HomeMy WebLinkAboutOrd 13-06 Lowe's Home Improvement
ORDINANCE NO. 13 - 06
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*************
APPROVING A DEVELOPMENT AGREEMENT FOR LOWE'S HOME IMPROVEMENT
WAREHOUSE LOCATED AT THE SOUTHWEST CORNER OF DUBLIN BOULEVARD AND
GRAFTON STREET AND BORDERED BY DUBLIN BOULEVARD AND NORTHSIDE DRIVE
IN AREA H OF DUBLIN RANCH (APN 985-0036-009)
P A 05-030
THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. RECITALS
A. The proposed Lowe's Home Improvement Warehouse ("Project") 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 and General Commercial/Campus Office land uses.
B. Pursuant to the California Environmental Quality Act (CEQA), Section 15164 provides
that an addendum to a previously certified Environmental Impact Report (EIR) may be prepared when the
project requires a minor technical change to the EIR and there are no new significant environmental
effects and no substantial increase in the severity of previously identified significant effects.
C. A public hearing on the proposed Development Agreement was held before the Planning
Commission on July 25, 2006, for which public notice was given as provided by law.
D. The Planning Commission has made its recommendation to the City Council for approval
of the Development Agreement.
F. A public hearing on the proposed Development Agreement was held before the City
Council on August 15,2006 for which public notice was given as provided by law.
G. The City Council has considered the recommendation of the Planning Commission who
considered the item at its July 25, 2006 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 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 Specific Plan, (e) the Eastern Dublin EIR, (d) the 1999
Mitigated Negative Declaration for Dublin Ranch Planning Area H, (e) the CEQA Addendum (f) the
Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and
determines that:
Ord No. 13-06, Adopted 9/5/06, Item 4.4
Page 1 of3
1. The Project 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 are
General Commercial and General Commercial/Campus Office Land Uses and the proposed project is a
project consistent with those land uses, (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, ( c) the project is
consistent with the Stage 1 Planned Development Zoning adopted for Dublin Ranch Planning Area H
adopted by the City Council and the Development Plan as amended by the City Council, and (d) the
Lowe's mw, Inc. Development Agreement includes provisions relating to vesting of development rights,
and similar provisions set forth in the Specific Plan.
2. The Lowe's mw, Inc. Development Agreement is compatible with the uses authorized in,
and the regulations prescribed for, the land use districts in which the real property is located in that the
project approvals include a Stage 1 Development Plan Amendment, Stage 2 Planned Development
Rezoning, and Site Development Review.
3. The Lowe's mw, Inc. Development Agreement is in conformity with public convenience,
general welfare and good land use policies in that the project will implement land use guidelines set forth
in the Eastern Dublin Specific Plan and the General Plan which have planned for general commercial and
campus office uses at this location.
4. The Lowe's mw, Inc. 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 Lowe's mw, Inc. 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 (Exhibit A) and authorizes the
Mayor to execute it.
Section 4. RECORDATION
Within ten (10) days after the Development Agreement is fully executed by all parties, the City
Clerk shall submit the Agreement to the County Recorder for recordation.
Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of its
passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3)
public places in the City of Dublin in accordance with Section 36933 of the Government Code of the
State of California.
Ord No. 13-06, Adopted 9/5/06, Item 4.4
Page 2 of3
PASSED, APPROVED AND ADOPTED BY the City Council of the City of Dublin, on this 5th
day of September 2006 by the following vote:
AYES: Councilmembers Hildenbrand, McCormick, Oravetz and Zika, and Mayor Lockhart
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
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Ord No. 13-06, Adopted 9/5/06, Item 4.4
Page 3 of3
RECORDING REQUESTED BY:
CITY OF DUBLIN
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin. CA 94568
Fee Waived per GC 27383
Space above this line for Recorder's use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
LOWE'S HIW, INC.
FOR THE LOWE'S HOME IMPROVEMENT STORE PROJECT
THIS DEVELOPMENT AGREEMENT (this "Agreement" or this "Development
Agreement") is made and entered in the City of Dublin on this _ day of
2006, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter
"CITY") and LOWE'S HIW, Inc., a Washington corporation (hereafter "DEVELOPER")
pursuant to the authority of 99 65864 et seq. of the California Government Code and
Dublin Municipal Code, Chapter 8.56. CITY and DEVELOPER are, from time-to-time,
individually referred to in this Agreement as a "Party," and are collectively referred to as
"Parties."
RECITALS
A. California Government Code 9965864 et seq. ("Development Agreement
Statute") and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56")
authorize the CITY to enter into a Development Agreement for the development of real
property with any person having a legal or equitable interest in such property in order to
establish certain development rights in such property.
B. DEVELOPER intends to purchase, desires to develop, and holds an
equitable interest in certain real property consisting of approximately 12.24 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."
C. DEVELOPER acquired, or will acquire, its interest in the Property from
Chang Su-O Un, H. Yao Un, and H. Uen Un (the "Lins") indirectly though S and V LLC,
a Delaware limited liability company, doing business in California as Stanforth Holding
Company, LLC ('Tong") pursuant to separate purchase and sale agreements, which
allocated rights and obligations as between the Lins and Tong and then Tong and
DEVELOPER.
D. The City Council adopted the Eastern Dublin Specific Plan by Resolution
No. 53-93 which Plan is applicable to the Property. The Eastern Dublin Specific Plan
requires DEVELOPER to enter into a development agreement as a condition of the
development of the Property.
E. The Property is within Area H, which is subject to a Master Development
Agreement between the City of Dublin and the Uns dated June 29, 1999 and recorded
in Official Records Alameda County on July 8, 1999 as Instrument No. 99251790, and a
Supplemental Development Agreement between the City of Dublin and the Lins dated
April 18, 2000 and recorded in Official Records of Alameda County on November 13,
2000 as Instrument No. 200335772.
F. DEVELOPER proposes the development of the Property with a home
improvement retail store of approXimately 138,135 square feet of ground floor retail and
an adjacent garden center of approximately 31,659 square feet (the "Project").
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 1 of 15
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,
without limitation, a Stage 1 Development Plan for Area H (Ord. No. ); Stage 1
Development Plan Amendment (Ord. No. ); Stage 2 Planned Development
Rezone (Ord. No. ); Site. Development Review (Planning Commission Resolution
No. 06-21); and a vesting tentative parcel map (Planning Commission Resolution No.
'). All such approvals collectively, together with any approvals or permits now or
hereafter issued with respect to the Project are referred to as the "Project Approvals."
H. Development of the Property by DEVELOPER may be subject to certain
future discretionary approvals, which, if granted, shall automatically become part of the
Project Approvals as each such approval becomes effective.
I.
Project.
CITY desires the timely, efficient, orderly and proper development of the
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 the Development Agreement
Statute and Chapter 8.56.
K. CITY and DEVELOPER have reached agreement and desire to express
herein a Development Agreement that will facilitate development of the Project subject
to conditions set forth herein.
L. Pursuant to the California Environmental Quality Act (CEQA) the City
Council adopted Resolution No. _ finding that the Project is within the scope of the
Final Environmental Impact Report for the Eastern Dublin General Plan Amendment
and Specific Plan (SCH 91103064) which was certified by the Council by Resolution
No. 51-93 and the Addenda dated May 4,1993 and August 22,1994 (the "EIR").
M. Pursuant to CEQA the City Council adopted Resolution No. 34-00
approving a Mitigated Negative Declaration for Area H (SCH #99112040).
N. Pursuant to CEQA the City Council adopted Resolution No._
approving an Addendum to the EIR, dated June _,2006, for Area H.
O. On ,2006, the City Council of the City of Dublin adopted
Ordinance No. approving this Development Agreement (lithe Approving
Ordinance"). The Approving Ordinance will take effect on ,2006 (lithe
Approval Date").
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained,
CITY and DEVELOPER agree as follows:
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 2 of 15
AGREEMENT
1. Description of Property.
The Property, which is the subject of this Development Agreement, is
described in Exhibit A attached hereto.
2. I nterest of Developer.
The DEVELOPER has a legal or equitable 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 and DEVELOPER and that
DEVELOPER is not an agent of CITY. CITY and DEVELOPER hereby renounce the
existence of any form of joint venture or partnership between them, and agree that
nothing contained herein or in any document executed in connection herewith shall be
construed as making CITY and DEVELOPER joint venturers or partners.
4. Effective Date and Term.
4.1 Effective Date. The effective date of this Agreement shall
be the date ("the Effective Date") upon which this Agreement is signed by CITY.
4.2 Term. The "Term" of this Development Agreement shall
commence on the Approval Date and extend five (5) years thereafter, unless said Term
is otherwise terminated or modified by circumstances set forth in this Agreement.
5. Use of the Property.
5.1 Riaht to Develop. DEVELOPER shall have the vested right
to develop the Project on the Property in accordance with the terms and conditions of
this Agreement, the Project Approvals (as and when issued), and any amendments to
any of them as shall, from time to time, be approved pursuant to this Agreement.
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 following
Development Agreement Between City of Dublin and Lowe's HIW. Inc.
For the Lowe's Home Improvement Store Project
Page 3 of 15
("Additional Conditions") are set forth in Exhibit B attached hereto and incorporated
herein by reference.
5.3.1 Subseauent Discretionarv 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
CITY and any permits required by regulatory agencies.)
See Exhibit B.
5.3.2 Mitiaation 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 Phasina, Timina. 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 Financina Plan. Financial plans which identify
necessary capital improvements such as streets and utilities and
sources of funding.
See Exhibit B
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. Miscellaneous terms.
See Exhibit B
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 4 of 15
6. Aoolicable Rules. Reaulations and Official Policies.
6.1 Rules re Permitted Uses. For the term of this Agreement,
CITY's 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 Approval Date.
6.2 Rules re Desian and Construction. Unless otherwise
expressly provided in Paragraph 5 of this Agreement or in Chapter 7.28 of the Dublin
Municipal Code, the ordinances, resolutions, rules, regulations and official policies
governing design, improvement and construction standards and specifications
applicable to Project construction (but not use) shall be those in force and effect at the
time DEVELOPER submits its application for the relevant building, grading, or other
construction permits to CITY. In the event of a conflict between such ordinances,
resolutions, rules, regulations and official policies and the Project Approvals, the Project
Approvals shall prevail.
For construction of public infrastructure, the ordinances, resolutions, rules,
regulations and official policies governing design, improvement and construction
standards and specifications applicable to Project shall be those in force and effect at
the time of execution of an improvement agreement between CITY and DEVELOPER
pursuant to Chapter 9.16 of the Dublin Municipal Code.
6.3 Buildina Standards Codes Aoolicable. Unless expressly
provided in Paragraph 5 of this Agreement or in Chapter 7.28 of the Dublin Municipal
Code, the Project shall be constructed in accordance with the provisions of the 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 DEVELOPER submits
its application for the relevant building, grading, or other construction permits for the
Project to CITY.
7. Subseauentlv Enacted Rules and Reaulations.
7.1 New Rules and Reaulations. During the Term of this
Agreement, CITY may apply new or modified ordinances, resolutions, rules, regulations
and official policies of CITY to the Property that were not in force and effect on the
Approval Date and which are not in conflict with those applicable to the Property as set
forth in this Agreement and the Project Approvals 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 otherwise contemplated by the Project Approvals, and (b) such
ordinances, resolutions, rules, regulations or official policies have general (City-wide)
applicability.
7.2 Approval of Aoolication. Nothing in this Agreement shall
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 5 of 15
prevent 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 otherwise, 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 98558.
7.4 RiQhts Under VestinQ Tentative Map. Notwithstanding
anything to the contrary contained herein, this Agreement shall not supercede any
rights DEVELOPER may obtain pursuant to CITY's approval of the vesting tentative
map for the Project.
8. SubseQuentlv 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 Approvals 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 the Project Approvals and in this Agreement (including Exhibit
B). 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 land or construction of public improvements, in connection
with any SUbsequent discretionary approval for the Property, except as set forth in the
Project Approvals and this Agreement (including Exhibit B, 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.
8.3 New Taxes. Any subsequently enacted City-wide taxes shaH
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.
8.4 Assessments. Nothing herein shall be construed to relieve
the Property from assessments levied against it by CITY pursuant to any statutory
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 6 of 15
procedure for the assessment of property to pay for infrastructure and/or services that
benefit the Property.
8.5 Vote on Future Assessments and Fees. In the event that
any assessment, fee or charge that is applicable to the Property is subject to Article
XIIID of the California 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. 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 permits approved by CITY, the Parties
shall meet and confer in good faith in a reasonable attempt to modify this Agreement to
comply with such federal or state law or regulation. Any such amendment or
suspension of the Agreement shall be approved by the City Council of CITY in
accordance with Chapter 8.56.
9.2 Amendment bv 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 California 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 otherwise required by law, require notice or public hearing before either the
Planning Commission of CITY or the City Council of CITY before the parties may
execute an amendment hereto. CITY's Public Works Director shall determine whether
a reservation or dedication is "significant".
9.4 Cancellation bv Mutual Consent. Except as otherwise
permitted herein, this Agreement may be canceled in whole or in part only by the
mutual consent of the Parties or their successors in interest, in accordance with the
provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of
this Agreement prior to the date of cancellation shall be retained by CITY.
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 7 of 15
10. Term of Proiect Approvals.
The Term of any Project Approval shall be extended only if so
provided in Exhibit B.
11. Annual Review.
11.1 Review Date. The annual review date for this Agreement
shall be between July 15 and August 15, 2007 and each July 15 to August 15 thereafter
during the Term.
11 .2 Initiation of Review. CITY's Community Development
Oirector 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 CITY intends to
undertake such review. DEVELOPER shall provide evidence to the Community
Development Director prior to the hearing on the annual review, as and when
reasonably determined necessary by the Community Oevelopment Director, to
demonstrate good faith compliance with the provisions of this Development Agreement.
The burden of proof by substantial evidence of compliance is upon 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. 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 that are
not otherwise 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 occurrence of an event of
default by any Party, the nondefaulting Party shall serve written notice of such default
upon the defaulting Party. If the default is not cured by the defaulting Party within thirty
(30) days after service of such notice of default, the nondefaulting Party may then
commence any legal or equitable action to enforce its rights under this Agreement;
provided, however, that if the default cannot be cured within such thirty (30) day period,
the nondefaulting Party shall refrain from any such legal or equitable action so long as
the defaulting Party begins to cure such default within such thirty (30) day period and
diligently pursues such cure to completion. Failure to give notice shall not constitute a
waiver of any default.
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 8 of 15
12.3 No Damaaes Aaainst 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 written
notice from the other Party requesting such Party to certify in writing that, (a) this
Agreement is in full force and effect and a binding obligation of the Parties, (b) this
Agreement has not been amended or modified, either orally or in writing, or if so
amended, identifying the amendments, and (c) to the knowledge of the certifying Party
the requesting Party is not in default in the performance of its obligations under this
Agreement, or if in default, to describe therein the nature and amount of any such
defaults. A Party receiving a request hereunder shall execute and return such
certificate within thirty (30) days following the receipt thereof, or such longer period as
may reasonably be agreed to by the Parties. City Manager of CITY shall be authorized
to execute any certificate requested by DEVELOPER. Should the Party receiving the
request not execute and return such certificate within the applicable period, such failure
shall not be deemed to be a default under this Agreement; provided, however, 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. Mortaaaee Protection: Certain Riahts of Cure.
14.1 Mortoaaee Protection. This Agreement shall be superior
and senior to any lien placed upon the Property, or any portion thereof after the date of
recording this Agreement, including the lien for any deed of trust or mortgage
("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render
invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but
all the terms and conditions contained in this Agreement shall be binding upon and
effective against any person or entity, including any deed of trust beneficiary or
mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by
foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise.
14.2 Mortoaoee Not Obliaated. Notwithstanding the provisions of
Paragraph 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 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 Mortaaaee and Extension of Riaht to
Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 9 of 15
default given DEVELOPER hereunder and specifying the address for service thereof,
then CITY shall deliver to such Mortgagee, concurrently with service thereon to
DEVELOPER, any notice given to DEVELOPER with respect to any claim by CITY that
DEVELOPER has committed an event of default. Each Mortgagee shall have the right
during the same period available to DEVELOPER to cure or remedy, or to commence
to cure or remedy, the event of default claimed set forth in the CITY's notice. CITY,
through its City Manager, may extend the thirty.day cure period provided in Paragraph
12.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a
Mortgagee.
15. Severabilitv.
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 and appear in
defending such action. DEVELOPER shall bear its own costs of defense as a real
party in interest in any such action, and DEVELOPER 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 Assianments.
17.1 DEVELOPER's Riaht to Assian. All of DEVELOPER'S
rights, interests and obligations hereunder may be transferred, sold or assigned in
conjunction with the transfer, sale, or assignment of the Property subject hereto, or any
portion thereof, at any time during the Term of this Agreement, provided that no
transfer, sale or assignment of DEVELOPER's rights, interests and obligations
hereunder shall occur without the prior written notice to CITY and approval by the City
Manager of CITY, which approval shall not be unreasonably withheld or delayed. The
City Manager shall consider and decide the matter within ten (10) working days after
DEVELOPER's notice is given to CITY and receipt by City Manager of all necessary
documents, certifications and other information required by City Manager to decide the
matter. In considering the request, the City Manager shall base the decision upon the
proposed assignee's reputation, experience, financial resources and access to credit
and capability to successfully carry out the development of the Property to completion.
The City Manager's approval shall be for the purposes of: (a) providing notice to CITY;
(b) assuring that all obligations of DEVELOPER are fully allocated as between
Development Agreement Between City of Dublin and Lowe's HIW. Inc.
For the Lowe's Home Improvement Store Project
Page 10 of 15
DEVELOPER and the proposed purchaser, transferee or assignee; and (c) assuring
CITY that the proposed purchaser, transferee or assignee is capable of performing
DEVELOPER's obligations hereunder not withheld by DEVELOPER pursuant to
Paragraph 17.3. Notwithstanding the foregoing, provided notice is given as specified in
Paragraph 23, no CITY approval shall be required for any transfer, sale, or assignment
of this Agreement to: (1) any entity which either (i) is an affiliate or subsidiary of
DEVELOPER or (ii) results from the merger of DEVELOPER or its parent or is the
purchaser of all, or substantially all, of the assets of DEVELOPER or its parent; (2) any
Mortgagee; or (3) any transferee of a Mortgagee.
17.2 Release Upon Transfer. Upon the transfer, sale, or
assignment of all of DEVELOPER's rights, interests and obligations hereunder pursuant
to Paragraph 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 Riaht to Retain Specified Riahts or Obliaations.
Notwithstanding Paragraphs 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 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.
18. Aareement Runs with the Land.
All of the provisions, rights, terms, covenants, and obligations
contained in this Agreement shall be binding upon the Parties and their respective
heirs, successors and assignees, representatives, lessees, and all other persons
acquiring the Property, or any portion thereof, or any interest therein, whether by
operation of law or in any manner whatsoever. All of the provisions of this Agreement
shall be enforceable as equitable 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
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 11 of 15
properties, and (c) is binding upon each party and each successive owner during its
ownership of such properties or any portion thereof, and shall be a benefit to and a
burden upon each party and its property hereunder and each other person succeeding
to an interest in such properties.
19. BankruDtcv.
The obligations of this Agreement shall not be dischargeable in
bankruptcy.
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 DEVELOPER, or any actions or
inactions of DEVELOPER's contractors, subcontractors, agents, or employees in
connection with the construction, improvement, operation, or maintenance of the
Project, provided that DEVELOPER shall have no indemnification obligation with
respect to negligence or wrongful conduct of CITY, its contractors, subcontractors,
agents or employees or with respect to the maintenance, use or condition of any
improvement after the time it has been dedicated to and accepted by the CITY or
another public entity (except as provided in an improvement agreement or maintenance
bond). If CITY is named as a party to any legal action, CITY will cooperate with
DEVELOPER, will appear in such action and will not unreasonably withhold approval of
a settlement otherwise acceptable to DEVELOPER.
21. Insurance.
21.1 Public Liabilitv and ProDertv Damaae Insurance. At all times
that DEVELOPER is constructing any improvements that will become publiC
improvements, 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.
21.2 Workers ComDensation Insurance. At all times that
DEVELOPER is constructing any improvements that will become public improvements,
DEVELOPER shall maintain Worker's Compensation insurance for all persons
employed by DEVELOPER for work at the Project site. DEVELOPER shall require
each contractor and subcontractor similarly to provide Worker's Compensation
insurance for its respective employees. DEVELOPER agrees to indemnify the City for
any damage resulting from DEVELOPER's failure to maintain any such insurance.
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 12 of 15
21.3 Evidence of Insurance. Prior to commencement of
construction of any improvements which will become public improvements,
DEVELOPER shall furnish CITY satisfactory evidence of the insurance required in
Paragraphs 21.1 and 21 .2 and evidence that the carrier is required to give CITY at least
fifteen days prior written notice of the cancellation or reduction in coverage of a policy.
The insurance shall extend to CITY, its elective and appointive boards, commissions,
officers, agents, employees and representatives and to DEVELOPER performing work
on the Project.
21 .4 Self-Insurance. Notwithstanding any other provision of this
Agreement, so long as DEVELOPER and its parent corporation have a combined net
worth of at least Two Hundred Fifty Million Dollars ($250,000,000.00), the insurance
that DEVELOPER is obligated hereby to maintain may include such deductible or self-
insured amount not to exceed five million dollars ($5,000,000.00). To the extent that
DEVELOPER elects to so self-insure, its obligation to CITY with respect to such
insurance obligations, including the obligation to defend and indemnify, shall be the
same as if DEVELOPER is a third party insurer.
22. Sewer and Water.
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
100 Civic Plaza
Dublin, CA 94568
Fax: (925) 833-6651
Notice required to be given to DEVELOPER shall be addressed as
follows:
Lowe's HIW, Inc.,
1530 Faraday Avenue, #140
Carlsbad, CA 92008
Attn: Bob MidkifflThomas E. Maddox, Esq.
Fax: (760) 602-8421
A Party may change address by giving notice in writing to the other Party and thereafter
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 13 of 15
all notices to such Party shall be addressed and transmitted to the new address.
Notices shall be deemed given and received upon personal delivery, or if mailed, upon
the expiration of 48 hours after being deposited in the United 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.
The foregoing Recitals are true and correct and are made a part
hereof.
25. Agreement is Entire Understandina.
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 forth in full:
Exhibit A Legal Description of Property
Exhibit 8 Additional Conditions
27. Counterparts.
This Agreement is executed in two (2) duplicate originals, each of
which is deemed to be an original.
28. Recordation.
CITY shall record a copy of this Agreement within ten days following
execution by all parties. Failure of CITY to comply with this Paragraph shall not affect
the rights and obligations of the Parties under this Agreement.
29. LeQal Authoritv.
Each individual executing this Agreement on behalf of Developer
hereby represents and warrants that has full power and authority under the entity's
governing documents to execute and deliver this Agreement in the name of and on
behalf of the company and to cause the entity to perform its obligations under this
Agreement.
30. DEVELOPERlTona. CITY acknowledges that certain of the
obligations imposed on DEVELOPER and the Project hereby shall be performed by
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 14 of 15
Tong (or a Tong affiliate) pursuant to certain agreements made between DEVELOPER
and Tong (or a Tong affiliate) and CITY agrees that such performance by Tong (or a
Tong affiliate) shall not be a default under this Agreement; provided, however, as
between CITY and DEVELOPER, DEVELOPER remains fully liable for the
performance of each and every obligation imposed on DEVELOPER and the Project
hereby.
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:
Date:
By:
Janet Lockhart, Mayor
Attest:
By:
Fawn Holman, City Clerk
Date:
Approved as to Form:
Elizabeth H. Silver, City Attorney
Lowe's HIW, Inc., a Washington Corporation
.~{t. ( .
By:
Its:
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Approved as to Form:
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By: \ IA."';M Ii. i~ . it. ,~.J J \ox
Its: A.Ct,.!!<.-"'/- (-)-€i^......I''''.1 (,'~V\.\.((
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
For the Lowe's Home Improvement Store Project
Page 15 of 15
Exhibit A
Property Description
Exhibit B
Additional Conditions
The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3
above.
Suboaraaraoh 5.3.1 ~. Subseauent Discretionary Aoorovals
None.
Suboaraaraoh 5.3.2 -- Mitiaation Conditions
Subsection a. Infrastructure Seauencina Proaram
The Infrastructure Sequencing Program for the Project is set forth below.
(i) Roads:
The project-specific roadway improvements (and offers of dedication)
identified in Planning Commission Resolution No. 06-_ approving a vesting tentative
map (the "VTM Resolution") and Planning Commission Resolution No. 06-21 approving
Site Development Review (the "SDR Resolution") shall be completed by DEVELOPER
to the satisfaction and requirements of the Public Works Director at the times and in the
manner specified in the VTM Resolution and SDR Resolution unless otherwise
provided below.
(ii) Sewer
All sanitary sewer improvements to serve the project site (or any
recorded phase of the Project) shall be completed in accordance with 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 SDR
conditions of approval to the satisfaction and requirements of 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 DSRSD
requirements.
Recycled water lines shall be installed in accordance with the SDR
conditions of approval.
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
for the Lowe's Home Improvement Store Project - EXHIBIT B
Page 1 of 7
(iv) Storm Drainaae
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 applicable. Pursuant to Alameda County's National Pollution
Discharges Elimination Permit (NPDES) No. CAS0029831 with the California Regional
Water Quality Control Board, all grading, construction, and development activities within
the City of Dublin must comply with the provisions of the Clean Water Act. Proper
erosion control measures must be installed at development sites within the City during
construction, and all activities shall adhere to Best Management Practices.
(v) Other Utilities (e.a. aas, electricity. cable televisions. telephone)
Construction of other utilities shall be complete by phase prior to
issuance of the first Certificate of Occupancy for any building within that specific phase
of development.
Subsection b. Miscellaneous
(i) Completion Mav 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 DEVELOPER 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.
Subparaaraph 5.3.3 - Phasina. Timina
This Agreement contains no requirements that DEVELOPER must initiate or
complete development of the Project within any period of time set by CITY. It is the
intention of this provision that DEVELOPER be able to develop the Property in
accordance with its own time schedules and the Project Approvals.
Subparaaraph 5.3.4 -- Financina Plan
DEVELOPER will install all improvements necessary for the Project at its own
cost (subject to credits for any improvements that qualify for credits as provided in
Subparagraph 5.3.6 below), unless otherwise required by this Agreement.
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
for the Lowe's Home Improvement Store Project - EXHIBIT B
Page 2 of 7
Other infrastructure necessary to provide sewer, potable water, and recycled
water services to the Project will be made available by the DSRSD. DEVELOPER will
enter into an "Area Wide Facilities Agreement" with the DSRSD 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
Subsection a. Traffic ImDact Fees.
Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIP') established
by Resolution No. 111-04, including any future amendments to such fee. Developer will
pay such fees no later than the time of issuance of building permits and in the amount
of the impact fee in effect at time of building permit issuance.
Developer further agrees that it will pay eleven percent (11 %) of the "Section
1/Category 1" portion of the TIF in cash.
Developer also agrees that it will pay twenty-five percent (25%) of the "Section
2/Category 2" portion of the TIF in cash. If City amends its TIF fee and as a result the
City's outstanding balance due on loans is less than twenty-five percent (25%) of total
Section 2/Category 2 improvements, the Developer shall pay such reduced percentage
of the "Section 2/Category 2" portion of the TIF in cash.
Subsection b. Traffic ImDact Fee to Reimburse Pleasanton for Freewav
Interchanaes.
DEVELOPER shall pay an Eastern Dublin 1~580 Interchange Fee in the
amounts and at the times set forth in City of Dublin Resolution No. 155-98, or in the
amounts and at the times set forth in any resolution revising the amount of the Eastern
Dublin 1-580 Interchange Fee.
Subsection c. Public Facilities Fees.
DEVELOPER shall pay a Public Facilities Fee established by City of
Dublin Resolution No. 214-02, including any future amendments to such fee.
DEVELOPER will pay such fees no later than the time of issuance of building permits
and in the then-current amount of the fee.
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
for the Lowe's Home Improvement Store Project - EXHIBIT B
Page 3 of 7
Subsection d. Noise Mitiaation Fee.
DEVELOPER shall pay a Noise Mitigation Fee established by City of
Dublin Resolution No. 33.96, including any future amendments to such fee.
DEVELOPER will pay such fees no later than the time of issuance of building permits
and in the amount of the fee in effect at time of building permit issuance.
Subsection e. School Impact Fees.
School impact fees shall be paid by DEVELOPER in accordance with
Government Code section 53080 and the existing agreement between DEVELOPER's
predecessor in interest and the Dublin Unified School District.
Subsection 1.
Fire Impact Fees.
DEVELOPER shall pay a fire facilities fee established by City of Dublin
Resolution No. 12-03 including any future amendments to such fee. DEVELOPER will
pay such fees no later than the time of issuance of building permits and in the amount
of the fee in effect at time of building permit issuance.
Subsection Q. Tri-Vallev 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. DEVELOPER will pay such fees no later
than the time of issuance of building permits and in the amount of the impact fee in
effect at time of building permit issuance.
Subparaaraph 5.3.6 -- Credit
Subsection a. Traffic Impact Fee Improvements Credit
CITY shall provide a credit to DEVELOPER for 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 credits shall be governed by CITY's then-current
Administrative Guidelines regarding credits.
Subsection b. Traffic Impact Fee Riaht-of-Wav Dedications Credit
CITY shall provide a credit to DEVELOPER for any TIF area right-of-way
dedicated by DEVELOPER to CITY that is required for improvements that are
described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All
aspects of credits shall be governed by CITY's then-current Administrative Guidelines
regarding credits.
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
for the Lowe's Home Improvement Store Project - EXHIBIT B
Page 4 of 7
SubDaraaraDh 5.3.7 - Miscellaneous
Subsection a. Landscape Maintenance
DEVELOPER agrees to comply with the following condition:
Condition 26 of Planning Commission Resolution No. 06-21 reads as
follows:
In the event that DEVELOPER ceases or reduces operations on the Property,
DEVELOPER shall continue to comply with Conditions No. 29 through No. 42 related to
Landscaping, and Condition No. 24 related to Trash and Waste Accumulation.
The requirements of this subsection shall survive the termination of this Agreement.
Subsection b. Northside Drive Access Riahts.
DEVELOPER agrees to comply with the following condition:
The Owner shall relinquish the abutter's access rights to Northside Drive in
favor of the CITY at the time Caltrans acquires Northside Drive for freeway purposes.
This requirement shall be shown on the final parcel map.
The requirements of this subsection shall survive the termination of this Agreement.
Subsection c. Maintenance of Outdoor Spaces.
DEVELOPER shall maintain the outdoor areas of its property in compliance
with the conditions set forth below.
Trash Compactor.
At no time shall boxes, pallets or any other item be stored outside of the trash
compactor area or the staging area or in any location where these items may be visible.
Stacked Items.
At no time shall any material or item be stacked so that it is taller than the
wall of the Garden Center or the Staging Area. All items shall be located below the
height of the wall and shall be screened from view to the extent possible.
Parking Lot Sales.
Development Agreement Between City of Dublin and Lowe's HIW. Inc.
for the Lowe's Home Improvement Store Project - EXHIBIT B
Page 5 of 7
300 fit:(
Any outside events, including promotional sales and Christmas tree sales,
shall be subject to the Temporary Use Permit requirements contained in the City of
Dublin Municipal Code, specifically Section 8.108.020.
Trash and Waste Accumulation.
The applicant or any future owner shall provide and conduct maintenance of
the site at least once daily, in order to eliminate and control the accumulation of trash,
excess/waste materials and debris.
Access.
The outdoor display area at no time should block or impede the ingress or
egress or disabled access areas. A clear space from the building facade to the parking
area shall be maintained at all times. This clear space is required for the width of the
exiting system.
Storage of Items.
At no time shall the outdoor display area be used to store any items. This
outdoor display area shall only be used for the display of items that are available for
sale inside the store.
Building Materials.
At no time shall building materials such as drywall, plywood, blocks, bricks,
roofing materials or any other similar item be located in the outdoor display area.
Landscape Materials.
At no time shall landscape materials such as soil, fertilizer, mulch, gravel or
any other similar item be located in the outdoor display area. This condition does not
apply to plant materials such as trees. shrubs, flowers or any other similar item.
Storage Buildings.
At no time shall storage buildings, accessory structures or sheds be located
in the outdoor display area.
Screening.
Screening of the outdoor display area shall also be provided. The low walls
and trees shall be maintained and shall not be removed for the life of the building or the
display of items unless the removal has been approved by the Conditional Use Permit.
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
for the Lowe's Home Improvement Store Project - EXHIBIT B
Page 6 of 7
31 (1131'
No trees along the front of the building shall be removed unless the tree will be
replaced with the same species.
Notwithstanding Paragraph 12.2 of the Agreement, if a default of the requirements of
this subsection is not cured by the DEVELOPER within 24 hours after service of written
notice of default, the CITY may then commence any legal or equitable action to enforce
its rights under this Agreement.
The requirements of this subsection shall survive the termination of this Agreement.
Subsection d.
Public Art.
DEVELOPER agrees to comply with the following conditions.
Condition 130 of the Planning Commission Resolution No. 06~21 is revised
to read as follows:
Public Art Contribution.
Pursuant to the Public Art Master Plan, the Applicant/owner shall install a public
art piece on the property as shown on the project plans or shall pay the Public Art in-
lieu fee. If the Applicant/owner elects to provide a Public Art piece on-site, the
Applicant/owner shall submit plans for Public Art for review an approval by the City, in
accordance with the City's Public Art Master Plan. prior to installation of the art and prior
to occupancy of the building, If the Applicant/owner elects to pay the Public Art in-lieu
fee, the Applicant/owner shall pay a fee equal to five-tenths percent (0.5%) of the
Building Valuation (exclusive of land) to finance an art project. This money shall be
used at the City Council's discretion for Public Art at a location identified by the City
Council.
Condition 131 of the Planning Commission Resolution No. 06-21 reads as
follows:
Public Art and Access Easements.
If the Applicant/owner elects to pay the Public Art in-lieu fee, the Applicant/owner
shall dedicate a public art easement to the City of Dublin. This easement shall be at
the approximate location of the landscape area identified on the Landscape Plan as a
potential public art location. In addition, the Applicant/owner shall dedicate an access
easement to the City of Dublin for purposes of site preparation and public art installation
and maintenance, as required.
The requirements of this subsection shall survive the termination of this Agreement.
Development Agreement Between City of Dublin and Lowe's HIW, Inc.
for the Lowe's Home Improvement Store Project - EXHIBIT B
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