. 8.5 Vote on Future Ac:;sessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIUD 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 fav6r of such assessment, fee or charge. 9. Amendment or Cancellation. 9.1 Modification Because of Conflict with State or Federal Laws. 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 pennits 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 for General Motors Automall Page 7 of 18 March 30. 1999 /...i 0/' ::3 '1' v 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. Not""rithstanding the provisions of the preceding paragraph 9.2, any amendments to this Agre~ment \"hid1 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 prO\rided 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 eA'tent otherv~rjse required by la\v, 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 'Vorks Director shall determine \vhether a reservation or dedication is "significant". 9.4 Amendment of Project A~~rovals. .A.ny amendment of Project Approvals relating to: (a) the permitted use of the Propeny; (b) prO\rision for . reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary 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 thi~ Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5 Cancellation bv Mutual Consent. Except as otheI\\rise pem1.itted 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 \,rith the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by CITY. Dublin/.l>Jameda Development Agreement for General Motors Automall Page 8 of 18 March 30, 1999 . I :-:: --. j ! . . . .-.". "." /3 ~ J'J 10. Term of Project Approvals. The term of any Project Approval shall be e.,..tended only if so provided in Exhibit B. 11. Annual Review. 11.1 Review!?ate. The annual review date for this Agreement shall be August 15,2000 and each August 15 thereafter. 11.2 Initiation of Review. The CIITs Community Development Director shall initiate the annual revievit, as required under Section 8.56.140 of Chapter 8.56, by giving to DEVELOPER thirty (30) days' 'written notice that; the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably detemlined 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. 11.3 Staff Reports. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11.4 ~. 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. Default. 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 "\vhich are not otherwise provided for in this Agreement or in City's regulations governing development agreements, eA-pressly including the remedy of specific performance of this Agreement. 12.2 Notice and Cure. Upon the occurrence of an event of default by any party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party Dublinl}Jameda Development Agreeme.nt for General Motors Automall Page 9 of 18 March 30, 1999 If 06 .3 ? i\ithin 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 rure such default within such thiny (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 Damares Against CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. 13. Estoppel Certificate. . any party may, at any time, and from time to time, request "Litten notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the cenifying parry 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 pany 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. Mortragee Protection: Certain Ri~hts of Cure. 14.1 Mort~aEee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or . Dublin/Alameda Development Agreement for General Motors Automall Page 10 of 18 March 30. 1999 , > - f::.:--.- . . . .", . .-.~ .....::~: ~ p" .:~.' ,. )5 0(( :5 ? mortgagee ("Mortgagee") who acquires title to the Property, or any ponion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2 Mortgagee Not Obli~ated. Notwithstanding the provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other e.xaction 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 Mortvavee and EA.-tension of Rir-ht 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 CITI shall deliver to such l\1ortgagee, concurrently vdth service tl1ereon to DEVELOPER, any notice given to DEVELOPER ,\ith respect to any claim by CITY that DEVELOPER has committed an event of default. Each Mortgagee shall have the right during the same period available to DEVELOPER to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY, through its City Manager, may eA"tend the thirty-day cure period provided in paragraph 12.2 for not more than an additional STh."ty (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' Fees and Costs. If CITY or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate Dublin/Alameda Development Agreement for General Motors Automall Page 11 of 18 March 30, 1999 . . -.-..... /6q:f3?' in defending such action. DEVELOPER shall bear its mvn costs of defense as a real party in interest in any such action, and shall reimburse CITY for all reasonable co un costs and attorneys' fees eA-pended by CITY in defense of any such action or other proceeding. 17. Transfers and Ac;signments. 17.1 DEVELOPER's Right to Ac;sign. .All of DEVELOPER'S lights, 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 l\1anager shall consider and decide the matter within 10 working days after DEVELOPER's notice, provided all necessary documents, certifications and other infonl1ation are provided to the City !vlanager. 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 Release Unan Transfer. 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, vdth respect to the Properiy 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 eA-pressly 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 ~ssignee 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 Ri~ht to Retain Specified Rights ar Obligations. Notvvithstanding 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 Dublin/i\lameda Development Agreement for General Motors Automall Page 12 of 18 March 30. 1999 . :'.: -" .":- '.' . . . , . ,.-. ~.. . ;. . . . ,". .".."...; ....- /;?qf3;? 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. Purcha~e or A<;si~ment. 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 'ivay of a deed iI} 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 subject to the provisions of paragraph 17.1. 17.5 COUN1Y's Ri~ht to A<;si~.. COUNTY shall not assign its rights, interests or obligations hereunder, "ithout the prior consent of the CITY. 18. A~eement Runs ,'Vith the Land. NI of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner vi,hatsoever. NI of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, induding, 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 hereunde~, or 'with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs 'with such properties, and (c) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each parry and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. Dublin/Alameda Development Agreement for General Motors Automall Page 13 of 18 March 30, 1999 /% if 37 20. Indemnification. DEVELOPER agrees to indemnify, defend and hold harmless CITY, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the DEVELOPER, or any actions or inactions of DEVELOPER's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that DEVELOPER shall have no indemnification obligation \vith respect to negligence or wrongful conduct of eITI, 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 eI}tity (except as prO\ided in an improvement agreement or maintenance bond). COUNTY agrees to indemnify, defend and hold harmless CI1Y, 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 COUNTYs contractors, subcontractors, agents, or employees in conneaion with the construction, improvement, operation, or maintenance of the Project, provided that COUNTY shall have no indemnification obligation \vith respect to negligence or wTongful conduct of CITY, its contractors, subcontractors, agents or employees or Virith 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 Liability and Property Damage Insurance. During the term of this Agreement, DEVELOPER shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than one million dollars ($1,000,000.00) and a deductible of not more than ten thousand dollars ($10,000.00) per claim. The policy so maintained by DEVELOPER shall name the CITY as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. As long as DEVELOPER Dublirv'.Alameda Development Agreement for General Motors Automall Page 14 of 18 March 30, 1999 . . . r-"- . . . . /1ff'3-? is a panicipant 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 Worker's Compensation insurance for all persons employed by DEVELOPER for ,vork at the Project site. DEVELOPER s.hall require each contractor and subcontractor similarly to provide Worker's - Compensation insurance for its respective employees. DEVELOPER agrees to indemnify the City for any damage resulting from DEVELOPER's failure to maintain any such insurance. 21.3 Evidence of Insurance. 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 o.'tend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. 22. Se,:ver and \'\Tater. DEVELOPER acknowledges that it must obtain ,,,'ater and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of CITY. 23. Notices. AIl notices require~ or provided for under this Agreement shall be in writing. No~ices 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/.luarneda Development Agreement for General Motors Automall Page 15 of 18 March 30, 1999 aD oQ 3~ Patrick. Cashman Project Director Surplus Property Authority of Alameda County 225 W. \Vinton Avenue, Room 151 Hayward, CA 94544 . and Adolph Iv1artinelli 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. do GM \Vorld"ide Real Estate 39465 Paseo Padre Park"way, Suite 3700 Fremont, CA 94538 Attention: Timothy R. 1\1iller, Western Regional1\1anager and . Argonaut Holdings, Inc. 485 West Milwaukee Avenue do Worldwide Real Estate Detroit, Michigan 48202 Attention: Director of Real Estate and Danner & Martyn, 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 delivery, or if mailed, upon the Dublin/i\1ameda Development Agreement for General Motors Automall Page 16 of 18 March 30, 1999 . . . . pl./ b() 31 eA-piration of 48 hours after being deposited in the United States I\1ail. Notices may also be given by overnight courier which shall be deemed given the follo'wing day or by facsimile transmission which shall be deemed given upon verification of receipt. 24. Recitals. The foregoing Recitals are true and correct and are made a pan hereof. ?- _:J. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. 26. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set fanh in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions 27. Counterparts. This Agreement is executed in three (3) duplicate originals, each of ".hich is deemed to be an original. 28. Recordation. CITY shall record a copy of this Agreement within ten days follO'iving execution by all parties. IN WITNESS "\^/HEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above 'written. CITY OF DUBLIN: Dublin/.t\lameda Development Agreement for General Motors Automall Page 17 of 18 March 30, 1999 Bv: ./ Mayor Attest: Bv: ./ City Clerk Approved as to FOID1: City Attorney SURPLUS PROPERTI AUTHORlTY OF .AlAMEDA COUNTI: Adolph Martinelli Its Manager Approved as to Form: Attorney for Surplus Property Authority of the County of .Alamed~ ARGONAUT HOLDING, INC. Its: (Name) (Title) Date: ;<:l qj.3? Date: Date: Date: (NOTARIZATION ATTACHED) EHS :rja: J:\WPD\M:l'>:RS'V\114\115\A.GREE\GMAUTODA330 Dublin/.Al&rneda Development Agreement for General Motors Automall Page 18 of 18 March 30, 1999 . . . ~8 06 3-'/ . State of California ) ) ss. County of Alameda ) On before me, a Notary Public, perso~ally appeared personally knO'wn 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 hdshelthey executed 0e same in his/her/their authorized capacity(ies), and that by hislher/their signature(s) on the instlument the person(s), or the entity upon behalf of 'which the person(s) acted, executed the instrument. . 'VITNESS my hand and official seal. NOTARY PUBLIC . c2Ye(3? . EXHIBIT A Legal Description . Parcels A, B & C on tract map 7250, recorded on December 23, 1998 at 98449709. . . . . . ___ ".'.0 ~5 '1f 3'? EXHIBIT B Additional Conditions The folImving 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 Subsection a. Infrastructure Sequencin? Program The Infrastructure Sequencing Program for the Project is set fonh belmv. (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 Pern1it 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 \'Yorks Director. A. Dublin Boulevard Bridze (Condition 59) ; COUNTY shall construct the improvements required by Condition No. 59 of Resolution No. 98-33 when determined necessary by the Public \'Yorks Director . B. 1-580 at Santa Rita RoadfTassajara Road Eastbound Off Ramp Condition No. 68 of Resolution No. 98-33 shall be revised to delete such subparagraph (F) "Santa Rita Road/I-SSO Eastbound Ramps/Pimlico Drive improvements (Condition 63)". Dublin/Alameda Development Agreement for General Motors Automall ~ Exhibit B Page 1 of 10 March 30, 1999 A6 'tf 3./ 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 "when determined necessary by the Public Warks Director" (liThe 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 tem1ination of this Agreement. Unless already provided, within STh:ty (60) days of the Effective Date, COUNTY shall provide CITY v\rith security for the costs of design and construction of The Deferred Conditions in an amount satisfactory to the Public 'V orks Director. The security may consist of a domment, satisfactory to the City Attorney, pledging COUNTY'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 e.."\jsting improvements to match improvements required by this Agreement, induding dedications, to the satisfaction of the CITY's Public V/orks Director. . (ii) Sewer All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance V\rith 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 V\rith 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 "vith the tentative subdivision map and DSRSD requirements. Recycled ,vater lines shall be installed in accordance ,,,ith the tentative Dublin/Alameda Development Agreement for General Motors Automall - Exhibit B Page 2 of 10 March 30, 1999 . f, ;..', r". ft'," ... _ ,.' ;l1tf.3? . subdivision map. (iv) Storm Drainage 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 \^1. orks Department applying CITY's and Zone 7 (Alameda County Flood Control and \'\Tater 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. ?as. electricity. cable televisions. telephone) Construaion shall be complete by phase prior to issuance of the first . Certificate of Occupancy for any building vvithin that specific phase of occupancy. Subsection b. Miscellaneous (i) Completion May be Deferred. Notwithstanding the foregoing, CITYs Public \'\Torks 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 dny 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 Agreement . 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 approY21 and shall enter into an improvement agreement 'with CITY for construction DublinliJameda Development Agreement for General Motors Automall . Exhibit B Page 3 of 10 March 30, 1999 ;?31f5~, 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 induding, but not limited to, "Precise Plans" for Eastern Dublin Santa Rita Area prepare for the Surplus Propeny Authority by Brian Kangas 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 "\ Vorks 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 perforrnance bond or other security shall be in an amount equal to 100% of the engineer's estimate of the cost to construct the improvements (induding 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 CIITs . City Manager. With respect to the Deferred Improvements, the bonds required herein are not required until the Deferred Conditions are determined to be necessaIY by the Public \Vorks 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 ultimate location. 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 subject to the conditions provided in Subparagraph 5.3.6, Subsections (a), (b) and (c). . DublinlJ\lameda Development Agreement for General Motors Automall . Exhibit B Page 4 of 10 March 30. 1999 . -., ..." .. . . . . .' ~ -.. -" ": ~, " ~7'~3~ (v) Landscaping Along 1-580 Frontage No later than issuance of the first Certificate of OCOlpancy, for Parcel"C" (the 7.536 acre parcel adjacent to 1-580 on Tentative Map No._7250) DEVELOPER "vill install landscaping along the frontage of the Property adjacent to 1-580. Such landscaping ,vill 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 first 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, Band C, shall be as follows: a minimum of 20' wide transitional landscaping adjacent to th~ 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 John Monego Court]); and a minimum of 15'landscaping adjacent to Dublin Boulevard. The landscaping that is associated with Parcels A, Band/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) Loudspeaker Noise 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 Resolution No. 98-33). Dublin/Alameda Development Agreement for General Motors Automall . Exhibit B Page 5 of 10 March 30, 1999 30 '1:f 3 ? Subparagraph 5.3.3 -- Phasing. Timing . 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 p:ovision that DEVELOPER be able to develop the Propeny in accordance v.lth its o'wn time schedules and the Project Approvals. Subparagraph 5.3.4 ~- Financing Plan DEVELOPER wiII 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 se\ver, potable v\'ater, and recycled water services to the Project 'will be made available by the Dublin San Ramon Services District. COUNTY has entered into an "Area \Vide Facilities Agreement" "ith the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such senlces shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. . Subparagraph 5.3.5 ~- Fees. Dedications Subsection a. 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 Impac"t Fee for Eastern Dublin established by Resolution No. 41-96, including any future amendments to such fee. DEVELOPER, COUNTY and CITY acknowledge that COUNTY is entitled to cenain 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 Dublin/Alameda Development Agreement for General Motors Automall - Exhibit B Page 6 of 10 March 30, 1999 . } - ~ :,-.- . . . - '-:::..,- 3/'6:3'/ Traffic Impact Fee for Eastern 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 (11'2) of the "Section I" portion of the Traffic Impact Fee for Eastern Dublin for the Project provided that it has sufficient such credits. CITY shall determine vvhich of the 1991 Credits and/or Prior Agreement Credits shall be used pursuant to this paragraph. Notwithstanding anything herein to the contrary, DEVELOPER funher agrees that it (and its assignee) will pay at least seven percent (7%) of the "Section I" portion of the Traffic Impact Fee for Eastern Dublin in cash. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freewav Interchan~es. - DEVELOPER shall pay the Eastel11 Dublin 1-580 Interchange Fee established by City of Dublin Resolution No. 11-96 as amended by Resolution No. 155-98 and by any subsequent resolution ,,,hich revises such Fee. Subsection c. Public Facilities Fees. 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. Noise Mitigation Fee. I 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 ~1arch 26, 1996, and any amendments thereto. Subsection e. School Impact Fees. School impact fees shall be paid by DEVELOPER in accordance with Government Code section 53080 and the eJdsting agreement bet\\reen COUNTY and the Dublin Unified School District. DublinlMarneda Development Agreement for General Motors Automall - Exhibit B Page 7 of 10 March 30. 1999 - . . ..'. ...... 3;1. crJ :3 '/ Subsection f. Fire Impact Fees. . DEVELOPER shall pay a fire facilities fee in the amounts and at the times set fonh in City of Dublin Resolution No. 37-97 or any subsequent resolution which revises such fee. Subsection g. Tn-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. Subsection h. Dedications COUNTY agrees to dedicate the following propeny required for roadway improvements to CITY and both the land and ground'water shall be free of hazardous substances: 1. Approximately 311 on the 'vest side of Tassajara Road from Dublin . Boulevard to Gleason Drive, as shown in the "Precise Plans". Subparagraph 5.3.6 ~- Credit Subsection a. Traffic Impact Fee Improvements Credit CITY shall provide a credit to COUNTY for the those improvements described in the resolution establish'lng 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). Subsection b. Traffic Impact Fee Ri~ht-of-Way Dedications Credit CITY shall provide a credit to COUNTY for the following TIF area right-of- . Dublin! i\lameda Development Agreement for General Motors Automall . Exhibit B Page 8 of 10 March 30. 1999 '.' '."-- -: ::-; - - ':' .' -' "'-'" :.:'-"., '3 '1 oJ :3:;l . 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: 1. Any portions of Tassajara 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 Subsection a. Landscaping Maintenance Along Streets and Creek . CITY has formed a landscape maintenance district knO\:\11 as the "Landscape Iviaintenance Assessment District No. 97-1 (Santa Rita Area)" pursuant to a petition from COUNTY, and imposed an assessment against the Properry 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 amount 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 adjusunent 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 Dublin/.t\larneda Development Agreement for General Motors Autornall - Exhibit B Page 9 of 10 March 30. 1999 :?~qf 37 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 1 improvement) on May I, 1999 and that the amount of credit COUNTY received ,,'as $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 funher that the land value for the dedicated land in the revised TIF is $3,000,000. On Julv 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 penllit on May 5, 1999 for a 10,000 - square foot building and had paid Section I 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. EHS:rja J:\vVPD\M."-TRSV\'\114\115\A.GREE\GM_EXB.330 Dublin/Alameda Development Agreement for General Motors Automall . Exhibit B Page 10 of 10 March 30. 1999 . . .' . 3515'.3'1 ORDINANCE NO. :. AN ORDINANCE OF THE CITY OF DUBLIN APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN, ARGONAUT HOLDING, INC. (P A 98-007) and ALAMEDA COUNTY SURPLUS PROPERTY AUTHORITY FOR THE GENERAL MOTORS AUTO MALL PROJECT THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: Section I. RECITALS A. The proposed General Motors Automall Project (P A 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 ErR adequately describes the total . project for the purposes ofCEQA. 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. . H. A public hearing on the proposed Development Agreement was held before the City Council on April 20, 1999, for which public notice was given as provided by law. ATTACHMENT 2 3G ~ 31 J. The City Council has considered the recommendation of the Planning Commission at the April 20, 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. FINDINGS AND DETERMINA nONS 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 ErR, (f) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: I. 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. . ~ 0" :J{) 6 :3? . 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 ofthe City of Dublin, on this 4th day of May 1999, by the following votes: A YES: NOES: ABSENT: ABSTAIN: . ATTEST: MAYOR CITY CLERK A:gmdaord .