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HomeMy WebLinkAboutOrd 11-04 IKEA ProjectPA 02-034 ORDINANCE NO. 11 - 04 AN-ORDINANCE OF TIlE CITY COUNCIl, OF TIIE CITY OF DUBLIN APPROVING THE DEVELOPMENT AGREEMENT FOR PA 02-034 IKEA'PROJECT TIlE CITY COUNCIL OF TIlE CITY OF DUBLIN DOES IIEREBY ORDAIN AS FOLLOWS: Section 1. RECITALS A. IKEA Property, Inc. submitted applications for an IKEA store, a retail center and related improvements on a 27.54 acre site north of 1-580, between Arnold Road and Hacienda Boulevard. The project proposes an approximately 317,000 square foot IKEA store on the westerly portion of the site, and an approximately 137,000 square foot retail center on the easterly portion of the site. The development includes applications to amend the General Plan and Eastern Dublin Specific Plan from Campus Office to General Commercial; to rezone the site to PD-Planned Development and adopt related Stage I and Stage 2 Development Plans; to approve a Site Development Review for the IKEA store; and to approve a vesting tentative parcel map and development agreement. The applications are collectively known as the "Project". B. The City prepared and circulated a Draft Supplemental EIR analyzing the potential environmental effects of the Project. The City prepared a Final Supplemental EIR comprised of written responses to all comments received on the Draft Supplemental EIR. On February 24, 2004, the Planning Commission adopted Resolution No. 04 - 10 recommending that the City Council certify the Dm~ and Final Supplemental EIRs as the Supplemental Environmental Impact Report for the Project, which resolution is incorporated herein by reference. C. On March 16, 2004, the City Council adopted Resolution No. 44 - 04, incorporated herein by reference, certifying the SEIR as adequate and complete pursuant to the California Environmental Quality Act, and adopting mitigation and alternatives findings as well as a Statement of Overriding Considerations and a Mitigation Monitoring Program as required for approval of the Project. D. The text of the Development Agreement is attached to this resolution as Exhibit A. E. The Development Agreement is required as an implementing measure of the Eastern Dublin Specific Plan and is authorized by Government Code section 65865 and Chapter 8.56 of the Dublin Municipal Code. F. A public hearing on the proposed Development Agreement was held before the Planning Commission on February 24, 2004, for which public notice was given as provided by law. G. A public hearing on the proposed Development Agreement was held before the City Council on March 16, 2004 and April 6, 2004, for which public notice was given as provided by law. H. The City Council has considered the recommendation of the Planning Commission who considered the item at the February 24, 2004, meeting, including the Planning Commission's reasons for its denial, 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, (¢) the Eastern DubIinGeneral Plan Amendment, (d) the Specific Plan, (e) the EIR and SEIR, (f) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: 1. Said Agreement is consistent with the objectives, policies, general land uses and programs specified in the Eastern Dublin Specific Plan/General Plan in that, a) the Eastern Dublin Specific Plan/General Plan land use designation for the subject site is proposed to be Planned Development and that the IKEA Project is consistent with that designation; b) the projects are consistent with the fiscal policies in relation, to provision of infrastructure and public services of the City's Eastern Dublin Specific Plan/General Plan; c) the Agreement sets forth the rules the Developer and City will be governed by during the development process which is required by the Eastern Dublin Specific Plan; and the Mitigation Monitoring Program ofthe Eastern Dublin Specific Plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located in that the project approvals include General Plan and Specific Plan Amendment, a Planned Development Rezoning including related Stage 1 and 2 Development Plan, Site Development Review, Master Sign Program, and Vesting Tentative Map. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use policies will implement land use guidelines set forth in the Specific Plan and the General Plan, as amended, which have planned for the uses at this location~ 4. The Development Agreement will not be detrimental to the healtl~ 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 ofproperty 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 Agreements (Exhibit.. A.) and authorizes the Mayor to sign. Section 4. RECORDATION Within ten (10) days after the Development Agreements are 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 and after the effective date the IKEA Project General Plan amendment. The City Clerk of the City of Dubtin 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, APPROVED AND ADOPTED BY the City Council ofthe City of Dublin, on this 6t~ day of April, 2004, by the following votes: _. AYES: Councilmembers McCormick, Sbranti and Zika, and Mayor Lockhart NOES: Councilmember Omvetz ABSENT: None  _ Mayor ATTEST: G:\C C qMTGSX2.004ql tI2~kp ~q-0C>-04~mi-lKF. A. DA.doc (Item 6.1) City of Dublin When Recorded IVlaii To: City. Clerk Ci.ty of Dublin 100' Civi0 Plaza 'Dublin,-CA 94568 Space above this line for Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND IKEA PROPERTY, INC FOR THE IKEA PROJECT ~AR' ! 0 2004 :,,~BL~.~ PLANNING Development Agreement Between City of Dublin and KEA Proaerty, Inc. 598986.06 SF Page 1 of '- THIS DEVELOPMENT AGREEMENT is made and'entered in the City of Dublin on this ~ day of ,2004, by and between the CITY OF DUBLIN, a Municipal Corporation (hereafter "CITY") and IKEA Property, Inc., a t~g' corporation (hereafter "DEVELOPER") pursuant to the authority of §§65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. CITY and DEVELOPER are, from time-to-time, individually referred to in this Agreement as a "Party," and are collectively referred to as Parties. RECITALS A. California Government Code §§65864 et seq. "Development Agreement Statute") and Chapter 8.56 of the Dublin Municipal Code (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 desires to develop and holds an equitable interest in, in that it has the right to purchase, certain real property consisting of approximately 27.54 acres of land, located in the City of Dublin, County of Alameda. State of California, which ~s more particularly described in. Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property." The Alameda County Surplus Property Authority presently is the fee owner of the Property. C. The City Council adopted the Eastern Dubtin 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. E. DEVELOPER proposes the development of the Property as a retail center on two separate tots consisting of an approximately 317.000 square foot IKEA home furnishings store (to be constructed on the "IKEA Parcel") and an adjacent "Lifestyle Retai Center" with a total of approximately 137,000 square feet of building area (to be constructed on the "Retail Center Parcel") (collectively the "Project"). F DEVELOPER anticipates that upon receiving al entitlements and fee title to the Property, it will transfer title to the Retail Center Parcel to Opus West Corporation, which intends to develop the Retail Center Parcel. G. DEVELOPER has applied for. and CiTY has approved or is processing, various land use approval.s in connection with the development of the Proiect. including, without limitation, a General Plan Amendment (Resolution No ), a Specific Plan Amendment (Resolution No. __.), Planned Development District -ezoning (including Stage 1 and 2 Development Plan).(Ordina'nce No. ), a Site Development Review approval that would apply to the IKEA Parce -.only (Resolutior No. Development Agreement Between City of Dubiin and tKEA ~roperty, Inc. 598.g86.06 SF Page 2 of 17 ) ("IKEA SDR"), a Master Sign Program (Resolution No. ),'and vesting tentative map (with multiple final maps). 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 DEVELOF~ERmay be:subject to certain future discretionary approvals, which, if granted, but excepting any site development review approva with respect to the Retail Center. ParCel, shall automatically become part of the Project Approvals as each such approval becomes effective. I. CITY desires the timely, efficient:, orderly and proper development of the Project. J, The City Council ha$..'f0und,that, among other things, this Deve,lopment Agreement is consistent with its General Ptan an'd the Eastern Dublin Specific Plan and has been revie.wed 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 subfect to conditions set forth herein. L. The Project is in the Dublin General Plan Eastern Extended Planning Area and the' Eastern Dublin Specific Plan area, for which a Program EIR was Certified pursuant to the California Environmental Quality Act (CEQA) (SCH No. 9t-1.03064, Res9lution 53-93).- The City prepared an initial Study for the IKEA project to determine whether supplemental environmental impacts would occur, as a result of the project beyond or different from those already addressed in the Program FIR. Based on the initial Study and 'pursuant to CEQA Guidelines section 15162, the City prepared a Supplemental E'IR to address project changes and new information since.certification of the Program EIR. Supplemental impact.s and mitigation measures were identified, the Supplemental EIR was certified and CEQA findings and a statement of overriding considerations were adopted by the City Council on ,2004; and M. .On , the City Council' of the City of Dublin adopted Ordinance No. approving this Development Agreement Cthe AB. proving OrdinanCe"). The Approving Ordinance will take.effect on '("the Approval Date"). NOW, THERF~FORE, 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 1KEA Property, Inc. 598986,06 SF Page 3 Of 17 AGREEMENT 1, Description of Property. The Property which is the subject of this Development Agreement is described in Exhibit A attached hereto ("Property"). 2, Interest of Developer. The DEVELOPER has a legal or.equitable interest ih the Property. 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 the DEVELOPER is not an agent of CITY. The CITY and DEVELOPER hereby renounce the existence of any form of joint venture or ~artnership between them. and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the CITY and DEVELOPER joint venturers or partners. 4. Effective Date and Term. 4.1 Effective Date. The effective date of this Agreement shall be the date ("the Effeotive Date") upon which a grant deed conveying the Property from COUNTY to DEVELOPER is recorded in the Official Records of Alameda County. If a grant deed conveying the Property from COUNTY to DEVELOPER is not recorded within 12 months of the Approval Date. this Agreement shall automatically terminate without any further action of the Pairties. 4.2 Term The "Term" of this Development Agreement shall commence on the Approva! 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 Right to Develop. DEVELOPER shall have -the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, 'the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time. be approved pursuant to this Agreement. 5.2 Permitted Uses. The permitted uses of the Property, the density and ntensity 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 ~mprovements, location of public utilities (operated by CITY,) and Development Agreernem Between City of Dublin and tKEA Property, inc. 598986.06 SF Page 4 of 17 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 ("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 .reouired by the ordinances of the City of Dublin and any permits required by regulatory agencies.) ,See Exhibit B. 5.3.2 Miti,qation Conditions. Additional or modified conditions agreed upon by the parties m 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 Phasinq, Timin.q. '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 Financlnq 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 reinflbursement over time for financing of necessary public facilities. See Exhibit B DeveioDmen~ Agreement Between City of Dublin and IKEA Property, Inc, 598986~06 SF Page 5 of I7 5.3.7 Miscellaneous. Miscellaneous terms. See Exhibit B 6. .A. ppiicable Rules. Requlations 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 Property, governing density and intensity of use Of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the effective date of this Agreement. 6.2 Rules re Desi.qn 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 the 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 shal 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 Buitdin,q Standards Codes Applicable. 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 Ca ifornia Code of Regulations. relating to Building Standards, in effect at the time the DEVELOPER submits its application for the retevant building, grading, or other construction permits for the Project to CITY 7. Subsectuentfv Enacted Rutes and Requlations. - 7.1 New Rules and Reoutations. During the term of this Agreement, the CITY may apply new or modified ordinances, resolutions, rules, 'egulations and official policies of the CITY to the Property which were not in force and effect on the Approval Date and which are not in conflict with those appiicab!e to the Property as set forth in this Agreement and the-Project Approvais if: (a) the appticatior, of such. new or modified ordinances, resolutions, rules;-regufations or official policies Development Agreement Between City of Dublin and IKEA Property, Inc, 598986.06 SF Page 6 of 17 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) if such ordinances, resolutions rules, regulations or official policies have general (City-wide) applicability. 7.2 Approval of A~)plication. 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 poticies 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 tocal emergency or state of emergency as defined in Government Code §8558. 7.4 Rights 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. Subseauentl¥ 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). 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 land or. construction of public improvements, in connection with. any subsequent discretionary approval for the Property, except as set forth in the Proiect 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.Qf this Agreement shall apply to the Proiect provided that (1) such fees have general applicability; (2) the application of s~ch fees to the Property is prospective; and (3) the application of such Development Agreement Between City of. Dublin and tKEA Property, nc. 598986 06 SF Page 7 of 17 fees would not prevent development in accordance with this Agreement. By so agreeing, DEVELOPER does not waive its rights to challenge the legality of any such application, processing and/or inspection fees. 8.3 New Taxes. Any subsequently enacted city-wide taxes shall apply to the Proiect provided that: (1) the application of such taxes to the Property is prospective; and (2) the applic.ation of such taxes would not prevent development in accordance with this Agreement. By so agreeing. DEVELOPER does not waive its rights to challenge the legality of any such taxes. 8.4 Assessments. Nothing herein shall be construed to relieve the Properly from assessments levied against it by CITY pursuant to any statutory procedure for the assessment of property to pay for infraStructure and/or services which benefit the Property. 8.5 Vote on Future Assessments and Fees. in the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and DEVELOPER does not return its ballot, DEVELOPER agrees, on behalf of itself and its successors, that CITY may count DEVELOPER's ballot as affirmatively voting in favor of suCh assessment, fee or charge. 9. Amendment or Canceflation. 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 thi.s Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the CITY, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or State law or regulation. Any such amendment or suspension of the Agreement shall be approved by the City Council 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 taw and Chapter 8.56. 9.3 insubstantial Amendments. Notwithstanding the provisions of the preceding section 9.2, any amendments to this Agreement which do not relate to (a) the .term of the Agreement as provided in section 4.2: (b) the permitted uses of the Property as provided in section 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: (% 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 Deveio3ment Agreement Between City of Dublin and IKEA Property, nc. 598986.06 SF Page 8 of 17 extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. CiTY's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or 'in part only by the mutual consent of the parties or their successors in interest, in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by CITY. 10. Term of Proiect Approvals. Pursuant to California Government Code Section 66452.6(a), the term of the parcel map described in Recital G above shall automatically be extended for the. term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. 11 .I Review Date. The .annual review date for this Agreement shall be between July 15 and.August 15. 2005 and each July 15 to August 15 thereafter. 11.2 Initiation of Review..The CITY's Community Development Di'rector shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving.to DEVELOPER thirty (30) days' written notice that the CITY intends to undertake such review. DEVELOPER shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Development Agreement. The burden of proof by substantial evidence of compliance is upon the DEVELOPER. 1 1.3 Staff Re~)orts. To the extent practical, CITY shall deposit in the mail and fax to DEVELOPER a copy of all staff repoFts, and related exhibits concermng 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. Develo3mem Agreement BeTween City of Dublin and tKFA Property, inc. 598986.06 SF Page 9 of I7 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the sarties may pursue all other remedies at law or in equity which 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 Agreeme.n~. I2.2 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 twenty (20) 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 nondefautting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 No Damapes Against CITY. In no event shall damages be awarded against CITY upon an event of default or upon termination of this Agreement. 1 3. EstopDeI 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 writin'g, 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 ionger 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 pa~rty receiving the request not execute and return such certificate within the applicable period, this shall not ~e deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. I4: Mortqa.qee Protection; Certain Riqhts of Cure. 14 1 Mort,qa,qee Protection. This Agreement shaII be superior and senior to any lien placed upon the Property,: or any portion thereof after the date of Development Agreement Between City of Dublin and tKEA Property, inc. 598986.06 SF Page 10 of 17 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 Mort,ctapee Not Obliaated. 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 ol~her exaction or imposition; provided, ' 'however, that a Mortgagee shal 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 Mort,qapee and Extension of Riqht to Cure. If CITY receives notice from a Mortgagee requesting a copy of any notice of defa'ult given DEVELOPER hereunder and speoifying 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 toany 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. tkrough its City Manager, may extend the thirty-day cure period provided in section 1.2.2 for not more than an additional sixty (60) days upon request of DEVELOPER or a Mortgagee. 15. Severabilit¥. The unenforceability, invalidity or illegality of any prowsions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, 'nvaiid 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 taw or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate and appear in Development Agreement Between City of Dubtin and IKEA Property, Inc. 598986.06 SF Page 11 of 17 defe. r~ding 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 Assiqnments. 17.1 DEVELOPER's Riqht to Assi.qn. All of DEVELOPER'S rights, interests and obligations hereunder may be transferred, sold or assigned in coniunction with the transfer, sale, or assignment of the Property subject hereto, or any portion thereof, a~ any time during the term of this Agreement, provided that no transfer. sate or assignment of DEVELOPER's rights interests and obligations hereunder shall occur without the prior written notice to CITY and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. The City Manager shall consider and decide the matter within 10.working days after DEVELOPER's notice provided and receipt by City Manager of all necessary documents, certifications and other information required by City Manager to decide the matter, in cons dering 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 c0mptetion. The City Manager's approval shal be for the purposes of: a) providing notice to CITY; b) assuring that all obligations of DEVELOPER are allocated as between DEVELOPER and the proposed purchaser, transferee or assignee; and c) assuring CITY that the ~)roposed purchaser, transferee or assignee is capable of performing the · DEVELOPER's obligations hereunder not withheld by DEVELOPER pursuant to section 17.3. Notwithstanding the foregoing, provided notice is given as specified in Section 23, no CITY approval shall be required for any transfer, sate, or assignment of this Agreement to: 1) any entity which is an affiliate or 'subsidiary of DEVELOPER; 2) any Mortgagee; 3) any transferee of a Mortgagee; or 4) Opus West Oorporation, or its affiliates ("Opus West"), in conjunction with the sate of that portion of the Property described as the Retail Center Parcel from DEVELOPER to Opus West, provided that DEVELOPER has, at the time of the transfer, complied with all obligations of this Agreement or provided evidence satisfactory to the City Manager demonstrating that the remaining obligations have been allocated between DEVELOPER and Opus West. 17.2 Release Upon Transfer. Upon the transfer, sale, or assignment of all of DEVELOPER's rights, interests and obligations hereunder pursuant to section 17.1 of this Agreement, DEVELOPER shall 'be released from the obiic~ations under this Agreement, with respect to the Property transferred, sold, or assigne~, 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 ail such rights, interests and assumed obligations. In any event, the transferee, purchaser, Development Agreement Between City of Dublin and IKEA Property, Inc. 598986.06 SF Page 12 of 17 or assignee shall be subject to alt. the provisions hereof a~d shall provide all necessary documents, certifications and other necessary information prior to City Manager approval. 17.3 Developer's Riqht to Retai.n Specified Riqhts or Obli.qations. Notwithstanding sections 17.1 and 17.2 and section 18. DEVELOPERYn~/'withhotd 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 nterests and/or obiigations. 18. A,qreement 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 ali other persons acquiring the Prope~y, or any portion thereof, or any interest therein, whether by operation of taw 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 taws, including, but not limited to, Section 146.8 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property, .(a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its oWnership of such properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. 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 ali 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 Development Agreement Between City of Dublin anc IKEA Property, inc. 598986.06 SF Page 13 of 17 or inactions of DEVELOPER's contractors, subcontractors, agents, or employe.es 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 ~mprovement 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's 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. 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. 2t .1 Public Liability and Property Damaqe 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 ~nsured and shall include either a severabifity of interest clause or cross-liability endorsement. 21 2 Workers Compensation insurance. At all times that DEVELOPER is construsting any improvements that will become public improvements. DEVEbOPER 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. 2t.3 Evidence of InSurance. Prior to commencement of construction of any improvements which wil become public improvements, 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 shale extend to the CITY, its elective and appointive boards, commissions, officers, agents, employees and representatives and to DEVELOPER performing work on the Project. DeveioDment Agreement Between City of Dublin aha IKEA PrcDerty, Inc 598986.06 SF Page 14 of I7 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, Alt 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 Notice required to be given to DEVELOPER shall be addressed as follows' IKEA Property, Inc. 496 W. Germamon Pike Plymouth Meeting, PA 19462 Attention: President With cop~es to: Doug Greenholz IKEA Property, Inc. 3350 Brunell Drive Oakland, CA 94602 Michael P. Durkee Allen Matkins 333 Bush Street, 17th Floor San Francisco, CA 94104 A party may change address by giving notice in writing to tlqe other party and thereafter ail 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 expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overmght courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. Development Agreement Between City of Dublin and IKEA Property, Inc. 598986.06 SF Page 15 of 17 24'. hereof. 25. of the parties. 26. '"Recitals. The foregoing Recitals are true and correct and are made a part A,qreement is Entire Understandinq: This Agreement constitutes the entire understanding and agreement Exhibits. The following documents are referred to in this Agreement and 'are attached hereto and incorporated herein as thougti set forth in full: 27. Exhibit A Exhibit B Countemarts. Legal Description Of Property Additional Conditions This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. 28. Recordation. CITY shall record a copy of this Agreement within ten days of DEVELOPER providing CITY notice that a grant deed conveying the Property from COUNTY to DEVELOPER ~s recorded in the Official Records of Alameda County. [EXECUTION PAGE FOLLOWS] Devetopmem Agreement Between City of Dublin and IKEA Proper~y, Inc. 598986.06 SF Page I6 of 17 IN wITNESS WHEREOF, the parties hereto have caused (his Agreement to be executed as of the date and year first above written. CITY OF DUBLIN: By: Mayor Attest: Date: By: City Clerk Approved as to Form: Date: City Attorney Corporation Development Ag reemem Between City of Dublin and IKEA ProperTy, inc. 598986.06 SF Page 17 of 17 Exhibit A Property Description Ail that certain real property situated in the City of Dublin. County of Alameda, State of California. described as follows: Parcel 2 of Parcel Map 7714 recorded on August 1, 2001. in Book 260 of Parcel Maps at Pages 30 through 33. Recorder's Series No, 2001277299. Alameda County records. 598986.06 SF Exhibit B Additional Conditions The. following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subpara.qraph 5.3.1 ' SubSe~luent Discretionary Approvais Development of the Lifestyle Retail Center on the Retail Center Parcel will require site development review approval. SubDara.clraph 5.3.2 -- IViiti~ation Conditions Subsection a. lnfrastructure'Sequencing Program The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) identified in Resolution No. approving Site Development Reviev¢ ("the SDR Resolution") shall be completed by DEVELOPER to the satisfaction and requirements of the Public Works Drrector at the times and in the manner specified in the SDR Resolution unless otherwise provided below. Condition No. 94 [Dublin BoulevardtDougherty Road Intersection improvements] Condition No. 94 (in relevant'part) reads as follows: TraffiC Study and Required Roadway Improvements. The Applicant/Developer shaft construct afl necessary on-site and off- site traffic mitigation/roadway improvements as discussed in Final Report: IKEA Retail Center Transportation Study prepared by Fehr & Peers Transportation Consu/tants dated August 2003. Said mitigations inc/ude: ·.. The applicant shaft advance to the City, at the time and in the manner set forth in the Development Agreement, monies for acquisition of right-of-way for needed for the improvements planned for the intersection of Dublin Boulevard and Dougherty Road and for construction of such irr7provements. Development Agreement Between City of Dublin and KEA Proper[y, Inc. EXHIBIT B 598986.06 SF Page 1 -- DEVELOPER shall provide CITY with DEVELOPER's fair share, as determined by CITY on the basis of the Project's trips, for the costs of design and construction of Dublin Boulevard/Dougherty Road Intersection Improvements by a payment to CITY in oash in the amount of the Proiect's fair share of the deficiency, if any, between .funds available to CITY for CIP Project # 96852 [Dougherty Road/Dublin Blvd. Intersection] and the cost of such proiect. Such payment shal be made within 30 days of written notice from the Public Works Director. which notice will be given following bid Opening. Notwithstanding the provisions of Section 4 of this Agreement, those portions of Condition 94 associated with the Dubiin Boutevard/Dougherty Road intersection improvements and the provisions of this subsection shall survive termination of this Agreement. (ii) Sewer Ali sanitary sewer imprdvements 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 the CiTY's fire department. All potable water system components to serve the project site (or any recorded pt~ase of the Project) shall be completed 'n accordance with DSRSD reau~rements. Recycled water lines shall be installed in accordance With the SDR conditions of approval (iv) Storm Drainaoe 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 Pe improved to the satisfaction and requirements of the Dublin Public Works De~)artment applying CITY's and Zone 7 (Alameda County Flood Control and Water Conservation District, Zone 7) standards and ~)oiicies which are applicable given the VTM. Pursuant to Alameda County's National Pollution Discharges Elimination Permit (NPD.E~) No. CAS0029831 with the C'~t'iforn"ia Rg'gidh~l-V~tei:"Qu~iit'~'Cg'ht¢~l"B-O'S~'tdTalI .gt~ding; ~6nst'rci'~ioti,'-'a-n'd ...... Development Agreement Bezween City of Dublin and IKEA Property, Inc. EXHIBIT B 598986.06 SF Page 2 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.g. gas, eiectriciW, 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. IViisceltaneous (j) Com. pietion IVtav 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 disc'[ete 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 o r welfa re. Sub~ara,graoh 5.3.3 -- Phasing~ Timinq 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 urovision that DEVELOPER be able to develop the Property in accordance with its own time schedules and the Project Approvals. Subparagraph 5~3.4 -- Financinq 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. Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Proiect will be made available by the Dublin San Ramon Services District. The present owner of the Property, the Alameda County Surplus Property Authority, nas entered into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Developmen; Agreement Between City of Dublin and IKEA Property, tnc-- EXHIBIT B 598986.06 SF Page 3 Subparagraph 5.3,5 -- Fees,-Dedications Subsection a. Traffic Impact Fees. Developer shall pay the Eastern Dublin,Traffic Impact Fee ("TIF")established by Resolution No. 225-99, 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 a minimum of three percent (3%) of the "Section 1/Category I" portion of the TIF in cash. Developer also agrees that it will pay 12.4% 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 12.4% 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 impact Fee to Reimburse Pieasanton for Freeway lnterchancles. DEVELOPER shall pay a Eastern Dubtin 1-580 Interchange Fee in the amounts and au 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 Pubtic 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 ~ssuance of building permits and in the then-current amount of the fee. Subsection d. Noise IVlitiqation Fee. DEVELOPER shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including an'y 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 Imp'act Fees. School imoact fees shall be ~)aid by DEVELOPER in accordance with Government Code section 53'080 and the existing agreement between DEVELOPER's ...................... t5'i:~-C]~&-e-~ ~'6F"E'{' "i'i~-f~-~'~'-~ ~-a'- :~¥'"D'~}¥ErY 'o-~'ifTe-~' S-C-~5}ST-Di'~',~'f i ~-i~'i .................................................................... Development Agreement Between City of Dublin and IKEA Proper~y, Ino. -- EXHIBIT B 598986,06 SF Page 4 Subsection f. 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 _a. Tri-Valley Transoortation 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. Subparagraph 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 Administrative Guidelines regarding credits (Resolution No. 23-99). Subsection b. Traffic impact Fee Right-of-Way Dedications Credit CITY shall provide a credit to DEVELOPER for any TIF area right-of-way dedicated by DEVELOPER to CITY which is required for improvements which are aescribed in the resolution establishing the Eastern Dublin Traffic impact Fee. All aspects of credits shall be governed by CiTY's Administrative Guidelines regarding credits (Resolution No. 23-99). SubparaaraDh 5.3.7 -- IViisce. llaneous Subsection a. Landscapin.q IViaintenance Along Streets and Creek CITY has formed a iandscape maintenance district known as the "Landscape Maintenance Assessment District No. 97-1 (Santa Rita Area)" pursuant to a petition from the Alameda County Surplus Property Authority ("COUNTY"), DEVELOPER's predecessor in interest, and imposed an assessment.against the Property to pay for street and creek landscape maintenance. In addition, on September 24, 1996, COUNTY recorded a Declaration of Covenants, Co.ndi(.ions and Restrictions ('"CC&Rs") ......... ~/h i'dh-'-~o~rs'-the'Pro'p~ttY, wh-~'r~b~/~C'OUNTY,'' 5~'"'beht~lf'df it~lf"-~'nd' it~'.~'a~oes~o'f'~ ...... Deve~o~)ment Agreement Between City of Dublin Page 5 and IKEA Properzy, inc. EXHIBIT B 598986.06 SF (including DEVELOPER), has,.covenanted to pay a "Deed Assessment" to CITY for maintenance of street and creek landscaping. DEVELOPER acknowledges the existence of the landscape maintenance district and CC&Rs and hereby covenants to pay a Deed Assessment, pursuant to the terms of the assessment district and CC&Rs. Subsection b. Term of Pro,iect ADprovafs Pursuant to paragraph 10 of this Agreement the term of the IKEA SDR (defined in Recital G) and the Master Sign Program shall automatically be extended for the term of this Agreement. Development Agreement Between City of Dublin and IKEA ProperTy, Inc. EXHIBIT B 598986.06 SF Page 6