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HomeMy WebLinkAboutOrdinance 1866 (Development Agr. at Northgate Mall)CLERK'S CERTIFICATE I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, and Ex -Officio Clerk of the Council of said City, do hereby certify that the foregoing Charter Ordinance No. 1866 entitled: AN ORDINANCE OF THE CITY OF SAN RAFAEL APPROVING A DEVELOPMENT AGREEMENT NO. DA07-01 TO MAINTAIN A 0.40 FLOOR AREA RATIO IN ORDER TO PRESERVE A RIGHT TO BUILD BACK COMMERCIAL SPACE REMOVED AS PART OF A RENOVATION PROJECT TO THE MALL AT NORTHGATE, LOCATED AT 5800 NORTHGATE DRIVE (APN: 175-060-12, 40, 59, 60 & 61) is a true and correct copy of an Ordinance of said City and was introduced at a REGULAR meeting of the City Council of the City of San Rafael, held on the 21 st day of April, 2008, a SUMMARY of Ordinance No. 1866 was published as required by City Charter in the MARIN INDEPENDENT JOURNAL, a newspaper published in the City of San Rafael, and passed and adopted as an Ordinance of said City at a REGULAR meeting of the City Council of said City, held on the 5th day of May, 2008, by the following vote, to wit: AYES COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None WITNESS my hand and the official seal of the City of San Rafael this 7th day of May, 2008 ESTHER C. BEIRNE City Clerk SUMMARY OF ORDINANCE NO. 1866 AN ORDINANCE OF THE CITY OF SAN RAFAEL APPROVING A DEVELOPMENT AGREEMENT NO. DA07-01 TO MAINTAIN A 0.40 FLOOR AREA RATIO IN ORDER TO PRESERVE A RIGHT TO BUILD BACK COMMERCIAL SPACE REMOVED AS PART OF A RENOVATION PROJECT TO THE MALL AT NORTHGATE LOCATED AT 5800 NORTHGATE DRIVE. (RE: DA07-001, 5800 NORTHGATE DRIVE; AP NOS. 175-060-12, 40, 59, 60 & 61) The City of San Rafael is entering into a Development Agreement with the Northgate Mall Partners as detailed in the complete text and accompanying Development Agreement of Ordinance No. 1866. For a copy of the complete text of the Ordinance amending the Municipal Code, please contact the City Clerk at 485-3066 or the Planning Department at 485-3085. Copies of the Ordinance containing this Municipal Code amendment are also available for public review as of April 30, 2008, at the San Rafael City Clerk's Office, 1400 Fifth Avenue, 2"d Floor, Room 209 during regular business hours, 8:30 a.m. to 5:00 p.m. SUMMARY OF THE DEVELOPMENT AGREEMENT The Ordinance approves a Development Agreement to allow the 44.85 acre Northgate Mall property at 5800 Northgate Drive to maintain a nonconforming 0.40 floor area ratio in order to preserve the right to build back approximately 50,000 square feet of gross leasable building area that would be removed as part of a proposed renovation to the Mall at Northgate, without being subject to General Plan or Zoning Ordinance amendments and development impact fees during the 15 year term of the agreement. Under the terms of the agreement, the Northgate Mall would provide several public benefits including construction and dedication for public use of a one-half mile segment of the North San Rafael Promenade pedestrian and bicycle path along the property frontage, provide $10,000 of funding for preparation of Promenade pathway design details, provide a 200 square foot office space within the mall for the San Rafael Police Department, and participate in preparation of a housing feasibility study for the mall property within 5 years of initiation of the agreement. PUBLICATION A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to the Council meeting at which it is adopted. This Ordinance shall be in full force and effect thirty (30) days after its final passage, and the summary of this Ordinance shall be published within fifteen (15) days after the adoption, together with the names of the Councilmembers voting for or against same, in the Marin Independent Journal, a newspaper of general circulation published and circulated in the City of San Rafael, County of Marin, State of California. Within fifteen (15) days after adoption, the City Clerk shall also post in the office of the City Clerk, a certified copy of the full text of this Ordinance along with the names of those Councilmembers voting for and against the Ordinance. ALBER J. BOXMayor /:r0M_W1tra G • REP-, ESTHER C. BEIRNE, City Clerk The foregoing Ordinance No. 1866 was read and introduced at a regular meeting of the City Council of the City of San Rafael on Monday, April 21, 2008 and was ordered passed to print by the following vote, to wit: AYES: Councilmembers: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: Councilmembers: None ABSENT: Councilmembers: None and will come up for adoption as an Ordinance of the City of San Rafael at a regular meeting of the Council to be held on Monday, May 5, 2008. 2 ESTHER C. BEIRNE, City Clerk ORDINANCE NO. 1866 AN ORDINANCE OF THE CITY OF SAN RAFAEL APPROVING A DEVELOPMENT AGREEMENT NO. DA07-01 TO MAINTAIN A 0.40 FLOOR AREA RATIO IN ORDER TO PRESERVE A RIGHT TO BUILD BACK COMMERCIAL SPACE REMOVED AS PART OF A RENOVATION PROJECT TO THE MALL AT NORTHGATE LOCATED AT 5800 NORTHGATE DRIVE (APN: 175-060-12, 40, 59, 60 & 61) WHEREAS, on November 13, 2007, on behalf of Northgate Mall Associates, owner of 5800 Northgate Drive, and Macerich Property Management Co. which manages the mall properties, APN Nos. 175-060-12, 40, 59, 60 & 61, Chuck Davis submitted a Development Agreement applicatign No. DA07-01 to the Community Development Department, along with entitlements to renovate the Mall at Northgate, to allow the reconstruction of commercial space removed as part of the renovation project, during a 10 -year period from the date of approval of the Development Agreement, without the requirement to amend the site's allowable floor area ratio (FAR) in the General Plan or through amendment of the Zoning Code, and without payment of development impact fees or requirements, such as traffic or street resurfacing fees or provision of affordable housing, since this commercial space previously existed; and WHEREAS, California Government Code Sections 65864 -- 65869.5 authorize cities to enter into binding Development Agreements as therein provided; and WI IEREAS, The Northgate Mall Associates, owner of the subject property, has the requisite legal interest in the property to enable the City to enter into the Development Agreement with the City; and WIIEREAS, the proposed Development Agreement has been processed in accordance with the requirements set forth in Resolution No. 6089, which establishes the City's rules and regulations for the consideration of Development Agreements; and WHEREAS, The proposed project is exempt from the requirements of the California Environmental Quality Act (CEQA) as it qualifies for the Class 1 Existing Facilities (Section 15301) exemption that allows interior and exterior alterations of existing structures, which covers the exterior and interior renovation work; Class 2 Replacement or Reconstruction (Section 15302) exemption that allows replacement or reconstruction of a commercial structure on the same site and of substantially the same size, purpose and capacity, which applies to the re -construction of the commercial Rite Aid and Restaurant buildings; and Class 3 (Section 15303) exemption that allows construction of new small facilities, which applies to the proposed promenade improvement (e.g., frontage enhancements) through the site; and the exemptions are not subject to any of the "Exceptions" qualifications in Section 15300.2 of the Guidelines given that the project is not located in a particularly sensitive environment; and WHEREAS, on March 25, 2008, the San Rafael Planning Commission held a duly -noticed public hearing to consider a Resolution recommending to the City Council that it adopt the proposed Development Agreement and, after accepting all oral testimony, written testimony, and other written material, including the Planning Division's staff report concerning the matter, the Planning Commission adopted Resolution 08-06 recommending to the City Council that it adopt the ordinance approving the Development Agreement, with direction given to staff to continue to make refinements to improve the language in the resolutions and the agreement and make any technical revisions deemed necessary, making all findings required; and WHEREAS, the City Staff and the City Attorney have made further revisions consisting of technical corrections and modified or additional language that clarifies the provisions of the agreement, and the provisions of the agreement remain as presented to and discussed by the Planning Commission at its March 25, 2008 meeting, and WHEREAS, the Community Development Director has given public notice, by mail, publication and posting at least 15 days before the Planning Commission and City Council hearings, of intention to consider the adoption of the Development Agreement as required by section 202 of City Resolution 6089 and Government Code section 65867; and WHEREAS, on April 21, 2008, the City Council held a public hearing to consider a proposed ordinance approving the Development Agreement and considered all oral testimony, written testimony and other written material including the Planning Division's staff report concerning the matter; and WHEREAS, the City Council finds that the proposed Development Agreement is consistent with the City's current General Plan 2020, including the General Commercial land use designation, Policy LU -9 which states "Where the existing building is larger than the FAR limit and no intensification or change of use is proposed, the property may be redeveloped at the same size as the existing building if parking and design requirements in effect at the time of the new application can be met", and all other relevant policies which promote the site improvements and upgrades proposed as a part of the agreement, in particular the construction of a one-half mile section of the North San Rafael Promenade along the property frontage; and WHEREAS, the City Council finds that the proposed Development Agreement is consistent with the General Commercial (GC) District zoning designation for the property which allows renovation of the commercial shopping center development on this site including the public/quasi-public uses proposed as part of the agreement which are consistent with the commercial land use tables of the Zoning Code, and the request to utilize the existing nonconforming parking and landscape design standards for the project, which involves no intensification of use, is consistent with the nonconforming structure and use provisions found in Sections 14.16.270.C.2 & D.2 and the grandfathered parking provisions of Sections 14.18.240.0 & E. 04 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 1. Findings. The City Council of the City of San Rafael hereby determines and finds that all of the facts and statements contained in the recitals herein, in the findings of the Planning Commission's Resolution recommending to the Council adoption of this ordinance and in the recital of the Development Agreement, are true and correct. DIVISION 2. Approval. The City Council of the City of San Rafael hereby adopts the ordinance approving the Development Agreement, subject Development Agreement in "Exhibit A" attached hereto and incorporatec. herein by reference, between Northgate Mall Associates and the City of Sari Rafael concerning the Northgate Mall renovation project planned for the subject property at 5800 Northgate Drive and further, the Council authorizes the Mayor and the City Clerk to execute said Development Agreement on behalf of the City and to take any other actions necessary to complete this transaction. DIVISION 3. Publication. A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to the Council meeting at which it is adopted. This Ordinance shall be in full force and effect thirty (30) days after its final passage, and the summary of this Ordinance shall be published within fifteen (15) days after the adoption, together with the names of those Councilmembers voting for or against same, in the Marin Independent Journal, a newspaper of general circulation published and circulated in the City of San Rafael, County of Marin, State of California. Within fifteen (15) days after adoption, the City Clerk shall also post in the office of the City Clerk, a certified copy of the full text of this Ordinance along with the names of those Councilmembers voting for or against the Ordinance. l �kLBER J. BORO, Mayor ATTEST: ESTHER C. BIERNE, City Clerk The foregoing Ordinance No. 1866 was read and introduced at a regular meeting of the City Council of the City of San Rafael on Monday, the 2151 day of April, 2008, and was ordered passed to print by the following vote, to wit: AYES: Councilmembers: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: Councilmembers: None ABSENT: Councilmembers: None and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 5"' day of May, 2008. ESTHER C. BIERNE, City Clerk Attachment: Exhibit A (Development Agreement) Recording requested by ) and when recorded mail To: ) Name: Esther C. Bierne, City Clerk) City of San Rafael ) Address: 1400 Fifth Ave. ) Room 209 ) City: San Rafael ) State: California 94901 ) Space Above this Line For Recorder's Use DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND NORTHGATE MALL ASSOCIATES a California general partnership DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of the 4th day of June, 2008 ("the Effective Date"), by and between the City of San Rafael, a municipal corporation ("the City"), and Northgate Mall Associates, a California General Partnership ("Developer"), pursuant to the authority of Sections 65864 through 65869.5 of the Government Code of the State of California and Resolution No. 6089 (1981) of the City of San Rafael. A list of defined terms and Exhibits is attached hereto as Appendix 1. RECITALS A. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California enacted Government Code Sections 65864- 65869.5, authorizing municipalities to enter into property development agreements with persons having a legal or equitable interest in real property. B. The purpose of Government Code Sections 65864-65869.5 is to authorize municipalities, in their discretion, to establish certain development rights in real property for a period of years regardless of intervening changes in land use regulations. C. Developer is the owner of the property commonly known as The Mall at Northgate, located in San Rafael, California, east of US Highway 101, and bounded generally by Northgate Drive and Las Gallinas Avenue, Assessor Parcel Numbers 175- 060-12, 175-060-40, 175-060-59, 175-060-61, and 175-060-60 ("the Property"). D. The Mall at Northgate originally was developed in the mid -1960's. It was developed as an open air shopping center on roughly 45 acres, anchored by a three- story Department Store (formerly Emporium, now Macy's), and eight individual shop buildings. Sears was the second anchor tenant introduced in the late 1960's, and Mervyns followed thereafter to create the three -anchored center that exists today. E. In 1984, Developer acquired the Property. In 1986, the City approved a renovation of the center that resulted in the enclosure of the former outdoor walkways, and modifications to the leasable square footage. UP 86-31 defines the center as containing 773,238 square feet of leasable space on the Property, which excludes the mall common area walkways, shared secure areas and code -required exit corridors from the center of the mall to the exterior areas. F. Developer intends to undertake a second renovation of the center ("the Project"). The Project includes an initial reduction of up to approximately 55,000 square feet of leasable square feet from the 773,238 approved in 1986. The Project also will include refacing the exterior mall elevations, removing and replacing sidewalks around the perimeter of the mall building, creating an outdoor dining/community plaza where a portion of the mall is being torn down, re -orienting and restriping portions of the parking fields and enhancing landscaping in said areas, adding one inbound driveway and realigning two existing driveways to provide better circulation into and through the property, and increasing the rentable area for specific tenants ("the Initial Phase"). G. The Initial Phase of the Project will also include a set-aside of Developer land (by irrevocable license to the City) to construct a portion of the North San Rafael Promenade, a multi -modal pathway identified in the City's General Plan as a desirable community link for the area of Terra Linda. The North San Rafael Promenade is designed and intended to be a trail subject to and protected by the governmental immunity provisions set forth in Government Code Section 831.4. H. The second phase of the Project will include a reconstruction of leasable square footage in the center in an amount not to exceed the initial reduction of up to approximately 55,000 square feet described above ("the Build Back Space"), and be subject to the City's design review, environmental review, other approval processes, and other provisions of this Agreement, as further described below. I. Developer has filed the following applications with the City in connection with the Project: (a) Environmental and Design Review of the Initial Phase (file no. ED07- 90), (b) Use Permit for the Initial Phase (UP07-56), (c) Sign Program Amendment for the Initial Phase (SR07-91), and (d) Development Agreement (DA07-01). J. The intensity of use, maximum height, bulk, size, location, and design of the Initial Phase of the Project (including materials, color palate, signage, parking, and landscaping) will be essentially as shown on the approved planning application drawings dated March 13, 2008 and prepared by KA Architects (production architect of record), RHAA (landscape plans), KHA (civil engineer) and 505 Design (design architect) and further listed by drawing sheet in Exhibit A attached hereto ("the Approved Plans"). K. After conducting a duly noticed public hearing on March 25, 2008, the Planning Commission for the City reviewed and recommended approval of the Use Permit, the Sign Program Amendment, and the Environmental and Design Review Permit (all for the Initial Phase of the Project), and this Agreement. L. After conducting a duly noticed public hearing on April 21, 2008 the City Council approved the Use Permit, the Sign Program Amendment, and the Environmental and Design Review Permit (all for the Initial Phase of the Project). The City Council also approved this Agreement by ordinance, authorizing its execution and finding that the provisions of this Agreement are consistent with the City's General Plan, are compatible with the requirements of the City's zoning ordinance and provide substantial public benefits to persons residing outside the boundaries of the Project, which exceed the benefits attributable to the exactions that would otherwise be imposed in the development review process. M. The City has examined the environmental effects of the Initial Phase of the Project and this Agreement in the Categorical Exemption prepared pursuant to the California Environmental Quality Act ("CEQA"). On April 21, 2008, the City Council for the City reviewed and adopted the Categorical Exemption and agreed that the Initial Phase of the Project and this Agreement are exempt from CEQA pursuant to California Code of Regulations Title 14, Chapter 3, Sections 15301, 15302 and 15303. The terms and conditions of this Agreement are consistent with and within the scope of the Categorical Exemption. Accordingly, no further environmental analysis will be necessary or required under CEQA to enter into this Agreement and undertake its terms and conditions as they apply to the Initial Phase of the Project. N. For the reasons recited herein, Developer and the City have determined that the Project is a development for which this Agreement is appropriate. The City finds a substantial public benefit in the construction of the Project and the other benefits set forth in this Agreement. In exchange for providing these public benefits, Developer receives assurance that it will be entitled to proceed with the Project in accordance with ordinances, resolutions and regulations existing as of the Effective Date, subject only to the terms and conditions contained in this Agreement. SECTION 1 GENERAL PROVISIONS A. Citv and State Laws This Agreement is subject to applicable law pertaining to development agreements, specifically City Resolution No. 6089 (1981) and Government Code Sections 65864-65869.5. B. Covenant The provisions of this Agreement will constitute covenants which will run with the land comprising the Property. The burdens and benefits hereof will bind and inure to the benefit of all successors in interest to the parties hereto, subject to the provisions of Section 1(D) ("Assignment") of this Agreement. C. Term The term of this Agreement ("the Term") will commence upon the Effective Date and will expire on June 4, 2023, unless terminated, modified or, extended as provided herein or under City Resolution No. 6089 (1981) or Government Code Sections 65854- 65869.5, or by mutual consent of the parties hereto. D. Assiqnment With the consent of the City, which will not be unreasonably withheld, Developer may assign or transfer any of Developer's rights and obligations under this Agreement so long as the assignee or transferee agrees in writing to assume the obligations hereof and is owner of the Property in its entirety. Developer agrees to the extent reasonably 3 practicable to notify the City in writing thirty (30) days in advance of any such assignment or transfer. The City may not assign its rights or obligations under this Agreement. Notwithstanding the foregoing or anything in this Agreement to the contrary, Developer may assign and transfer, without the consent of the City, all (but not less than all) of its rights and obligations under this Agreement to any Developer Affiliate (hereinafter defined). The term "Developer Affiliate" means (a) The Macerich Partnership, L.P. (the "Operating Partnership"), (b) The Macerich Company (the "Macerich REIT"), and (c) any entity in which the Operating Partnership, the Macerich REIT or Developer owns, directly or indirectly, at least 50% of the ownership interest in such entity. Any Developer Affiliate assignee shall have sufficient capitalization to provide reasonable assurance to the City that it can satisfy any remaining obligations to the City under this Agreement. Developer agrees to notify City within thirty (30) days of the occurrence of any such assignment or transfer. SECTION 2 DEVELOPMENT A. Development of the Initial Phase of the Proiect The City specifically approves and consents to the development of the Property and to the construction of the Initial Phase of the Project during the Term of this Agreement, but only on the conditions that (i) Developer complies with all conditions of approval of the Use Permit, the Sign Program Amendment, and the Environmental and Design Review Permit ("Conditions of Approval"); (ii) a complete building permit application has been filed within 24 months of the Effective Date; and (iii) Developer uses diligent efforts to commence and continuously construct the Initial Phase of the Project after the building permit is issued. The Initial Phase of the Project, including the construction of the Promenade, will result in the removal of some existing parking stalls on the Property. The City agrees that (a) no new parking stalls will be required in connection with the Initial Phase, and (b) there is no requirement to re -stripe or otherwise adjust the remaining parking stalls in connection with the Initial Phase to conform to any current or future parking requirements. The Initial Phase of the Project will be constructed in increments such that individual retail spaces may be completed and ready for occupancy for some areas or tenants earlier than others. The City agrees to issue Certificates of Occupancy for these areas in a serial manner as these spaces are completed and ready to be turned over to tenants for their tenant improvement work. B. Development of the Leasable Build -Back Space Within 24 months of the City's issuance of the building permit for the Initial Phase, Developer will notify the City as to the exact square footage of the Build Back Space, which, as of the date of this Agreement, is approximately 55,000 square feet. (The maximum total square footage of the Initial Phase plus the Build Back Space is 4 773,238 square feet.) The City agrees that in the event Developer files an application to reconstruct the Build Back Space on the Property prior to the expiration of the Term, (a) Developer will have a vested right to proceed with development of such leasable space under the Existing City Laws, (b) no General Plan or other zoning ordinance amendment will be required for reconstruction of the Build Back Space, (c) to the extent construction of the Build Back phase triggers a requirement under the then -existing (future) zoning ordinance to increase the amount of spaces, the new spaces must conform in size/standards to the future ordinance and (d) Developer will not be required to pay any additional development fees or exactions to mitigate offsite impacts, except for those specifically identified on Exhibit B; provided, however, that the City will not be required to grant a zoning variance or exception to the zoning regulations in effect on the Effective Date of this Agreement (including, but not limited to, parking standards), and the City's review and approval of the reconstruction of the Build Back Space will be subject to the City's standard permit and discretionary entitlement review processes as well as the provisions of the California Environmental Quality Act applicable to such processes. C. Public Benefits: Promenade, Desiqn Fees; Bicvcle and Pedestrian Access; Police Substation Concurrent with the construction of the Initial Phase of the Project, Developer will construct 2,300 lineal feet of the North San Rafael Promenade along the boundaries of the Project Site fronting on Las Gallinas Avenue ("the Promenade"). The Promenade will be approximately 24' in depth from the curbline onto the Project site, portions of which will lie in the public right of way, and portions of which will lie on the Property. Developer will reconstruct the adjacent sidewalk and landscaping within this zone as set forth in the typical Promenade specifications and drawings described in Exhibit C. In particular, the Promenade will include a new curb and gutter, an approximately five foot wide landscape strip including street trees, an approximately eight foot wide bicycle path, and an approximately six foot wide sidewalk. Construction of the Promenade will be substantially complete within 24 months of the City's issuance of the building permit for the Initial Phase of the Project. For the purpose of this subsection, "substantially complete" will mean the construction of the Promenade will be sufficiently complete in accordance with the Approved Plans so that the public may utilize the Promenade as intended. In addition, Developer will engage a landscape architect or other appropriate design professional(s) to assist the City in its creation of design details for the Promenade that are not set forth in Exhibit C, including, but not limited to, materials, signage, and planting. The design services will include participation in at least two community workshops. The cost of such design professional shall not exceed $10,000.00. In the event there are any disputes related to the design or construction of the Promenade, the parties will mediate such dispute using the mediation procedures set forth in Exhibit D. Developer and the San Rafael Police Department have enjoyed a 23 year relationship of cooperation and service at the Property. Developer and the San Rafael 5 Police Department look forward to continuing their partnership as part of the redevelopment of the Property. The San Rafael Police Department will continue to have on-site presence at the Property ensuring a safe environment for businesses and shoppers alike. Throughout the entire term of the Agreement and at no charge to the City, Developer will provide a single private office on the second level of the Mall for use by the San Rafael Police Department, subject to the following: The office will be directly accessible to the common area, will be no less than 200 square feet in usable area, will have internet access (either a direct connection or wifi), and will be in a location selected by the Developer (the "Police Area"). The Developer reserves the right to relocate, from time to time, the Police Area, however such relocation will be in cooperation with the SRPD and the Property Security. In the event of relocation, the new Police Area will be directly accessible to the common area, will be no less than 200 square feet in usable area, and will have internet access (either a direct connection or wifi). The cost of relocation of the Police Area shall be paid by the Developer, and shall be limited to the costs of creating a new Police Area that will be directly accessible to the common area, will be no less than 200 square feet in usable area, and will have internet access. In addition, Developer will provide pedestrian and bicycle access through the Property on designated pedestrian and bicycle paths consistent with the Approved Plans identified in Exhibit A. D. Housinq Opportunities (1) Upon the City receiving sufficient funds from an outside source for the following traffic study, Developer will participate in such study as follows: (a) Developer will support the efforts of the City to conduct a preliminary traffic study to evaluate, at a programmatic level, the traffic impacts of various thresholds of housing intensity on the site. (b) The preliminary traffic study will (i) evaluate impacts on level of service (LOS) at various intersections and arterials determined by the City Traffic Engineer for various potential build -out scenarios; and (ii) identify various mitigation measures that would reduce the impact of additional traffic. The scope of the traffic study will be approved by the City Traffic Engineer. The City will select the traffic engineering consultant that will conduct the preliminary traffic study. The cost of the traffic study will include the City staff (traffic engineering division) time to run the City's traffic model and conduct traffic impact analysis. (c) Developer will contribute matching funds for the traffic study on a dollar -for - dollar basis, up to a maximum amount of $20,000. (2) Not later than five (5) years from the Effective Date, Developer agrees to initiate and pay for the following studies and activities: G (a) Meet with at least two housing developers who have experience with the addition of housing to a retail center and with at least two non-profit housing developers. (b) Prepare a site plan or alternative site plans that include the addition of housing on the Property for review by City staff. (c) Prepare a parking analysis based upon the preliminary site plan(s) that identifies the extent of parking required for retail uses and housing for review by City staff. (d) Conduct the traffic study contemplated by Section 2(D)(1) of this Agreement in the event that it has not occurred pursuant to that Section; (e) Based on the analyses described in this Subsection D, investigate the willingness and actively seek direct input from major tenants within the Property to modify the existing Declaration of Establishment of Restrictions and Covenants Affecting Land to permit the addition of housing to the Property. (f) Conduct at least one community meeting where the housing alternatives and all other information investigated and prepared under this subsection are presented to the community for comment. Developer will lead the efforts related to community outreach. Developer and the City acknowledge and agree that Developer is under no obligation to construct any housing on the Property, and that to the extent any housing is included in any future application for development of the Property, such application will require full compliance with the applicable provisions of the California Environmental Quality Act. E. Existing City Laws Except as provided herein, the City's laws, ordinances, rules, regulations and official policies applicable to the Project, including any off-site improvements included within the Conditions of Approval for the Use Permit, will be only those City laws, ordinances, rules, regulations and official policies in force as of the Effective Date governing uses of the Property, density and intensity of use, maximum height, bulk, size, design and location of the Project and any development fees or exactions (herein collectively referred to as "Existing City Laws" or "City Laws"). The City agrees that under City Laws, Developer will be entitled to build and occupy the Project on the Property, subject to the City's standard permit and discretionary entitlement review processes as well as the provisions of the California Environmental Quality Act applicable to such processes. If Developer applies for changes to the City Laws during the Term of this Agreement, the City agrees that it will process such applications pursuant to State law and the San Rafael Municipal Code. F. Applicable Future Laws and Regulations Notwithstanding Paragraph 2E above, the City may apply the following new City Laws to the Project, Property, and Off Site Improvements: 7 (1) New City Laws that are consistent with or do not conflict with the existing laws in force as of the Effective Date, or with the General Plan land use designations, zoning, permitted uses, density and intensity of use, height, bulk, size, design or location of the Project or Off Site Improvements or which do not materially alter any of the Developer's rights granted herein, or which are not inconsistent with or in conflict with any of the terms and conditions hereof; (2) New City Laws that are specifically mandated and required by changes in State or Federal laws and regulations; and (3) City Laws that are applicable to the following and are in effect at the time Developer submits an application for a building permit for the Project: (a) Procedural requirements for building and occupancy permit application submittal and issuance; (b) Construction standards pursuant to all Uniform Building Codes (including, but limited to, the California Building Code, California Electrical Code, California Mechanical Code, California Plumbing Code, California Energy Code, and California Fire Code) incorporated by reference into the San Rafael Municipal Code, including any local amendments to such Uniform Codes; (c) Engineering specifications for construction of any public improvements such as curbs, gutters and sidewalks; (d) Building, grading, and site development permit fees; (e) Any fees payable upon issuance of a building permit for which the City acts as collecting agent for another governing agency; and (f) Any requirements applicable upon issuance of a building permit for which the City acts as an administering agent for another governing agency. G. Moratoria In the event any moratorium is enacted, whether by action of the City, by initiative, referendum or otherwise, that would forbid, for any period of time, the development of the Project, the City agrees to extend the Term of this Agreement for a period equal to the period of the moratorium, up to a maximum of five (5) additional years. H. Development Not Required Notwithstanding anything to the contrary contained herein, Developer will not be obligated to develop the Project, and will be entitled to make repairs, improvements and renovations to the existing structures, landscaping and infrastructure on the Property pending demolition and construction of the Project provided any required permits and approvals are obtained from the City; provided, however, in the event a building permit for the Initial Phase of the Project has not been issued within two years of the Effective Date of the Agreement, or the Developer does not proceed to commence and continuously construct the Project as required in this Agreement, the City may terminate this Agreement in accordance with Section 4 below. No Further Exactions City will not impose any further or additional Exactions on the development of the Project, whether through the exercise of the police power, the taxing power, design review or any other means, other than those contemplated by the Project Approvals, the Existing City Laws, and this Agreement. SECTION 3 AMENDMENTS A. Mutual Consent This Agreement may be amended, or cancelled in whole or in part, at any time and from time to time by mutual consent of the parities or their successors in interest. Notice of, and a public hearing regarding, an intention to amend or cancel any portion of this Agreement will be given and held in the manner provided in City Resolution No. 6089 (1981). B. State or Federal Laws and Regulations In the event that State or Federal laws or regulations, enacted after the Effective Date, prevent or preclude compliance with one or more provisions of this Agreement, such provisions will be modified or suspended as necessary to comply with such State or Federal laws or regulations. SECTION 4 DEFAULT, TERMINATION AND REMEDIES A. General Provisions Any failure to perform, or any delay in performing, the terms and conditions hereof will constitute a default under this Agreement. Any party alleging a default under this Agreement will give the other party not less than 60 days notice in writing, specifying the nature of the alleged default and the manner in which it may be satisfactorily cured. During the period specified in the notice, the alleged default will not be considered a default for purposes of termination or institution of legal proceedings. If the default is cured within the period specified in the notice, the noticing party will take no further action. B. Remedies 9 Subject to the foregoing, after notice of an alleged failure, delay or default, and expiration of the period specified in the notice without cure, the noticing party may, at its option, institute Legal proceedings or give notice to terminate this Agreement pursuant to Government Code Section 65868. If the noticing party institutes legal proceedings, it will have all rights and remedies provided by applicable law, which will include, but not be limited to, compelling specific performance of the defaulting party's obligations under this Agreement. If the noticing party gives notice of its intent to terminate this Agreement, the matter will be scheduled for consideration and review by the City Council in the manner set forth in California Government Code Sections 65865, 65867 and 65858. C. Enforced Delav Extension of Time of Performance No party will be deemed to be in default or noncompliance under this Agreement, or suffer a termination of this Agreement (or any rights hereunder), where the alleged default, noncompliance, failure, terminating event or delay is due to any event described in Section 8 hereof. If written notice of any such failure or delay is given to either party within 30 days of the commencement thereof, an extension of time for such cause will be granted for the period of the enforced failure or delay, or longer if the parties mutually agree. D. Enforceability Except as otherwise provided herein, the rights of the parties under this Agreement will be enforceable notwithstanding any change subsequent to the Effective Date in any applicable General or Specific Plan or building, zoning, subdivision or other land use ordinance. SECTION 5 INDEMNIFICATION Developer will defend, hold harmless and indemnify the City and its officials, employees, agents, representatives, contractors and subcontractors, as appropriate, from and against any and all claims, suits, demands, liability, loss, costs, damages, fees (including Attorneys Fees) and other expenses of litigation from or relating to the negligence or willful misconduct of Developer and to defend and indemnify City from and against any and all claims, suits or attacks to set aside, void or annul the City's approval of the Project, including approval of this Development Agreement. SECTION 6 NOTICES Any notice or communication hereunder must be in writing and may be given either by personal service or by registered or certified mail, return receipt requested. Any notice or communication personally served will be deemed given and received on the date of personal service on the party noticed at the appropriate address designated below, and any notice or communication sent by registered or certified mail, return receipt requested, properly addressed to the appropriate address designated below, 10 with postage prepaid, will be deemed given and received on the fifth (5th) day after the date appearing on the signed return receipt. Any party hereto may at any time and from time to time, in the manner provided herein, designate any other address in substitution of the address to which such notice or communication will be given. All such notices or communications will be given to the parties to their addresses hereinafter set forth: IF TO THE CITY: City Attorney City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901-1493 IF TO DEVELOPER: Northgate Mall Associates c/o The Macerich Company 401 Wilshire Boulevard, Suite 700 Santa Monica, California 90401 Attention: Chief Legal Officer SECTION 7 NO WAIVER No failure, delay or omission by a party in exercising or asserting any right, power or remedy hereunder will impair such right, power or remedy, and no failure, delay or omission by a party occurring upon the other party's noncompliance with or failure to perform the terms and conditions of this Agreement will be construed as a waiver thereof. A waiver by either party of any failure on the part of the other party to perform any of the terms or conditions to be performed by such other party will not be construed as a waiver of any succeeding failure of the same or other terms or conditions hereof, nor will any failure, delay or omission by a party in asserting any of its rights or remedies hereunder deprive such party of its right to institute and maintain any action or proceeding which it may deem necessary to protect, assert or enforce any such rights or remedies. SECTION 8 FORCE MAJEURE In the event any party to this Agreement is unable to perform or fulfill any of the terms or conditions of this Agreement on account of acts of God, enemy action, war, insurrection, strikes, walk -outs, riots, governmental actions or restrictions, administrative appeals or legal actions, judicial orders, third -party actions, floods, earthquakes, fires, casualties or similar basis for excused performance which is not within the reasonable control of the party to be excused, the party obligated to so perform or prevented from performing thereby will be excused from said performance until such time as said party will no longer be prevented from performing on account of any of the foregoing reasons. 11 SECTION 9 RECORDING Pursuant to Government Code Section 65868.5, within ten (10) days after this Agreement is approved and executed by the parties hereto, the City will submit a complete and original of the Agreement to the Marin County Recorder to be recorded and will provide Developer with a certified copy of such recordation. SECTION 10 MORTGAGEE AND GROUND LESSOR PROTECTION: RIGHTS OF CURE, Any deed of trust beneficiary or mortgagee ("Mortgagee") or any ground lessor ("Ground Lessor") having an interest in the Property and acquiring title to all or any portion of Developer's interests herein by foreclosure, trustee sale, deed in lieu of foreclosure, repossession, reentry, assignment or otherwise, will also acquire all of Developer's rights and remedies hereunder, subject to all of Developer's corresponding duties, responsibilities and obligations. In the event Developer is in default hereunder, and a Mortgagee and/or a Ground Lessor acquires all or any portion of Developer's interest in the Property by foreclosure, trustee sale, deed in lieu of foreclosure, repossession, reentry, assignment or otherwise, such Mortgagee and/or Ground Lessor will have the absolute right for a period of 60 days beginning on the day of acquisition of Developer's interest, to cure Developer's default or defaults. SECTION 11 MISCELLANEOUS A. No Joint Venture or Partnership Nothing contained herein or in any document executed in connection herewith will be construed as making the City and Developer joint venturers or partners. B. Severabilitv If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement will continue in full force and effect. 12 C. Incorporation of Exhibits Each of the exhibits attached hereto are incorporated herein by this reference and made a part hereof for all purposes. IN WITNESS WHEREOF, Developer and the City have executed this Agreement the day and year first written above. DATED: CITY OF SAN RAFAEL A Municipal Corporation Albert J. Boro, Mayor ATTEST: Esther C. Beirne, City Clerk DATED: NORTHGATE MALL ASSOCIATES, a California general partnership By: THE MACERICH PARTNERSHIP, LP, a Delaware limited partnership, its general partner By: THE MACERICH COMPANY, a Maryland corporation, its general partner Its 13 u .r Q m m m m m m m p 000000000000000000000 0000000 M M M M M c• m r T T T T T T r r T r T T T T T T T T T T T T r T r T r Z 1 I I I I 1 I I 1 I 1 1 I I I cM M cM M c•M M M c•M M M M cM M c•M M O O O O O O O O O O O O O O O I 1 1 I I I cM M M cM M co O O O O O O I I I 1 1 I 1 CM cM co M M c•M m 0 0 0 0 0 0 0 a p U) O 4- U) CU 0 O U CL 0 Q m C C cu m O O Q 0 CD m� cca m c c cv ca 0_ 0_ L L p H c W W m 0_ 0_ co c- W W c c� 0_ 0_ W m cn a a) a) n- rn o T c c c c �Z - u)Q0)�a.rnrnrnm.�c Q.,Q m a000`uc Q Q O c0 Y :Y O ca ca c c c -C cn +' ''' c 0_ a 6- c`JO c�C a' m OJ. 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W= C C VLL L- 0 UU U U U U U 0 <.T<<<<<<<<<<<<<<<<<<2-03: TQQQQQQQQQQQQQQQQQQ2-0 QQ Q Q Q Q Q Q Q Q Q Q Q a �YYYYYYYYYYYYYYYYYYY(ODLm YY�Y¢ Development Agreement Between the City of San Rafael and Northgate Mall Associates, a California general partnership Exhibit B Development Impact Fee School Fee General Plan Maintenance Fee General Plan 2020 Fee PROPERTY R/W BOUNDARY 81± 24' 5' 5' LAND- PUB LIC ROAD �r, APE I S' BIKE PATH 6' SIDEWALK SC APE CONCRETE CURB LVIVINAV111111clumnVILIN, TYPICAL PATHWAY AREA SECTION NOT TO SCALE and*4iom Auwft k Ww 10, 200E - 1:21p- - L5M P.'\09712700 - Northgato Alog - JF\CAD0\Exhh1ts\EXWT rdwg EXHIBIT C THE MALL AT NORTHGATE SAN RAFAEL MARIN COUNTY CALIFORNIA PARKING Development Agreement Between the City of San Rafael and Northgate Mall Associates, a California general partnership Exhibit D Mediation Provision This provision applies solely to disputes related to the design and construction of the promenade. If the parties cannot resolve any dispute related to the design and construction of the promenade, the matter shall be submitted to mediation using a mediator that is acceptable to the parties. If the parties cannot agree on a mediator, each party shall submit the name of two proposed mediators, and the City Manager of the City of San Rafael shall select the mediator from that list of four. No Person shall serve as a mediator in any dispute in which the Person has any financial or personal interest in the result of the mediation, except by the written consent of all parties. Prior to accepting any appointment, the prospective mediator shall disclose any circumstances likely to create a presumption of bias or prevent a prompt commencement of the mediation process. Within ten (10) days of the selection of the mediator, each party shall submit a brief memorandum setting forth its position with regard to the issues that need to be resolved The mediation shall be commenced within ten (10) days following the submittal of the memoranda and shall be concluded within fifteen (10) days from the commencement of the mediation unless the parties mutually agree to extend the mediation period. The mediation shall be held at the City of San Rafael City Hall. The mediator has discretion to conduct the mediation in the manner in which the mediator believes is most appropriate for reaching a settlement of the dispute. The mediator is authorized to conduct joint and separate meetings with the parties and to make oral and written recommendations for settlement. Whenever necessary, the mediator may also obtain expert advice concerning technical aspects of the dispute, provided the parties agree and assume the expenses of obtaining such advice. The mediator does not have the authority to impose a settlement on the parties. Prior to the commencement of the mediation session, the mediator and all parties to the mediation shall execute an agreement pursuant to California Evidence Code section 1152.5(c) or successor statute in order to exclude the use of any testimony or evidence produced at the mediation in any subsequent dispute resolution forum, including, but not limited to, court proceedings, reference proceedings or arbitration hearings. Pursuant to California Evidence Code section 1152.5(a), the agreement shall specifically state: Evidence of anything said or of any admission made in the course of the mediation is not admissible evidence, and disclosure of any such evidence shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. Unless the document provides Development Agreement Between the City of San Rafael and Northgate Mall Associates, a California general partnership otherwise, no document prepared for the purpose of, or in the course of, or pursuant to, the mediation, or copy thereof, is admissible in evidence; and disclosure of any such document shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. Persons other than the parties, the representatives and the mediator may attend mediation sessions only with the permission of the parties and the consent of the mediator. Confidential information disclosed to a mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the mediator. All records, reports, or other documents received by the mediator while serving in such capacity shall be confidential. There shall be no stenographic record of the mediation process. The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including required traveling and other expenses of the mediator, and the expenses of any witnesses, or the cost of any proofs or expert advice produced at the direct request of the mediator, shall be borne equally by the parties. ACKNOWLEDGMENT State of California County of On before me, (insert name and title of the officer) personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal)