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Home My WebLink AboutMINUTES - 12121995 - D.12• Cost Allocations for Certain Off -Site Traffic Improvements C-1 Initial Project Traffic Improvements C-2 Additional Project Traffic Improvements C-3 Cost Allocations EXHIBIT C-1 Initial Project Traffic Improvements Camino Tassajara/Crow Canyon Rd./Blackhawk Rd. Intersection improvements. Within existing curb -to -curb pavement section, reconfigure NB approach (Crow Canyon Rd.) to provide two left -turn lanes, one exclusive through lane, one shared through/right-turn lane, and one exclusive right -turn lane. On Tassajara Ranch Drive, remove median and add bike lanes. B-1.2. Sycamore Valley Rd./I-680 NB on-ramp/Camino Ramon intersection improvements. Reconfigure WB approach (Sycamore Valley Rd.) to provide one exclusive left -turn lane, one exclusive through lane, one shared through/right-turn lane, and one exclusive right -turn lane. B-1.3. Crow Canyon Rd./Dougherty Rd. intersection improvements. Reconfigure EB approach (Crow Canyon Rd.) to provide three exclusive through lanes, and one "free" right -turn lane to SB Dougherty Rd. Reconstruct SB Dougherty Rd., south of Crow Canyon Rd., to provide dedicated curb lane to accept right -turns from EB Crow Canyon Rd. B-1.4. Bollinger Canyon Rd./Camino Ramon intersection improvements. If needed, reconfigure SB approach (Camino Ramon) to provide two exclusive left -turn lanes, one shared through/right-turn lane, and one exclusive right -turn lane. B-1.5. Bollinger Canyon Rd./Alcosta Blvd. intersection improvements. Reconfigure EB approach (Bollinger Canyon Rd.) to provide one exclusive left -turn lane, three exclusive through lanes, and one exclusive right -turn lane. Reconfigure WB approach (Bollinger Canyon Rd.) to provide one exclusive left -turn lane, three exclusive through lanes and one exclusive right -turn Iane. Reconfigure SB approach (Alcosta Blvd.) to provide one exclusive left -turn lane, two exclusive through lanes, and one exclusive right -turn lane. Widen Bollinger Canyon Rd., east of Alcosta Blvd., to provide three through lanes, plus turn lanes as needed, in EB and WB directions from Alcosta Blvd. to project limits. Construct traffic signal at Canyon Lakes Drive. B-1.6. Dougherty Road, re -alignment and construction of a six lane facility between the northerly project limits and Crow Canyon Road. • B-1.7. Windemere Parkway, construction of a new four lane, divided arterial facility between the project limits and Camino Tassajara Road. Intersection improvements at the Windemere Parkway/Camino Tassajara intersection which include a traffic signal, left -turn channelization, and transition tapers from six to four lanes on Camino Tassajara north of the intersection. B-1.8. Windemere Parkway/Camino Tassajara Road intersection improvements, provide left turn channelization, a four phase traffic signal, and tapers on Camino Tassajara to transition from six to four lanes north of the intersection. B-1.9. Crow Canyon Road, widen to six lanes between Dougherty Road and Tassajara Ranch Road. B-1.10. Crow Canyon Road, widen from 4 to 6 lanes from Alcosta Blvd. to Dougherty Road. B-1.11. Dougherty Road, widen to 6 lanes from southerly limits of development to Old Ranch Road. Intersection improvements at the Dougherty Road/Old Ranch Road intersection are included and consist of a traffic signal, left -turn pockets, and right -turn pockets. B-1.12. Dougherty Road, widen to 6 lanes from Old Ranch Road to the County line. B-1.13. Dougherty Road/Old Ranch Road, intersection improvements to accommodate four lanes on Old Ranch Road and six lanes on Dougherty Road, with left turn and right turn channelization. Install a traffic signal. B-1.14. Alcosta Blvd./Old Ranch Road intersection improvements (Currently, controlled by a three- way stop sign). Install a traffic signal. 2 0 • EXHIBIT C-2 Additional Project Traffic Improvements 14.1. Bollinger Canyon Road, construct eight lanes from I-680 to Alcosta. B-2.2. Camino Tassajara Road, widen from two to six lanes between Windemere Parkway and the County line. 13-2.3. Camino Tassajara/Sycamore Valley Road intersection improvements, widen/restripe SB leg for I LT/RT lane and 1 LT lane. B-2.4. Crow Canyon Road, widen from 6 to 8 lanes from I-680 to Alcosta. B-2.5. I-680 northbound off ramp/Bollinger Canyon Road intersection improvements. On NB leg, widen right turn radius, construct raised island to convert curb right turn lane to a free right turn lane, restripe 2nd right turn lane to stay under signal control, and modify signal control. B-2.6. Alcosta/Crow Canyon Road intersection improvements. Add exclusive right turn EB. B-2.7. Alcosta/Crow Canyon Road intersection improvements. Add one NB exclusive RT lane. B-2.8. Camino Ramon/Crow Canyon Road intersection improvements. Widen/restripe SB approach to one RT, one through lane, and 1 LT lane; add an EB exclusive RT lane. B-2.9. Crow Canyon Road/I-680 NB off -ramp intersection improvements. Intersection will be congested due to queues from adjacent intersections. Add another RT lane on NB off -ramp. B-2.10. I-"0 SB ramps/Crow Canyon Road. Restripe to revise existing right turn lane to provide shared right/left lane. B-2.11. Bollinger Canyon Rd./Sunset Dr. intersection improvements. If needed, reconfigure SB approach (Sunset Dr.) to provide one exclusive left -turn lane, one exclusive through lane, and one "free" n1ht-turn lane to WB Bollinger Canyon Rd. Widen Bollinger Canyon Rd., west of 0 • Sunset Dr., to provide dedicated curb lane to accept right -turns from SB Sunset Dr. B-2.12. Crow Canyon Road Noise Attenuation. As appropriate, construct soundwalls along Crow Canyon Rd. between Dougherty Rd. and Alsosta Blvd. B-2.13. Crow Canyon Road, Camino Tassajara and Sycamore Valley Road. Provide for pavement overlays of these roads between the Dougherty Valley project and I-680. 2 EXHIBIT C-3 Cost Allocations for Certain Additional Project Trak Improvements Not in limitation of any obligation of the Developer to provide a pro rata contribution to any of the improvements described on Exhibit C-2 other than the improvements listed below, the following improvements shall be funded by a fee, to be paid at building permit for each residential unit in the Project, not to exceed $200 per unit. Reference to ImRrovement Exhibit C-2 C-3.1 Camino Tassajara Overlay C-2.13 C-3.2 Crow Canyon Road Overlay C-2.13 C-3.3 Sycamore Valley Road Overlay C-2.13 C-3.4 Crow Canyon Soundwall C-2.12 C-3.5 Camino Tassajara/ C-2.3 Sycamore Intersection The per-unit fee described above shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. Any obligation to pay a fee to fund any of the improvements described in this Exhibit C-3 shall be conditioned upon construction of the identified improvements. Failure to construct an identified improvement shall result in a corresponding refund to the Developer. SOMI V=21 0 Establishment of Capital Facilities Fee • r Dougherty Valley Community Facilities Fee 1. Form of Agreement - This agreement regarding Community Facilities Fees, shall be incorporated into all existing and future development agreements regarding the Shapell and Windemere portions of the Dougherty Valley. This agreement will be executed by the developers and Contra Costa County, and will be agreed as to form, by the City of San Ramon. 2. Definition of Community Facilities - "Community Facilities" include the library, the Community Center, the Senior Center, a Corporation Yard and the Police Substation. The square footage requirements and timing for design and construction are as defined, and are subject to revision as specified in the Agreement to Settle Litigation dated May 11th, 1994. 3. Timing for Establishment of Fee - Prior to the filing of the first final map in the Dougherty Valley, a "Community Facility Fee" shall be established for the entire 11,000 unit Dougherty Valley project. 4. Community Facilities Cost Components - As illustrated in Attachment A, the total cost of each community facility required in the Dougherty Valley shall include the cost of the facility design, the cost of construction, the cost of furnishings, and the cost of site development. The amount illustrated in Attachment A is not inclusive of land costs. 5. Land Dedication - Land required for the facilities shall be dedicated by the developers. Approximately six acres are required for the five subject facilities. In the event one developer is required to dedicate more than three acres, the other developer shall reimburse, at the time of construction, the dedicating developer for the cost of the land as determined by appraisal at that time. 6. Fee Amount - Fees shall be collected by the County at the issuance of the building permit. As illustrated in Attachment A, the total fee per unit equates to $1,410. The designated expenditure allocation is as follows: Library Community Center Police Substation Corporation Yard Senior Center Total Fee $ 326 (pro -rata cost for 11,000 units) $ 520 (pro -rata cost for 11,000 units) $ 61 (pro -rata cost for 11,000 units) $ 269 (pro -rata cost for 11,000 units) S 234 (pro -rata cost for 8,500 units) $1,410 The portion of the fee attributable to the library, Community Center, Police Substation and Corporation Yard, shall be paid by all 11,000 units,in the Dougherty Valley, except as is indicated below. The portion of the fee attributable to the Senior Center, shall be paid by the first 8,500 units in the Dougherty Valley. 7. Cost of Living Adjustments - The Community Facilities fee shall be adjusted according to the Engineering News Record Construction, Cost Index each year. tN 0 • & Escrow Accounts - Upon collection by the County, Fees shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commences. 9 Obligation to Fund Shortfall - When funds are required for the construction of any community facility, the pro -rata obligation for funding each community facility shall be divided 53% to Shapell and 47% to Windemere. This percentage allocation shall apply regardless of the ultimate, or then -current, number of units constructed on either developer's property. Each developer is individually responsible for providing their pro -rata share of costs (53% Shapell / 47% Windemere) when the funds for a specific community facility is required. Each developer may use the fees generated by prior units, and may finance the balance of the funds in any manner available to them. If a developer provides a source of funding other than that which has accumulated in the Community Facilities Escrow Accounts, the parties to this agreement shall re- evaluate the fee amount at that time, with the intention of offsetting future fees by an amount commensurate with the developer's other funding method. 10. Ability to Cure Develol2er Default - As specified in Section 4.3.3.2 of the May 11, 1994 Agreement to Settle Litigation, if one developer defaults in the obligation to fund the pro -rata share of a community facility, the other developer may cure the default and not be penalized by a cessation of building permits. However, the developer in default may again obtain building permits, by funding with interest, their original pro - rata cost obligation (53% Shapell / 47% Windemere). 11. Satisfaction of a Developer Obligation by a Third Party - If a developer's obligation to provide a specific community facility is satisfied by an alternate contribution acceptable to the County and the City of San Ramon, the Fee paid by subsequent units in the Dougherty Valley shall be re-evaluated with the intention of offsetting future fees by an amount commensurate with the alternate satisfaction of the obligation. 12. County Service Area Charge - A County Service Area (CSA) is required by Section 3.3.1 of the May 11, 1994 Agreement to Settle Litigation, to be in place prior to annexation of any portion of the Dougherty Valley. As part of the formation of the CSA, an assessment equal to the estimated total future operation and maintenance cost, may be applied to units for construction of the community facilities. This capital charge will be reduced, dollar for dollar, as the operation and maintenance charges for those facilities are incurred. Page Two !^ Upon collection by the County, CSA charges attributable to the capital facilities, shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commences. Funds accumulated under this CSA charge, shall be considered a "source of other financing" as is identified in #9 above. 13. County Approval/City Review - Plans for the design and construction of the community facilities shall be approved by Contra Costa County and reviewed by the City of San Ramon. The County agrees to give good faith consideration to all comments received from the City. If a dispute arises, the County and City agree to participate in the Dispute Resolution process outlined in Article V of the Agreement to Settle Litigation dated May 11, 1994. 14. Facility Design and Construction - The Developers shall be allowed, based on the design and construction specifications from the appropriate agency and with the approval of the County and the review of the City of San Ramon, to design and construct each of the community facilities. 15. Design Changes Resulting in Exceeding Facility Budget - The developers will not be required to fund facility construction costs greater than that described in Attachment A unless the increased cost is a result of cost of living adjustments (see paragraph 7) or changes in federal or state law. lb. Annual Reports - An annual report summarizing the Community Facilities Fee Escrow Account balances, and the CSA Escrow Account balances shall be provided with the annual mitigation monitoring program. Page three t Dougherty Valley Attachment A Community Facilities Fees Report Date: 9/20/95 Library (11.600 Square Feet) Footnotes: 1. Assumes cost of $2.50 per square foot 2. Assumes 18% of both hard construction costs and site development 3. Assumes 2 books per capita for approximately 29,000 people. Community Center (24.000 Square Feet) Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Twe Quantity Price Total Cost Units Cost Component Site Development I AC 1.00 $108,900 S108,900 $10 Hard Construction Costs 1 SF 11,600 $155.00 $1,798,000 $163 Soft Construction Costs 2 US 1 $343,242 $343,242 $31 Furnishings 2 SF 11,600 $15.00 S174,000 S16 Subtotal SF 24,000 $15.00 $2,424,142 5220 Educational Materials 3 Book 58,000 520.00 $1,160,000 $105 Total S3,594,142 S326 Footnotes: 1. Assumes cost of $2.50 per square foot 2. Assumes 18% of both hard construction costs and site development 3. Assumes 2 books per capita for approximately 29,000 people. Community Center (24.000 Square Feet) Cost per Unit Unit Unit Estitnated 11,000 Cost Component Note _Type_ Quantity Price Total Cost Units Site Development 1 AC 2.00 $108,900 5217,800 $20 Hard Construction Costs SF 24,000 $185.00 54,440,000 5404 Soft Construction Costs 2 LS 1 5698,670 $698,670 $64 Furnishings SF 24,000 $15.00 $360,000 $33 Total S5,716,470 S$20 Footnotes: 1. Assumes site development cost of approximately 52.50 per square foot. 2. Assumes 15% of both hard construction costs and site development. i M Dougherty Valley Community Facilities Fees Report Date: 9/20/95 I Attachment A Senior Center (10.000 Square Feet) 4.500 Square Feet) Cost per Cost per Unit Unit Unit Estimated 8,500 Cost Component Note Type Quantity Price Total Cost Units Site Development I AC 1.00 $108,900 $108,900 S13 Hard Construction Costs SF 10,000 $150.00 $1,300,000 S176 Soft Construction Costs 2 1JS 1.00 5241,335 $241,335 $28 Furnishings SF 10,000 $14.00 5140,000 S16 Total Furnishings SF S1,990135 S234 Footnotes: 1. Assumes site development cost of approximately 52.50 per square foot. 2. Assumes 15% of both hard construction costs and site development. Police Substation (Approximately 4.500 Square Feet) Cost per Unit Unit Unit Estimated 11,000 .Cost Component Note Type Quantity Price Total Cost Units Site Development 1 AC 0.34 5367,647 $125,000 S 11 Hard Construction Costs SF 4,500 580.00 $360,000 $33 Soft Construction Costs 2 US 1 572,750 572,750 $7 Furnishings SF 4,500 525.00 S112,300 $10 Total S670,250 Lu Footnotes: 1. Assumes site development cost of approximately $8.45 per square foot (rounding) 2. Assumes 15% of both hard construction costs and site development. 16 Dougherty Valley Attachment A Community Facilities Fees Report Date: 9120/95 Corporafion Yard Footnotes: 1. Assumes site development cost of approximately $2.3 per square foot 2. Total cost estimated at $2.5 million; includes parking, landscaping, furnishings, 4480 square feet for shop space, 800 square fat for offices and 1,680 square fat for locker areas. 3. Assumes 100/9 of both hard construction costs dt furnishings and site development. 6 Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Tnx_Quantity Price Total Cost Units Site Development Costs 1 AC 1.70 $108,900 $185,130 S17 Hard Constr dt Furnishings 2 US 1 $2,300,000 52,500.000 5227 Soft Costs 3 US 1 $268,313 $268,513 S24 Total S2.953.643 S269 Footnotes: 1. Assumes site development cost of approximately $2.3 per square foot 2. Total cost estimated at $2.5 million; includes parking, landscaping, furnishings, 4480 square feet for shop space, 800 square fat for offices and 1,680 square fat for locker areas. 3. Assumes 100/9 of both hard construction costs dt furnishings and site development. 6 STATE OF CALIFORNIA COUNTY OF On before me, . Notary Public, personally appeared NAME(S) OF SIGNER(S) O personally known to me - OR - 0 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. Witness my hand and official seal SIGNATURE OF NOTARY i --OPTIONAL SECTION - CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data tallow, doing so may prove invaluable to persons relying on the document O INDIVIDUAL 0 CORPORATE OFFICER(S) TRLE(S) 0 PARTNER(S) O LIMITED O GENERAL 0 ATTORNEY-IN-FACT O TRUSTEE(S) 0 GUARDIAN/CONSERVATOR 0 OTHER: SIGNER IS REPRESENTING: Name of Person(s) or Entity(ies) -OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO Title or Type of Document THE DOCUMENT DESCRIBED AT RIGHT: Though the data requested here is not required by law, it Number of Pages Date of Document could prevent fraudulent reattachment of this form. Signer(s) Other Than Named Above 01993 National Notary Association, Canoga Park, CA 1, STATE OF CALIFORNIA COUNTY OF On before me, . Notary Public, personally appeared NAME(S) OF SIGNER(S) P personally known to me - OR - O 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. Witness my hand and official seal. SIGNATURE OF NOTARY 0 OPTIONAL SECTION - CAPACITY CLAIMED BY SIGNER Though stahrte does not require the Notary to All in the data below, doing so may prove kwaluable m persons raying on the document. ❑ INDIVIDUAL O CORPORATE OFFICER(S) TITLE(S) O PARTNER(S) ❑ LIMITED O GENERAL O ATTORNEY-IN-FACT O TRUSTEE(S) O GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: Name of Person(s) or Entity(ies) --- OPTIONAL'SECTION THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title or Type of Document Though the data requested here is not required by law, it Number of Pages Date of Document could prevent fraudulent reattachment of this form. Signer(s) Other Than Named Above 01993 National Notary Association, Canoga Park, CA 6 k STATE OF CALIFORNIA COUNTY OF On before me, . Notary Public, personally appeared NAME(S) OF SIGNER(S) ❑ personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorised 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. Witness my hand and official seal SIGNATURE OF NOTARY OPTIONAL 0 —OPTIONAL SECTION CAPACITYCLAIMED BY SIGNER Though statute 0008 not require the Notary to fill in the data below, doing so may prove Frvalueble to persons relying on the document ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: Name of Person(s) or Entity(ies) THIS CERTIFICATE MUST BE ATTACHED TO Title or Type of Document THE DOCUMENT DESCRIBED AT RIGHT: Though the data requested here is not required by law, it Number of Pages Date of Document could prevent fraudulent reattachment of this form. Signer(s) Other Than Named Above 01993 National Notary Association, Canoga Park, CA D.11 & D.12 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on December 12, 1995 by the following vote: AYES: Supervisors Rogers, Smith, DeSaulnier, Torlakson and Bishop NOES: None ABSENT: None ABSTAIN: None ---------------------------------------------------------------- ---------------------------------------------------------------- SUBJECT: Hearings on Windemere Rezone Land (2992-RZ) Application To Rezone The Recommendation of Ranch Partners Application To and Shapell Industries Land (2993-RZ) and To Consider the Zoning Administrator on Related Development Agreements. This is the time heretofore noticed by the Clerk of the Board of Supervisors for hearing on recommendations of the Contra Costa County Planing Commission and the San Ramon Valley Regional Planning Commission and the San Ramon Valley Regional Planning Commission on the application (2992-RZ) of Windemere Ranch Partners (applicant and owner) for approval of a rezoning with preliminary development plan approval for approximately 2,416 acres from A-80 (Agricultural District) to P-1 (Planned Unit Development) to construct up to 5,170 residential units. The project further incorporates 1,145 acres of open space and park and recreation public/semi-public uses, and to consider the recommendation of the County Zoning Administrator on the request of Contra Costa County and Windemere Ranch Partners to review and approve a development agreement known as Windemere Ranch Partners as being consistent with the County General Plan and the Dougherty Valley Specific Plan in the Dougherty Valley area; and Hearing on recommendations of the Contra Costa County Planning Commission and the San Ramon Valley Regional Planning Commission on the application (2992-RZ) of Shapell Industries (applicant and owner) for approval of a rezoning with preliminary development plan approval for approximately 2,708 acres from A-80 (Agricultural District) to P-1 (Planned Unit Development) construct up to 4,614 residential units. The project further incorporates 1,386 acres of open space and park and recreation facilities, 26 acres of non-residential uses and 38 acres as public/semi-public uses and to consider recommendation of the County Zoning Administrator on the request of Contra Costa County and Shapell Industries to review and approve a development agreement known as Shapell Industries as being consistent with the County General Plan and Dougherty Valley Specific Plan in the Dougherty Valley area. Dennis Barry, Community Development Department, presented the staff report on the history of the matters before the Board, commenting on the Board certification of the Environmental Impact Report and approval of the General Plan Amendment.and Specific Plan in 1992. He advised that the Board closed the hearings on the rezonings at that time and deferred their decision. Mr. Barry commented on lawsuits that were filed and that have been settled, and he commented on the review by the Dougherty Valley Oversight Committee (DVOC) on October 6 and October 20, 1995, and modifications to the conditions of approval as included in the staff report and that with those changes the DVOC is in agreement with the rezonings and the development agreements. Mr. Barry also advised of some late changes to be brought forward by the developer and he advised that the recommendations of the County Planning Commission still pertain and that there's no reason to refer the matter back to the Commission for additional hearings. Mr. Barry also commented on the addendum to the final Environmental Impact Report before the Board for consideration and on the recommendations in the December 12, 1995, staff report CJ before the Board. The following persons presented testimony: Herb Moniz, 2222 Camino Ramon, San Ramon, City Manager,City of San Ramon; Tom Koch, Shapell Industries; Maria Rivera, McCutcheon, Doyle, Brown & Enersen, P.O. Box V, Walnut Creek, representing Shapell Industries; Byron Athen, City of San Ramon; Clark Morrison, Morrison & Foerster, P.O. Box 8130, Walnut Creek, representing Windemere; Dan Coleman, Windemere Ranch Partners; Mehran Sepheri, 100 Civic Plaza, Dublin, City of Dublin; Patricia Curtin, Gagen, McCoy, 279 Front Stree, Danville, representing Tassajara Valley Property Owners Association; Jeff Leon, 4510 Camino Tassajara, Danville, Tassajara Valley Property Owners Association; Michael Sipos, 2540 Toltec Circle, San Ramon, Save Our Hills; Scott Couture, 166 Teracina Drive, San Ramon. Mr. Koch spoke in rebuttal. The public hearing was closed. Supervisor Bishop advised that she would like to grant the request of the City of San Ramon to continue this matter for one week and that she would not support the approval of the rezonings, development plans, or development agreements. The Board discussed the matter. Supervisor Smith moved to continue the matter for one week to give the City of San Ramon and the developer time to discuss the issues. Supervisor DeSaulnier seconded the motion. Supervisor Torlakson urged the parties to make the best advantage of this week. Supervisor Bishop moved a substitute motion to deny the applications for approval of the development agreements, the rezonings and the final development plans. The substitute motion died for lack of a second. IT IS BY THE BOARD ORDERED that the hearing on the above matters is CLOSED; and decision on the recommendations of the Contra Costa County Planning Commission and the San Ramon Valley Regional Planning Commission on the applications of Windemere Ranch Partners (2992-RZ) and Shapell Industries (2993-RZ) for rezoning approvals with preliminary development plans and on the recommendation of the County Zoning Administrator on the requests by Windemere Ranch Partners and Shapell Industries for approval of development agreements in the Dougherty Valley is DEFERRED to December 19, 1995, at 6:30 P.M. I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date show ATTESTED' 6"94� . l�4� PHILBATHELOR, Clerk of the Board o pervi s andty Administrator ByAM I 1A.17.v Deputy CC: Community Development Department County Counsel Shapell Industries Windemere Ranch Partners • RECORDING REQUESTED BY' AND WHEN RECORDED MAIL TO: McCutchen, Doyle, Brown & Enersen 1331 North California Boulevard Post Office Box V Walnut Creek, CA 94596 0 D. i2 --- (Space Above This Line Reserved For Recorder's Use) DEVELOPMENT AGREEMENT BETWEEN COUNTY OF CONTRA COSTA AND SHAPELL INDUSTRIES, INC. RELATING TO THE DEVELOPMENT COMMONLY KNOWN AS THE GALE RANCH TABLE OF CONTENTS PAGE Recitals..........................:.....................................................................................................1 Section 1. Effective Date and Term..................................................................................................5 1.1 Effective Date..................................................................................................................5 1.2 Term................................................................................................................................. 5 Section2. Definitions........................................................................................................................5 Section 3. Obligations of Developer and County.............................................................................7 3.1 Obligations of Developer Gernally..................................................................................7 3.2 Obligations of County Generally.....................................................................................7 3.3 Specific Obligations.........................................................................................................7 (a) Compliance with Settlement Agreements..............................................................7 (b) Preliminary Development Plan...............................................................................7 (c) Affordable Housing................................................................................................7 (d) Designation of Preferred Water Provider...............................................................7 (e) Design Program for Dougherty Valley Village Center..........................................8 (f) Coordination of On -Site Improvements.................................................................8 (g) Danville/San Ramon/County Traffic Mitigation....................................................8 (h) Pleasanton Traffic Mitigation............................................................................... l l (i) Dublin Traffic Mitigation.....................................................................................12 0) Walnut Creek Traffic Mitigation..........................................................................12 (k) Dougherty Road Improvements............................................................................12 (1) Mitigation Monitoring..........................................................................................13 (m) Establishment of County Service Area.................................................................13 Section 4. Standards, Laws and Procedures Governing Gale Ranch..............................................13 4.1 Permitted Uses, Etc.; Applicable Law...........................................................................13 (a) Permitted Uses, Etc., of the Gale Ranch Site.......................................................13 (b) Applicable Law.....................................................................................................14 (c) No Conflicting Enactments...................................................................................14 (d) Exceptions.............................................................................................................16 (e) Moratoria and Restrictions and Limitations on the Rate or Timing -of Development.........................................................................................................16 (f) Further CEQA Review.............:............................................................................17 (g) Further Assurances................................................................................................17 (h) Life of Subdivision Maps, Development Plans, and Permits...............................17 4.2 State and Federal Law....................................................................................................17 4.3 Timing of Construction and Completion.......................................................................18 4.4 Developer Review of On -Site Infrastructure Improvements.........................................18 i TABLE OF CONTENTS (continued) PAGE Section5. Amendment....................................................................................................................18 5.1 Amendment of Planning Actions and Subsequent Approvals.......................................18 (a) Administrative Amendments................................................................................18 (b) Non -Administrative Amendments........................................................................19 5.2 Amendment of This Agreement.....................................................................................19 (a) Insubstantial Amendments....................................................................................19 (b) Amendments of Planning Actions, Subsequent Approvals or the Affordable Housing Program................................................................................19 (c) Parties Required to Amend...................................................................................19 (d) Non -Assuming Transferees..................................................................................20 Section 6. Cooperation-Implementation.........................................................................................20 6.1 Processing......................................................................................................................20 6.2 Eminent Domain Powers...............................................................................................21 6.3 Other Governmental Permits.........................................................................................21 Section 7. Cooperation in the Event of Legal Challenge................................................................22 7.1 Cooperation....................................................................................................................22 7.2 Cure; Reapproval...........................................................................................................22 Section 8. Dispute Resolution.........................................................................................................23 Section 9. Default; Termination; Annual Review...........................................................................23 9.1 General Provisions.........................................................................................................23 (a) Defaults.................................................................................................................23 (b) Termination...........................................................................................................23 9.2 Annual Review...............................................................................................................24 9.3 Default by County..........................................................................................................25 9.4 Enforced Delay; Extension of Time of Performance.....................................................25 Section 10. Defense and Indemnity..................................................................................................25 (a) Developer's Actions..............................................................................................25 (b) County's Actions............................................................................................:......25 (c) Subdivision Agreement and Defense....................................................................25 T r� u TABLE OF CONTENTS (continued) 0 PAGE Section 11. No Agency, Joint Venture or Partnership......................................................................26 Section12. Miscellaneous.................................................................................................................26 12.1 Incorporation of Recitals and Introductory Paragraph...................................................26 12:2 Severability.............................................:......................................................................26 12.3 Other Necessary Acts.....................................................................................................26 12.4 Construction....................................................:..............................................................26 12.5 Other Miscellaneous Terms...........................................................................................26 12.6 Covenants Running with the Land.................................................................................27 12.7 Dougherty Valley Development Strategy......................................................................27 12.8 Mortgage Rights.............................................................................................................27 12.9 Approval by Mortgagees............................................................................:...................28 12.10 Notice of Proposed Amendment to Mortgagee..............................................................28 12.11 Remedies........................................................................................................................28 12.12 California Law...............................................................................................................28 12.13 Other Public Agencies...................................................................................................28 12.14 Attorneys' Fees...............................................................................................................28 12.15 Annexation to San Ramon.............................................................................................29 Section13. Notices............................................................................................................................29 Section 14. Assignment, Transfer and Notice...................................................................................30 14.1 Assignment of Interests, Rights and Obligations...........................................................30 14.2 Transfer Agreements......................................................................................................30 Section 15. Notice of Compliance....................................................................................................31 15.1 Generally........................................................................................................................31 Section 16. Entire Agreement, Counterparts and Exhibits...............................................................32 Section 17. Recordation of Development Agreement......................................................................32 It DEVELOPMENT AGREEMENT BETWEEN COUNTY OF CONTRA COSTA AND SHAPELL INDUSTRIES, INC. RELATING TO THE DEVELOPMENT COMMONLY KNOWN AS THE GALE RANCH THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of this _ day of December, 1995, by and between SHAPELL INDUSTRIES, INC., a Delaware corporation ("Developer" or "Shapell"), and the COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"), pursuant to Government Code section 65864 et seq. Developer and County are from time to time hereinafter referred to individually as a "Party" and collectively as the "Parties." This Agreement supersedes and replaces in its entirety that certain development agreement entered into by and between Developer and County dated October 2, 1990, which is hereby terminated. 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 section 65864 et seq. (the "Development Agreement Statute"), which authorizes County to enter into an agreement with any person having a legal or equitable interest in real property, regarding the development of such property. B. Pursuant to Government Code section 65865, County has adopted rules and regulations establishing procedures and requirements for consideration of development agreements (Art. 26-2.12 of Contra Costa County Code and Board Resolution No. 85/412). This Development Agreement has been processed, considered and executed in accordance with those County rules and regulations, including without limitation, 26-2.1204 of the Contra Costa County Code. C. Developer has a legal interest in certain real property consisting of approximately two thousand seven hundred eight (2,708) acres located in the unincorporated portion of the County known as the Dougherty Valley, which property is commonly referred to as the Gale Ranch. The property which is the subject of this agreement is a portion of the Gale Ranch comprised of approximately two thousand and ninety (2,090) acres as described in Exhibit A attached hereto (the "Gale Ranch Site"). The property is adjacent to property owned by Windemere Ranch Partners ("Windemere") also located in the Dougherty Valley. D. Developer intends to develop the Gale Ranch Site as a residential planned community of 4,614 units (plus any units that may be transferred from the Country Club Site to central residential 1 receiver sites, as permitted under the Specific Plan), along with retail and office uses, community facilities and other uses in accordance with the Dougherty Valley Specific Plan. E. County has determined that this Agreement is appropriate for the Gale Ranch and desires to enter into this Agreement. This Agreement establishes planning principles, standards, and procedures to: eliminate uncertainty in planning and guide the orderly development of the Gale Ranch consistent with the General Plan and the Dougherty Valley Specific Plan; mitigate significant environmental impacts; ensure installation of necessary on-site and off-site public improvements; provide for the preservation of substantial permanent open space; make provision for public trail facilities; provide funding for traffic improvements; provide for public services appropriate to the development of the Gale Ranch; provide affordable housing; ensure attainment of the maximum effective utilization of resources within the County at the least economic cost to its citizens; and otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted. Furthermore, development of the Gale Ranch pursuant to the Agreement would result in increased tax, fee and other revenues resulting in fiscal benefits to the County and an improved balance between jobs and housing within the County and the region. F. This Agreement requires, through the provisions that follow, that any future development of the Gale Ranch Site comply with the Growth Management Element of the General Plan. As a result, County is precluded from approving development of the Gale Ranch absent compliance with certain standards relating to water, sanitary facilities, fire, police, parks, flood control and traffic. G. In exchange for the benefits to County described in Recital E of this Agreement, together with the other public benefits that will result from the development of the Gale Ranch, Developer will receive by this Agreement assurance that it may proceed with the Gale Ranch in accordance with the "Applicable Law" (defined below), and therefore desires to enter into this Agreement. In the absence of this Agreement, Developer would have no present assurance that it could proceed with the Gale Ranch in accordance with the Applicable Law. H. County has taken various environmental review and planning actions relating to the development of the Gale Ranch. These actions include, without limitation, the following: 1. Dougherty Valley EIR. On December 22, 1992, pursuant to the California Environmental Quality Act, the "CEQA Guidelines" and County's local guidelines promulgated thereunder (hereinafter collectively referred to as "CEQA") and in accordance with the recommendation of the County's Zoning Administrator, the Board, by Resolution 92/864, certified a final environmental impact report regarding the Gale Ranch (the "Dougherty Valley EIR"). 2. General Plan Amendment. On December 22, 1992, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, and after duly noticed public hearing and certification of the Dougherty Valley EIR, the Board, by Resolution 92/866, approved an amendment to the County General Plan (the "General Plan Amendment"), addressing the Gale Ranch Site and certain real property adjacent to the Gale Ranch Site including (i) approximately 618 acres, also owned by Shapell, known as Country Club at Gale Ranch OA (the "Country Club Site"), (ii) approximately 2379 acres owned by Windemere Ranch Partners (the "Windemere Site"), and (iii) approximately. 892 acres owned by the United States Department of the Army ("Camp Parks"). 3. Specific Plan. On December 22, 1992, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission and recommendation by the County Planning Commission, certification of the Dougherty Valley EIR, adoption of the General Plan Amendment, and duly noticed public hearing, the Board adopted, by Resolution 92/867, a single specific plan for the Gale Ranch Site, the Country Club Site, the Windemere Site, and Camp Parks (collectively, the "Dougherty Valley"), which specific plan is entitled the "Dougherty Valley Specific Plan" (the "Specific Plan"). 4. Country Club at Gale Ranch Approvals On December 20, 1994, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, the Board's consideration and certification of the Country Club at Gale Ranch FEIR; and duly noticed public hearing, the Board adopted Resolutions 94/640, 94/641 and 94/649, and adopted Ordinance No 94-77 and Ordinance No. 94-79, by which a General Plan Amendment, Rezoning, Preliminary Development Plan, Final Development Plan, Vesting Tentative Map and Development Agreement for development of the Country Club at Gale Ranch (adjacent to the Gale Ranch Site) were approved. 5. Settlement Agreements. County, together with Developer and Windemere, has entered into various agreements to settle litigation brought by certain parties against the County as respondent, and against Developer and Windemere as real parties in interest, relating to County's approval of the General Plan Amendment and Specific Plan and its certification of the Dougherty Valley EIR (collectively, the "Settlement Agreements"). The Settlement Agreements establish, among other things, certain procedures and standards that will be applied to County's consideration and approval of the "Project Approvals" (defined below). The Settlement Agreements consist of the following: (a) San Ramon and Danville: That certain agreement entered into by and among County, Developer, Windemere, the City of San Ramon ("San Ramon") and the Town of Danville ("Danville") on May 11, 1994 to settle certain claims brought by San Ramon and Danville as more fully described therein (the "San Ramon Settlement Agreement"). (c) Pleasanton: That certain agreement entered into by and between County, Developer, Windemere, and the City of Pleasanton ("Pleasanton") on June 20, 1995, to settle certain claims brought by Pleasanton asmore fully described therein (the "Pleasanton Settlement Agreement"). (b) Walnut Creek: That certain agreement entered into by and among County, Developer, Windemere, and the City of Walnut Creek ("Walnut Creek") on July 11, 1995, to settle claims brought by Walnut Creek as more fully described therein (the "Walnut Creek Settlement Agreement"). 3 (d) East Bay Municipal Utility District: That certain agreement entered into by and among County, Developer, Windemere, and the East Bay Municipal Utility District ("EBMUD") on September 26, 1995 to settle claims brought by EBMUD as more fully described therein (the "EBMUD Settlement Agreement"). (e) Alamo Improvement Association: That certain agreement entered into by and among County, Developer, Windemere, and the Alamo Improvement Association ("AIA") on October 12, 1995, to settle claims brought by the AIA as more fully described therein (the "AIA Settlement Agreement"). (f) Non -Governmental Organizations: That certain agreement entered into by and among County, Developer, Windemere, and several non-governmental organizations viz., the Sierra Club, the Greenbelt Alliance, Preserve Area Ridgelands Committee, Save Our Hills and the Mount Diablo Audubon Society on October 12, 1995, to settle claims brought by such non-governmental organizations as more fully described therein (the "NGO Settlement Agreement"). 6. P-1 Zoning and Preliminary Development Plan. On , 1995, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, the Board's consideration of an addendum to the Dougherty Valley EIR prepared in accordance with Section 15164 of the CEQA Guidelines (the "Dougherty Valley EIR Addendum") with the Dougherty Valley EIR, and duly noticed public hearing, the Board adopted County Ordinance No. _, rezoning the Gale Ranch Site to County's "P-1" zoning district consistent with the General Plan and the Specific Plan (the "P-1 Zoning") and, pursuant to Resolution , approved a Preliminary Development Plan for the Gale Ranch Site in accordance with its P-1 zoning (the "Preliminary Development Plan"). The General Plan Amendment, Specific Plan, P-1 Zoning, Preliminary Development Plan, and this Agreement are sometimes collectively referred to herein as the "Planning Actions." .I. The Parties acknowledge and agree that applications for specific land use approvals, entitlements, permits and agreements (collectively, the "Subsequent Approvals") must be made by Developer and reviewed (in compliance with CEQA) and approved, issued or entered into by County prior to any development on the Gale Ranch Site. The Subsequent Approvals may include, without limitation, the following: design review approvals, improvement agreements and other agreements relating to the Gale Ranch, use permits, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, subdivision maps (including tentative, vesting tentative, parcel, vesting parcel, and final subdivision maps), preliminary and final development plans, rezonings, development agreements, landscaping plans, encroachment permits, resubdivisions, and amendments to, or repealing of, the Planning Actions or the Subsequent Approvals. J. On , 1995 (the "Approval Date"), after duly noticed public hearing, and considering the Dougherty Valley EIR Addendum, and the findings and recommendation of the 4 0 Zoning Administrator, the Board took the following actions: (1) made findings required by Board Resolution No. 85/412, that the provisions of this Agreement are consistent with the General Plan and the Specific Plan; (2) by Board Resolution No. , made the findings required by CEQA; and (3) adopted Ordinance No. , approving and authorizing the execution of this Agreement. K. Each Party acknowledges that it is entering into this Agreement voluntarily. NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth herein, the receipt and adequacy of which consideration is hereby acknowledged, the Parties agree as follows: AGREEMENT Section 1. Effective Date and Term. 1.1 Effective Date. This Agreement shall become effective upon the date the Ordinance approving this Agreement becomes effective, or the date upon which this Agreement is executed by Developer and County, whichever is later (the "Effective Date"). However, the "Applicable Law" to which the Gale Ranch shall be subject shall be as set forth in Section 4.1 below. 1.2 Term. The term of this Agreement (the "Term") shall commence upon the Effective Date and continue for a period of twenty five (25) years. Section 2. Definitions. "Affordable Housing Program" shall have that meaning set forth in Section 3.1(d) of this Agreement. "Applicable Law" shall have that meaning set forth in Section 4.1 of this Agreement. "Approval Date" shall have that meaning set forth in Recital K of this Agreement. "Board" shall mean the Board of Supervisors of the County. "Changes in the Law" shall have that meaning set forth in Section 4.2 of this, Agreement. "Community Development Director" shall mean the Director of the County's Department of Community Development, or his or her designee. "Country Club Site" shall mean the approximately 618 acres within the Shapell Site for which the County approved a general plan amendment, rezoning, preliminary development plan, final development plan, subdivision map, and development agreement on December 20, 1994. "County" shall mean the County of Contra Costa, and shall include, unless otherwise provided, any of the County's agencies, departments, officials, employees or consultants. 5 V "County General Plan" or "General Plan" shall mean the General Plan of the County. "Deficiencies" shall have that meaning set forth in Section 7.2 of this Agreement. "Developer" shall have that meaning set forth in the preamble, and shall further include, unless otherwise provided, Developer's successors, heirs, assigns, and transferees. "Dougherty Valley EIR" shall have that meaning set forth in Recital H of this Agreement. "Dougherty Valley EIR Addendum" shall have that meaning set forth in Recital H of this Agreement. "Effective Date" shall have that meaning set forth in Section 1.1 of this Agreement. "Facilities Fee" shall have that meaning set forth in Section 3.2(b)(2) of this Agreement. "Gale Ranch" shall mean the Gale Ranch Site and all improvements to be constructed thereon by Developer as described in the Planning Actions and (as and when they are adopted or issued), the Subsequent Approvals, and all off-site improvements to be constructed in connection therewith. "Gale Ranch Site" or "Shapell Site" shall mean the approximately 2,090 acres owned by Shapell Industries, Inc., located in Dougherty Valley and excluding the Country Club Site. "General Plan Amendment" shall have that meaning set forth in Recital H of this Agreement. "Growth Management Element" shall mean the Growth Management Element of the General Plan as of the Approval Date. "Notice of Compliance" shall have that meaning set forth in Article 15 of this Agreement. "Off -Site Traffic Improvements" shall have that meaning set forth in Section 3.1(f) of this Agreement. "P-1 Zoning" shall have that meaning set forth in Recital H of this Agreement. "Planning Actions" shall have that meaning set forth in Recital H of this Agreement. "Planning Commission" shall mean the County Planning Commission. "Preliminary Development Plan" shall have that meaning set forth in Recital H of this Agreement. "Settlement Agreements" shall have that meaning set forth in Recital H of this Agreement. "Shapell Site" or "Gale Ranch Site" shall mean the approximately 2,090 acres owned by Shapell Industries, Inc., located in Dougherty Valley and excluding the Country Club Site. n 0 • "Specific Plan" shall have that meaning set forth in Recital H of this Agreement. "Subsequent Approvals" shall have that meaning set forth in Recital I of this Agreement. "Traffic Impact Fee" shall have that meaning set forth in Section 3.1(i) of this Agreement. "Windemere" shall have that meaning set forth in Recital C of this Agreement. "Windemere Site" shall have that meaning set forth in Recital H of this Agreement. Section 3. Obligations of Developer and County. 3.1 Obligations of Developer Generally. The Parties acknowledge and agree that County's agreement to perform and abide by the covenants and obligations of County set forth herein is material consideration for Developer's agreement to perform and abide by the covenants and . obligations of Developer set forth herein. 3.2 Obligations of County Generally. The Parties acknowledge and agree that Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein is material consideration for County's agreement to perform and abide by the covenants and obligations of County set forth herein. 3.3 Specific Obligations. (a) Compliance with Settlement Agreements. The terms and provisions of this Agreement are intended to be consistent with, and shall not be deemed to modify, abrogate or limit compliance with or the implementation or enforcement of, the terms and provisions of any of the Settlement Agreements. In the event of any conflict between the terms and provisions of this Agreement and any Settlement Agreement, the terms and provisions of such Settlement Agreement shall prevail to the extent of such conflict. If and to the extent any obligation of any party under any of the Settlement Agreements is terminated for any reason, including without limitation any obligation under Section 3.30) (relating to the Interstate 680/Highway 24 Interchange, Section 3.3(h) (relating to the payment of traffic fees to the City of Pleasanton), and Section 3.3(e) (relating to the design program for the Village Center), then such obligation shall not be required to be satisfied hereunder. (b) Preliminary Development Plan. Except as otherwise specifically agreed by County, Developer shall comply with all conditions of approval to the Preliminary Development Plan. (c) Affordable Housing. Developer shall, in connection with its development of the Gale Ranch, implement the terms and provisions of the Affordable Housing Program adopted by the Board on March 22, 1994 pursuant to Board Order , (the "Affordable Housing Program"), which requires that a minimum of twenty-five percent (25%) of all dwelling units be developed as affordable to low, very low and moderate income households. (d) Designation of Preferred Water Provider. In consequence of the court -sanctioned EBMUD Settlement Agreement, Policy U-1 of the Specific Plan which identifies alternative water suppliers shall be interpreted and applied to the Gale Ranch development as follows: The Dublin 7 San Ramon Services District ["DSRSD"] is the preferred water provider for the Gale Ranch Site (except for one or two school sites as provided in the EBMUD Settlement Agreement). EBMUD is an alternative water provider, but only pursuant to the terms and conditions set forth in the EBMUD Settlement Agreement. Staff will support and diligently process an amendment which will incorporate such language into the Specific Plan. (e) Design Program for Dougherty Valley Village Center. Paragraphs 2, 3(a) and 3(b) of the NGO Settlement Agreement require certain actions to be taken with respect to the design of Gale Ranch, including participation in the development of a design program for the "Village Center" of the Dougherty Valley and provision of approximately forty (40) acres of additional open space (provided that such reconfiguration is physically feasible and permitted by law). Any obligation of Developer or County under such provisions of the NGO Settlement Agreement shall be satisfied in connection with any tentative map covering the area of the Gale Ranch Site affectedby such obligation, which tentative map will be approved together with any necessary general plan amendment, specific plan amendment or rezoning. (f) Coordination of On -Site Improvements. County shall require that access or right-of-way for those certain roadway improvements described on Exhibit B, attached hereto and incorporated herein by reference, as roadway segments W-1 and W-2, offered for dedication as and at the times provided in the conditions to the PDP; provided, however, that if the Windemere project generates the need for access or right-of-way for roadway segments W-1 and/or W-2, prior to the time such access or right-of-way is required for the Gale Ranch, then County shall ensure that the provision of such access or right-of-way is subject to the following: In order to accommodate Windemere's development schedule, Windemere may elect to assume responsibility for constructing, without reimbursement from Shapell, roadway segments W-1 and/or W-2 in which case Shapell shall dedicate or offer to dedicate, as required by County, the necessary access or right of way to County upon satisfaction of the following conditions: (a) Shapell will have reasonably reviewed and approved Bollinger Canyon Road's horizontal and vertical alignment, grading and improvement plans; (b) Windemere shall have provided to Shapell improvement agreements deemed acceptable by County and executed by all parties, together with completion and payment bonds so that the improvements shall be duly completed and no liens shall remain on Shapell's property; and (c) Windemere shall have procured a policy of Comprehensive General Liability Insurance in an amount and from an insurance company reasonably satisfactory to County naming Shapell as an additional insured. Shapell shall have the right but not the obligation reasonably to designate the source of cut/fill dirt (from the Gale Ranch Site) which shall be used to the extent needed for roadway segments W-1 and/or W-2. (g) Danville/San Ramon/County Traffic Mitigation (1) Certain traffic improvements within the County, San Ramon and Danville are or may be required to accommodate development under the Specific Plan (the "Project Traffic Improvements"). The Project Traffic Improvements include (i) the on-site traffic improvements described in the Specific Plan as the "Internal Circulation System" (the "On -Site Traffic Improvements"), (ii) the off-site traffic improvements described on Exhibit C-1, attached hereto and incorporated herein by reference (the "Initial Project Traffic 8 Improvements") and (iii) certain additional off-site traffic improvements described on Exhibit C-2, attached hereto and incorporated herein by reference (the "Additional Project Traffic Improvements"). The Initial Project Traffic Improvements and the Additional Project Traffic Improvements are sometimes referred to collectively below as the "Off -Site Traffic Improvements." (2) Subject to the provisions of 3.3(g), Developer shall be responsible for the construction of the On -Site Traffic Improvements made necessary by the Gale Ranch. (3) Developer shall pay to County a per-unit traffic impact fee (the "Traffic Impact Fee") in the amount necessary, but no more than the amount necessary, to fund Developer's fair share of the cost of construction of the Off -Site Traffic Improvements; provided, however, that Windemere shall have responsibility for constructing roadway segment W-3 and Shapell shall have responsibility for constructing roadway segments S-1 and S-2 as shown on Exhibit B to this Agreement. In calculating Developer's and Windemere's respective obligations for the construction and/or funding of the Off -Site Traffic Improvements, the costs of S-1, S-2; and W-3 shall be deducted from the aggregate total cost of the Off -Site Traffic Improvements and not considered in making such calculations. The amount of the Traffic Impact Fee shall be determined as set forth in subsection (4) below, and shall apply to residential units developed on the Gale Ranch Site. The Traffic Impact Fee applicable to a residential unit shall be paid when the building permit for such unit is issued. The County will retain responsibility for the issuance of building permits and collecting the fees notwithstanding the municipal annexation of any portion of the Gale Ranch. (4) The amount of the Traffic Impact Fee shall be determined within six (6) months following County's approval of this Agreement, but no later than the date upon which the County first approves a tentative subdivision map showing individual residential lots for any portion of the Dougherty Valley (other than for the Country Club Site), in the following manner: County, Developer, Windemere and, as required by the San Ramon Settlement Agreement, representatives of Danville and San Ramon, shall meet and confer in good faith to determine (i) the estimated reasonable cost of the Off -Site Traffic Improvements and (ii) the respective proportions of such cost that fairly should be borne by Shapell and Windemere, (taking into account, among other things, development planned for the Country Club Site and the fees being paid by Shapell with respect thereto) and other projects or parties, if any, contribution to the need for such improvements and to whom the Traffic Impact Fee will apply. In making such determinations, and establishing the amount of the Traffic Impact Fee, it shall be recognized that (a) Developer's pro rata contribution to the traffic improvements described on Exhibit C-3, attached hereto and incorporated herein by reference, shall be no more than is specified in, and shall be paid as described in, Exhibit C- 3; and (b) Developer and Windemere shall, taken together, be responsible for the entire cost of the Initial Project Traffic Improvements as set forth in the San Ramon Settlement Agreement (although each shall be responsible only for its fair share of the cost of such improvements). The costs and proportions so determined and agreed upon by County and Developer shall be reflected, as appropriate, in the Traffic Impact Fee. The amount of the E Traffic Impact Fee shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. (5) County shall enter into such agreements with San Ramon and Danville as may be necessary or appropriate to establish a joint exercise of powers agreement ("JEPA"), or some other program or mechanism, to provide for (i) the collection of traffic impact fees from development projects in San Ramon, Danville and Contra Costa County and within the boundary of the JEPA or other program or mechanism that will contribute to the need for the Additional Project Traffic Improvements,_ which fees shall be in amounts consistent with the determinations made under Subsection (4) above, (ii) the establishment of an account or accounts (the "Local TIF Account") to hold Traffic Impact Fees collected from Developer and Windemere, and traffic impact fees collected from the developers of other projects that will contribute to the need for the Additional Project Traffic Improvements (collectively, the "Local TIF Funds"), and (iii) the transfer to San Ramon, Danville and County of Local TIF Funds attributable to the Off -Site Traffic Improvements to be developed within those jurisdictions (the "Local TIF Program"). (6) The timing of when an Off -Site Traffic Improvement is needed is determined by Measure C and by any conditions of approval for subsequent subdivision maps. If the Local TIF Program has not received sufficient developer fees to fund an improvement when it is needed, then Developer will fund the difference, or construct the improvement, to ensure the improvement is built on time. In such case, Developer shall enter into a reimbursement agreement with County to credit or reimburse Developer the eligible construction costs that were advanced to build the project. Any credit so provided shall be applied in full against the Traffic Impact Fee for each residential unit that receives a building permit following completion of the Off -Site Traffic Improvement by Developer (rather than pro rata against the Traffic Impact Fee for all remaining residential units in the Project) until such time as the full credit has been provided. (7) County shall establish and implement a mechanism to reimburse Developer, and shall reimburse Developer, that portion of the costs to be incurred by Developer in connection with the funding or construction of the On -Site Traffic Improvements and the Off -Site Traffic Improvements that represents the extent to which such traffic improvements will serve traffic generated by projects that are developed pursuant to general plan amendments approved on or after the Effective Date. (8) To the extent that any Project Traffic Improvement funded or constructed by Developer is included on a project list under any Measure C Action Plan or CMP Deficiency Plan, and provided such transportation improvement has sufficient priority under such Action Plan or Deficiency Plan, Developer shall receive a credit against, or reimbursement from, any regional traffic fee imposed upon Developer under Sections 3.3(g)(11) and 3.30) of this Agreement. 10 (9) Some portion of the Traffic Impact Fee may be allocated to and collected from commercial development (on a per -square -foot basis) to occur as a part of Gale Ranch, provided, however, that the total amount of Traffic Impact Fee to be collected from residential development to occur as a part of Gale Ranch (as determined above) shall be reduced by the amount of funds to be so collected from commercial development. (10) County shall make its final determination of compliance with the standards of the Growth Management Element of the General Plan relating to traffic in conjunction with the review and approval of tentative subdivision maps. (11) County shall not impose on Developer any fee or other obligation with respect to roads or traffic impacts other than as set forth in this Agreement, Section 4.4 of the San Ramon Settlement Agreement (relating to assurance of compliance with traffic service objectives), Paragraph 1 of the Walnut Creek Settlement Agreement or Paragraph 1 of the Pleasanton Settlement Agreement (relating to Developer's payment of fees to Pleasanton). Notwithstanding the foregoing, nothing in this Agreement shall prevent the County from (i) applying to the Gale Ranch to any tentative maps any subregional traffic impact fee required by Measure C (1988) and adopted and applied consistently and on a uniform basis throughout the Tri -Valley subregion by each of the seven jurisdictions that are now signatories to the Tri -Valley Transportation Council joint powers authority which is adopted prior to the vesting date of any tentative map (provided, however, that County shall provide to Developer a credit against any such fee for traffic improvements constructed and/or funded by Developer under this Agreement or the Settlement Agreement) or (ii) imposing on the Gale Ranch reasonable requirements for the funding or construction of additional minor traffic improvements made necessary by Gale Ranch and identified through CEQA review of individual tentative map applications for Gale Ranch, or (iii) imposing on the Gale Ranch a subregional traffic fee developed by the JEPA identified in Section 3.3(g)(5) to satisfy Measure C requirements and for the sole purpose of funding a fair share contribution of the Alcosta ramp realignment project at I-680 and the auxiliary lanes project on 1-680 between Bollinger Canyon Road and Diablo Road. (h) Pleasanton Traffic Mitigation. Separate and apart from the Traffic Impact fee, Developer shall pay to County $150 for each residential unit developed on the Gale Ranch Site pursuant to the Project Approvals ("Pleasanton Traffic Fees"). The Pleasanton Traffic Fees will be collected by County upon its issuance of the building permit for each such unit and delivered to Pleasanton for the mitigation of traffic impacts on roadways located in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of the Gale Ranch), San Ramon shall collect and deliver the Pleasanton Traffic Fees as set forth above. As provided in Paragraph 5(b) of the Pleasanton Settlement Agreement, Developer's obligations pursuant to this Section 3.3(h) and Paragraph 1 of the Pleasanton Settlement Agreement shall cease in the event that Pleasanton files 11 • any legal action challenging any use or approval or any modification to any use or approval relating to Dougherty Valley. (i) Dublin Traffic Mitigation. County and Developer shall work with the City of Dublin to establish a mutually acceptable fee to account for the cost of mitigating the traffic -related impacts of the Project on roadways located in the City of Dublin net of the cost of mitigating the traffic -related impacts of development projected to occur within the City of Dublin (including, without limitation, the East Dublin project) on the On -Site and Off -Site Traffic Improvements, if any. If County, Developer and the City of Dublin are unable to arrive at a mutually acceptable fee within six (6) months following the Effective Date, then County and Developer may themselves determine the amount of such fee. Any fee imposed on the Project pursuant to this Section 3.3(i) shall be approved by the Board of Supervisors and, except as otherwise agreed by County and Developer, remain fixed in an amount not to exceed $490 per residential unit throughout the term of this Agreement; provided, however, that such fee may be subject to escalation in accordance with the "Construction Cost Index" published in Engineering New Record. Such fee, if any, shall be paid upon the issuance of the building permit for each residential unit in the Project and delivered to Dublin for the mitigation of traffic impacts on roadways in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of the Gale Ranch), San Ramon shall collect and deliver the fees to Dublin as set forth above. 0) Walnut Creek Traffic Mitigation. Notwithstanding any other provision contained herein, all future tentative subdivision maps covering the Gale Ranch Site shall be subject to all standards and requirements adopted by the County pursuant to Measure C (1988), including but not limited to the Tri -Valley Action Plan or fees adopted thereunder, and all standards and requirements adopted pursuant to Title 7, Division 1, Chapter 2.5 of the Government Code (Section 65080 et seq.), including but not limited to all congestion management plans and deficiency plans adopted thereunder, provided that (a) such standards and requirements are designed to mitigate congestion on the Interstate 680/Highway 24 interchange or streets within Walnut Creek, (b) are applied to all other major residential projects within the member jurisdictions of SWAT, TRANSPAC, and TRANSPLAN, and (c) are imposed by the County or City only to the extent of the project's impacts on the interchange or streets within Walnut Creek. Neither the foregoing provision nor any other provision of this Agreement (other than the subsection of this Agreement relating to Traffic -Based reductions -in permitted development [Section 4.1] shall limit the authority of the County to apply the standards and requirements described above adopted pursuant to Measure C (1988), including but not limited to any Action plan or fees. (k) Dougherty Road Improvements: County shall not require, as a condition to any Planning Action or Subsequent Approval or in any other manner, that Developer construct or cause to be constructed a realigned Dougherty Road, as shown in the Specific Plan and Preliminary Development Plan, prior to 10 years from the effective date of this Agreement. Prior to County imposing any requirement involving a realigned Dougherty Road, County may require, as a condition to a Subsequent Approval, that Developer improve existing Dougherty Road in a manner acceptable to County. 12 (1) Mitigation Monitoring Developer shall fund development and operation of a system (the "Permit Tracking System") to monitor compliance with the requirements of the San Ramon Settlement Agreement regarding the provision of certain capital facilities, compliance with mitigation measures in the Dougherty Valley EIR, and compliance with project conditions, through the payment of a fee not to exceed $100 per residential unit developed on the Gale Ranch Site, payable at recordation of the final map encompassing such unit. Developer shall, at the time services are performed, pay the County staff costs of carrying out the County's Mitigation Monitoring Program, as adopted by the Board on the First Approval Date, and as it may be amended for the purposes of compliance with CEQA, which are attributable to. development of the Gale Ranch Site, on a time and materials basis, and shall pay the reasonable costs of consultants as necessary to implement the Mitigation Monitoring Program. (m) Establishment of County Service Area. (1) County and Developer shall cooperate in (i) the formation, as soon as reasonably practicable but in any event prior to filing of the first final subdivision map in the Dougherty Valley, of a County Service Area or other financing entity to receive certain funds and provide certain services, including the operation and maintenance of facilities and infrastructure, as described in Section 3.3 of the San Ramon Settlement Agreement and (ii) the establishment, as soon as reasonably practicable but in any event prior to filing of the first final subdivision map in the Dougherty Valley, of a mechanism and adequate to fund.the provision of such services as described in Section 3.3 of the San Ramon Settlement Agreement. (2) As described in Section 3.4 of the San Ramon Settlement Agreement, to ensure that the Community Center, Senior Center, Library, Corporation Yard and Police Substation described in the Specific Plan will be constructed on a timely basis and made available to Dougherty Valley residents at the appropriate time, County shall (except to the extent some other method for the financing or provision of such facilities is requested or established by Developer or Windemere, as appropriate) assess against residential units to be developed in the Dougherty Valley a fee, special tax or assessment in an amount sufficient to fund Developer's and Windemere's obligation to contribute to the cost of such facilities (the "Facilities Fee"). Funds so collected will be held in a separate account and made available to Developer and Windemere, as appropriate, for the construction of such facilities. The precise form, timing, and amount of such fee, tax, or assessment shall be in accordance with the terms and provisions of Exhibit D attached hereto. Section 4. Standards, Laws and Procedures Governing Gale Ranch. 4.1 Permitted Uses, Etc.; Applicable Law. (a) Permitted Uses, Etc., of the Gale Ranch Site. The permitted uses of the Gale Ranch Site; the density and intensity of use of the Gale Ranch Site; the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the location of public utilities; and other terms and conditions of 13 0 • development applicable to the Gale Ranch, shall be as set forth in the Planning Actions and, as and when they are adopted or issued, the Subsequent Approvals. Not in limitation of the foregoing, the permitted uses of the Gale Ranch Site combined with the Country Club Site shall include 5,830 residential units at the densities provided for in the Specific Plan and 450,800 square feet of commercial space, (exclusive of any community college uses) subject to the following limitations: (1) All development of the Gale Ranch Site shall be consistent with the General Plan, including the Growth Management Element thereof as it existed on the Approval Date. County may modify the permitted uses of the Gale Ranch Site to the extent necessary to attain such consistency, provided no other method of attaining such consistency is feasible. (2) Subject to Section 4.1(0 of this Agreement and the provisions of CEQA, County may modify the permitted uses of the Gale Ranch Site to the extent necessary to satisfy County's obligations under CEQA and (as provided in Section 4.2, below,) other State and federal laws, provided no other method of satisfying such obligations is feasible. (3) The Parties acknowledge and agree that the terms and provisions of the Settlement Agreements include certain conditions to and limitations on the development of the Gale Ranch. All development of the Gale Ranch Site shall be consistent with such conditions and limitations. County may modify the permitted uses of the Gale Ranch Site to the extent necessary to attain such consistency, provided no other method of attaining such consistency is feasible. (4) Except to the extent otherwise specifically required by state or federal law, no modification of the permitted uses of the Gale Ranch Site shall occur with respect to any portion of the Gale Ranch Site for which County has approved a tentative or vesting tentative subdivision map. (b) Applicable Law. The rules, regulations, official policies, standards and specifications applicable to the Gale Ranch (the "Applicable Law") shall be those in force and effect on the Approval Date, including without limitation, the Planning Actions. The Applicable Law shall also be the rules, regulations, official policies, standards and specifications set forth in the Subsequent Approvals as and when they are adopted or issued. (c) No Conflicting Enactments. Except as otherwise specifically set forth herein, County, whether by action of the Board or otherwise, or by initiative, referendum, issuance of a subsequent approval or other means, and whether through the exercise of County's police power or its taxing power, shall not apply to the Gale Ranch any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each, individually, a "County Law") that is in conflict with Applicable Law, including this Agreement, or that reduces the rights provided by this Agreement unless agreed to in writing by Developer. Without limiting the generality of the foregoing, any County Law shall be deemed to conflict with Applicable Law, including this Agreement, or to reduce the rights provided by this Agreement, if it would accomplish any of the following results, either by specific reference to the Gale Ranch or as part of a general enactment that applies to or affects the Gale Ranch: 14 (1) reduce the number of residential units permitted to be developed on the Gale Ranch Site to fewer than 4,614 (and any additional units that may be transferred from the Country Club Site to central residential receiver sites as permitted under the Specific Plan) or revise the densities permitted by the Specific Plan, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (2) reduce the square footage of commercial development permitted to be developed on the Gale Ranch Site to fewer than 450,800 square feet (exclusive of community college uses), except as otherwise specifically provided in Section 4.1(a) of this Agreement; (3) otherwise limit or reduce the density or intensity of the Gale Ranch, or any part thereof, or otherwise require any reduction in the square footage or number of proposed buildings or other improvements, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (4) otherwise change any land use designation or permitted use of the Gale Ranch Site, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (5) limit or control the location of buildings, structures, grading, or other improvements of the Gale Ranch in a manner that is inconsistent with or more restrictive than the limitations included in the Planning Actions and the Subsequent Approvals, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (6) limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water connections, sewage capacity rights, sewer connections, etc.) for the Gale Ranch, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (7) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Gale Ranch as set forth in Section 4.1(e), below, or in any other manner; except as otherwise specifically provided in Section 4.1(a) of this Agreement; (8) apply to the Gale Ranch any County Law otherwise allowed by this Agreement that is not uniformly applied on a County -wide basis to all substantially similar types of development projects and project sites; (9) require the issuance of additional permits or approvals by the County other than those required by Applicable Law; (10) establish, enact, or increase in any manner applicable to the Gale Ranch, or impose against the Gale Ranch, any fees, taxes (including, without limitation, general, special and excise taxes), assessments, liens or other financial obligations other than (i) those specifically permitted by this Agreement (including Traffic Impact Fees, Facilities Fees, Processing Fees, fees to fund the Mitigation Monitoring Program and financial obligations associated with the financing of the operation and maintenance of the facilities and 15 9 0 infrastructure, and provision of the services, set forth in Section 3.3(m) above) and made necessary by the Gale Ranch; (ii) any County -wide taxes and assessments; (11) except as provided in Section 4.1(c)(10) of this Agreement, establish, enact, or increase in any manner applicable to the Gale Ranch, or impose against the Gale Ranch, any rules, regulations, policies or standards that were not in effect on the Approval Date, or otherwise impose against the Gale Ranch any condition, dedication or other exaction not specifically authorized by Applicable Law and, except as authorized by the Settlement Agreements and required by the conditions to the PDP, not made necessary by the Gale Ranch; or (12) limit the processing of applications for, or the obtaining of, Subsequent Approvals. Notwithstanding the foregoing, none of the Settlement Agreements shall be considered a conflicting enactment for the purposes of this Agreement. (d) Exceptions. Notwithstanding the foregoing, the following provisions shall apply: (1) Uniform Codes. County may apply the then -current California Building Standard Code, referred to in Health & Safety Code § 18935 and other uniform construction codes to the Gale Ranch throughout the Term of this Agreement, provided that any such uniform code shall apply to the Gale Ranch only to the extent that the code is in effect on a County -wide basis. (2) Road and storm drainage design. County may apply throughout the terms of this Agreement its then -current design standards for construction of roads and storm drainage facilities, provided that any such standard shall apply to the Gale Ranch only to the extent that such standard has been adopted by County and is in effect on a County -wide basis. (3) Processing fees. Fees charged by County which solely represent the reasonable costs to County for County staff time and resources spent reviewing and processing Subsequent Approvals are referred to in this Agreement as "Processing Fees." Processing Fees do not include the Mitigation Monitoring Program fee described in Section 3.3(1) of this Agreement. County may charge Developer the applicable Processing Fees that are operative and in force and effect on a Countywide basis at the time such fees are customarily required by County to be paid. (e) Moratoria and Restrictions and Limitations on the Rate or Timing of Development. In the event a County Law is enacted, whether by action of the Board, the County Zoning Administrator, any County planning commission, or County staff, or by initiative, referendum, issuance of a Subsequent Approval or any other means, which relates to the growth rate, timing, phasing or sequencing of new development or construction in County or, more particularly, development and construction of all or any part of the Gale Ranch, such County Law shall not apply to the Gale Ranch, or any portion thereof. County Laws made inoperative by this provision include, but are not limited to, those not in force and effect on the Approval Date that tie development or 16 • construction to the availability of public services and/or facilities (for example, the presence of a specified traffic level of service or water or sewer availability). (f) Further CEQA Review. County's environmental review of Subsequent Approvals pursuant to CEQA shall utilize the Dougherty Valley EIR and Dougherty Valley EIR Addendum to the fullest extent permitted by law. (g) Further Assurances. (1) County shall not support, adopt or enact any County Law, or take any other action which would violate the express or implied provisions, conditions, spirit or intent of the Planning Actions or the Subsequent Approvals. (2) Developer reserves the right to challenge in court any County Law that would, in Developer's opinion, conflict with Applicable Law, including this Agreement, or reduce the rights regarding development provided by this Agreement. (3) County shall take any and all actions as may be necessary or appropriate to ensure that the rights provided by this Agreement can be enjoyed by Developer including, without limitation, any actions as may be necessary or appropriate to ensure the availability of public services and facilities to serve the Gale Ranch as development occurs. (4) Should any initiative, referendum, or other measure. be enacted, and any County lack of application thereof to the Gale Ranch be legally challenged, Developer agrees to fully defend the County against such challenge, including providing all necessary legal services, bearing all costs therefor, and otherwise holding the County harmless from all costs and expenses of such legal challenge and litigation. (h) Life of Subdivision Maps, Development Plans, and Permits. The term of any subdivision map or other permit approved as a Subsequent Approval shall automatically be extended as provided under Government Code section 66452.6(a) or Government Code section 65863.9. Notwithstanding the foregoing, the vested rights associated with any vesting tentative map (but not the term of such tentative map) shall terminate upon the -expiration of the Term of this Agreement. 4.2 State and Federal Law. As provided in Government Code section 65869.5, this Agreement shall not preclude the application to the Gale Ranch of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations ("Changes in the Law"). Not in limitation of the foregoing, nothing in this Agreement shall preclude County from imposing on Developer any fee specifically mandated and required by state or federal laws or regulations. In the event the Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with the Changes in the Law, and County and Developer shall take such action as may be required pursuant to this Agreement, including, without limitation, Section 6. (Cooperation - Implementation) and Section 9.4 (Enforced Delay; Extension of Time of Performance) of this Agreement. 17 4.3 Timing of Construction and Completion. (a) Notwithstanding Sections 84-66.1406(1) and 84-66.1602 of the County Code, there is no requirement that Developer initiate or complete development of the Gale Ranch or any particular phase of the Gale Ranch within any particular period of time, and County shall not impose such a requirement on any Subsequent Approval. (b) The Parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. In light of the foregoing and except as set forth in subsection (c) below, the Parties agree that Developer shall be able to develop in accordance with Developer's own time schedule as such schedule may exist from time to time, and that Developer shall determine the order in which portions of the Gale Ranch shall be developed. Not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later -adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the Parties' desire to avoid that result by acknowledging that Developer shall have the right to develop the Gale Ranch in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. • 4.4 Developer Review of On -Site Infrastructure Improvements. Developer shall have the right to review and comment on plans for any infrastructure improvement (including, without limitation, streets, roads, trails, and detention basins) to be constructed on the Gale Ranch Site by any private entity. Section 5. Amendment. 5.1 Amendment of Planning Actions and Subsequent Approvals. To the extent permitted by state and federal law, any Planning Action (other than this Agreement) or Subsequent Approval may, from time to time, be amended or modified in the following manner: (a) Administrative Amendments. Upon the written request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Subsequent Approval, the Community Development Director or his/her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Gale Ranch as a whole; and (ii) whether the requested amendment or modification is consistent with Applicable Law, other than that portion of Applicable Law sought to be amended. If the Community Development Director or his/her designee finds that the proposed amendment or modification is both minor and consistent with Applicable Law (other than that portion of Applicable Law sought to be amended), the amendment shall be determined to be an "Administrative Amendment," and the Community Development Director or his designee may, except to the extent otherwise required by law, approve the Administrative Amendment without notice. and public hearing. For the purposes of this Section 5 and without limiting the generality of the foregoing, lot line adjustments, changes in trail alignments, substitutions of comparable 'landscaping for any landscaping shown on any final 18 0 • development plan or landscape plan, variations in the location of lots or homesites that do not substantially alter the design concepts of the Gale Ranch, and variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Gale Ranch, shall be treated as Administrative Amendments. (b) Non -Administrative Amendments. Any request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Subsequent Approval which is determined not to be an Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to Applicable Law (other than subsection (1) above). Nothing in this section 5.01 shall limit any obligations of the County under the San Ramon Settlement Agreement to submit any amendment or modification of a Planning Action or Project Approval to the "Dougherty Valley Oversight Committee," established under the San Ramon Settlement Agreement, for its review and comment or to submit or provide any documentation required by any Settlement Agreement in accordance with the terms of such Settlement Agreement.. 5.2 Amendment of This Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the Parties or their successors in interest, in accordance with this Agreement and the provisions of Government Code sections 65867, 65867.5, and 65868 as follows: (a) Insubstantial Amendments. Paragraph G of the County's "Procedures and Requirements for the Consideration of Development Agreements," adopted by Board Resolution No. 85/412, permits a development agreement to establish an alternative procedure for the processing of "insubstantial amendments" to such an agreement. Notwithstanding the other provisions of this Section 5.2, and pursuant to said Paragraph G, any amendment to this Agreement which does not relate to (i) the Term of this Agreement; (ii) permitted uses of the Gale Ranch Site, (iii) provisions for reservation or dedication of land, (iv) conditions, terms, restrictions, or requirements for subsequent discretionary actions, (v) the density or intensity of use of the Gale Ranch Site, (vi) the maximum height or size of proposed buildings, or (vii) monetary contributions by Developer, shall not, except to the extent otherwise required by law, require notice or public hearing before the Parties may execute an amendment hereto. (b) Amendments of Planning Actions, Subsequent Approvals or the Affordable Housing Program. No amendment of a Planning Action (other than this Agreement) or Subsequent Approval requested by Developer shall require an amendment to this Agreement. Instead, any such amendment automatically shall be deemed to be incorporated into the Gale Ranch and made subject to this Agreement. (c) Parties Required to Amend. Where a portion of Developer's rights or obligations have been transferred and a "Transfer Agreement" (as described in Section 13 below) has been executed in connection therewith, the signature of the person to whom such rights or obligations have been transferred shall not be required to amend this Agreement unless such amendment would materially alter the rights or obligations of such transferee hereunder; provided, however, that any such transferee shall be provided with thirty (30) days' prior written notice of any amendment to this Agreement. 19 • 0 (d) Non -Assuming Transferees. In no event shall the signature or consent of any "Non -Assuming Transferee" (described in Section 14.3 below) be required to amend this Agreement. Section 6. Cooperation -Implementation. 6.1 Processing. (a) In taking the Planning Actions, County has established basic planning principles, standards, and procedures to guide development of the Gale Ranch Site. The Subsequent Approvals shall be deemed to be tools to implement those principles, standards and procedures and must be consistent therewith. (b) Without limiting the generality of the foregoing, unless agreed to in writing by Developer County shall not, through any Subsequent Approval or the imposition of any condition of approval thereto, either: (i) except as specifically required pursuant to Section 4.1(a) of this Agreement, reduce the number of residential units permitted to be developed on the Gale Ranch Site to fewer than 4,614 (plus any additional units transferred from the Country Club Site to central residential receiver sites as permitted under the Specific Plan) or change the distribution of those units by density as provided in the Specific Plan or reduce the square footage of commercial development permitted to be developed on the Gale Ranch Site to fewer than 450,800 square feet (exclusive of community college uses); or (ii) otherwise enact or impose any ordinance, resolution, rule, regulation, standard, directive, condition or other measure that is in conflict with Applicable Law (including this Agreement) as it exists immediately prior to the adoption of such Subsequent Approval or that reduces the rights provided by this Agreement. (c) Upon submission by Developer of all appropriate applications and processing fees for any Subsequent Approval, County shall commence and complete (and shall use its best efforts to promptly and diligently commence and complete) all steps necessary to act on the Subsequent Approval application including, without limitation, (i) the notice and holding of all required public hearings, and (ii) the decision on the Subsequent Approval application as set forth below. (d) County may deny an application for a Subsequent Approval by or requested by Developer only if (i) such application does not comply with Applicable Law, (ii) such application is inconsistent with the Planning Actions (provided, however, that inconsistency with a Planning Action shall not constitute grounds for denial of an application for a Subsequent Approval requested by Developer that is an amendment to that Planning Action), or (iii) County is unable to make all findings related to the Subsequent Approval required by state law. County may approve an application for such a Subsequent Approval subject to any conditions necessary to bring the Subsequent Approval into compliance with. Applicable Law, make the Subsequent Approval consistent with the Planning Actions, or allow County to make the findings required by state law, so long as such conditions comply with Section 6.1(b) of this Agreement. If County denies any application for a Subsequent Approval, County must specify in making such denial the modifications required to obtain approval of such application. Any such specified modifications must be consistent with Applicable Law (including Section 6.1(b) of this Agreement), and County shall 20 0 • approve the application if subsequently resubmitted for County review if it complies with the specified modifications. (e) Developer shall, in a timely manner, provide County with all documents, applications, plans, and other information necessary for County to carry out its obligations hereunder and cause Developer's planners, engineers, and all other consultants to submit, in a timely manner, all required materials and documents therefor. It is the express intent of Developer and County to cooperate and diligently work to obtain any and all Subsequent Approvals. (f) Any reduction in the amount of permitted development in the Dougherty Valley resulting from either the application of Section 4.1(a) 'of this Agreement or the application of any comparable provision in any development agreement to which the Windemere Site is subject shall be subject to the following provisions: (1) If the reduction is the result of impacts of development in the Dougherty Valley that cannot feasibly be allocated between the Gale Ranch and Windemere projects, the reduction in permitted development shall be allocated between Shapell and Windemere such that the permitted development on the Gale Ranch Site and Country Club Site, combined, shall be 53 percent of the permitted development in the Dougherty Valley and the permitted development on the Windemere Site shall be 47 percent of the permitted development in the Dougherty Valley. Reductions based on traffic -related impacts shall be allocated 53% to Shapell and 47% to Windemere. No failure or delay by Windemere in constructing its first 3,995 residential units shall prevent or delay Shapell from or in developing any units beyond its first 4,505 residential units (in both the Country Club Site and the Gale Ranch Site). (2) If the reduction is the result of impacts of development in the Dougherty Valley that can be feasibly allocated to the Gale Ranch or Country Club project or to the Windemere project, such project shall bear such reduction. (g) Subject to the provisions of Section 6.1(f) of this Agreement, 4,505 (53 percent) of the first 8,500 units of development in the Dougherty Valley (including the Gale Ranch Site and the Country Club Site) shall be allocated to Shapell and 3,995 (47 percent) of the first 8,500 units to Windemere. Fifty-three percent of any development permitted in the Dougherty Valley beyond 8,500 units shall be allocated to Shapell and 47 percent to Windemere. 6.2 Eminent Domain Powers. County shall cooperate with Developer in implementing the Planning Actions and Subsequent Approvals. To the extent permitted by law, such.cooperation shall include, without limitation, the use by County of its eminent domain powers where necessary to implement the Planning Actions and any Subsequent Approvals. 6.3 Other Governmental Permits. Developer shall apply for such other permits and approvals as may be required by other governmental or quasi -governmental agencies in connection with the development of, or the provision of services to, the Gale Ranch. County shall cooperate with Developer in its efforts to obtain such permits and approvals and shall, from time to time at the request of Developer, use its best efforts to enter into binding agreements with any such agency as may be necessary to ensure the availability of such permits and approvals. 21 Section 7. Cooperation in the Event of Legal Challenge. 7.1 Cooperation. (a) In the event of any administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of any Planning Action, including this Agreement, or Subsequent Approval, the Parties shall cooperate in defending such action or proceeding to settlement or final judgment. Each Party shall select its own legal counsel and retain such counsel at its own expense, and in no event shall County be required to bear the fees and costs of Developer's attorneys. Developer shall save and hold harmless County from and against any and all claims and awards for third party attorneys' fees associated with such action or proceeding. (b) The Parties agree that this Section 7.1 shall constitute a separate agreement entered into concurrently with this Agreement, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification, or setting aside. 7.2 Cure; Reapproval. (a) If, as a result of -any administrative, legal or equitable action or other proceeding as described in Section 7.1, all or any portion of the Planning Actions (including, but not limited to, this Agreement) or Subsequent Approvals are set aside or otherwise made ineffective by any judgment (a "Judgment") in such action or proceeding (based on procedural, substantive or other deficiencies, hereinafter "Deficiencies"), the Parties agree to use their respective best efforts to sustain and reenact or readopt those Planning Actions and/or Subsequent Approvals that the Deficiencies related to, as follows, unless the Parties mutually agree in writing to act otherwise. (1) If any Judgment requires reconsideration or consideration by County of any matter, then the County shall consider or reconsider that matter in a manner consistent with the intent of this Agreement. If any such Judgment invalidates or otherwise makes ineffective all or any portion of any Planning Action or Subsequent Approval, then the Parties shall cooperate and shall cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of this Agreement. County shall then readopt or reenact the Planning Action or Subsequent Approval, or any portion thereof, to which the Deficiencies related. (2) Acting in a manner consistent with the intent of this Agreement includes, but is not limited to, recognizing that the Parties intend that, subject to the provisions of Section 4.1(a) of this Agreement, the permitted uses of the Gale Ranch Site shall include 4,614 residential units (plus any units that may be transferred from the Country Club Site to central residential receiver sites, as permitted under the Specific Plan) at the densities provided in the Specific Plan and 450,800 square feet of commercial uses (exclusive of community college uses), and adopting such ordinances, resolutions, and other enactments, including but not limited to, zoning ordinances, a specific plan and general plan 22 • 0 amendments, as are necessary to readopt or reenact all or any portion of the Planning Actions and/or Subsequent Approvals without contravening the Judgment. (3) The provisions of subsections (a) and (b), above, are subject to the following limitations: Any additional, revised or modified environmental mitigation measures or alternatives that might be imposed as a result of a Judgment shall comply with Section 7.2(a)(2) of this Agreement. County's discretion in reviewing any information regarding environmental impacts or alternatives shall be limited only by Section 7.2(a)(2) of this Agreement. (b) The Parties agree that this Section 7.2 shall constitute a separate agreement entered into concurrently with this Agreement, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification, or setting aside. Section 8. Dispute Resolution. With regard to any dispute involving development of the Dougherty Valley, the resolution of which is not provided for by Applicable Law, Developer shall, at County's request, meet with County and/or any party designated by County. The parties to any such meetings shall attempt in good faith to resolve any such disputes. However, nothing in this provision shall in any way be interpreted as requiring that Developer and County and/or County's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on County or Developer unless expressly agreed to by the Parties. Section 9. Default; Termination; Annual Review. 9.1 General Provisions. (a) Defaults. Any failure by either Party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other Party, unless such period is extended by written mutual consent, shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30 -day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such 30 -day period. Upon the occurrence of a default under this Agreement, the non -defaulting Party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, then no default shall exist and the noticing Party shall take no further action. (b) Termination. If County elects to consider terminating this Agreement due to a material default of Developer, then County shall give a notice of intent to terminate this Agreement and the matter shall be scheduled for consideration and review by the Board at a duly noticed and conducted 23 9 0 public hearing. Developer shall have the right to offer written and oral evidence prior to or at the time of said public hearings. If the Board determines that a material default has occurred and is continuing and elects to terminate this Agreement, County shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter; provided, however, that Developer files an action to challenge County's termination of this Agreement within such sixty-day period, then this Agreement shall remain in full force and effect until a trial court has affirmed County's termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired). 9.2 Annual Review. (a) On or before October 15 of each year, the Developer shall submit to the County Community Development Department a report demonstrating the good -faith compliance with the terms of this Agreement. (b) The Community Development Director shall, at a noticed public hearing, consider a staff report regarding Developer's compliance with the terms of this Agreement. After considering the evidence presented at such public hearing, the Community Development Director shall adopt, adopt with modification or deny the staff report. (c) Prior to January 30 of each calendar year, and based on the staff report, the Community Development Director shall make a determination regarding compliance with the Agreement. If the Community Development Director finds and determines that Developer has not complied with the terms and conditions of this Agreement, and non-compliance may amount to a default if not cured, then the Community Development Director may deliver a Default Notice pursuant to Section 9.1(a) of this Agreement, in which case the provisions of Section 9.1(a) shall apply. If the Community Development Director does not send such a Default Notice, then the Community Development Director and County shall take no further action. The County, including the Community Development Director, may exercise its right relating to any event of default only after complying with Section 9.1(a) of this Agreement. (d) County shall deliver to Developer a copy of all staff reports and documents to be used or relied upon in conducting the Annual Review and, to the extent practical, related exhibits concerning Developer's performance hereunder, at least ten (10) days prior to any such Annual Review. Developer shall be permitted during the Annual Review to respond orally or by a written statement, or both, to County's evaluation of Developer's performance. The Annual Review shall be limited in scope to compliance with the terms of this Agreement. (e) In the event County fails to either: (i) conduct the Annual Review or (ii) notify Developer in writing (following the time during which the review is to be conducted) of County's determination as to compliance or noncompliance with the terms of this Agreement and such failure remains uncured as of 60 days following the anniversary of the Effective Date in any year during the term of this Agreement, such failure shall be deemed a determination by County of Developer's compliance with the terms of this Agreement for that Annual Review period. 24 0 0 (f) With respect to any year for which an Annual Review is conducted and compliance is determined, or with respect to any year in which 'County is deemed to have determined that Developer complied with this Agreement pursuant to the preceding paragraph, County, upon request of Developer, shall provide Developer with a written' "Notice of Compliance," pursuant to Section 15 of this Agreement. 9.3 Default by County. In the event County defaults under the terms of this Agreement, Developer shall have all rights and remedies provided herein. 9.4 Enforced Delay; Extension of Time of Performance. Notwithstanding anything to the contrary contained herein, neither Party shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities, enactment of conflicting state or federal laws or regulations, new or supplemental environmental regulations, or similar basis for excused performance which is not within the reasonable control of the Party to be excused. Upon the request of either Party hereto, an extension of time for such cause will be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon. Section 10. Defense and Indemnity. (a) Developer's Actions. Developer shall defend, hold harmless, and indemnify County and its elected and appointed officers, agents, employees, and representatives from claims, costs, and liabilities for any personal injury, death, or physical property damage (including inverse condemnation) which arises directly or indirectly, as a result of the construction of the Gale Ranch, or of operations performed under this Agreement, by Developer or by Developer's contractors, subcontractors, agents or employees, whether such operations were performed by Developer or any of Developer's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for Developer or any of Developer's contractors or subcontractors. (b) County's Actions. Nothing in this section shall be construed to mean that Developer shall defend, indemnify, or hold County or its elected and appointed representatives, officers, agents and employees harmless from any claims of personal injury, death or property damage arising from, or alleged to arise from, the maintenance or repair by County of improvements that have been offered for dedication and accepted by County for maintenance. (c) Subdivision Agreement and Defense. County and Developer may from time to time enter into subdivision improvement agreements, as authorized by the Subdivision Map Act, Gov't Code § 66010 et sea., which agreements may include defense and indemnity provisions different from those contained in subsections (1) and (2) above. In the event of any conflict between such provisions in any such subdivision improvement agreement and subsections (1) and (2) above, the provisions of such subdivision improvement agreement shall prevail. 25 Section 11. No Agency, Joint Venture or Partnership. It is specifically understood and agreed to by and between the Parties that: (1) the subject development is a private development; (2) County has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that County accepts the same pursuant to the provisions of this Agreement or in connection with the various Planning Actions or Subsequent Approvals; (3) Developer shall have full power over and exclusive control of the Gale Ranch herein described, subject only to the limitations and obligations of Developer under the Planning Actions and Subsequent Approvals, and (4) County and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between County and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between County and Developer. Section 12. Miscellaneous. 12.1 Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. 12.2 Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, Developer may, in Developer's sole and absolute discretion, terminate this Agreement by providing written notice of such termination to County. 12.3 Other Necessary Acts. Each Party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Planning Actions and Subsequent Approvals and to provide and secure to the other Party the full and complete enjoyment of its rights and privileges hereunder. 12.4 Construction. Each reference in this Agreement to any of the Planning Actions or Subsequent Approvals shall be deemed to refer to the Planning Action or Subsequent Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both County and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. 12.5 Other Miscellaneous Terms. The singular shall include the plural; the masculine gender shall include the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement, the signer obligations are joint and several. 26 12.6 Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Gale Ranch, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to applicable laws including, without limitation, Civil Code section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Gale Ranch, as appropriate, runs with the Gale Ranch and is binding upon the owner of all or a portion of the Gale Ranch and each successive owner during its ownership of such property. 12.7 Dougherty Valley Development Strategy. The Dougherty Valley is the subject of a comprehensive and integrated planning effort. It has been designed to allow development by phases. The timing of phase development will reflect market conditions and business decisions of the developers of the Dougherty Valley, while requiring that each phase make provision for its needs for infrastructure, services and amenities. Recognizing this development strategy, it is the intent of the Parties that while development must occur in furtherance of the valley -wide Dougherty Valley planning effort and the County's Growth Management Element, developers of the Dougherty Valley should be able to pursue development in a manner commensurate with their own goals and resources. In imposing conditions of approval, County shall, to the extent reasonably feasible, allocate to Windemere and Shapell their separate and distinct obligations. The Parties recognize that this may require that, for example, with regard to the construction of facilities involving both Shapell and Windemere, County may need to allocate the separate obligations of each Developer. Nothing in this Section 12.7 shall in any way modify the provisions of Section 4.3.3 of the San Ramon Settlement Agreement. 12.8 Mortgage Rights. Any mortgagee that wishes to receive notices of default from the County pursuant to this Section 12.8 may provide written notice to the County requesting such notice. County shall notify any such mortgagee requesting notice of any event of default by Developer under this Agreement and provide to any such mortgagee the same opportunity to cure such event of default as is provided to Developer under this Agreement. Failure to so notify any such mortgagee shall not give rise to any liability on the part of County, provided that this Agreement shall not be terminated by County as to any mortgagee (1) who has requested notice but the mortgagee is not given notice by the County or (2) to whom notice is given and to which either or the following is true: (1) the mortgagee cures any default involving the payment of money by Developer within sixty (60) days after notice of default; (2) as to defaults requiring title or possession of all or any portion of the Gale Ranch to effectuate a cure: (i) the mortgagee agrees in writing, within ninety (90) days after the written notice of default, to perform the proportionate share of Developer's obligations under this Agreement allocable to that part of the Gale Ranch Site in which the mortgagee has an interest conditioned upon the mortgagee's acquisition of that part by foreclosure (including a trustee sale) or by a deed in lieu of foreclosure; (ii) the mortgagee commences foreclosure proceedings to reacquire title to all or the applicable portion of the Gale Ranch Site within 27 0 the ninety (90) days and thereafter diligently pursues the foreclosure to completion; and (iii) the mortgagee (or any purchaser of the Developer's interest at foreclosure, or trustee sale, or by deed in lieu. of foreclosure promptly and diligently cures the default after obtaining title or possession. Subject to the foregoing, in the event any mortgagee records a notice of default as to its mortgage or deed of trust, Developer's rights and obligations under this Agreement may be transferred to the mortgagee or to any purchaser of the Developer's interest at a foreclosure or trustee sale and Developer shall remain liable for such obligations unless released by County or unless County has approved the transfer in accordance with Section 14. 1, Section 14.2 and Section 14.3. 12.9 Approval by Mortgagees. County recognizes that the provisions of this Agreement may be a matter of concern to any mortgagee intending to make a loan secured by a mortgage - or deed of trust encumbering the Gale Ranch Site, or a portion thereof. If such mortgagee should require, as a condition to such financing, any modification of this Agreement to protect its security interest in the Gale Ranch Site or portion thereof, County shall execute the appropriate amendments; provided, however, that County shall not be required (but is permitted) to make any modification that would (i) materially and adversely affect County's rights hereunder, (ii) increase County's obligations hereunder, (iii) reduce Developer's obligations hereunder or (iv) constitute an amendment other than an "Insubstantial Amendment" as described in Section 5.2 of this Agreement. 12.10 Notice of Proposed Amendment to Mortgagee. This Agreement may be amended without the approval or execution of any such amendment by any mortgagee. However, if County receives notice from a mortgagee requesting a notice of proposed amendment, County shall provide a copy of any proposed amendment to such mortgagee. 12.11 Remedies. Either Party may, in addition to any other rights or remedies, institute an equitable action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the foregoing and the purpose of this Agreement. In no event shall either County or Developer be entitled to monetary damages for breach of contract by the other Party to this Agreement. 12.12 California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 12.13 Other Public Agencies. Nothing in this Agreement shall be construed to limit the County's discretion to determine when and if it will enter into any agreements with other public agencies concerning the subject -matter and provisions of this Agreement or require that the County take any legal action concerning such other public agencies and their provision of services or facilities. 12.14 Attorneys' Fees. In the event of any litigation or arbitration between the Parties regarding an alleged breach of this Agreement, neither Party shall be entitled to any award of attorneys' fees. 28 12.15 Annexation to San Ramon. The Settlement Agreement anticipates the potential annexation of the Gale Ranch Site to the City of San Ramon. To the extent any portion of the Gale Ranch Site is so annexed, this Agreement shall continue to apply to the Gale Ranch Project until the expiration of the Term (to the maximum extent permitted by law) and, to the extent such construction is reasonable, appropriate and consistent with the terms of the Settlement Agreement, any annexation agreement that may then exist between Developer and San Ramon and any property tax exchange agreement or other agreement that may then exist between San Ramon and County relating to the Gale Ranch Site, with respect to any portion of the Gale Ranch Site that has been annexed, (i) the term "County" as used herein shall mean "San Ramon" and (ii) San Ramon shall be deemed to be a successor in interest to County's rights and obligations under this Agreement. Section 13. Notices. Any notice or communication required hereunder between County or Developer must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any Party may at any time, by giving ten (10) days written notice to the other Party, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: If to County, to: Director of Community Development Contra Costa County Administration Building 651 Pine Street Martinez, CA 94553 Telephone: (510) 646-2026 Facsimile: (510) 646-1309 With Copies to: County Counsel Contra Costa County Administration Building 651 Pine Street, 9th Floor Martinez, CA 94553 Telephone: (510) 646-2074 Facsimile: (510) 646-1078 29 • Director of Public Works 255 Glacier Drive Martinez, CA 94553 Telephone: Facsimile: If to Developer, to: (510) 313-2000 (510) 313-2333 Shapell Industries, Inc. 100 North Milpitas Boulevard Milpitas, CA 95035 Attention: Daniel W. Hancock Thomas J. Koch Telephone: (408) 946-1550 Facsimile: (408) 946-9687 With Copies to: McCutchen, Doyle, Brown& Enersen P.O. Box V Walnut Creek, CA 94596-1270 Attention: Daniel J. Curtin, Jr. Maria P. Rivera Telephone: (510) 937-8000 Facsimile: (510) 975-5390 Section 14. Assignment, Transfer and Notice. 14.1 Assignment of Interests, Rights and Obligations. Developer shall have the right to assign or transfer all or any portion of its interests, rights or obligations under the Planning Actions (including this Agreement) and the Subsequent Approvals to third parties acquiring an interest or estate in the Gale Ranch or the Gale Ranch Site, or any portion thereof, including, without limitation, purchasers or long-term ground lessees of individual lots, parcels, or any lots, homes or facilities comprising a portion of the Gale Ranch. 14.2 Transfer Agreements. (a) In connection with the transfer or assignment by Developer of all or any portion of the Gale Ranch (other than a transfer or assignment by Developer to an affiliated party, a mortgagee or a "Non -Assuming Transferee" (as defined in Section 14.3 of this Agreement)), Developer and the transferee shall enter into a written agreement (a "Transfer Agreement") regarding the respective interests, rights and obligations of Developer and the transferee in and under the Planning Actions and the Subsequent Approvals. Such Transfer Agreement may (i) release Developer from obligations under the Planning Actions (including this Agreement) or the Subsequent Approvals that 30 9 0 pertain to that portion of the Gale Ranch being transferred, as described in the Transfer Agreement, provided that the transferee expressly assumes such obligations, (ii) transfer to the transferee vested rights to improve that portion of the Gale Ranch being transferred and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. (b) Developer shall seek County's consent to any Transfer Agreement, which consent shall not be unreasonably withheld or delayed. Failure by County to respond within forty-five (45) days to any request made by Developer for such consent shall be deemed to be County's approval of the Transfer Agreement in question. County may refuse to give its consent only if, in light of the proposed transferee's business experience and financial resources,. such transferee would not in County's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Such determination shall be made by the Community Development Director and is appealable by Developer to the Board. (c) Any Transfer Agreement shall be binding on Developer, County and the transferee. Upon recordation of any Transfer Agreement in the Official Records of Contra Costa County, Developer shall automatically be released from those obligations assumed by the transferee therein. (d) Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a transferee pursuant to a Transfer Agreement. No breach or default hereunder by any person succeeding to any portion of Developer's obligations under this Agreement shall be attributed to Developer, nor may Developer's rights hereunder be cancelled or diminished in any way by any breach or default by any such person. (e) No breach or default hereunder by Developer shall be attributed to any person succeeding to any portion of Developer's rights or obligations under this Agreement, nor shall such transferee's rights be cancelled or diminished in any way by any breach or default by Developer. 14.3 Non -Assuming Transferees. Except as otherwise required by Developer in Developer's sole discretion, the burdens, obligations, and duties of Developer under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor County's consent shall be required in connection with (i) any single residential parcel conveyed to a purchaser, (ii) any property transferred as fewer than fifty (50) lots to a single retail builder, or (iii) any property that has been established as one or more separate legal parcels for office, commercial, industrial, open space, park, school or other nonresidential uses. The transferee in such a transaction and its successors ("Non -Assuming Transferees") shall be deemed to have no obligations under this Agreement, but shall continue to benefit from the vested rights provided by this Agreement for the duration of the Term. Nothing in this section shall exempt any property transferred to a Non - Assuming Transferee from payment of applicable fees and assessments or compliance with applicable conditions of approval. Section 15. Notice of Compliance. 15.1 Generally. Within thirty (30) days following any written request which Developer may make from time to time, County shall execute and deliver to Developer a written "Notice of Compliance," in recordable form, duly executed and acknowledged by County, certifying that: 31 (a) This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modification; (b) There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default; and (c) Any other reasonable "information requested by Developer. The failure to deliver such a notice within such time shall constitute a conclusive presumption against County that this Agreement is in full force and effect without modification except as may be represented by the Developer and that there are no uncured defaults in the performance of the Developer, except as may be represented by the Developer. Developer shall have the right at Developer's sole discretion, to record the Notice of Compliance. Section 16. Entire Agreement, Counterparts and Exhibits. This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of (_) pages, _ notary acknowledgment pages, and four (4) exhibits which constitute in full, the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of County and the Developer. The following exhibits are attached to this Agreement and incorporated herein for all purposes: Exhibit A Legal Description of the Gale Ranch Site Exhibit B Responsibilities for Certain Traffic Improvements Exhibit C Cost Allocations For Certain Off -Site Traffic Improvements Exhibit C-1 Initial Project Traffic Improvements Exhibit C-2 Additional Project Traffic Improvements Exhibit C-3 Cost Allocations for Certain Additional Project Traffic Improvements Exhibit D Establishment of Capital Facilities Fee Section 17. Recordation of Development Agreement. Pursuant to Government Code section 65868.5, no later than ten (10) days after County enters into this Agreement, the County Clerk shall record an executed copy of this Agreement in the Official Records of the County of Contra Costa. 32 IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and County as of the day and year first above written. COUNTY: COUNTY OF CONTRA COSTA Harvey Bragdon Community Development Director ATTEST: COUNTY CLERK APPROVED AS TO FORM: Victor J. Westman County Counsel By: Silvano Marchesi Assistant County Counsel DEVELOPER: By: By:_ Title: Title: CA952950.004 And By: 33 EXHIBIT A Legal Description of the Gale Ranch Site LEGAL DESCRIPTION FOR GALE RANCH (EXCLUDING COUNTRY CLUB @ GALE RANCH) THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA,, UNINCORPORATED AREA, AND IS DESCRIBED AS FOLLOWS: A PORTION OF THE AMADOR GRANT OF THE RANCHO SAN RAMON, A PORTION OF SECTION 1, TOWNSHIP 2 SOUTH, RANGE 1 WEST AND A PORTION OF SECTION 6, TOWNSHIP 2 SOUTH, RANGE 1 EAST, BEING A PORTION OF LOTS 35, 36 AND 67 AND ALL OF LOTS 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, AND 55, AS SHOWN ON THE MAP ENTITLED, "MAP OF SUBDIVISION OF PLOT A OF THE DOUGHERTY RANCH, ALAMEDA AND CONTRA COSTA COUNTIES, CALIFORNIA", FILED ON MAY 2, 1894, IN THE OFFICE OF THE COUNTY RECORDER OF SAID CONTRA COSTA COUNTY IN BOOK B OF MAPS, AT PAGE 45, DESCRIBED AS FOLLOWS: BEGINNING ON THE EASTERN LINE OF THE 7918.73 ACRE PARCEL OF LAND SET APART TO CHARLES M. DOUGHERTY BY THAT CERTAIN DECREE IN PARTITION, RENDERED FEBRUARY 26, 1891, BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF ALAMEDA, IN THAT CERTAIN ACTION HAD THEREIN, ENTITLED CHARLES M. DOUGHERTY, PLAINTIFF VS. ADA M. DOUGHERTY, ET AL. DEFENDANTS, CASE NO. 6479, A CERTIFIED COPY OF WHICH DECREE WAS RECORDED MARCH 3, 1891, IN BOOK 59 OF DEEDS AT PAGE 525, AT THE NORTHERN LINE OF THE' 636.1222 ACRE PARCEL OF LAND DESCRIBED IN THE FINAL JUDGMENT RENDERED JULY 21, 1947, BY THE DISTRICT COURT OF THE UNITED STATES, IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, IN THAT CERTAIN ACTION HAD THEREIN, ENTITLED UNITED STATES OF AMERICA, PLAINTIFF VS. 3396 ACRES OF LAND, ALAMEDA AND CONTRA COSTA COUNTIES, CALIFORNIA, ADA CLEMENT, ET AL. DEFENDANTS, CASE NO. 22352, A CERTIFIED COPY OF WHICH FINAL JUDGMENT WAS RECORDED AUGUST 2, 1947, IN BOOK 1104 OF OFFICIAL RECORDS AT PAGE 377; THENCE FROM SAID POINT OF BEGINNING NORTHERLY AND WESTERLY ALONG THE EXTERIOR LINE OF SAID 7918.73 ACRE PARCEL (59 D 525) AS FOLLOWS: NORTH 38° WEST, 331 FEET, MORE OR LESS TO ANGLE POINT, NORTH 650 30' WEST 613.80 FEET; NORTH 38° WEST 759 FEET; NORTH 36° 30' WEST 2112 FEET; NORTH 4° 30' EAST 264 FEET; NORTH 86° EAST 561 FEET; NORTH 21° EAST 1314.72 FEET; NORTH V 15' WEST 396 FEET; NORTH 140 15' EAST 429 FEET; NORTH 19° 45' WEST462 FEET; NORTH 30° 15' EAST 594 FEET; NORTH 270 30' WEST 660 FEET; NORTH 120 30' EAST 326.70 FEET; NORTH 320 15' EAST 279.50 FEET; NORTH 150 45' EAST 564.30 FEET; NORTH 45° 15' EAST, 315.80 FEET; NORTH 34° 15' EAST 809.82 FEET; NORTH 37° 45' EAST 798.60 FEET; NORTH 14° EAST 710.16 FEET; NORTH 31° EAST 372.24 FEET; NORTH 21115' EAST 825 FEET; NORTH 270 15' EAST 396 FEET; NORTH 520 30' EAST 330 FEET; NORTH 45'45' EAST 594 FEET; NORTH 20° EAST 481.80 FEET TO THE NORTHERN LINE OF SAID SAN RAMON RANCHO; ALONG SAID NORTHERN LINE NORTH 890 45' WEST 597.30 FEET; LEAVING SAID NORTHERN LINE NORTH 00 15' EAST 2653.20 FEET; NORTH 89° 15' WEST 2105.40 FEET; NORTH 89° 45' WEST 1907.40 FEET; SOUTH 85° 45' WEST 2686.20 FEET; NORTH 00 15' EAST 1518 FEET; SOUTH 890 45' WEST 2613.60 FEET; SOUTH 00 30' WEST 3927 FEET; NORTH 89° 45' WEST 2630.10 FEET; TO STATION S.R. 8 OF SAID RANCHO SAN RAMON, SAID STATION S.R. 8 BEING THE SOUTHEAST CORNER OF THE PARCEL OF LAND DESCRIBED IN THE DEED FROM TASSAJARA LAND COMPANY TO HENRY F. WIEDEMANN, ET UX, RECORDED SEPTEMBER 28, 1922, IN BOOK 428 OF DEEDS AT PAGE 52; THENCE LEAVING THE EXTERIOR LINE OF SAID 7,918.73 ACRE PARCEL (59 D 525) ALONG THE SOUTHERN LINE OF SAID WIEDEMANN PARCEL NORTH 890 45' WEST 726 FEET AND SOUTH 710 20' WEST 1042.50 FEET TO THE WESTERN LINE OF SAID RANCHO SAN RAMON, BEING A PORTION OF THE EXTERIOR LINE OF SAID 7,918.73 ACRE PARCEL (59 D 525); THENCE ALONG SAID EXTERIOR LINE SOUTH 27° EAST 11,554.28 (continued) -Page 1 of 2 �I • FEET TO STATION S.R. 12 OF SAID RANCHO SAN RAMON, AND SOUTH 270 15' EAST 2220.90 FEET TO THE NORTHERN LINE OF SAID PARCEL OF LAND DESCRIBED AS PARCEL ONE IN THE DEED FROM EILENE MOHR KAMP TO AMERICAN TRUST COMPANY, AS TRUSTEE, RECORDED JULY 2, 1935, IN BOOK 392 OF OFFICIAL RECORDS, AT PAGE 35; THENCE LEAVING SAID EXTERIOR LINE ALONG SAID NORTHERN LINE (392 OR 35) NORTH 630 28' EAST 297 FEET, AND SOUTH 78° 08' EAST 3024.33 FEET TO THE CENTER LINE OF THE COUNTY ROAD KNOWN AS DOUGHERTY ROAD AS SAID ROAD IS DESCRIBED IN THE DEED FROM CHARLES A. GALE, ET AL TO CONTRA COSTA COUNTY, RECORDED FEBRUARY 6, 1936, IN BOOK 408 OF OFFICIAL RECORDS AT PAGE 128; SAID CENTER LINE BEING THE WESTERN LINE OF SAID UNITED STATES OF AMERICA 3636.1222 ACRE PARCEL (1104 OR 377); THENCE ALONG SAID WESTERN LINE BEING ALSO ALONG SAID CENTER LINE AS FOLLOWS: NORTHERLY ALONG THE ARC OF A CURVE TO THE LEFT, WITH A RADIUS OF 1000 FEET AN ARC DISTANCE OF 100 FEET, MORE OR LESS; NORTH 5° 17' 40" WEST TANGENT TO LAST MENTIONED ARC 423.44 FEET, AND NORTHERLY ALONG THE ARC OF A CURVE TO THE RIGHT WITH A RADIUS OF 1500 FEET, TANGENT TO LAST MENTIONED COURSE, AN ARC DISTANCE OF 218.44 FEET TO THE NORTHWESTERN CORNER OF THE SAID UNITED STATES OF AMERICA 3636.1222, ACRE PARCEL; THENCE LEAVING SAID WESTERN LINE ALONG THE NORTHERN LINE OF SAID 3636.1222 ACRE PARCEL EAST 3000 FEET MORE OR LESS TO THE POINT OF BEGINNING. EXCEPTING THEREFROM: 1. THE INTEREST CONVEYED TO CONTRA COSTA COUNTY BY DEED RECORDED FEBRUARY 6, 1936, BOOK 408, OFFICIAL RECORDS, PAGE 128, "FOR USE AS A PUBLIC HIGHWAY." 2. THE INTEREST CONVEYED TO CONTRA COSTA COUNTY BY DEED RECORDED APRIL 21, 1944, BOOK 775, OFFICIAL RECORDS, PAGE 378, "FOR USE AS A PUBLIC HIGHWAY." 3. THE PARCEL OF LAND DESCRIBED AS PARCEL ONE IN THE DEED TO EAST BAY MUNICIPAL UTILITY DISTRICT, RECORDED DECEMBER 16, 1968, BOOK 5771, OFFICIAL RECORDS, PAGE 288. 4. THE PARCEL OF LAND DESCRIBED IN THE DEED TO EAST BAY MUNICIPAL UTILITY DISTRICT, RECORDED MAY 19, 1978, BOOK 8845, OFFICIAL RECORDS, PAGE 149. 5. THE INTEREST CONVEYED TO CONTRA COSTA COUNTY BY DEED RECORDED JUNE 27, 1985, BOOK 12381, OFFICIAL RECORDS, PAGE 751. 6. ALL OF SUBDIVISION 7010, AS SHOWN ON THE MAP FILED SEPTEMBER 6, 1989, IN MAP BOOK 336, PAGE 46, CONTRA COSTA COUNTY RECORDS. 7. ALL THOSE PORTIONS OF LAND DESCRIBED IN RESOLUTION NO. 22477 "DECLARING AMADOR VALLEY UNINCORPORATED TERRITORY ANNEXED TO THE EAST BAY MUNICIPAL UTILITY DISTRICT" "APPROXIMATELY 618 ACRES" Page 2 of 2 • EXHIBIT B • Responsibilities for Certain Traffic Improvements f f .a � I � W � 1 1 1 � Y e ".:e:Kxa �; v o rMG) 8 Y e ".:e:Kxa �; v o rMG) n r.a EXHIBIT C Cost Allocations for Certain Off -Site Traffic Improvements C-1 Initial Project Traffic Improvements C-2 Additional Project Traffic Improvements C-3 Cost Allocations EXHIBIT C-1 Initial Project Traffic Improvements Camino Tassajara/Crow Canyon Rd./Blackhawk Rd. intersection improvements. Within existing curb -to -curb pavement section, reconfigure NB approach (Crow Canyon Rd.) to provide two left -turn lanes, one exclusive through lane, one shared through/right-turn lane, and one exclusive right -turn lane. On Tassajara Ranch Drive, remove median and add bike lanes. B-1.2. Sycamore Valley Rd./I-680 NB on-ramp/Camino Ramon intersection improvements. I Reconfigure WB approach (Sycamore Valley Rd.) to provide one exclusive left -turn lane, one exclusive through lane, one shared through/right-turn lane, and one exclusive right -turn lane. B-1.3. Crow Canyon Rd./Dougherty Rd, intersection improvements. Reconfigure EB approach (Crow Canyon Rd.) to provide three exclusive through lanes, and one "free" right -turn lane to SB Dougherty Rd. Reconstruct SB Dougherty Rd., south of Crow Canyon Rd., to provide dedicated curb lane to accept right -turns from EB Crow Canyon Rd. B-1.4. Bollinger Canyon Rd./Camino Ramon intersection improvements. If needed, reconfigure SB approach (Camino Ramon) to provide two exclusive left -turn lanes, one shared through/right-turn lane, and one exclusive right -tum lane. B-1.5. Bollinger Canyon Rd./Alcosta Blvd. intersection improvements. Reconfigure EB approach (Bollinger Canyon Rd.) to provide one exclusive left -turn lane, three exclusive through lanes, and one exclusive right -turn lane. Reconfigure WB approach (Bollinger Canyon Rd.) to provide one exclusive left -tum lane, three exclusive through lanes and one exclusive right -turn lane. Reconfigure SB approach (Alcosta Blvd.) to provide one exclusive left -turn lane, two exclusive through lanes, and one exclusive right -turn lane. Widen Bollinger Canyon Rd., east of Alcosta Blvd., to provide three through lanes, plus turn lanes as needed, in EB and WB directions from Alcosta Blvd. to project limits. Construct traffic signal at Canyon Lakes Drive. B-1.6. Dougherty Road, re -alignment and construction of a six lane facility between the northerly project limits and Crow Canyon Road. B-1.7. Windemere Parkway, construction of a new four lane, divided arterial facility between the project limits and Camino Tassajara Road. Intersection improvements at the Windemere Parkway/Camino Tassajara intersection which include a traffic signal, left -turn channelization, and transition tapers from six to four lanes on Camino Tassajara north of the intersection. B-1.8. Windemere Parkway/Camino Tassajara Road intersection improvements, provide left turn channelization, a four phase traffic signal, and tapers on Camino Tassajara to transition from six to four lanes north of the intersection. B-1.9. Crow Canyon Road, widen to six lanes between Dougherty Road and Tassajara Ranch Road. B-1.10. Crow Canyon Road, widen from 4 to 6 lanes from Alcosta Blvd. to Dougherty Road. B-1.11. Dougherty Road, widen to 6 lanes from southerly limits of development to Old Ranch Road. Intersection improvements at the Dougherty Road/Old Ranch Road intersection are included and consist of a traffic signal, left -turn pockets, and right -turn pockets. B-1.12. Dougherty Road, widen to 6 lanes from Old Ranch Road to the County line. B-1.13. Dougherty Road/Old Ranch Road, intersection improvements to accommodate four lanes on Old Ranch Road and six lanes on Dougherty Road, with left turn and right turn channelization. Install a traffic signal. B-1.14. Alcosta Blvd./Old Ranch Road intersection improvements (Currently, controlled by a three- way stop sign). Install a traffic signal. 2 EXHIBIT C-2 Additional Project Traffic Improvements B-2.1. Bollinger Canyon Road, construct eight lanes from I-680 to Alcosta. B-2.2. Camino Tassajara Road, widen from two to six lanes between Windemere Parkway and the County line. B-2.3. Camino Tassajara/Sycamore Valley Road intersection improvements, widen/restripe SB leg for 1 LT/RT lane and 1 LT lane. B-2.4. Crow Canyon Road, widen from 6 to 8 lanes from I-680 to Alcosta. B-2.5. I-680 northbound off ramp/Bollinger Canyon Road intersection . improvements. On NB leg, widen right turn radius, construct raised island to convert curb right turn lane to a free right turn lane, restripe 2nd right turn lane to stay under signal control, and modify signal control. B-2.6. Alcosta/Crow Canyon Road intersection improvements. Add exclusive right turn EB. B-2.7. Alcosta/Crow Canyon Road intersection improvements. Add one NB exclusive RT lane. B-2.8. Camino Ramon/Crow Canyon Road intersection improvements. Widen/restripe SB approach to one RT, one through lane, and 1 LT lane; add an EB exclusive RT lane. B-2.9. Crow Canyon Road/I-680 NB off -ramp intersection improvements. Intersection will be congested due to queues from adjacent intersections. Add another RT lane on NB off -ramp. B-2.10. I-680 SB ramps/Crow Canyon Road. Restripe to revise existing right tum lane to provide shared right/left lane. B-2.11. Bollinger Canyon Rd./Sunset Dr. intersection improvements. If needed, reconfigure SB approach (Sunset Dr.) to provide one exclusive left -turn lane, one exclusive through lane, and one "free" right -turn lane to WB Bollinger Canyon Rd. Widen Bollinger Canyon Rd., west of CI • Sunset Dr., to provide dedicated curb lane to accept right -turns from SB Sunset Dr. B-2.12. Crow Canyon Road Noise Attenuation. As appropriate, construct soundwalls along Crow Canyon Rd. between Dougherty Rd. and Alcosta Blvd. B-2.13. Crow Canyon Road; Camino Tassajara and Sycamore Valley Road. Provide for pavement overlays of these roads between the Dougherty Valley project and I-680. 2 EXHIBIT C-3 Cost Allocations for Certain Additional Project Traffic Improvements Not in limitation of any obligation of the Developer to provide a pro rata contribution to any of the improvements described on Exhibit C-2 other than the improvements listed below, the following improvements shall be funded by a fee, to be paid at building permit for each residential unit in the Project, not to exceed $200 per unit. Reference to Improvement Exhibit C-2 C-3.1 Camino Tassajara Overlay C-2.13 C-3.2 Crow Canyon Road Overlay C-2.13 C-3.3 Sycamore Valley Road Overlay C-2.13 C-3.4 Crow Canyon Soundwall C-2.12 C-3.5 Camino Tassajara/ C-2.3 Sycamore Intersection. The per-unit fee described above shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. Any obligation to pay a fee to fund any of the improvements described in this Exhibit C-3 shall be conditioned upon construction of the identified improvements. Failure to construct an identified improvement shall result in a corresponding refund to the Developer. 507731[rcm2) 11 EXHIBIT D Establishment of Capital Facilities Fee • Dougherty Valley Community Facilities Fee 1. Form of Agreement - This agreement regarding Community Facilities Fees, shall be incorporated into all existing and future development agreements regarding the Shapell and Windemere portions of the Dougherty Valley. This agreement will be executed by the developers and Contra Costa County, and will be agreed as to form, by the City of San Ramon. 2. Definition of Community Facilities - "Community Facilities" include the Library, the Community Center, the Senior Center, a Corporation Yard and the Police Substation. The square footage requirements and timing for design and construction are as defined, and are subject to revision as specified in the Agreement to Settle Litigation dated May 11th, 1994. 3. Timing for Establishment of Fee - Prior to the filing of the first final map in the Dougherty Valley, a "Community Facility Fee" shall be established for the entire 11,000 unit Dougherty Valley project. 4. Community Facilities Cost Components - As illustrated in Attachment A, the total cost of each community facility required in the Dougherty Valley shall include the cost of the facility design, the cost of construction, the cost of furnishings, and the cost of site development. The amount illustrated in Attachment A is not inclusive of land costs. 5.. Land Dedication - Land required for the facilities shall be dedicated by the developers. Approximately six acres are required for the five subject facilities. In the event one developer is required to dedicate more than three acres, the other developer shall reimburse, at the time of construction, the dedicating developer for the cost of the land as determined by appraisal at that time. 6. Fee Amount - Fees shall be collected by the County at the issuance of the building permit. As illustrated in Attachment A, the total fee per unit equates to $1,410. The designated expenditure allocation is as follows: Library Community Center Police Substation Corporation Yard Senior Center Total Fee $ 326 (pro -rata cost for 11,000 units) $ 520 (pro -rata cost for 11,000 units) $ 61 (pro -rata cost for 11,000 units) $ 269 (pro -rata cost for 11,000 units) 234 (pro -rata cost for 8,500 units) $1,410 The portion of the fee attributable to the Library, Community Center, Police Substation and Corporation Yard, shall be paid by all 11,000 units in the Dougherty Valley, except as is indicated below. The portion of the fee attributable to the Senior Center, shall be paid by the first 8,500 units in the Dougherty Valley. 7. Cost of Living Adjustments - The Community Facilities fee shall be adjusted according to the Engineering News Record Construction Cost Index each year. 8. Escrow Accounts - Upon collection by the County, Fees shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commences. 9. Obligation to Fund Shortfall - When funds are required for the construction of any community facility, the pro -rata obligation for funding each community facility shall be divided 53% to Shapell and 47% to Windemere. This percentage allocation shall apply regardless of the ultimate, or then -current, number of units constructed on either developer's property. Each developer is individually responsible for providing their pro -rata share of costs (53% Shapell / 47% Windemere) when the funds for a specific community facility is required. Each developer may use the fees generated by prior units, and may finance the balance of the funds in any manner available to them. If a developer provides a source of funding other than that which has accumulated in the Community Facilities Escrow Accounts, the parties to this agreement shall re- evaluate the fee amount at that time, with the intention of offsetting future fees by an amount commensurate with the developer's other funding method. 10. Ability to Cure Developer Default - As specified in Section 4.3.3.2 of the May 11, 1994 Agreement to Settle Litigation, if one developer defaults in the obligation to fund the pro -rata share of a community facility, the other developer may cure the default and not be penalized by a cessation of building permits. However, the developer in default may again obtain building permits, by funding with interest, their original pro - rata cost obligation (53% Shapell / 47% Windemere). 11. Satisfaction of a Developer Obligation by a Third Par tv - If a developer's obligation to provide a specific community facility is satisfied by an alternate contribution acceptable to the County and the City of San Ramon, the Fee paid by subsequent units in the Dougherty Valley shall be re-evaluated with the intention of offsetting future fees by an amount commensurate with the alternate satisfaction of the obligation. 12. County Service Area Charge - A County Service Area (CSA) is required by Section 3.3.1 of the May 11, 1994 Agreement to Settle Litigation, to be in place prior to annexation of any portion of the Dougherty Valley. As part of the formation of the CSA, an assessment equal to the estimated total future operation and maintenance cost, may be applied to units for construction of the community facilities. This capital charge will be reduced, dollar for dollar, as the operation and maintenance charges for those facilities are incurred. Page Two Upon collection by the County, CSA charges attributable to the capital facilities, shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commences. Funds accumulated under this CSA charge, shall be considered a "source of other financing" as is identified in #9 above. 13. County Approval/City Review - Plans for the design and construction of the community facilities shall be approved by Contra Costa County and reviewed by the City of San Ramon. The County agrees to give good faith consideration to all comments received from the City. If a dispute arises, the County and City agree to participate in the Dispute Resolution process outlined in Article V of the Agreement to Settle Litigation dated May 11, 1994. 14. Facility Design and Construction - The Developers shall be allowed, based on the design and construction specifications from the appropriate agency and with the approval of the County and the review of the City of San Ramon, to design and construct each of the community facilities. 15. Design Changes Resulting in ExceedingFacility Budget - The developers will not be required to fund facility construction costs greater than that described in Attachment A unless the increased cost is a result of cost of living adjustments (see paragraph 7) or changes in federal or state law. 16. Annual Reports - An annual report summarizing the Community Facilities Fee Escrow Account balances, and the CSA Escrow Account balances shall be provided with the annual mitigation monitoring program. Page three Dougherty Valley Attachment A Community Facilities Fees Report Date: 9/20/95 Library (11.600 Square Feeo Footnotes: 1. Assumes cost of $2.50 per square foot. 2. Assumes 18% of both hard construction costs and site development. 3. Assumes 2 books per capita for approximately 29,000 people. Communitv Center (24.000 Square Feet Cost per Cost per Unit Unit Unit Unit Unit Estimated 11,000 Cost Component _ Note Tie Quantity Price Total Cost Units $108,900 Site Development 1 AC 1.00 $108,900 $108,900 $10 Hard Construction Costs Soft Construction Costs SF 11,600 $155.00 $1,798,000 $163 Soft Construction Costs 2 LS 1 $343,242 $343,242 $31 Furnishings SF 11,600 $15.00 S174,000 $16 Subtotal $2,424,142 S220 Educational Materials 3 Book 58,000 $20.00 $1,160,000 $105 Total $3,584,142 $326 Footnotes: 1. Assumes cost of $2.50 per square foot. 2. Assumes 18% of both hard construction costs and site development. 3. Assumes 2 books per capita for approximately 29,000 people. Communitv Center (24.000 Square Feet Footnotes: 1. Assumes site development cost of approximately 52.50 per square foot. 2. Assumes 15% of both hard construction costs and site development. Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Type Quantity Price Total Cost Units Site Development 1 AC 2.00 $108,900 $217,800 $20 Hard Construction Costs SF 24,000 $185.00 $4,440,000 $404 Soft Construction Costs 2 US 1 $698,670 $698,670 $64 Furnishings SF 24,000 $15.00 $360,000 $33 Total $5.716,470 $520 Footnotes: 1. Assumes site development cost of approximately 52.50 per square foot. 2. Assumes 15% of both hard construction costs and site development. Dougherty Valley Community Facilities Fees Report Date: 9/20/95 Senior Center (10.000 Square Feet) Total Footnotes: 1. Assumes site development cost of approximately $2.50 per square foot 2. Assumes 15% of both hard construction costs and site development Police Substation (Approximately 4.500 Square Feet) Cost Component Site Development Hard Construction Costs Soft Construction Costs Furnishings Total Unit Unit Unit Cost Component Note Type Quantity SF Site Development 1 AC 1.00 Hard Construction Costs SF 10,000 Soft Construction Costs 2 LS 1.00 Furnishings SF 10,000 Total Footnotes: 1. Assumes site development cost of approximately $2.50 per square foot 2. Assumes 15% of both hard construction costs and site development Police Substation (Approximately 4.500 Square Feet) Cost Component Site Development Hard Construction Costs Soft Construction Costs Furnishings Total Unit Unit Note Type Quantity I AC 0.34 SF 4,500 2 LS 1 SF 4,500 Unit $108,900 $150.00 $241,335 $14.00 Attachment A $1,990,235 234 Cost per Estimated 8,500 Total Cost Units $108,900 $13 $1,500,000 $176 $241,335 $28 $140,000 $16 $1,990,235 234 Footnotes: 1. Assumes site development cost of approximately $8.45 per square foot (rounding) 2. Assumes 15% of both hard construction costs and site development. Cost per Unit Estimated 11,000 Price Total Cost Units $367,647 $125,000 $11 $80.00 $360,000 $33 $72,750 $72,750 $7 $25.00 $112,500 $10 $670,250 61 Footnotes: 1. Assumes site development cost of approximately $8.45 per square foot (rounding) 2. Assumes 15% of both hard construction costs and site development. Dougherty Valley Attachment A Community Facilities Fees Report Date: 9/20/95 Corporation Yard Footnotes: 1. Assumes site development cost of approximately $2.5 per square foot 2. Total cost estimated at $2.5 million; includes parking, landscaping, furnishings, 4480 square feet for shop space, 800 square feet for offices and 1,680 square feet for locker areas. 3. Assumes 10% of both hard construction costs & furnishings and site development. Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Tye Quantity Price Total Cost Units Site Development Costs 1 AC 1.70 $108,900 $195,130 $17 Hard Constr & Furnishings 2 LS 1 $2,500,000 $2,500,000 $227 Soft Costs 3 LS 1 $268,513 $268,513 $24 Total $2,953,643 $69 Footnotes: 1. Assumes site development cost of approximately $2.5 per square foot 2. Total cost estimated at $2.5 million; includes parking, landscaping, furnishings, 4480 square feet for shop space, 800 square feet for offices and 1,680 square feet for locker areas. 3. Assumes 10% of both hard construction costs & furnishings and site development. • 0 Draft of December 8,1995 Marked to show changes from draft of November 22, 1995 DEVELOPMENT AGREEMENT BETWEEN COUNTY OF CONTRA COSTA AND SHAPELL INDUSTRIES, INC. RELATING TO THE DEVELOPMENT COMMONLY KNOWN AS THE GALE RANCH THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of this _ day of December, 1995, by and between SHAPELL INDUSTRIES, INC., a Delaware corporation ("Developer" or "Shapell"), and the COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"), pursuant to Government Code section 65864 et seq. Developer and County are from time to time hereinafter referred to individually as a 'Party" and collectively as the "Parties." This Agreement supersedes and replaces in its entirety that certain development agreement entered into by and between Developer and County dated October 2, 1990, which is hereby terminated. 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 section 65864 et seq. (the "Development Agreement Statute"), which authorizes County to enter into an agreement with any person having a legal or equitable interest in real property, regarding the development of such property. B. Pursuant to Government Code section 65865, County has adopted rules and regulations establishing procedures and requirements for consideration of development agreements (Art. 26-2.12 of Contra Costa County Code and Board Resolution No. 85/412). This Development Agreement has been processed, considered and executed in accordance with those County rules and regulations, including without limitation, 26-2.1204 of the Contra Costa County Code. C. Developer has a legal interest in certain real property consisting of approximately two thousand seven hundred eight (2,708) acres located in the unincorporated portion of the County known as the Dougherty Valley, which property is commonly referred to as the Gale Ranch. The property which is the subject of this agreement is a portion of the Gale Ranch comprised of approximately two thousand and ninety (2,090) acres as described in Exhibit A attached hereto (the "Gale Ranch Site"). The property is adjacent to property owned by Windemere Ranch Partners ("Windemere") also located in the Dougherty Valley. D. Developer intends to develop the Gale Ranch Site as a residential planned community of 4,614 units (plus any units that may be transferred from the Country Club Site to central residential • • "Specific Plan" shall have that meaning set forth in Recital H of this Agreement. "Subsequent Approvals" shall have that meaning set forth in Recital I of this Agreement. "Traffic Impact Fee" shall have that meaning set forth in Section 3.1(i) of this Agreement. "Windemere" shall have that meaning set forth in Recital C of this Agreement. "Windemere Site" shall have that meaning set forth in Recital H of this Agreement. Section 3. Obligations of Developer and County. 3.1 Obligations of Developer Generally. The Parties acknowledge and agree that County's agreement to perform and abide by the covenants and obligations of County set forth herein is material consideration for Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein. 3.2 Obligations of County Generally. The Parties acknowledge and agree that Develop r'sagreement to perform and abide by the covenants and obligations of Developer set forth herein is material consideration for County's agreement to perform and abide by the covenants and obligations of County set forth herein. 3.3 Specific Obligations, Q(b) Compliance with Settlement Agreements. The terms and provisions of this Agreement are intended to be consistent with, and shall not be deemed to modify, abrogate or limit compliance with or the implementation or enforcement of, the terms and provisions of any of the Settlement Agreements. In the event of any conflict between the terms and provisions of this Agreement and any Settlement Agreement, the terms and provisions of such Settlement Agreement shall prevail to the extent of such conflict. If and to the extent any obligation of any party under any of the Settlement Agreements is terminated for any reason, including without limitation any obligation under Section a.9 j) to the Interstate 680/Highway 24 Interchange, Section 3-4(k-) 3.3fh1 (relating to the payment of traffic fees to the City of Pleasanton), and Section 3 3.3(el (relating to the design program for the Village Center), then such obligation shall not be required to be satisfied hereunder. (effl Preliminary Development Plan. Except as otherwise specifically agreed by County, Developer shall comply with all conditions of approval to the Preliminary Development Plan. (d)Q Affordable Housing. Developer shall, in connection with its development of the Gale Ranch, implement the terms and provisions of the Affordable Housing Program adopted by the Board on March 22, 1994 pursuant to Board Order , (the "Affordable Housing Program"), which requires that a minimum of twenty-five percent (25%) of all dwelling units be developed as affordable to low, very low and moderate income households. (e)KQ Designation of Preferred Water Provider. In consequence of the court -sanctioned EBMUD Settlement Agreement, Policy U-1 of the Specific Plan which identifies alternative water VA suppliers shall be interpreted and applied to the Gale Ranch development as follows: The Dublin San Ramon Services District ["DSRSD"] is the preferred water provider for the Gale Ranch Site (except for one or two school sites as provided in the EBMUD Settlement Agreement). EBMUD is an alternative water provider, but only pursuant to the terms and conditions set forth in the EBMUD Settlement Agreement. Staff will support and diligently process an amendment which will incorporate such language into the Specific Plan. (#)(g) Design Program for Dougherty Valley Village Center. Paragraphs 2, 3(a) and 3(b) of the NGO Settlement Agreement require certain actions to be taken with respect to the design of Gale Ranch, including participation in the development of a design program for the "Village Center" of the Dougherty Valley and provision of approximately forty (40) acres of additional open space (provided that such reconfiguration is physically feasible and permitted by law). Any obligation of Developer or County under such provisions of the NGO Settlement Agreement shall be satisfied in connection with any tentative map covering the area of the Gale Ranch Site affected by such obligation, which tentative map will be approved together with any necessary general plan amendment, specific plan amendment or rezoning. (g)(O Coordination of On -Site Improvements. County shall require that access or right- of-way for those certain roadway improvements described on Exhibit B, attached hereto and incorporated herein by reference, as roadway segments W-1 and W-2, offered for dedication as and at the times provided in the conditions to the PDP; provided, however, that if the Windemere project generates the need for access or right-of-way for roadway segments W-1 and/or W-2, prior to the time such access or right-of-way is required for the Gale Ranch, then County shall ensure that the provision of such access or right-of-way is subject to the following: In order to accommodate Windemere's development schedule, Windemere may elect to assume responsibility for constructing, without reimbursement from Shapell, roadway segments W-1 and/or W-2 in which case Shapell shall dedicate or offer to dedicate, as required by County, the necessary access or right of way to County upon satisfaction of the following conditions: (a) Shapell will have reasonably reviewed and approved Bollinger Canyon Road's horizontal and vertical alignment, grading and improvement plans; (b) Windemere shall have provided to Shapell improvement agreements deemed acceptable by County and executed by all parties, together with completion and payment bonds so that the improvements shall be duly completed and no liens shall remain on Shapell's property; and (c) Windemere shall have procured a policy of Comprehensive General Liability Insurance in an amount and from an insurance company reasonably satisfactory to County naming Shapell as an additional insured. Shapell shall have the right but not the obligation reasonably to designate the source of cut/fill dirt (from the Gale Ranch Site) which shall be used to the extent needed for roadway segments W-1 and/or W-2. (h)W Danville/San Ramon/County Traffic Mitigation (1) Certain traffic improvements within the County, San Ramon and Danville are or may be required to accommodate development under the Specific Plan (the "Project Traffic Improvements"). The Project Traffic Improvements include (i) the on-site traffic improvements described in the Specific Plan as the "Internal Circulation System" (the "On - Site Traffic Improvements"), (ii) the off-site traffic improvements described on Exhibit C-1, 8 attached hereto and incorporated herein by reference (the "Initial Project Traffic Improvements") and (iii) certain additional off-site traffic improvements described on Exhibit C-2, attached hereto and incorporated herein by reference (the "Additional Project Traffic Improvements"). The Initial Project Traffic Improvements and the Additional Project Traffic Improvements are sometimes referred to collectively below as the "Off -Site Traffic Improvements." (2) Subject to the provisions of 34(h) 13W, Developer shall be responsible for the construction of the On -Site Traffic Improvements made necessary by the Gale Ranch. (3) Developer shall pay to County a per-unit traffic impact fee (the "Traffic Impact Fee") in the amount necessary, but no more than the amount necessary, to fund Developer's fair share of the cost of construction of the Off -Site Traffic Improvements; provided, however, that Windemere shall have responsibility for constructing roadway segment W-3 and Shapell shall have responsibility for constructing roadway segments S-1 and S-2 as shown on Exhibit B to this Agreement. In calculating Developer's and Windemere's respective obligations for the construction and/or funding . of the Off -Site Traffic Improvements, the costs of S-1, S-2, and W-3 shall be deducted from the aggregate total cost of the Off -Site Traffic Improvements and not considered in making such calculations. The amount of the Traffic Impact Fee shall be determined as set forth in subsection (4) below, and shall apply to residential units developed on the Gale Ranch Site. The Traffic Impact Fee applicable to a residential unit shall be paid when the building permit for such unit is issued. The County will retain responsibility for the issuance of building permits and collecting the fees notwithstanding the municipal annexation of any portion of the Gale Ranch. (4) The amount of the Traffic Impact Fee shall be determined within. six (6) months following County's approval of this Agreement, but no later than the date upon which the County first approves a tentative subdivision map showing individual residential lots for any portion of the Dougherty Valley (other than for the Country Club Site), in the following manner: County, Developer, Windemere and, as required by the San Ramon Settlement Agreement, representatives of Danville and San Ramon, shall meet and confer in good faith to determine (i) the estimated reasonable cost of the Off -Site Traffic Improvements and (ii) the respective proportions of such cost that fairly should be borne by Shapell and Windemere, (taking into account, among other things, development planned for the Country Club Site and the fees being paid by Shapell with respect thereto) and other projects or parties, if any, contribution to the need for such improvements and to whom the Traffic Impact Fee will apply. In making such determinations, and establishing the amount of the Traffic Impact Fee, it shall be recognized that (a) Developer's pro rata contribution to the traffic improvements described on Exhibit C-3, attached hereto and incorporated herein by reference, shall be no more than is specified in, and shall be paid as described in, Exhibit C- 3; and (b) Developer and Windemere shall, taken together, be responsible for the entire cost of the Initial Project Traffic Improvements as set forth in the San Ramon Settlement Agreement (although each shall be responsible only for its fair share of the cost of such improvements). The costs and proportions so determined and agreed upon by County and 9 0 • Developer shall be reflected, as appropriate, in the Traffic Impact Fee. The amount of the Traffic Impact Fee shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. (5) County shall enter into such agreements with San Ramon and Danville as may be necessary or appropriate to establish a joint exercise of powers agreement ("JEPA"), or some other program or mechanism( "r eeal TIF PFOB -afn ), to provide for (i) the collection of traffic impact fees from development projects in San Ramon, Danville and. Contra Costa County within the JEPA boundafy and within the boundary of the JEPA or other program or mechanism that will contribute to the need for the Additional Project Traffic Improvements, which fees shall be in amounts consistent with the determinations made under Subsection (4) above, (ii) the establishment of an account or accounts (the "Local TIF Account") to hold Traffic Impact Fees collected from Developer and Windemere, and traffic impact fees collected from the developers of other projects that will contribute to the need for the Additional Project Traffic Improvements (collectively, the "Local TIF Funds"), and (iii) the transfer to San Ramon, Danville and County of Local TIF Funds attributable to the Off -Site Traffic Improvements to be developed within those jurisdictions "Local TIF Program " (6) The timing of when an Off -Site Traffic Improvement is needed is determined by Measure C and by any conditions of approval for subsequent subdivision maps. If the Local TIF Program has not received sufficient developer fees to fund an improvement when it is needed, then Developer will fund the difference, or construct the improvement, to ensure the improvement is built on time. In such case, Developer shall enter into a reimbursement agreement with County to credit or reimburse Developer the eligible construction costs that were advanced to build the project. Any credit so provided shall be applied in full against the Traffic Impact Fee for each residential unit that receives a building permit following completion of the Off -Site Traffic Improvement by Developer (rather than pro rata against the Traffic Impact Fee for all remaining residential units in the Project) until such time as the full credit has been provided. (7) County shall establish and implement a mechanism to reimburse Developer, and shall reimburse Developer, that portion of the costs to be incurred by Developer in connection with the funding or construction of the On -Site Traffic Improvements and the Off -Site Traffic Improvements that represents the extent to which such traffic improvements will serve traffic generated by projects that are developed pursuant to general plan amendments approved on or after the Effective Date. (8) To the extent that any Project Traffic Improvement funded or constructed by Developer is included on a project list under any Measure C Action Plan or CMP Deficiency Plan, and provided such transportation improvement has sufficient priority under such Action Plan or Deficiency Plan, Developer shall receive a credit against, or reimbursement from, any regional traffic fee imposed upon Developer under Sections 3-'x(11) � 1 and4T 4013 , of this Agreement. 10 (9) Some portion of the Traffic Impact Fee may be allocated to and collected from commercial development (on a per -square -foot basis) to occur as a part of Gale Ranch, provided, however, that the total amount of Traffic Impact Fee to be • collected from residential development to occur as a part of Gale Ranch (as determined above) shall be reduced by the amount of funds to be so collected from commercial development. (10) County shall make its final determination of compliance with the standards of the Growth Management Element of the General Plan relating to traffic in conjunction with the review and approval of tentative subdivision maps. (11) County shall not impose on Developer any fee or other obligation with respect to roads or traffic impacts other than as set forth in this Agreement, Section 4.4 of the San Ramon Settlement Agreement (relating to assurance of compliance with traffic service objectives), Paragraph 1 of the Walnut Creek Settlement Agreement or Paragraph 1 of the Pleasanton Settlement Agreement (relating to Developer's payment of fees to Pleasanton). Notwithstanding the foregoing, nothing in this Agreement shall prevent the County from (i) applying to the Gale Ranch to any tentative maps any subregional traffic impact fee required by Measure C (1988) and adopted and applied consistently and on a uniform basis throughout the Tri -Valley subregion by each of the seven jurisdictions that are now signatories to the Tri -Valley Transportation Council joint powers authority which is adopted prior to the vesting date of any tentative map (provided, however, that County shall provide to Developer a credit against any such fee for traffic improvements constructed and/or funded by Developer under this Agreement or the Settlement Agreement) or (ii) imposing on the Gale Ranch reasonable requirements for the funding or construction of additional minor traffic improvements made necessary by Gale Ranch and identified through CEQA review of individual tentative map applications for Gale Ranch, or (iii) imposing on the Gale Ranch a subregional traffic fee developed by the JEPA identified in Section 34(i)(5) 33(gX51 to satisfy Measure C requirements and for the sole purpose of funding a fair share contribution of the Alcosta ramp realignment project at I-680 and the auxiliary lanes project on I-680 between Bollinger Canyon Road and Diablo Road. O(W Pleasanton Traffic Mitigation. Separate and apart from the Traffic Impact fee, Developer shall pay to County $150 for each residential unit developed on the Gale Ranch Site pursuant to the Project Approvals ("Pleasanton Traffic Fees"). The Pleasanton Traffic Fees will be collected by County upon its issuance of the building permit for each such unit and delivered to Pleasanton for the mitigation of traffic impacts on roadways located in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties 'anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of the Gale Ranch), San Ramon shall collect and deliver the Pleasanton Traffic Fees as set forth above. As provided in Paragraph 5(b) of the Pleasanton Settlement Agreement, Developer's obligations pursuant to this Section 341 k) 3.3(h and Paragraph 1 of the Pleasanton Settlement Agreement shall .cease in the event that Pleasanton 11 • files any legal action challenging any use or approval or any modification to any use or approval relating to Dougherty Valley. . �l!1 Dublin Traffic Mitigation. County and Developer shall work with the City of Dublin to establish a mutually acceptable fee to account for the cost of mitigating the traffic -related impacts of the Project on roadways located in the City of Dublin net of the cost of mitigating the traffic - related impacts of development projected to occur within the City of Dublin (including, without limitation, the East Dublin project) on the On -Site and Off -.Site Traffic Improvements, if any. If County, Developer and the City of Dublin are unable to arrive at a mutually acceptable fee within six (6) months following the Effective Date, then County and Developer may themselves determine the amount of such fee. Any fee imposed on the Project pursuant to this Section shall be approved by the Board of Supervisors and, except as otherwise agreed by County and Developer, remain fixed in an amount fie nki to exceed $490 per residential unit throughout the term of this Agreement; provided, however, that such fee may be subject to escalation in accordance with the "Construction Cost Index" published in Engineering New Record. Such fee, if any, shall be paid upon the issuance of the building permit for each residential unit in the Project and delivered to Dublin for the mitigation of traffic impacts on roadways in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of the Gale Ranch), San Ramon shall collect and deliver the fees to Dublin as set forth above. (k4_Q Walnut Creek Traffic Mitigation. Notwithstanding any other provision contained herein, all future tentative subdivision maps covering the Gale Ranch Site shall be subject to all standards and requirements adopted by the County pursuant to Measure C (1988), including but not limited to the Tri -Valley Action Plan or fees adopted thereunder, and all standards and requirements adopted pursuant to Title 7, Division 1, Chapter 2.5 of the Government Code (Section 65080 et seq.), including but not limited to all congestion management plans and deficiency plans adopted thereunder, provided that (a) such standards and requirements are designed to mitigate congestion on the Interstate 680/Highway 24 interchange or streets within Walnut Creek, (b) are applied to all other major residential projects within the member jurisdictions of SWAT, TRANSPAC, and TRANSPLAN, and (c) are imposed by the County or City only to the extent of the project's impacts on the interchange or streets within Walnut Creek. Neither the foregoing provision nor any other provision of this Agreement (other than the subsection of this Agreement relating to Traffic -Based reductions in permitted development [Section 4.1 ] shall limit the authority of the County to apply the standards and requirements described above adopted pursuant to Measure C (1988), including but not limited to any Action plan or fees. (I Qk Dougherty Road Improvements. County shall not require, as a condition to any Planning Action or Subsequent Approval or in any other manner, that Developer construct or cause to be constructed a realigned. Dougherty Road, as shown in the Specific Plan and Preliminary Development Plan, prior to 10 years from the effective date of this Agreement. Prior to County imposing any requirement involving a realigned Dougherty Road, County may require, as a condition to a Subsequent Approval, that Developer improve existing Dougherty Road in a manner acceptable to County. 12 • 0 (m)a1 Mitigation Monitoring Developer shall fund development and operation of a system (the "Permit Tracking System") to monitor compliance with the requirements of the San Ramon Settlement Agreement regarding the provision of certain capital facilities, compliance with mitigation measures in the Dougherty Valley EIR, and compliance with project conditions, through the payment of a fee not to exceed $100 per residential unit developed on the Gale Ranch Site, payable at recordation of the final map encompassing such unit. Developer shall, at the time services are performed, pay the County staff costs of carrying out the County's Mitigation Monitoring Program, as adopted by the Board on December , 1992 the First Approval Date, and as it may be amended for the purposes of compliance with CEQA, which are attributable to development of the Gale Ranch Site, on a time and materials basis, and shall pay the reasonable costs of consultants as necessary to implement the Mitigation Monitoring Program. 3.2 Obligations ef-c-em; by the oevenants and obligations ef DevelepeF set fei4h herein i-,; eensider-ation for- County's film. Establishment of County Service Area. (1) County and Developer shall cooperate in (i) the formation, as soon as reasonably practicable but in any event prior to filing of the first final subdivision map in the Dougherty Valley, of a County Service Area or other financing entity to receive certain funds and provide certain services, including the operation and maintenance of facilities and infrastructure, as described in Section 3.3 of the San Ramon Settlement Agreement and (ii) the establishment, as soon as reasonably practicable but in any event prior to filing of the first final subdivision map in the Dougherty Valley, of a mechanism and adequate to fund the provision of such services as described in Section 3.3 of the San Ramon Settlement Agreement. (2) As described in Section 3.4 of the San Ramon Settlement Agreement, to ensure that the Community Center, Senior Center, Library, Corporation Yard and Police Substation described in the Specific Plan will be constructed on a timely basis and made available to Dougherty Valley residents at the appropriate time, County shall (except to the extent some other method for the financing or provision of such facilities is requested or established by Developer or Windemere, as appropriate) assess against residential units to be developed in the Dougherty Valley a fee, special tax ' or assessment in an amount sufficient to fund Developer's and Windemere's obligation to contribute to the cost of such facilities (the "Facilities Fee"). Funds so collected will be held in a separate account and made available to Developer and Windemere, as appropriate, for the construction of such facilities. The precise form, timing, and amount of such fee, tax, or assessment shall be in accordance with the terms and provisions of Exhibit D attached hereto. 13 0 0 (9) require the issuance of additional permits or approvals by the County other than those required by Applicable Law; (10) establish, enact, or increase in any manner applicable to the Gale Ranch, or impose against the Gale Ranch, any fees, taxes (including, without limitation, general, special and excise taxes), assessments, liens or other financial obligations other than (i) those specifically permitted by this Agreement (including Traffic Impact Fees, Facilities Fees, Processing Fees, fees to fund the Mitigation Monitoring Program and financial obligations associated with the financing of the operation and maintenance of the facilities and infrastructure, and provision of the services, set forth in Sectiones 3.3(m) above) and made necessary by the Gale Ranch; (ii) any County -wide taxes and assessments; (11) except as provided in Section 4.1(c)(10) of this Agreement, establish, enact, or increase in any manner applicable to the Gale Ranch, or impose against the Gale Ranch, any rules, regulations, policies or standards that, were not in effect on the Approval Date, or otherwise impose against the Gale Ranch any condition, dedication or other exaction not specifically authorized by Applicable Law and, except as authorized by the Settlement AgFeementAgreements and required by the conditions to the PDP, not made necessary by the Gale Ranch; or (12) limit the processing of applications for, or the obtaining of, Subsequent Approvals. Notwithstanding the foregoing, none of the Settlement Agreements shall be considered a "^^"file*" * enastment" conflicting enactment for the purposes of this Agreement. (d) Exceptions. Notwithstanding the foregoing, the following provisions shall apply: (1) Uniform Codes. County may apply the then -current California Building Standard Code, referred to in Health & Safety Code § 18935 and other uniform construction codes to the Gale Ranch throughout the Term of this Agreement, provided that any such uniform code shall apply to the Gale Ranch only to the extent that the code is in effect on a County -wide basis. (2) Road and storm drainage design. County may apply throughout the terms of this Agreement its then -current design standards for construction of roads and storm drainage facilities, provided that any such standard shall apply to the Gale Ranch only to the extent that such standard has been adopted by County and is in effect on a County -wide basis. (3) Processing fees. Fees charged by County which solely represent the reasonable costs to County for County staff time and resources spent reviewing and processing Subsequent Approvals are referred to in this Agreement as "Processing Fees." Processing Fees do not include the Mitigation Monitoring Program fee described in Section 34(h) %1l) of this Agreement. County may charge Developer the applicable Processing Fees that are 16 (b) Amendments of Planning Actions, Subsequent Approvals or the Affordable Housing Program. No amendment of a Planning Action (other than this Agreement) or Subsequent Approval requested by Developer shall require an amendment to this Agreement. Instead, any such amendment automatically shall be deemed to be incorporated into the Gale Ranch and made subject to this Agreement. (c) Parties Required to Amend. Where a portion of Developer's rights or obligations have been transferred and a "Transfer Agreement" (as described in Section 13 below) has been executed in connection therewith, the signature of the person to whom such rights or obligations have been transferred shall not be required to amend this Agreement unless such amendment would materially alter the rights or obligations of such transferee hereunder; provided, however, that any such transferee shall be provided with thirty (30) days' prior written notice of any amendment to this Agreement. (d) Non -Assuming Transferees. In no event shall the signature or consent of any "Non - Assuming Transferee" (described in Section 14.3 below) be required to amend this Agreement. Section 6. Cooperation -Implementation. 6.1 Processing. (a) In taking the Planning Actions, County has established basic planning principles, standards, and procedures to guide development of the Gale Ranch Site. The Subsequent Approvals shall be deemed to be tools to implement those principles, standards and procedures and must be consistent therewith. (b) Without limiting the generality of the foregoing, unless agreed to in writing by County shall not, through any Subsequent Approval or the imposition of any condition of approval thereto, either: (i) except as specifically required pursuant to Section 4.1(a) of this Agreement, reduce the number of residential units permitted to be developed on the Gale Ranch Site to fewer than 4,614 (plus any additional units transferred from the Country Club Site to central residential receiver sites as permitted under the Specific Plan) or change the distribution of those units by density as provided in the Specific Plan or reduce the square footage of commercial development permitted to be developed on the Gale Ranch Site to fewer than 450,800 square feet (exclusive of community college uses); or (ii) otherwise enact or impose any ordinance, resolution, rule, regulation, standard, directive, condition or other measure that is in conflict with Applicable Law (including this Agreement) as it exists immediately prior to the adoption of such Subsequent Approval or that reduces the rights provided by this Agreement. (c) Upon submission by Developer of all appropriate applications and processing fees for any Subsequent Approval, County shall commence and complete (and shall use its best efforts to promptly and diligently commence and complete) all steps necessary to act on the Subsequent Approval application including, without limitation, (i) the notice and holding of all required public hearings, and (ii) the decision on the Subsequent Approval application as set forth below. 20 12.3 Other Necessary Acts. Each Party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Planning Actions and Subsequent Approvals and to provide and secure to the other Party the full and complete enjoyment of its rights and privileges hereunder. 12.4 Construction. Each reference in this Agreement to any of the Planning Actions or Subsequent Approvals shall be deemed to refer to the Planning Action or Subsequent Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both County and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. 12.5 Other Miscellaneous Terms. The singular shall include the plural; the masculine gender shall include the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement, the signer obligations are joint and several. 12.6 Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Gale Ranch, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to applicable laws including, without limitation, Civil Code section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Gale Ranch, as appropriate, runs with the Gale Ranch and is binding upon the owner of all or a portion of the Gale Ranch and each successive owner during its ownership of such property. 12.7 Dougherty Valley Development Strategy. The Dougherty Valley is the subject of a comprehensive and integrated planning effort. It has been designed to allow development by phases. The timing of phase development will reflect market conditions and business decisions of the developers of the Dougherty Valley, while requiring that each phase make provision for its needs for infrastructure, services and amenities. Recognizing this development strategy, it is the intent of the Parties that while development must occur in furtherance of the valley -wide Dougherty Valley planning effort and the County's Growth Management Element, developers of the Dougherty Valley should be able to pursue development in a manner commensurate with their own goals and resources: In imposing conditions of approval, County shall, to the extent reasonably feasible, allocate to Windemere and Shapell their separate and distinct obligations. The Parties recognize that this may require that, for example, with regard to the construction of facilities involving both Shapell and Windemere, County may need to allocate the separate obligations of each Developer. Nothing in this Section 12.7 shall in any way modify the provisions of Section 4.3.3 of the SanRamon Settlement Agreement. 12.8 Mortgage Rights. Any mortgagee that wishes to receive notices of default from the County pursuant to this Section 12.8 may provide written notice to the County requesting such notice. County shall notify any such mortgagee requesting notice of any event of default by Developer under this Agreement and provide to any such mortgagee the same opportunity to cure 27 ADDENDUM TO ENVIRONMENTAL IMPACT REPORT FOR THE DOUGHERTY VALLEY GENERAL PLAN AMENDMENT, SPECIFIC PLAN AND IMPLEMENTING ENTITLEMENTS (COUNTY FILE NO. 2 -91 -SR; STATE CLEARINGHOUSE NUMBER 91053014) I. INTRODUCTION AND SUMMARY A. Background. On December 22, 1992, the Board of Supervisors ("Board") of Contra Costa County ("County") approved the Dougherty Valley General Plan Amendment ("General Plan Amendment").and the Dougherty Valley Specific Plan ("Specific Plan"). The Specific Plan and General Plan are collectively referenced as the "Dougherty Valley Plan." The subject of the Dougherty Valley Plan is 5,979 acres of unimproved land in the unincorporated area of Contra Costa County, located generally adjacent to the City of San Ramon ("Planning Area"). Shapell Industries, Inc. ("Shapell") owns approximately 2,708 acres of the Dougherty Valley Planning Area, a property formerly known as Gale Ranch ("Gale Ranch Site"). Windemere Ranch Partners ("Windemere") owns approximately 2,379 acres ("Windemere Site"). The remaining 892 acres is owned by the United States Army and is used as a reserve forces training area ("Camp Parks"). In November, 1990 the voters of Contra Costa County adopted Measure C, which established an Urban Limit Line delineating the Contra Costa County 65/35 Land Preservation Plan border. With minor exceptions the property is located inside the Urban Limit Line. Prior to the Board's approval of the Dougherty Valley Plan, the Gale Ranch Site and the Windemere Site were designated by the County's General Plan for agricultural uses and were also zoned for such uses. The General Plan Amendment redesignated the —Dougherty Valley Planning Area to plan for urban uses. The Specific Plan provides guidance regarding the development of the Dougherty Valley Planning Area consistent with the County's General Plan as amended by the General Plan Amendment. The proposal to develop the Dougherty Valley pursuant to the Dougherty Valley Plan was the subject of an environmental impact report ("EIR") prepared and certified pursuant to the California Environmental Quality Act, Public Resources Code § 21000 et seq. ("CEQA"). Certification of the EIR occurred together with the adoption of the Dougherty Valley Plan. These approvals were challenged in court by the East Bay Municipal Water District, several cities, and a number of neighborhood and environmental groups. Ultimately, however, all of the cases were resolved by settlement agreements. By their terms, the lawsuits were dismissed with the result that the 1992 approvals (Dougherty Valley Plan and EIR) remain in full force and effect. B. Scope of the 1992 EIR As noted above, the proposal to develop the Dougherty Valley was the subject of a comprehensive EIR. When that EIR was prepared, the County was considering several proposed planning actions relating to the Planning Area, i.e., the General Plan Amendment, Specific Plan, rezonings, preliminary development plans and development agreements ("Planning Actions"). Accordingly, the EIR was prepared with sufficient specificity to address the various proposed Planning Actions to the extent reasonably feasible, but stated that further environmental review, based on the EIR, may be required for the subsequent detailed land use approvals necessary for the development of the Planning Area, such as final development plans, tentative subdivision maps and other discretionary actions ("Entitlements"). Final EIR, Volume 1, page A-2. As required by CEQA, the Board adopted extensive findings in connection with the Dougherty Valley Plan regarding its potentially significant impacts, potential mitigation measures and alternatives and overriding considerations that justified approval of the Dougherty Valley Plan notwithstanding its unmitigable impacts ("Findings"). The Findings reflected the statements in the EIR regarding the need for further environmental review of the Entitlements and also suggested that further review might be required of the Planning Actions that were not adopted by the Board when the Dougherty Valley Plan was approved. This Addendum describes the further environmental review performed by the County of those remaining Planning Actions. C. Decisions Now Before the County. As discussed in Section LA and B of this memorandum, Shapell and Windemere .had applied for rezonings, preliminary development plans and development agreements for both the Gale Ranch Site and the Windemere Site prior to the approval of the Dougherty Valley Plan. These additional Planning Actions were the subject of a joint hearing by the San Ramon Valley Planning Commission and the County Planning Commission. The Commission recommended approval of the Actions. These Actions were pending before the Board when the trial court issued its decision in the legal challenges described above. As a result, the items were continued indefinitely pending resolution of the lawsuits. These Planning Actions have --now been restored to the Board's agenda. In considering the rezonings, preliminary development plans and development agreements, the County is required by CEQA and the terms of its approval of the Dougherty Valley Plan to consider whether a supplemental or subsequent EIR is required. As discussed in Section LA of this Addendum, the EIR was prepared to be sufficiently specific to serve as the environmental document_ for all of the Planning Actions. The rezonings, preliminary development plans and development agreements are within the scope of the EIR because they do not contain any provisions for new development that were not set forth in the Dougherty Valley Plan nor do they alter in any significant way the proposed land uses described in the Dougherty Valley Plan. CEQA requires the preparation of a subsequent or supplemental EIR only if one of the following criteria has been met: 1. Substantial changes are proposed in the project which will require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; 0 2. Substantial changes have occurred with respect to the circumstances under which the project will be undertaken, which will require major revisions in the EIR due to the involvement of new significant effects or a substantial increase in the severity of previously identified significant effects; or 3. New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete, shows any of the following: (1) The project will have one or more significant effects not discussed in the. previous EIR; (2) Significant effects previously examined will be substantially more severe than shown in the previous EIR; (3) Mitigation. measures. or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more of the significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or (4) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one - - or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. The County has considered whether any of the foregoing criteria have been met since the Dougherty Valley Plan was approved on December 22, 1992 and has concluded that -under-those criteria, a supplemental or subsequent EIR is not required. Pursuant to CEQA Guidelines Section 15164, this Addendum is adopted to provide an explanation for the decision not to prepare a subsequent EIR pursuant to Section 15162, and also to clarify and update the information in the original approval and EIR. II. IMPACTS OF THE PLANNING ACTIONS The first criterion for preparation of a subsequent or supplemental EIR has not been met because the rezonings, preliminary development plans and development agreements are based upon and consistent with the Dougherty Valley Plan. The primary change to the proposed Planning Actions is the incorporation of provisions from the settlement agreements into the development agreements, thus reflecting various commitments made by the developers. The only physical changes to the project are (a) minor adjustments in location and .use of the property, all within the parameters of and consistent with the Dougherty Valley Plan, and (b) deletion of the property comprising Country Club at Gale Ranch, which has already 4 received its Planning Action approvals and Entitlements, in conformance with the Dougherty Valley Plan (and which were essentially identical to the Planning Actions originally proposed for that area). The County's review therefore focused on whether either of the two remaining criteria are present, i.e:. whether there has been a substantial change in circumstances or whether there is previously unavailable new information of substantial importance within the 'meaning of CEQA. This section sets forth the County's conclusions with respect to each type of impact previously identified by the EIR. In order to provide some context for these conclusions, Exhibit A to this Addendum briefly summarizes the EIR's conclusions and recommendations regarding these impacts, and the Board's actions relating thereto. A. Land Use. There have been no changes in circumstances or new information since December 22, 1992, indicating that significant new or substantially more severe. land use impacts will occur than predicted in the EIR or that other mitigation measures or alternatives would substantially reduce the impacts. Physical conditions surrounding the development of the Planning Area were found by the County to be the same as when the Dougherty Valley Plan was approved. Various other development proposals in the region are in process; however, these proposals are within the scope of the cumulative build -out analysis of the EIR and no new significant cumulative impacts associated with the Dougherty Valley Plan are predicted because of any new proposals. B. Public Services and Utilities. 1. Wastewater Services. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to wastewater services than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 2. Potable Water. Since December 22, 1992, there has been no change in circumstances or new information to indicate that there will be significant new impacts or substantially more severe impacts relating to potable water than those predicted in the EIR, or that there are further mitigation measures or alternatives that should be considered to mitigate the impacts. The Planning Actions include a requirement to designate the Dublin San Ramon Services District rather than the East Bay Municipal Utility District as the preferred water provider outside of Country Club at Gale Ranch and the adjacent school sites. However, this is not a substantial change in the project and would not result in any significant new impacts ' or more severe impacts than those previously identified in the EIR. The EIR did find that the impacts relating to off-site water facilities were too speculative to be assessed because of inadequate information regarding such facilities. This information is still unavailable. Further environmental review would be required before the off- site facilities could be approved. 3. Recycled Water. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to recycled water than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 4. Drainage. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to drainage than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 5. Solid Waste. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to solid waste disposal than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 6. Law Enforcement Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially 'more severe impacts relating to law enforcement services than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 7. Fire Protection Services. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to. fire protection services than those predicted in the previous EIR, nor are there new - --mitigation measures or alternatives which would substantially reduce the impacts. 8. Educational Facilities. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to educational facilities than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 9. Child Care Facilities. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to child care facilities than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts, 10. Parks and Recreational Facilities. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to parks and recreational facilities than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. . 11. Library Facilities. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to library facilities than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. C. Circulation. There have. been no changes in circumstances or new information since December 22, 1992 indicating that significant new impacts or substantially more severe impacts relating to traffic and circulation will occur than predicted in the EIR or that other mitigation measures or alternatives would substantially reduce the impact. None of the factual data upon which the EIR's traffic study was based has changed. The cumulative impacts identified in the EIR presume full buildout of all city and county general plans and full realization of all general plan amendments in the Tri -Valley subregion that were pending at the time that the Dougherty Valley Plan was approved. As discussed in Section ILMA of this Addendum, the potential for cumulative development in the subregion has changed somewhat since the certification of the EIR, but these changes do not substantially affect the EIR's analysis, or require major revisions to the EIR. D. Air Quality. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts —relating relating to air quality than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. E. Noise. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to noise than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. F. Soils and Geology. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to soils and geology than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 7 G. Hydrology and Water Quality. Since December 22, 1992; there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to hydrology and water quality than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. H. Biological Resources. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to biological resources than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. I. Cultural Resources. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to cultural resources than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. J. Electromagnetic Fields. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to electromaagnetic fields than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. K. Visual Quality. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to visual quality than those predicted in the previous EIR, nor are there new mitigation _.measures or alternatives which would substantially reduce the impacts. L. Energy Conservation. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to energy conservation than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. M. Miscellaneous Impacts. 1. Short -Term Uses Versus Long -Term Productivity. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to short-term uses versus long term productivity than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 2. Significant Irreversible Environmental Changes. There have been no changes in circumstances or new information since December 22, 1992, indicating that new significant irreversible environmental changes will occur than predicted in the EIR. 3. Growth -Inducing Impacts of the Dougherty Valley Project Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new growth -inducing impacts or substantially more severe growth -inducing impacts than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 4. Significant Cumulative Impacts. Since December 22, 1992, there have been no changes in circumstances or new information which would . result in. significant new cumulative impacts or substantially more severe cumulative impacts than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. The cumulative impact analysis of the EIR assumed a level of development based on projected growth in the subregion. Since certification of the EIR, there have been some changes to these projections, based on revisions to general plan amendment applications, denials of proposed projects and revised forecasts of expected growth. These changes do not require revisions to the EIR because the amount and general distribution of growth and resulting impacts are expected to be substantially the same or less than that predicted in the EIR. Ill. CONCLUSION The circumstances that would require the preparation of a subsequent or supplemental EIR are not present because since December 22, 1992, there have been no changes inthe the project, changes in circumstances or previously unavailable new information indicating that the Planning Actions will have significant new impacts or substantially more severe significant impacts than predicted in the EIR, or that new mitigation measures or alternatives would substantially lessen the significant impacts of the Planning Actions. 9 EXHIBIT A IMPACTS, MITIGATION MEASURES AND ALTERNATIVES ANALYZED IN THE EIR This exhibit is provided for the purpose of summarizing the findings made by the County with respect to the previous EIR, and is included for background purposes only. It is intended to provide a context within which to review the Addendum and its conclusions that there are no significant, new or more severe impacts relating to the Planning Approvals. This exhibit does not readopt, supersede or in any fashion replace the Findings and Statement of Overriding Considerations approved by the County in December 1992. A. Land Use. The EIR identified five project -specific potentially significant impacts relating to land use and one potentially significant cumulative impact. These impacts are listed below: 1.' Conversion of substantial portions of the County's stock of convertible land to urban use; - - 2. Conversion of approximately 6,000 acres of non -prime but important agricultural land to urban and open space uses (project specific and cumulative); Camp Parks; 3. Potential internal land use incompatibility of residential land uses with 4: Potential incompatibility with adjacent land uses; and 5. Potential internal incompatibility of residential land uses with existing electric transmission lines. 6. Cumulative loss of open space. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to address these impacts. Impact Nos. 1, 2, 4 and 6 were found to be significant and unavoidable, for which overriding considerations were adopted. The remaining impacts were found to be mitigated to a less than significant level by the mitigation measures adopted by the County. B. Public Services and Utilities. 1. Wastewater Services. The EIR identified a potentially significant impact relating to the Dougherty Valley Plan's need for collection and treatment of 2.5 to 3.1 million gallons per day of wastewater. As recommended by the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce this impact to a less than significant level, including annexation to the Central Contra Costa Sanitary District or another service provider. The EIR indicated that the impacts of off-site wastewater facilities for the Dougherty Valley Plan were too speculative to be assessed because of insufficient information regarding their design. 2. Potable Water. The EIR. identified significant impacts relating to the need for distribution and treatment of approximately 4.7 to 5.4 million gallons per day of potable water. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce the impacts. However, these impacts were found to be significant and unavoidable, for which overriding considerations were adopted. The EIR indicated that the impacts of off-site water facilities for the Dougherty Valley Plan were too speculative to be assessed because of insufficient information regarding. their. design. 3. Recycled Water. The mitigation measures adopted for the Dougherty Valley potable water service impacts include the use of recycled water where feasible. Implementation of this mitigation .measure would require approximately 1,100 gallons per minute of recycled water and a recycled water distribution system. The EIR identified a significant impact relating to the need for --recycled water facilities. As recommended in the EIR, the County adopted mitigation measures for impacts relating to recycled water to reduce those impacts to a less than significant level. 4. Drainage. The EIR identified as potentially significant impacts the need for drainage infrastructure to serve the Planning Area. As recommended in the EIR, the County adopted mitigation measures to reduce this impact to a less than significant level. 5. Solid Waste. The EIR identified potentially significant impacts relating to the generation of approximately 25,000 tons of solid waste per year by the development of the Planning Area. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce the Plan's solid waste impacts to a less than significant level. 11 6. Law Enforcement. The EIR identified potentially significant impacts relating to the need for approximately two California Highway Patrol positions and approximately five sheriffs deputies with necessary equipment. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to mitigate these impacts to a less than significant level. 7. Fire Protection Services. The EIR identified potentially significant impacts relating to the need for additional fire stations and equipment and increased fire hazards. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce these impacts to a less than significant level. 8. Educational Facilities. The EIR identified potentially significant impacts relating to the need for additional elementary school, middle school, high school and community college capacity. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce the impact on elementary, middle and high schools to a less than significant level. Mitigation of the need for community college facilities as a part of this project was found to be infeasible, requiring future efforts of the Contra Costa Community College District in conjunction with the County and the Cities of San Ramon and Danville. 9. Childcare Facilities. The EIR identified potentially significant impacts relating to the need for childcare facilities. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty. Valley Plan to reduce the impacts to a less- than significant level. 10. Parks and Recreational Impacts. The EIR identified potentially significant impacts relating to the need for managed open space, regional trail easements and neighborhood and community parks. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to mitigate these impacts to a less than significant level. 11. Library Facilities. The EIR identified a substantially significant impact relating to the need for 11,600 square feet of library facilities. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce this impact to a less than significant level. 12 C. Circulation. The EIR identified the following potentially significant impacts relating to traffic and circulation: 1. Exceedence; of the planned capacity of several roadway segments and unacceptable levels of service on several interstate segments (project specific and cumulative impact). 2. Change in vehicle to capacity ratio from acceptable to unacceptable conditions at several intersections and further degradation of already unacceptable levels of services at several other intersections (project specific and cumulative impact). As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to address the potentially significant project and cumulative impacts listed above. These mitigation measures were predicted to improve traffic conditions - to an acceptable level, at many - of- the roadway - segments and intersections. However, the conditions at other intersections and interstate segments were determined to be significant and unavoidable, for which overriding considerations were adopted. D. Air Quality. The EIR identified potentially significant air quality impacts relating to violations of standards for particulate matter, carbon monoxide and ozone precursors. These impacts are both project specific and cumulative. As recommended by the EIR, the County adopted mitigation measures for the above impacts in connection with the approval of the Dougherty Valley Plan. However, the impacts were identified as significant and unavoidable, for which overriding considerations were adopted. E. Noise. The EIR identified the following potentially significant impacts relating to noise: 1. Exposure of on-site and off-site land uses to construction noise; 2. Exposure of residents and other noise sensitive.land uses on site to noise from traffic and Camp Parks training activities at levels in excess of County standards; 3. Exposure of residents along Old Ranch Road and Dougherty Road near Old Ranch Road to increased and excessive noise levels; 4. Exposure of new residents to noise from recreational and cultural facilities; and 5. Exposure of existing and planned noise sensitive locations to noise levels in excess of County noise standards. 13 As recommended by the EIR, the County imposed mitigation measures in connection with the approval of the Dougherty Valley Plan to address the noise impacts. These mitigation measures are expected to reduce to a less than significant level all of the Dougherty Valley Plans direct noise impacts except No. 5. Impact No. 5 was expected to remain significant and unavoidable, for which overriding considerations were adopted. F. Soils. and Geology. geology: The EIR identified the following potentially significant impacts relating to soils and 1.' Substantial change in topography from grading operations; 2. Potential for structural damage and injury to people from development and in open space and park areas in locations susceptible to landsliding, slope failure and slope instability and development on materials susceptible to liquefaction; 3. Potential for increased. short-term and long-term soil erosion rates from development on soils with moderate to high erosion hazards; 4. Potential for structural damage from development on soils with high shrink -swell potentials; 5. Grading on hillsides with slopes of 26 percent and greater; 6. Development of Windemere Parkway extension on potentially unstable land east of the planning area; 7. Development of water, waste water and recycled water infrastructure on potentially geologically unstable land within and adjacent to the Planning Area. As recommended in -the the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce the soils and geology impacts to a less than significant level. G. Hydrology and Water Quality. The EIR identified the following potentially significant impacts relating to hydrology and water quality: 1. Increased runoff from the Planning Area; 2. Risk of flood damage from development in the 100 -year flood plain; 3. Increased erosion during construction; 4. Increased water quality degradation because of urban runoff (project specific and cumulative impact); 5. Hazardous material spills during construction; 14 • 6. Increased runoff and flooding downstream of the Planning Area (cumulative impact); and 7. Increased channel erosion due to construction of bridge crossings (cumulative impact). As recommended in the EIR, the County adopted mitigation measures in -connection with the approval of the Dougherty Valley Plan to reduce the hydrology and water quality impacts to a less than significant level. H. Biological Resources. The EIR identified; the following potentially significant impacts on biological resources: 1. Loss, degradation or fragmentation of 3,911 -acres of annual grasslands (project specific and cumulative impact); 2. Elimination or degradation of Valley Oak woodland, Valley Oak riparian woodland and individual Oak trees; 3. Elimination or degradation of 2.6 acres of willow riparian forest, .4 acres of fresh water marsh, approximately 2 acres of alkali meadows, 2.1 acres of seeps, stock ponds and perennial and seasonal creeks; 4. Potential loss of San Joaquin spearscale and brittlescale habitat; 5. Pollution of Coyote Creek by fertilizers and chemicals from the golf course; 6. Loss of special -status aquatic species and special -status raptors (burrowing owl) and their habitats; 7. Potential direct and indirect adverse effects on nesting raptors; 8. Loss of tri -color blackbird nesting and foraging habitat and long term disturbance to tri -colored blackbird nesting habitat; 9. Loss of 3,911 acres of American badger breeding and foraging habitat; 10. Adverse effects to seeps, riparian habitat, annual grass lands, western pond turtle and California red legged frog from construction of Windemere Parkway extension to Camino Tassajara Road; and As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan for the above listed impacts. These mitigation measures are expected to reduce most of the above listed impacts to a less than significant level. However, the EIR predicted that Impact No. 1 (cumulative) and No. 6 would remain significant and unavoidable, for which overriding considerations were adopted. 15 • • 1. Cultural Resources. The EIR identified the following potentially significant impacts relating to cultural resources. 1. Damage to or destruction of the historic Lewis-Banke house (CA-Cco- 440H); 2. Damage to or destruction of a historic - archeological site (CA -723); 3. Damage to or destruction of several important prehistoric and historic archeological sites located on Camp Parks; and 4. Damage to or destruction of potential buried archeological resources. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to mitigate the above listed impacts to a less than significant level. J. Electromagnetic Fields. The EIR identified a potentially significant impact relating to the exposure of new residents to electromagnetic fields. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce the impacts to a less than significant level. K. Visual Quality. The EIR predicted the following ' potentially significant impacts from the Dougherty Valley Plan: 1. Change in visual character from rural/pastoral to residential/commercial; 2. Modification of a County -designated scenic route; 3. Substantial alteration of natural land forms; 4. Forty-five percent reduction in visually prominent open space; 5. Introduction of structures and other build features that may reduce visual quality; 6. Siting of infrastructure elements and other vertical elements that reduce visual quality; quality; 7. Visual impacts of roads and road improvements in creek corridors; 8. Introduction of recreational features and elements that reduce visual �1 9. Visual impacts of removal of visually important vegetation; 10. Visual impacts of fencing, fire breaks and fire roads; 11. Visual impacts of introduction of stormwater detention facilities; 12. Light and glare impacts on residents both on site and off site; and 13. Cumulative;,regional loss of rural/pastoral visual character, reduced views of open space and loss of scenic views. in the region. 14. Visual impacts of construction of Windemere Parkway extension from Dougherty Valley east to Camino Tassajara Road. 15. Views from adjacent existing and approved residential areas. As recommended in the EIR, the County adopted mitigation -measures in connection with the approval of the Dougherty Valley Plan for the above listed impacts. Most of those impacts were predicted to be mitigated to a less than significant level by the mitigation measures adopted. However, impact Nos. 1, 2, 3, 4, 13, 14 and 15 were predicted to be significant and unavoidable, for which overriding considerations were adopted. L. Energy Conservation. The EIR identified a potentially significant impact on energy demands relating to the operation of the planned development in the Dougherty Valley. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the planned the Dougherty Valley Plan to mitigate this impact to a less than significant level. - M. Miscellaneous Impacts. 1. Short -Term Uses Versus Long -Term Productivity. The EIR identified the following potentially significant impacts: 1. Conversion of approximately 6,000 acres of undeveloped open space and seasonal grazing/dry farming land to urban uses; 2. Loss, degradation or fragmentation of 3,911 acres of annual grass lands; 3. Elimination or degradation of Valley Oak Savannah, Valley Oak riparian woodland and individual Oak trees; 4. Elimination or degradation of 2.6 acres of willow riparian forest, .4 acres of fresh water marsh, 2.0 acres of alkali meadow, 2.1 acres of seeps, stock ponds and perennial and seasonal creeks; 5. Possible long term health risks associated with developing residences within an electromagnetic fields associated with existing high voltage electric transmission lines. 17 As recommended in the EIR, the County adopted mitigation measures to address the above listed impacts. Impact Nos. 2, 3, 4 and 5 were predicted to be reduced to a less than significant level; Impact No. 1 was found to be significant and unavoidable. 2. Significant Irreversible Environmental Changes. The EIR did not identify any potentially significant adverse impacts relating to 'significant irreversible environmental changes. 3. Growth -Inducing Impacts of the planned the Dougherty Valley Plan. The EIR identified the following potentially significant growth inducing impacts of the planned the Dougherty Valley Plan: 1. Impacts of increasing housing and residents in the region. 2. Impacts of extending public services and infrastructure closer to the Tassajara Valley; 3. Impacts of converting open space and agricultural lands to urban uses; 4. Impacts of increasing growth intensity in the planning areas; 5. Impacts of converting land from agricultural uses to residential, commercial and open space uses; and 6. Impacts of extending service areas boundaries. - Impact No. 1 was found to involve beneficial effects rather than significant adverse impacts. As recommended by the EIR, the County adopted mitigation measures in connection with the approval of the planned the Dougherty Valley Plan to reduce the impacts Nos. 2 6. However, the EIR predicted that these impacts would remain significant and unavoidable, for which overriding considerations were adopted. 4. Significant Cumulative Impacts. The significant cumulative impacts of the planned the Dougherty Valley Plan are discussed impact -by -impact under each of the categories listed in Section ILA - Il. L of this Addendum. 18 CONDITIONS OF APPROVAL FOR RZ922992 (Windemere) Rezoning 922992 as authorized under the following Conditions of Approval, is subject to provisions contained within the Agreement to Settle Litigation Relating to the Dougherty Valley General Plan Amendment, Specific Plan and Environmental Impact Report ("Settlement Agreement'), executed among Contra Costa County, the City of San Ramon, the Town of Danville and landowners on May 11,1994. Exhibits B and G of the Settlement Agreement summarize the performance standards that the project is required to meet. The Conditions of Approval are not intended to interpret or be a complete recital of all obligations of the partiesi under the Settlement Agreement nor do they constitute any modification of that Agreement. The project as proposed, is consistent with the Settlement Agreement. 2. The Preliminary Development Plan (PDP) application is approved for construction of up to 5,170 residential units and related facilities as detailed in the Dougherty Valley Specific Plan. Except as otherwise indicated below, no further discretionary development entitlements shall be accepted as complete until the conditions of approval for the PDP are satisfied. A. For each Final Development Plan, submit an economic feasibility report and analysis of all commercial and industrial uses, if any proposed to be located within the Final Development Plan area under review B. For each Final Development Plan, a feasibility analysis of all public and semi-public recreational and educational areas and facilities proposed to be located within the Final Development Plan area under review, stating anticipated financing, develop- - - ment and maintenance. C. A statement of the stages of development proposed for the entire development, which indicates the sequence of units and explaining why each unit standing by itself would constitute reasonable and orderly development in relation to the entire contemplated development. Where it is proposed to file final development plans by units for portions of the area to be covered by the preliminary development plan. This statement should address the phasing for the 25% affordable housing units, the roadway and drainage systems, the trail and park facilities, the commercial uses and the public services uses (fire, police, schools, library, etc.) D. Grading plan for the entire Windemere site. E. Grading plans for the area to be developed, along with such supplemental informa- tion as County may require in order to ensure a comprehensive and coordinated approach to grading and other infrastructure improvements for the Dougherty Valley. F. A colored cut and fill map, along with such supplemental information as County may require in order to ensure a comprehensive and coordinated approach to grading and other infrastructure improvements for the Dougherty Valley. 2 G. A creek alteration or restoration plan. H. A report on the interim and ultimate service standards for fire, sheriff and emergency services applicable to the entire Dougherty Valley as required by the Specific Plan. I. Phasing plan of public improvements as required by the Specific Plan. J. Circulation plan for all vehicular and pedestrian access. K. A land use density calculation map which superimposes the Preliminary Develop- ment Plan on a land use map, which separates land uses according to Figure 5 in the Specific Plan. Density calculation tables shall be provided for each land use district found in the Specific Plan. This map will be used to determine whether or not the density for each land use category found in Figure 5 of the Specific Plan has been met. L. Within the Final Development Plan area under review, submit schematic drawings indicating the architectural design of non-residential buildings and structures and all residential buildings having attached units, utilizing zero lot line, cluster or patio techniques of typical designs. 3. Prior to deeming any further discretionary development entitlement complete for processing within the mixed use/commercial area, the following items shall be provided: A. Elevations of proposed structures for commercial and mixed use areas within the Final Development Plan area under review. B. Elevations of typical proposed structures for commercial and mixed use areas within the Final Development area under review. 4. Comply with the design guidelines as detailed in the 'Dougherty Valley Community Design Handbook". 5. Developer shall make an offer of dedication to the County of any lands, under their control, necessary or appropriate for installation of a certain Master Improvements, at the time such improvement is deemed necessary by the County for implementation and pursuant to the standards of the Dougherty Valley Specific Plan. The Master Improvements are defined as follows: (1) All rights-of-way for all major arterial and arterial as indicated on Figure 8 of the Dougherty Valley Specific Plan. (2) Systems for sewer, potable water, and reclaimed water. 3 (3) Stormwater related hydrologic infrastructure (e.g. storm drain retention and detention basins). (4) Creek Improvements. (5) Community Park. (6) Trails/Open Space 6. Submit for review and approval of the County Planning Commission an infrastructure and services financing plan prior to or concurrently with the approval of each final development plan or tentative subdivision map for the area covered by the PDP. This plan shall be made up of. 1) a detailed plan for the area covered by the final development plan or tentative map; and 2) a conceptual plan for the entire Dougherty Valley. The conceptual plan must address the provision of infrastructure and services to the area covered by the final development plan or tentative map in a manner that will ensure: 1) consistency with the Dougherty Valley Specific Plan; 2) coordination of infrastructure for the tentative map/final development plan area with infrastructure for the remainder of the Dougherty Valley; and 3) preservation of reasonable options for providing infrastructure construction and operation and maintenance for the remainder of the Dougherty Valley. The County Planning Commission's decisions regarding infrastructure and services financing plans and may be appealed to the Board of Supervisors. 7. No final subdivision map shall be approved for any portion of the area covered by the PDP without verification of adequate water supply for the area covered by such final subdivision map. 8. No final subdivision map shall be approved for any portion of the area covered by the PDP without verification of adequate wastewater treatment capacity for the area covered by such final subdivision map. DC/aa RZXIX/2992C.DC 10/26/92 11/4/92-CPC/SR (a) 11/16/92-CPC/SR(d) 11/18/92 3/9/94 5/19/94 11/13/95 11/21/95 • 0 CONDITIONS OF APPROVAL FOR RZ9229931SHAPELL) Rezoning 922993 as authorized under the following Conditions of Approval, is subject to provisions contained within the Agreement to Settle Litigation Relating to the Dougherty Valley General Plan Amendment, Specific Plan and Environmental Impact Report ("Settlement Agreement") executed among Contra Costa County, the City of San Ramon, the Town of Danville and landowners on May 11,1994. Exhibits B and G of the Settlement Agreement summarize the performance standards that the project is required to meet. The Conditions of Approval are not intended to interpret or be a complete recital of all obligations of the parties under the Settlement Agreement nor do they constitute any modification of that Agreement. The project as proposed, is consistent with the Settlement Agreement. 2. The Preliminary Development Plan (PDP) application is approved for construction of up to 4,614 residential units and any additonal units that may be transfered from Country Club site to central residential receiver site as permitted under the Dougherty Valley Specific Plan. No further discretionary development entitlement shall be accepted as complete until the conditions of approval for the PDP are satisfied. A. For each Final Development Plan, submit an economic feasibility report and analysis of all commercial and industrial uses, if any proposed to be located within the final development plan area under review. B. For each Final Development Plan, a feasibility analysis of all public and semi-public recreational and educational areas and facilities proposed to be located within the Final Development Plan area under review, stating anticipated financing, - - development and maintenance. C. A statement of the stages of development proposed for the entire development. which indicates the sequence of units and explaining why each unit standing by itself would constitute reasonable and orderly development in relation to the entire contemplated - development. Where it is proposed to file final development plans by units for portions of the area to be covered by the preliminary development plan. This statement should address the phasing for the 25% affordable housing units, the roadway and drainage systems, the trail and park facilities, the commercial uses and the public services uses (fire, police, schools, library, etc.) D. Grading plan for the entire Shapell site. E. Grading plans for the area to be developed, along with such supplemental information as County may require in order to ensure a comprehensive and coordinated approach to grading and other infrastructure improvements for the Dougherty Valley. F. A colored cut and fill map, along with such supplemental information as County may require in order to ensure a comprehensive and coordinated approach to grading and other infrastructure improvements for the Dougherty Valley. 0 2 G. A creek alteration or restoration plan. • H. A report on the interim and ultimate service standards for fire, sheriff and emergency services applicable to the entire Dougherty Valley as required by the Specific Plan. I. Phasing plan of public improvements as required by the Specific Plan. J. Circulation plan for all vehicular and pedestrian access. K. A land use density calculation map which superimposes the Preliminary Development Plan on a land use map, which separates land uses according to Figure 5 in the Specific Plan. Density calculation tables shall be provided for each land use district found in the Specific Plan. This map will be used to determine whether or not the density for each land use category found in Figure 5 of the Specific Plan has been met. L. Within the Final Development Plan area under review, submit schematic drawings indicating the architectural design of non-residential buildings and structures and all residential buildings having attached units, utilizing zero lot line, cluster or patio techniques of typical designs. 3. Prior to deeming any further discretionary development entitlement complete for processing within the mixed use/commercial area, the following items shall be provided: A. Elevations of proposed structures for commercial and mixed use areas within the Final Development Plan area under review. B. Elevations of typical proposed structures for commercial and mixed use areas within the Final Development area under review. 4. Comply with the design guidelines as detailed in the "Dougherty Valley Community Design Handbook". Developer shall make an offer of dedication. to the County of any lands, under their control, necessary or appropriate for installation of a certain Master Improvements, at the time such improvement is deemed necessary by the County for implementation and pursuant to the standards of the Dougherty Valley Specific Plan. The Master Improvements are defined as follows: (1) All rights-of-way for all major arterial and arterial as indicated on Figure 8 of the Dougherty Valley Specific Plan. (2) Systems for sewer, potable water, and reclaimed water. s • (3) Stormwater related hydrologic infrastructure (e.g. storm drain retention and detention basins). (4) Creek Improvements. (5) Community Park. (6) Trails/Open Space 6. Submit for review and approval of the County Planning Commission an infrastructure and services financing plan prior to or concurrently with the approval of each final development plan or tentative subdivision map for the area covered by the PDP. This plan shall be made up of. 1) a detailed plan for the area covered by the final development plan or tentative map; and 2) a conceptual plan for the entire Dougherty Valley. The conceptual plan must address the provision of infrastructure and services to the area covered by the final development plan or tentative map in a manner that will ensure: 1) consistency with the Dougherty Valley Specific Plan; 2) coordination of infrastructure for the tentative map/final development plan area with infrastructure for the remainder of the Dougherty Valley; and 3) preservation of reasonable options for providing infrastructure construction and operation and maintenance for the remainder of the Dougherty Valley. The County Planning Commission's decisions regarding infrastructure and services financing plans may be appealed to the Board of Supervisors. 7. No final subdivision map shall be approved for any portion of the area covered by the PDP without verification of adequate water supply for the area covered by such final subdivision map. 8. No final subdivision map shall be approved for any portion of the area covered by the PDP without verification of adequate wastewater treatment capacity for the area covered by such final subdivision map. DC/aa RZIX//2993.dc 10/26/92 11/16/92 -CPC/SR(d) 12/18/92 3/9/94 5/19/94 11/13/95 11/21/95 RESOLUTION 70-1992 RESOLUTION OF THE COUNTY PLANNING COMMISSION OF THE COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, REGARDING PROCESSING OF PRELIMINARY DEVELOP- MENT PLAN AND REZONING APPLICATION 2993-RZ (SHAPELL INDUSTRIES - APPLICANT AND OWNER) FOR A 5,830 UNIT RESIDENTIAL DEVELOPMENT PROPOSAL, INCLUDING RETAIL, OFFICE AND COMMUNITY SERVICE USES IN THE SAN RAMON AREA. WHEREAS, on July 24, 1992 an application was filed with the Community Development Department pertaining to approximately 2,700 acres within the Draft Dougherty Valley Specific Plan Area seeking to rezone the site from Agricultural District (A-80) to Planned Unit District (P-1) and Preliminary Development Plan; and WHEREAS, pursuant to County Ordinance Code Section 84-66.1006 the Director of Community Development, in a letter dated October 21, 1992 to the applicant, waived certain requirements of County Ordinance Code Section 84-66.1006(4) and accepted the application as complete for processing; and WHEREAS, staff determined that the proposed rezoning and Preliminary Development Plan is consistent with the project description in the Dougherty Valley Specific Plan Final Environ- mental Impact Report, and adequately addressed impacts of the proposed rezoning and preliminary development plan; and WHEREAS, on November 6, 1992the County Zoning Administrator recommended certification of the Final Environmental Impact Report, and the County Planning Commission reviewed and considered the Final Environmental Impact Report prior to their recommendation; and WHEREAS, after notice was lawfully given, on November 4, 1992 the County Planning Commission and the San Ramon Valley Regional Planning Commission, in a joint hearing, conducted a public hearing of County File 2993-RZ, whereat all persons interested might appear and be heard; and WHEREAS, the County Planning 'Commission and the San Ramon Valley Regional Planning Commission continued the matter to November 12, 1992 for a study session to consider traffic issues related to the rezoning and preliminary development plan, and subsequently continued the public hearing to November 17, 1992; and WHEREAS, the County Planning Commission on November 17, 1992 closed the public hearing and continued the matter to November 24, 1992 and subsequently to December 1, 1992; and WHEREAS, the County Planing Commission having fully reviewed, considered and evaluated. all the testimony and evidence submitted in this matter; and 2. NOW, THEREFORE, BE IT RESOLVED that the County Planning Commission recommends to the Board of Supervisors: ADOPT the requested rezoning of the site from A-80 to P-1 and preliminary development plan approval with modifications and additions from the recommended Conditions of Approval from the December 1, 1992 staff report: 1 a. Submit for review and approval of County Planning Commission a Capital Improvement Program detailing the phasing and financing of the infrastructure improvements for Dougherty Valley. This CIP shall be done jointly with 2992- RZ 1 n. Within the Final Development Plan area under review, submit written demons- tration of the project's consistency with the County Growth Management Element of the General Plan. 10. Within the Final Development Plan area under review, submit written demon- stration of compliance with General Plan Policies 7-12 and 7-13. BE IT FURTHER RESOLVED that the County Planing Commission's reasons are as follows: The development is a large-scale integrated development which provides a cohesive design in harmony with the surrounding area and demonstrates compliance with the Growth Management Element of the General Plan. The applicant has indicated that it intends to commence construction within two and one-half years of the effective date of the rezoning and preliminary development plan approval. The project is consistent with the County General Plan as would be amended by the 1992 Draft Dougherty Valley General Plan Amendment and the Dougherty Valley Specific Plan which plan designate this site for residential and commercial uses, substantial open space, retail, offices and community service uses. The project will constitute a residential environment of sustained desirability, and will be in harmony with the character of the nearby community. The project density is in accord with the 1992 Draft Dougherty Valley General Plan Amendment for this area. The project will provide approximately 1,300 acres of open space and parks, approximately 26 acres of non-residential uses, and approximately 40 acres of public/semi-public uses. The project provides adequate commercial facilities to support the residential development. Such facilities will not create an impact on roadway systems because of the implementation of mitigation measures as detailed in the FinalEnvironmental Impact Report. The design of commercial facilities will be reviewed under Final 3. Development Plan applications for said areas to ensure that traffic congestion will be obviated by the proposed facilities and that proposed facilities fit harmoniously into and will have no adverse effects upon the adjacent or surrounding developments. The long-term buildout of the project justifies exceptions from the normal applications of this code to allow for flexibility and the ability to respond to changing planning needs over time. The instruction by the County Planning Commission to prepare this resolution was given by motion of the Commission on Tuesday, December 1, 1992, by the following vote.- AYES: ote; AYES: Commissioners - Clark, Accornero, Gaddis, Terrell. NOES: Commissioners - Frakes, Sakai. ABSENT: Commissioners - None. ABSTAIN: Commissioners - Wallace D. Woo. _ ATTEST: Harvey E. Bragdon, Secretary to the Planning Commission, Contra Costa County, State of California LTRI/2993-RZ.Res 16 Resolution No. 71-1992 RESOLUTION OF THE PLANNING COMMISSION OF THE COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, REGARDING PROCESSING OF PRELIMINARY DEVELOPMENT PLAN AND REZONING APPLICATION 2992-RZ (WINDEMERE RANCH PARTNERS (APPLICANT & OWNER), FOR A 5,170 RESIDENTIAL UNIT DEVELOP- MENT, INCLUDING RETAIL, OFFICE AND COMMUNITY SERVICE USES PROPOSAL IN THE SAN RAMON AREA OF SAID COUNTY. WHEREAS, on July 29,1992, an application was filed with the Community Development Department pertaining to approximately 2,400 acres within the Draft Dougherty Valley Specific Plan Area seeking to rezone the site from Agricultural District (A-80) to Planned Unit District (P-1) and Preliminary Development Plan; and WHEREAS, pursuant to County Ordinance Code Section 84-66.1006, the.Director of Planning., in a letter dated October 24, 1992 to the applicant, waived certain requirements of County Ordinance Code Section 84-66.1006(4) and accepted the application as complete for processing; and WHEREAS, staff determined that the proposed rezoning and Preliminary Development Plan is consistent with the project description in the Dougherty Valley Specific Plan Final Environmental Impact Report, and adequately addressed impacts of the proposed rezoning and preliminary development plan; and WHEREAS, on November 6, 1992, the County Zoning Administrator recommended certification of the Final Environmental Impact Report, and the County Planning Commission reviewed and considered the Final Environmental Impact Report prior to their recommendation; and WHEREAS, after notice was lawfully given, on November 4, 1992, the -County Planning Commission and the San Ramon Valley Regional Planning Commission, in a joint hearing, conducted a public hearing --- of County File #2992-RZ, whereat all persons interested might appear and be heard; and WHEREAS, the County Planning Commission and the San Ramon Valley Regional Planning Commission CONTINUED the matter to November 12, 1992, for a Study Session to consider traffic issues related to the rezoning and preliminary development plan and sub- sequently CONTINUED the public hearing to November 17, 1992; and WHEREAS, the County Planning Commission on November 17, 1992 CLOSED the public hearing and CONTINUED the matter to November 24, 1992 and subsequently to December 1, 1992; and WHEREAS, the County Planning Commission having fully reviewed, considered and evaluated all the testimony and evidence submitted in this matter; and NOW, THEREFORE, BE IT RESOLVED that the County Planning Commission -2 - recommends to the Board of Supervisors: ADOPT the requested rezoning of the site from A-80 to P-1 and preliminary development plan approval with modifications and additions from the recommended Conditions of Approval from the December 1, 1992 Staff Report. la. Submit for review and approval to the County Planning Commission a Capital Improvement Program detailing the phasing and financing of the infrastructure improvements for Dougherty Valley. This CIP shall be done jointly with 2993-RZ. ln. Within the Final Development Plan area under review, sub- mit written demonstration. of the project's consistency with the County Growth Management Element of the General. Plan. lo. Within the Final Development Plan area under review, submit written demonstration of compliance with General Plan Policies 7-12 and 7-13. BE IT FURTHER RESOLVED that the County Planning Commission's reasons are as follows: The development is a large-scale integrated development which provides a cohesive design in harmony with the surrounding area and demonstrates compliance with the Growth Management Element of the General Plan. The applicant has indicated that he intends to commence construction within two and one-half years of the effective -date of the rezoning and preliminary development plan approval. The project is consistent with the County General Plan as would be'amended by the 1992 Draft Dougherty Valley General Plan Amendment and the Dougherty Valley Specific Plan which plans designate this site for residential and commercial uses, substantial open space, retail, office and community service uses. The project will constitute a residential environment of sustained desirability and will be in harmony with the character of the nearby community. The project density is in accord with the 1992 Draft Dougherty Valley General Plan Amend- went for this area. The project will provide approximately 1,100 acres of open space and parks, approximately 22 acres of non-residential uses and approximately 100 acres of public/semi-public uses. 3 f • -3- The project provides adequate commercial facilities to support the residential development. Such facilities will not create an impact on roadway systems because of the implementation of mitigation measures as detailed in the Final Environmental Impact Report. The design of commercial facilities will be reviewed under Final Development Plan applications for said areas to ensure that traffic congestion will be obviated by the proposed facilities and that proposed facilities fit harmoniously into and will have no adverse effects upon the adjacent or.surrounding developments. The long-term buildout of the project justifies exceptions from the normal applications of this code to allow for flexibility and the ability to respond to changing planning needs over time. The instruction by the County Planning Commission to prepare this resolution was given by motion of the Commission on Tuesday, December 1, 1992, by the following vote: AYES: Commissioners - Clark, Accornero, Gaddis, Terrell. NOES: Commissioners - Frakes, Sakai. ABSENT: Commissioners - None. ABSTAIN: Commissioners - Wallace D. Woo. Marvin J. Terrell Chairman of the Planning Commission, Contra Costa County, State of California. --ATTEST: /arvey E. Bragdon, Secretary of the Planning Commission, Contra Costa County - State of California. Findings Map A•80 + + +A-80' + N Rezone From Aa To� 1 SAn1 KP O tl Area I, WNW, Chair of the Contra Costa County Planning. Commission,. State of California, do hereby certify that this is a true and correct copy of *-?A (.,V,y -le p Z —'1 G m n'F- 7r7+V.- e6{, i i=!4 - t CC7'7 A w1 I - indicating thereon the decision of the Contra Costa County Planning Commission in the matter of �Z Chair of the Contra Costa County Planning Comm ission,State of California A *94ary oMhontro Costa County nning Comm ion, State of Calif. ,3AGE- I of q • Findings Map 0 Rezone From -b To -'P-1_ U "(W Area I, WNIM =C? 12 -E LL Chair of the Contra Costa County Planning Commission, State of California, do hereby certify that this is a true and correct copy of � ,%V,&y -1ti -1 7-0 TJV M ; Z --1G VA nF —n+.^.-- cNLjLL3=-114 indicating thereon the decision of the Contra Costa County Planning Commission in the matter of �"2 A QR,uL �rYZEMAO 2gG z - �Z Chair of the Contra Costa County -' ing Commission,State of California qAGV-- Z of q Findings Map • 0 Rezone From A -b To 119-1 SM "Otl Area I, W?A)t 1 "T'Z-=Q 12Z -F LL, Chair of the Contra Costa County Planning Commission, State of Colifomia, do hereby certify that this is a true and correct copy of - c.,,_sy. -1ti r .[ Zt) V -?.n ,,U -14 m Z-'1 G wt indicating thereon the decision of the Contra Costa County Planning Commission in the matter of �"VA9-avL '�-rYLf.MA�I 2gGL-�E_ Chair of the Contra Costa County Planning Comm ission,State of California ATTES ecr ry of tl ntra Costa County Planning Commiss n, State of Calif. '3A6V- 3 of q Findings Map A•80 A•80 Rezone From -A-SO To�-1 Spin "0 tl Area 1, WN 1-TV—C?,Q -eLL Chair of the Contra Costa County Planning Commission, State of California, do hereby certify that this is a true and correct copy of TAr.,V-s t; -le, , .1 ZO indicating thereon the decision of the Contra Costa County Planning Commission in the matter of 'V A QavL �xZV M W _-7,q47- - �L.Z Chair of the Contra Costa County Planning Comm ission,State of California A' Sakrefary of Phe)Contra Costa County Planning Commi ion, State of Calif. gAGr- 4 of q • Findings Map Q Rezone From -b To 11 — S 1 "0 kl Area I, MAN W "[37=0 Q -E LL. Chair of the Contra Costa County Planning Commission, State of California, do hereby certify that this is a true and correct copy of 'I? if _,�� t) y -7� - 14 M ; Z indicating thereon the decision of the Contra Losto County Planning Commission in the matter of �V A 9-g CjL *T - y mA>y 7 C14 - LZ Chair of the Contra Costa County Planning Commission,State of California A ec wry of 4heontro Costa County anning Commi Sion, State of Calif. '3AGr- 5 of q • Findings Map • Rezone From -SO To(P-1_ Area I, (VbN ►.QQ-F U- Chair of the Contra Costa County Planning Commission, State of California, do hereby certify that this is a tr1u11e and correct copy of �„�� V -!c, , .1 —7_o 41 cating thereon mj"uIthe decision of the Contra Costa County Planning Commission in the matter of 'V A QR,yL --Vr-3jzy mA�,I 1. oiGZ - �LZ Chair of the Contra Costa County Planning Commission,State of California ATTEST; rdto of theKo tra Costa County Planning Commissio , State of Calif. --�AGV— (0 of q A- 0 Rezone From -SO To(P-1_ Area I, (VbN ►.QQ-F U- Chair of the Contra Costa County Planning Commission, State of California, do hereby certify that this is a tr1u11e and correct copy of �„�� V -!c, , .1 —7_o 41 cating thereon mj"uIthe decision of the Contra Costa County Planning Commission in the matter of 'V A QR,yL --Vr-3jzy mA�,I 1. oiGZ - �LZ Chair of the Contra Costa County Planning Commission,State of California ATTEST; rdto of theKo tra Costa County Planning Commissio , State of Calif. --�AGV— (0 of q Findings Map _A•80 • i�7 A•80 A•80 A•80 Rezone FromTo e? -1 �Ai,1 0�,1 Area I,�A�� T,Q LL Chair. of the Contra Costa County Planning Commission, State of California, do hereby certify that this is a true and correct copy of [•,�S li -lei .9 -1 -7-0 uA indicating thereon the decision of the Contra Costa County P anning Commission in the matter of IV A 9- L � f MAS 2g4L - z ATTE Planning Chair of the Contra Costa County Planning Commission,State of California ion, State of Calif. '3AGr- 7 of Q' • Findings Map I.� Rezone FromA -S& To 19-1 I, (ftw 17Qp -I=- L_L_ Chair of the Contra Costa County Planning Commission, State of California, do hereby certify that this is a true and correct copy of a Gy -S. V \ti .1 --l-o -?-6 w. 0 Z-•ICSyw ^-F- n -MV-- r6l,1&3=[14 indicating thereon the decision of the Contra Costa County Planning Commission in the matter of ��AQA.vCXL�M�►�.l 2 gtiZ - �Z Chair of the Contra Costa County Planning Commission,State of California ATTEST Se Toei-Jy of the C4tra Costa County Planning Commissio , State of Calif. -3R(,V- g of <7 Findings Map Rezone From A -W To -1 I, Chair of the Contra Costa County Pla ping Commission, State of Califomia, do hereby certify that this is a true and correct copy of 1 GCS. W - �7 ' W- iK . IQ 10 YL 'CC III -IAL" 14 indicating thereon the decision of the Contra Costa County Planning Commission in the matter of SUOppM C,` Nr�ut-r-rH ES IAA 3 -122 Ze S tary Planning Chair of the Contra Costa County Planning Commission,State of California ontra Costa County on, State of Calif. t?A & a` 1 0 F fv u Findings Map Rezone From AA -W To -1 I, Chair of the Contra Costa County Pla ning Commission, State of California, do hereby certify that this is a true and correct copy of 11,451-azcS W - in W- �Y� U-11 � BSc ;_��iG .0 Y. -1 S W - Un w , Ll! - t4 L.. CD 14-70k indicating thereon the decision of the Contra Costa County Planning Commission in the matter of PI Chair of the Contra Costa County Planning Commission,State of California 6ntra Costa County on, State of Calif. I?A & E -2— 0 F lv Findings Map C� -IR?- Rezone Q Rezone From To ny Chair of the Contra Costa County Pla ping Commission, State of California, do hereby certify that this is a true and correct copy, of 'P I.SS. W - 17 y W- ig , U -13 11 -12L,..-IL--L4 r x -I U l- l 4, M S JAI -tau,. A F -roe 14 indicating thereon the decision of the Contra Costa County Planning Commission in the matter of. 'SUSgMLX. J&)0uc--r Ae<, Chair of the Contra Costa County Planning Commission,State of California ATTE T ry ofVth# Contra Costa County Planning Commission, State of Calif. E Findings Map • 0 Rezone From A -W To -1 I, NMI -LU EJQQ-E JL4- Chair of the Contra Costa County Pla ning Commission, State of California, do hereby certify that this is a true and correct copy of �- C�cS W _ n IAJ- ice_ Q4 -r 11,M (j - l4 4A AL'i'1 IL C-6 LA hJIrt4'C 1q indicating thereon the decision of the Contra Costa County Planning Commission in the matter ofP��u. �NY7u�-rr�E<, 2AG3 -!Z Chair of the Contra Costa County Planning Commission,State of California ATTEST,r retory ofilth f Contra Costa County Planning Commission, State of Calif. Findings Map A•80 Rezone FromA - STo-1 I,Chair of the Contra Costa County Pla ning Commission, State of California, do hereby certify that this is a true and correct copy of -PAC r 5, W • Lt1- Ig . U - t�_,,,51 - �r---ILq x -i 4� 1il) -1 L, n� �,ri,l - ►c. u. n F -�-Ic ' 14 `indicating thereon the decision of the Contra Costa County Planning Commission in the matter of QPML.L. (Nt Ur'"T AE<. 2G42�, -'ZZ Chair of the Contra Costa County n Planning Commission,State of California ATTEST I C_Se&efary of taelion, ontro Costa County Planning Commi State of Calif. tFA&E 6 0f !o S i ORDINANCE NO. Re -Zoning Land in the San Ramon Area) The Contra Costa County Board of Supervisors ordains as follows: V-19, V-20, W-20, X-18. SECTION I: Page s W -19m, Z -19m of the County's 1978 Zoning Map (Ord. No. 78-93) is amended by re -zoning the land in the above area shown shaded on the map(s) attached hereto and incorporated herein (see also Community Development Department File No. 2992-RZ ) A-80 Exclusive Agricultural FROM: Land Use District ( } TO: Land Use District P-1 ( Planned Unit Development ) as described in the Preliminary Development Plan and related conditions of approval in File 2992- RZ in the Community Development Department, which Plan is incorporated herein by this ' reference, and the Community Development Director shall change the Zoning Map accordingly, pursuant to Ordinance Code \Sec. 84-2.003. SECTION II. EFFECTIVE DATE. This ordinance becomes effective 30 days after - passage, and within 15 days of passage shall be published once with the names of supervisors voting for and against it in the , e newspaper published in this County. PASSED on by the following vote: Supervisor A -e h1a Absen Abstain 1. J. Rogers ( ) ( ) ( ) ( ) 2. J. Smith O O O ( ) 3. G. Bishop ( ) ( ) ( ) ( ) 4. M. DeSaulnier ( ) ( ) ( ) ( ) 5. T. Torlakson ( ) ( ) ( ) ( ) ATTEST: Phil Batchelor, County Administrator and Clerk of the Board of Supervisors Chairman of the Board By , Dep. (SEAL) ORDINANCE NO. 2992-RZ Foreman Page One of Five rl 0 Page V-19 of the County's 1978 Zoning Map 2992-RZ Page W -19m of the County's 1978 Zoning Map 2992-RZ 2992-RZ Foreman Page Two of Five 0 Page V-20 of the County's 1978 Zoning Map 2992-RZ Page W-20 of the County's 1978 Zoning Map 2992-RZ 2992-RZ Foreman Page Three of Fi, - A•80 - I A•80 A•84 Page X-18 of the County's 1978 Zoning Map 2992-RZ � ' 1 Page Z -19m of the County's 1978 Zoning Map 2992-RZ 2992-RZ Foreman Page Four of Five rage 6-IVM or the County's 1978 Zoning Map 2992-RZ 2992-RZ Foreman Page Five of Five ORDINANCE NO, 0 (Re -Zoning Land in the San Ramon Area) The Contra Costa County Board of Supervisors ordains as follows: V-18, V-19, W-18, SECTION I: Pages W -19m, X-18 of the County's 1978 Zoning Map (Ord. No. 78-93) is amended by re- zoning the land in the above area shown shaded on the map(s) attached hereto and incorporated herein (see also Community Development Department File No. RZ922993 ,) FROM: Land Use District A-80 ( Exclusive Agricultural TO: hand Use District P-1 ( Planned Unit Development I and the Community Development Director shall change the Zoning Map accordingly, pursuant to Ordinance Code Sec. 84.2.003. SECTION H. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days of passage shall be published once with the names of supervisors voting for and against it in the , a newspaper published in this County. PASSED on by the following vote: Supervisor Ay -C hLQ Absent Abstain 1. J. Rogers ( ) ( ) ( ) ( ) 2. J. Smith ( ) ( ) ( ) ( ) 3. G. Bishop ( ) ( ) ( ) ( ) 4. M. DeSaulnier ( ) ( ) ( ) ( ) 5. T. Torlakson ( ) ( ) ( ) ( ) ATTEST: Phil Batchelor, County Administrator and Clerk of the Board of Supervisors By . Dep. Chairman of the Board (SEAL) �0 ' RZ922993 Shapell Page 1 of 4 Page V-18 of the County's 1978 Zoning Map RZ922993 Page V-19 of the County's 1978 Zoning Map RZ922993 RZ922993 Shapell Page 2 of 4 Page W-18 of the County's 1978 Zoning Map RZ922993 Page W -19m of the County's 1978 Zoning Map RZ922993 RZ922993 Shapell Page 3 of A!; Page X-18 of the County's 1978 Zoning Map A-80 Page W- 19m of the County's 1978 Zoning Map RZ922993 RZ922993 RZ922993 Shapell Page 4 of Dec. 11 195 17:15 CIIW DUBLIN 92 FAX 510-833-660 P. 2 1 ' CITY OF DUBLIN P.C. Box 2340. Dublin, California 94566 City Offices. too Civic Plaza, Dublin, California 94568 December 11, 1995 Gayle Bishop, Chairperson Board of Supervisors Contra Costa County 651 Pine Street, Rm 106 Martinez CA 94553 SUBJECT: Board of Supervisors December 14, 1995, Agenda Items D11 and D12 for the Dougherty Valley Development Project Honorable Gayle Bishop: The City of Dublin has received a copy of Contra Costa County's draft language for the Terms of Agreement for the Dougherty Valley development, We would like to congratulate you, the Board of Supervisors, and the Staff of Contra Costa County for your accomplishment in bringing this project to fruition after all of the controversy that was generated. The draft Dublin traffic mitigation for the Dougherty Valley Development Agreement is acceptable to the City of Dublin, with the exception of the provision for a development impact fee not to exceed $490 per residential unit and if County, Developer and the City of Dublin are unable to arrive at a mutually acceptable fee within six months following the effective date, then County and Developer may themselves determine the amount of such fee. The City of Dublin's concern is that if the amount of $490 per unit is not sufficient to construct the road system necessary to mitigate the impacts from the Dougherty Valley projects, Dublin cannot require that Dublin's developers pay the shortfall. We are asking that this wording be deleted from the Agreement and replaced by a statement that Dougherty Valley developments are to pay their share of traffic mitigation as mutually acceptable to Contra Costa County and the City of Dublin. This fee should also include improvements to freeway interchanges necessitated by the impacts. As you know, Dublin was the only jurisdiction in the Tri -Valley area to cooperate with Contra Costa County in allowing the City's road system to be used by County developments with the condition that Contra Costa County developers be required to pay a Traffic Impact Fee and/or widen roads and interchanges that will be impacted by the County's development. However, if Dublin does not receive adequate fees, the City will not be able to widen arterial roads to accommodate Dougherty Valley or any other County developments. Administration (510) 633.6650 • City Council (510) 833.6605 • Finance (510) 633-6640 - Ouilding Inspection (510) 833-6620 Code Enforcement (510) E33•G620 EnginFering (510)133:1.6630 • Parks & Community Service (510) 833-6646 Ponce (510) 833-6670 • Public Works (510) 833-6630 • Planning (510) 833.6610 Dec. 11 '95 17: 16 CI OF DUBL IN #2 FAX 510-833—A P. 3 17M61� J 12/11/95 Supv. Gayle Bishop Terms of Agreement Page 2. This would have a negative impact on road systems in the Town of Danville, the City of San Ramon, and in Contra Costa County as congestion- in Dublin would reroute some of the project traffic. It could also cause Contra Costa County to be in violation of Measure 'C' requirements and the Dougherty Valley Environmental Impact Report. The TrkValley Transportation Council is in the process of updating its traffic model, and it is hoped that a mutually agreeable mitigation fee can be arrived at in the next six months. But, if events occur to delay the fee estimate that are beyond Dublin's control, Dublin should not be penalized by being excluded from negotiations to determine a fee. The City of Dublin would like to take this opportunity to request that the Contra Costa County Board of Supervisors take these concerns into consideration. The City appreciates the efforts of Contra Costa County Staff, particularly Mitch Avalon and Steve Goetz, in working with Dublin Staff on these issues and perpetuating the beneficial relationship enjoyed in the past by our jurisdictions. Sincerely, C Lee S. Thompson Public Works Director LST/mb cc: Millie Greenberg, Mayor, Town of Danville Curt Kinney, Mayor, San Ramon Mitch Avalon, Contra Costa County g:%oomes%mslcccagenda PROOF OF PUBLICAT6 (2015.5 C.C.P.) STATE OF CALIFORNIA County of Contra Costa I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above -entitled matter. I am the Principal Legal Clerk of the Contra Costa Times, a newspaper of general circulation, printed and pub- lished at 2640 Shadelands Drive in the City of Walnut Creek, County of Contra Costa, 94598. And which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of Contra Costa, State of California, under the date of October 22, 1934. Case Number 19764. The notice, of which the annexed is a printed copy (set in type not smaller than nonpareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to -wit: ........................................... all in the year of 19. �1.s 1 certify (or declare) under penalty of perjury that the foregoing is true and correct. Executed at Walnut Creek, California. c /v 6 ' On this .....day of ........f�V.:.... 19..: 5 .........f! AL ...I cy A .. ............................................... Signature Contra Costa Times P.O. Box 4147 Walnut Creek, CA 94596 (510) 935-2525 Proof of Publication of: (attached is a copy of the legal advertisement that pub- lished) Corrected Notice NOTICE OF A PUBLIC HEARING BEFORE THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS ON A PLANNING MATTER DOUGHERTY VALLEY AREA NOTICE is hereby given that on TUESDAY, DECEMBER 12, 1995 AT 3:00 P.M. IN ROOM 107 of the County Ad- ministration Building comer of Pine and Escobar Streets, Martinez, California, the Con- tra Costa County Board of Supervisors, will hold a public hearing to consider the fol- lowing planning matters: Recommendations of the ria �r.:n. -rnn ;sswn on an aplica ion (2993-RZ) by Sha- pe I Industries (Applicant and owner) for approval of a re- zoning with preliminary devel- opment plan approval for ap proximately 2,708 acres from A-80 fAgrjcultural District to P-1 Planned Unit Deve op- ment to construct up to 4,61 residential units. The Mote oject further Incorporates 1,386 acres of open space and park and recreation facil- ities, 26 acres of non-resi- dentjai uses and 38 acres as public/semi-public uses. Recommendation of the County Zoning Administrator on the request by Contra Costa County and Shapell In-' dustries to review and ap- prove a development agree- ment known as Shapell Industries as being consistent with the county General Plan and Dougherty Valley Specif- ic Plan. In connection with and prior to making a decision on the rezoning with preliminary de- velopment plan approval and the devejopment agree- ments, the Board of Supervi- sors wlil consider an adden- dum to the Final Environmental Impact Report for the Dougherty Valley ("FEIR") which addendum vnll be considered with the FEIR. The location of the subject land is within the unincorpo- rated territory of the County of Contra Costa, State of Cal- ifornia, generally identified below (a more precise de- scription may be examined in the Office of the Director of Community Development, County Administration Build - Ing, Martinez, California): The subject property Includes lands on both sides of Dou- 9herty Road from a portion of Camp Parks to the south, to approximately one half mile east of Crow Canyon/Dou- Therty Road intersection on e north to the Windemere property line to the east to the County Club at. Glale Ranch Project boundary to the west, and the terminatiun of Lawrence Road to the north, in the Dougherty Valley area. For purposes of Compliance with the provisions of the Cal- ifornia Environmental Quality Act (CEQA), an Environmental Impact Report and adden- dum have been prepared for this project. If you challenge this matter in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the County at, -or prior to, the Public hearing. Date: November 21, 1995 PHIL BATCHELOR, Clerk of the Board of Supervisors and County Administrator By: /s/ Ann Cervelli, Deputy Clerk Legal OCT 6835 Publish November 29, 1995 i �. RECEIVED .UEC - 41995 NOTICE OF A PUBLIC HEARING BEFORE THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS ON A PLANNING MATTER DOUGHERTY VALLEY AREA NOTICE is hereby given that on Tuesday. December 12, 1995 at 3:00 p.m. in Room 107 of the County Administration Building, corner of Pine and Escobar Streets, Martinez, California, the Contra Costa County Board of Supervisors will hold a public hearing to consider the following planning matters: Recommendations of the Contra Costa County Planning Commission and the San Ramon Valley Regional Planning Commission on an application (2993-RZ) by Shapell Industries (applicant and owner) for approval of a rezoning with preliminary development plan approval for approximately 2,708 acres from A-80 (Agricultural District) to P-1 (Planned Unit Development) to construct up to 4,614 residential units. The project further incorporates 1,386 acres of open space and park and recreation facilities, 26 acres of non-residential uses and 38 acres as public/semi-public uses. Recommendation of the County Zoning Administrator on the request by Contra Costa County and Shapell Industries to review ..and approve a development agreement known as Shapell Industries as being consistent with the County General Plan and Dougherty Valley Specific Plan. In connection with and prior to making a decision on the rezoning with preliminary development plan approval and the development agreements, the Board of Supervisors will consider an addendum to the Final Environmental Impact Report for the Dougherty Valley ("FEIR") which addendum will be considered with the FEIR. The location of the subject land is within the unincorporated territory of the County of Contra Costa, State of California, generally identified below (a more precise description may be examined in the Office of the Director of Community Development, County Administration Building, Martinez, California): The subject property includes lands on both sides of Dougherty Road from a portion of Camp Parks to the south, to approximately one half mile east of Crow Canyon/Dougherty Road intersection on the north to the Windemere property line to the east, to the Country Club at Gale Ranch Project boundary to the west, and the termination of Lawrence Road to the north, in the Dougherty Valley area. For purposes of compliance with the provisions'of the California Environmental Quality Act (CEQA), an Environmental Impact Report and addendum have been prepared for this project. If you challenge this matter in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the County at, or prior to, the public hearing. Date: November 21, 1995 PHIL BATCHELOR, Clerk of the Board of Supervisors and County Ad .nistrator By � Ann Cervelli, Deputy Clerk PFFICE OF THE CLERK OF TBE BOARD OF SUPERVISORS CONTRA COSTA COUNTY 651 PINE STREET MARTINEZ, CALIFORNIA 94553 Phone: (510) 646-2371; FAX (510) 646-1059 PLEASE CONFIRM RECEIPT VIA PHONE DATE: TO: ✓V, FROM:�� TOTAL PAGES INCLUDING THIS COVER: S PLEASE ADVISE IF FOR ANY REASON YOU DO MOT RECEIVED THIS ITEM COMPLETE! 1) M O A D C O m N m 0 E) D c DO m 0 m D m Z � rn rn o� ! ; O x• '� u Z mc) O� —2(/) .. o -" ��' D I C Om O� > # 3 CD Z� [ I Om 'N C XNn> o �Z m� ,rn Wv ui o I i ? �WOM o C) U) p, + Z fD T8 [n c m p in D nZ3 O� m O m Z -0 C) Z M stl OC m � s m � 0E O OH. ~ #x ` Q i O Q I -h °��'m�m� m � N `. # 0 G) it C }} O CD m m -1 n ft 3 I Z> Lo K m CD =r? mo Z (�}� "' e Z to -n m CD w E P) O �-+ O H � �i G O O Z z 1 c O_ CD (D (D N. 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O O 9 Cm r C co d 0I D 2 �m -Di 'b m g z m c m j'j f b p O €i 1 �3 ao -b-)v i [v I O W Cl) (D bd 1 0 01 i7 3 I � m c � O w � OT i i t Z m v F -n m W V d (D 1 i D j ( D } ; { O m � Ln F- N mm \ # i I } CO i i o� O x• '� u #� ,� C D C D n m' Om 'N C XNn> � Z -i 0D; OZLA< �WOM wvv0 Vw0 < m p in D nZ3 O� m O m Z z D m ;m m 1°c #� ,� C !gin 'N � Z ul m O m 0z 0E O r O O Q I -h rn N 0 (D C) O � I Z> Lo K m fIV mo Z (�}� "' e 0 • NOTICE OF A PUBLIC HEARING BEFORE THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS ON A PLANNING MATTER DOUGHERTY VALLEY AREA NOTICE is hereby given that on Tuesday, December 12, 1995 at 3:00 p.m, it Room 107 of the County Administration Building, corner of Pine and Escobar Streets, Martinez, California, the Contra Costa County Board of Supervisors will hold a public hearing to consider the following planning matters: Recommendations of the Contra Costa County Planning Commission and the San Ramon Valley Regional Planning Commission on an application (2993-RZ) by Shapell Industries (applicant and owner) for approval of a rezoning with preliminary development plan approval for approximately 2,708 acres from A-80 (Agricultural District) to P-1 (Planned Unit Development) to construct up to 4,614 residential units. The project further incorporates 1,386 acres of open space and park and recreation facilities, 26 acres of non --residential uses and 38 acres as public/semi-public uses. Recommendation of the County Zoning Administrator on the request by Contra Costa County and Shapell Industries to review and approve a development agreement known as Shapell Industries as being consistent with the County General Plan and Dougherty Valley Specific Plan. In connection with and prior to making a decision on the rezoning with preliminary development plan approval and the development agreements, the Board of Supervisors will consider an addendum to the Final Environmental Impact Report for the Dougherty Valley ("FEIR") which addendum will be considered with the FEIR. The location of the subject land is within the unincorporated territory of the County of Contra Costa, State of California, generally identified below (a more precise description may be examined in the Office of the Director of Community Development, County Administration Building, Martinez, California) : The subject property includes lands on both sides of Dougherty Road from a portion of Camp Parks to the south, to approximately one half mile east of Crow Canyon/Dougherty Road intersection on the north to the Windemere property line to the east, to the Country Club at Gale Ranch Project boundary to the west, and the termination of Lawrence Road to the north, in the Dougherty Valley area. For purposes of compliance with the provisions of the California Environmental Quality Act (CEQA), an Environmental Impact Report and addendum have been prepared for this project. If you challenge this matter in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the County at, or prior to, the public hearing. Date: November 21, 1995 PHIL BATCHELOR, Clerk of the Board of Supervisors and County Ad nistrator By Ann Cervelli, Deputy Clerk REQUEST TO PLACE AN ITEM ON THE BOARD OF SUPERVISORS' AGENDA (Do not use this form for Planning Hearings) TO: CLERK OF THE BOARD OF SUPERVISORS FROM: STAFF MEMBER TO CONTACT FOR ADDITIONAL INFORMATION: (Name & Telephone Number) REQUESTED BOARD AGENDA DATE:_ IS THERE A CRITICAL DEADLINE FOR BOARD ACTION AND, IF SO, WHAT IS IT: NO YES DEADLINE DATE. THIS IS A NOTICED HEARING: NO YES SUGGESTED AGENDA LANGUAGE: . a44�-ku THIS ITEM BELONGS IN THE FOLLOWING CATEGORY (Check One): (See attached for further definition of categories) CONSENT: No discussion, no speakers, no opposition. PRESENTATION - Brief: Less than five minutes. PRESENTATION - Longer: More than five minutes. Estimated amount of time required (Name of person making presentation) SHORT DISCUSSION: Less than five minutes. DELIBERATION: Longer than five minutes. Estimated amount of time required We expect the following (check all that are applicable): No Department presentation, no outside speakers and no controversy on the part of Board members. A brief (less than five minutes) presentation by a Board member to an individual or organization. : A brief (less than five minutes) presentation by an outside organization to the Board. A longer (more than five. minutes). presentation by a Board member to an individual or organization. A longer (more than five minutes) presentation by an outside organization to the Board. A brief presentation by the CAO or Department (one or two minutes) and no or only one outside speaker. h(f" A brief presentation by the CAO or Department (one or two minutes), but multiple .outside speakers. A brief presentation by a Board member and no or only one speaker. A lengthy presentation by the CAO or Department and one or more outside speakers. A lengthy presentation by a Board member or a presentation with multiple speakers. A difference of opinion among Board members as to what to do, probably requiring considerable discussion. The likelihood that after discussion the item will be put over for a future date for a decision. NOTICE OF A PUBLIC HEARING BEFORE THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS ON A PLANNING MATTER DOUGHERTY VALLEY AREA NOTICE is hereby given that o Tuesda March 8 1994 t 2:00 p.m. in Room 107 of the County Admin. orner of Pine and Escobar Streets, Martinez California, the Contra Costa County Board of Supervisors will hold a public hearing to consider the following planning matters: Application (2993-RZ) by Shapell Industries (applicant and owner) for approval of a rezoning with preliminary development plan approval for approximately 2,708 acres from A-80 (Agricultural District) to P-1 (Planned Unit Development) to construct up to residential units. The project further incorporates 1,386 cres of open space and park and recreation facilities, 26 acre of non-residential uses and 38 acres as public/semi-public ses.It 4 �1� Recommendation of the�County Zoning Administrator on the request by Contra Costa County and Shapell Industries to review and approve a development agreement known as Shapell Industries as being consistent with the County General Plan and Dougherty Valley Specific Plan. In connection with and prior to making a decision on the rezoning with preliminary development plan approval and the development agreements, the Board of Supervisors will consider an addendum to the Final Environmental Impact Report for the Dougherty Valley ("FEIR") which addendum will be considered with the FEIR. The location of the subject lands is within the unincorporated territory of the County of Contra Costa, State of California, generally identified as follows (a more precise description may be examined in the office of Director of Community Development, County Administration Building Martinez, California): The subject property includes lands on both sides of Dougherty Road from a portion of Camp Parks to the south, to approximately one half mile east of Crow Canyon/Dougherty Road intersection on the north R-ead to vand the to ination of Lawrence Road to the �, north, in the Dougherty Valley area. -�1,� \l�C� pnW � A kIA-L, For purposes of compliance with the provisions of the ��California Environmental Quality Act (CEQA), an Environmental Impact Report and addendum have been prepared for this project. i If you challenge these matters in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the County at, or prior to, the public hearing. Date: February a4, 1994 Harvey E. Bragdon Director, Community Development BY IA. V)nnoC�j Dennis M. Barry, Deputy), eputy Director NOTICE OF A PUBLIC HEARING BEFORE THE CONTRA COSTA COUNTY BOARD OF SUPERVISORS ON A PLANNING MATTER DOUGHERTY VALLEY AREA NOTICE is hereby given that on Tuesday, December 12, 1995 at 3:00 p.m. in Room 107 of the County Administration Building, corner of Pine and Escobar Streets, Martinez, California, the Contra Costa County Board of Supervisors will hold a public hearing to consider the following planning matters: Recommendations of the Contra Costa County Planning Commission and the San Ramon Valley Regional Planning Commission on an application (2993-RZ) by Shapell Industries (applicant and owner) for approval of a rezoning with preliminary development plan approval for approximately 2,708 acres from A-80 (Agricultural District) to P-1 (Planned Unit Development) to construct up to 4,614 residential units. The project further incorporates 1,386 acres of open space and park and recreation facilities, 26 acres of non-residential uses and 38 acres as public/semi-public uses. Recommendation of the County Zoning Administrator on the request by Contra Costa County and Shapell Industries to review and approve a development agreement known as Shapell Industries as being consistent with the County General Plan and Dougherty Valley Specific Plan. In connection with and prior to making a decision on the rezoning with preliminary development plan approval and the development agreements, the Board of Supervisors will consider an addendum to the Final Environmental Impact Report for the Dougherty Valley ("FEIR") which addendum will be considered with the FEIR. The location of the subject land is within the unincorporated territory of the County of Contra Costa, State of California, generally identified below (a more precise description may be examined in the Office of the Director of Community Development, County Administration Building, Martinez, California) : The subject property includes lands on both sides of Dougherty Road from a portion of Camp Parks to the south, to approximately one half mile east of Crow Canyon/Dougherty Road intersection on the north to the Windemere property line to the east, to the Country Club at Gale Ranch Project boundary to the west, and the termination of Lawrence Road to the north, in the Dougherty Valley area. For purposes of compliance with the provisions of the California Environmental Quality Act (CEQA), an Environmental Impact Report and addendum have been prepared for this project. If you challenge this matter in Court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the County at, or prior to, the public hearing. Date: November 21, 1995 PHIL BATCHELOR, Clerk of the Board of Supervisors and County Administrator ByJA" 0 � �11 — Ann Cervelli, Deputy Clerk SAN FRANCISCO LOS ANGELES SAN JOSE WALNUT CREEK MENLO PARK COUNSELORS AT LAW 1331 North California Boulevard Post Office Box' V Walnut Creek, California 94596 Telephone: (510) 937-8000 Facsimile: (510) 975-5390 ENCLOSURE MEMO WASHINGTON, D.C. TAIPEI AFFILIATED OFFICES BANGKOK BEIJING SIVkNGHAI DIRECT DIAL NUMBER INTERNET mrivera@mdbe.com RECEIVED Date: November 15, 1995 MV 1 To: Board of Supervisors, DVOC Members and Staff 6 1995 80PERVISORS OF SU Re: Draft Development Agreement [Shapell] CLERK cor�TRARDA roSTA Co. Enclosed: I enclose a redlined version of the most recent draft of the proposed development agreement. Please note that many of the indicated changes are changes in organization of the document rather than text. We have attempted to respond to all of the comments received from the County, San Ramon and Danville. Please feel free to call if you have any questions. From: Maria P. Rivera Draft of November 15, 1995 Marked to show changes from draft of November 6, 1995 DEVELOPMENT AGREEMENT BETWEEN COUNTY OF CONTRA COSTA AND SHAPELL INDUSTRIES, INC. RELATING TO THE DEVELOPMENT COMMONLY KNOWN AS THE GALE RANCH THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of this _ day of November, 1995, by and between SHAPELL INDUSTRIES, INC., a Delaware corporation ("Developer" or "Shapell"), and the COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"), pursuant to Government Code section 65864 et seq. Developer and County are from time to time hereinafter referred to individually as a "Party" and collectively as the "Parties." This Agreement supersedes and replaces in its entirety that certain development agreement entered into by and between Developer and County dated October 2, 1990, which is hereby terminated. 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 section 65864 et seq. (the "Development Agreement Statute"), which authorizes County to enter into an agreement with any person having a legal or equitable interest in real property, regarding the development of such property. B. Pursuant to Government Code section 65865, County has adopted rules and regulations establishing procedures and requirements for consideration of development agreements (Or-dinanee No. T 92 73(Art. 26-2.12 of Contra Costa County Code and Board Resolution No. 85/412). This Z-.I�-,7 Development Agreement has been processed, considered and executed in accordance with those County rules and regulations, including without limitation, 26-2.1204 of the Contra Costa County Code. C. Developer has a legal interest in certain real property consisting of approximately two thousand seven hundred eight (2,708) acres located in the unincorporated portion of the County known as the Dougherty Valley, which property is commonly referred to as the Gale Ranch. The property which is the subject of this agreement is a portion of the Gale Ranch comprised of approximately two thousand and ninety (2,090) acres as described in Exhibit A attached hereto (the "Gale Ranch Site"). The property is adjacent to property owned by Windemere Ranch Partners ("Windemere") also located in the Dougherty Valley. 1 REDUNE.01lCA952950.004 D. Developer intends to develop the Gale Ranch Site as a residential planned community of 4,614 units (plus any units that may be transferred from the Country Club Site to central residential receiver sites, as permitted under the Specific Plan), along with retail and office uses, community facilities and other uses in accordance with the Dougherty Valley Specific Plan. E. County has determined that this Agreement is appropriate for the Gale Ranch and desires to enter into this Agreement. This Agreement establishes planning principles, standards, and procedures to: eliminate uncertainty in planning and guide the orderly development of the Gale Ranch consistent with the General Plan and the Dougherty Valley Specific Plan; mitigate significant environmental impacts; ensure installation of necessary on-site and off-site public improvements; provide for the preservation of substantial permanent open space; make provision for public trail facilities; provide funding for traffic improvements; provide for public services appropriate to the development of the Gale Ranch; provide affordable housing; ensure attainment of the maximum effective utilization of resources within the County at the least economic cost to its citizens; and otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted. Furthermore, development of the Gale Ranch pursuant to the Agreement would result in increased tax, fee and other revenues resulting in fiscal benefits to the County and an improved balance between jobs and housing within the County and the region. F. This Agreement requires, through the provisions that follow, that any future development of the Gale Ranch Site comply with the Growth Management Element of the General Plan. As a result, County is precluded from approving development of the Gale Ranch absent compliance with certain standards relating to water, sanitary facilities, fire, police, parks, flood control and traffic. G. In exchange for the benefits to County described in Recital E of this Agreement, together with the other public benefits that will result from the development of the Gale Ranch, Developer will receive by this Agreement assurance that it may proceed with the Gale Ranch in accordance with the "Applicable Law" (defined below), and therefore desires to enter into this Agreement. In the absence of this Agreement, Developer would have no present assurance that it could proceed with the Gale Ranch in accordance with the Applicable Law. H. County has taken various environmental review and planning actions relating to the development of the Gale Ranch. These actions include, without limitation, the following: 1. Dougherty Valley EIR. On December 22, 1992, pursuant to the California Environmental Quality Act, the "CEQA Guidelines" and County's local guidelines promulgated thereunder (hereinafter collectively referred to as "CEQA") and in accordance with the recommendation of the County's Zoning Administrator, the Board, by Resolution 92/864, certified a final environmental impact report regarding the Gale Ranch (the "Dougherty Valley EIR"). 2. General Plan Amendment. On December 22, 1992, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, and after duly noticed public hearing and certification of the Dougherty Valley EIR, the Board, by Resolution 92/866, approved an amendment to the County General Plan (the "General Plan Amendment"), addressing the 2 REDUNE.ovcA952950.o04 Gale Ranch Site and certain real property adjacent to the Gale Ranch Site including (i) approximately 618 acres, also owned by Shapell, known as Country Club at Gale Ranch (the "Country Club Site"), (ii) approximately 2379 acres owned by Windemere Ranch Partners (the "Windemere Site"), and (iii) approximately 892 acres owned by the United States Department of the Army ("Camp Parks"). 3. Specific Plan. On December 22, 1992, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission and recommendation by the County Planning Commission, certification of the Dougherty Valley EIR, adoption of the General Plan Amendment, and duly noticed public hearing, the Board adopted, by Resolution 92/867, a single specific plan for the Gale Ranch Site, the Country Club Site, the Windemere Site, and Camp Parks (collectively, the "Dougherty Valley"), which specific plan is entitled the "Dougherty Valley Specific Plan" (the "Specific Plan"). 4. Country Club at Gale Ranch Approvals On December 20, 1994, following review -by the San Ramon Valley Regional Planning Commission and. the County Planning Commission, and recommendation by the County Planning Commission, the Board's consideration and certification of the Country Club at Gale Ranch FEIR; and duly noticed public hearing, the Board adopted Resolutions 94/640, 94/641 and 94/649, and adopted Ordinance No 94-77 and Ordinance No. 94-79, by which a General Plan Amendment, Rezoning, Preliminary Development Plan, Final Development Plan, Vesting Tentative Map and Development Agreement for development of the Country Club at Gale Ranch (adjacent to the Gale Ranch Site) were approved. 5. Settlement Agreements. County, together with Developer and Windemere, has entered into various agreements to settle litigation brought by certain parties against the County as respondent, and against Developer and Windemere as real parties in interest, relating to County's approval of the General Plan Amendment and Specific Plan and its certification of the Dougherty Valley EIR (collectively, the "Settlement Agreements"). The Settlement Agreements establish, among other things, certain procedures and standards that will be applied to County's consideration and approval of the "Project Approvals" (defined below). The Settlement Agreements consist of the following: (a) San Ramon and Danville: That certain agreement entered into by and among County, Developer, Windemere, the City of San Ramon ("San Ramon") and the Town of Danville ("Danville") on May 11, 1994 to settle certain claims brought by San Ramon and Danville as more fully described therein (the "San Ramon Settlement Agreement"). (c) Pleasanton: That certain agreement entered into by and between County, Developer, Windemere, and the City of Pleasanton ("Pleasanton") on June 20, 1995, to settle certain claims brought by Pleasanton as more fully described therein (the "Pleasanton Settlement Agreement"). (b) Walnut Creek: That certain agreement entered into by and among County, Developer, Windemere, and the City of Walnut Creek ("Walnut Creek") on July 11, 3 REDLINE.01/CA952950.004 1995, to settle claims brought by Walnut Creek as more fully described therein (the "Walnut Creek Settlement Agreement"). (d) East Bay Municipal Utility District: That certain agreement entered into by and among County, Developer, Windemere, and the East Bay Municipal Utility District ("EBMUD") on September 26, 1995 to settle claims brought by EBMUD as more fully described therein (the "EBMUD Settlement Agreement"). (e) Alamo Improvement Association: That certain agreement entered into by and among County, Developer, Windemere, and the Alamo Improvement Association ("AIA") on October 12, 1995, to settle claims brought by the AIA as more fully described therein (the "AIA Settlement Agreement"). (f) Non -Governmental Organizations: That certain agreement entered into by and among County, Developer, Windemere, and several non-governmental organizations viz., the Sierra Club, the Greenbelt Alliance, Preserve Area Ridgelands Committee, Save Our Hills and the Mount Diablo Audubon Society on October 12, 1995, to settle claims brought by such non-governmental organizations as more fully described therein (the "NGO Settlement Agreement"). 6. P-1 Zoning and Preliminary Development Plan. On , 1995, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, the Board's consideration of an addendum to the Dougherty Valley EIR prepared in accordance with Section 15164 of the CEQA Guidelines (the "Dougherty Valley EIR Addendum") with the Dougherty Valley EIR, and duly noticed public hearing, the Board adopted County Ordinance No. _, rezoning the Gale Ranch Site to County's "P-1" zoning district consistent with the General Plan and the Specific Plan (the "P-1 Zoning") and, pursuant to Resolution , approved a Preliminary Development Plan for the Gale Ranch Site in accordance with its P-1 zoning (the "Preliminary Development Plan"). The General Plan Amendment, Specific Plan, P-1 Zoning, Preliminary Development Plan, and this Agreement are sometimes collectively referred to herein as the "Planning Actions." I. The Parties acknowledge and agree that applications for specific land use approvals, entitlements, permits and agreements (collectively, the "Subsequent Approvals") must be made by Developer and reviewed (in compliance with CEQA) and approved, issued or entered into by County prior to any development on the Gale Ranch Site. The Subsequent Approvals may include, without limitation, the following: design review approvals, improvement agreements and other agreements relating to the Gale Ranch, use permits, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, subdivision maps (including tentative, vesting tentative, parcel, vesting parcel, and final subdivision maps), preliminary and final development plans, rezonings, development agreements, landscaping plans, encroachment permits, resubdivisions, and amendments to, or repealing of, the Planning Actions or the Subsequent Approvals. 4 REDLINE.01/CA952950.004 I On Nevember-6, 199 , following a duly noticed public hearing, the County Zoning Administrator made the appropriate findings required by County Resolution No. 85/412 and recommended that the Board approve this Agreement. K. On , 1995 (the "Approval Date"), after duly noticed public hearing and considering the Dougherty Valley EIR Addendum, the Board took the following actions: (1) made findings required by Board Resolution No. 85/412, that the provisions of this Agreement are consistent with the General Plan and the Specific Plan; (2) by Board Resolution No. , made the findings required by CEQA; and (3) adopted Ordinance No. , approving and authorizing the execution of this Agreement. L. Each Party acknowledges that it is entering into this Agreement voluntarily. NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth herein, the receipt and adequacy of which consideration is hereby acknowledged, the Parties agree as follows: AGREEMENT Section 1. Effective Date and Term. 1.1 Effective Date. This Agreement shall become effective upon the date the Ordinance approving this Agreement becomes effective, or the date upon which this Agreement is executed by Developer and County, whichever is later (the "Effective Date"). However, the "Applicable Law" to which the Gale Ranch shall be subject shall be as set forth in Section 4.1 below. 1.2 Term. The term of this Agreement (the "Term") shall commence upon the Effective Date and continue for a period of twenty five (25) years. Section 2. Definitions. "Affordable Housing Program" shall have that meaning set forth in Section 3.1(d) of this Agreement. "Applicable Law" shall have that meaning set forth in Section 4.1 of this Agreement. "Approval Date" shall have that meaning set forth in Recital K of this Agreement. "Board" shall mean the Board of Supervisors of the County. "Changes in the Law" shall have that meaning set forth in Section 4.2 of this Agreement. "Community Development Director" shall mean the Director of the County's Department of Community Development, or his or her designee. E REDLINE.01 /CA952950.004 "Country Club Site" shall mean the approximately 618 acres within the Shapell Site for which the County approved a general plan amendment, rezoning, preliminary development plan, final development plan, subdivision map, and development agreement on December 20, 1994. "County" shall mean the County of Contra Costa; and shall include, unless otherwise provided, any of the County's agencies, departments, officials, employees or consultants. "County General Plan" or "General Plan" shall mean the General Plan of the County. "Deficiencies" shall have that meaning set forth in Section 7.2 of this Agreement. "Developer" shall have that meaning set forth in the preamble, and shall further include, unless otherwise provided, Developer's successors, heirs, assigns, and transferees. "Dougherty Valley EIR" shall have that meaning set forth in Recital H of this Agreement. "Dougherty Valley EIR Addendum" shall have that meaning set forth in Recital H of this Agreement. "Effective Date" shall have that meaning set forth in Section 1.1 of this Agreement. "Facilities Fee" shall have that meaning set forth in Section 3.2(b)(2) of this Agreement. "Gale Ranch" shall mean the Gale Ranch Site and all improvements to be constructed thereon by Developer as described in the Planning Actions and (as and when they are adopted or issued), the Subsequent Approvals, and all off-site improvements to be constructed in connection therewith. "Gale Ranch Site" or "Shapell Site" shall mean the approximately 2,090 acres owned by Shapell Industries, Inc., located in Dougherty Valley and excluding the Country Club Site. "General Plan Amendment" shall have that meaning set forth in Recital H of this Agreement. "Growth Management Element" shall mean the Growth Management Element of the General Plan as of the Approval Date. "Notice of Compliance" shall have that meaning set forth in Article 15 of this Agreement. "Off -Site Traffic Improvements" shall have that meaning set forth in Section 3.1(f) of this Agreement. "P-1 Zoning" shall have that meaning set forth in Recital H of this Agreement. "Planning Actions" shall have that meaning set forth in Recital H of this Agreement. "Planning Commission" shall mean the County Planning Commission. C REDLI N E.01 /CA952950.004 "Preliminary Development Plan" shall have that meaning set forth in Recital H of this Agreement. "Settlement Agreements" shall have that meaning set forth in Recital H of this Agreement. "Shapell Site" or "Gale Ranch Site" shall mean the approximately 2,090 acres owned by Shapell Industries, Inc., located in Dougherty Valley and excluding the Country Club Site. "Specific Plan" shall have that meaning set forth in Recital H of this Agreement. "Subsequent Approvals" shall have that meaning set forth in Recital I of this Agreement. "Traffic Impact Fee" shall have that meaning set forth in Section 3.1(i) of this Agreement. "Windemere" shall have that meaning set forth in Recital C of this Agreement. "Windemere Site" shall have that meaning set forth in Recital H of this Agreement. Section 3. Obligations of Developer and County. 3.1 Obligations of Developer. (a) Generally. The Parties acknowledge and agree that County's agreement to perform and abide by the covenants and obligations of County set forth herein is material consideration for Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein. (b) Compliance with Settlement Agreements. The terms and provisions of this Agreement are intended to be consistent with, and shall not be deemed to modify, abrogate or limit compliance with or the implementation or enforcement of, the terms and provisions of any of the Settlement Agreements. In the event of any conflict between the terms and provisions of this Agreement and any Settlement Agreement, the terms and provisions of such Settlement Agreement shall prevail to the extent of such conflict. If and to the extent any obligation of any party under any of the Settlement Agreements is terminated for any reason, including without limitation any obligation under Section 3.1(e) (relating to the Interstate 680/Highway 24 Interchange, Section 3.1(k) (relating to the payment of traffic fees to the City of Pleasanton), and Section 3.1(g) (relating to the design program for the Village Center), then such obligation shall not be required to be satisfied hereunder. (c) Preliminary Development Plan. Except as otherwise specifically agreed by County, Developer shall comply with all conditions of approval to the Preliminary Development Plan. (d) Affordable Housing. Developer shall, in connection with its development of the Gale Ranch, implement the terms and provisions of the Affordable Housing Program adopted by the Board on March 22, 1994 pursuant to Board Order , (the "Affordable Housing Program"), which requires that a minimum of twenty-five percent (25%) of all dwelling units be developed as affordable to low, very low and moderate income households. 7 REDLINE.O! /CA952950.004 . (e (1988), : , t..a:.,,, 1.,.t -not -limited -to the , and all Code (Seetien 6_50-8-0- P-4 seq.), iRelud;Rg but Rot lim.4-ead- te -all eengestieR maRagemeRt e applied to ..11 ethe« major- sidential eets within themember-j..risdietiens of SWAT TT) ANSPAC , ..a TD ANSP AAT , a are „ ea by the !`euRt., or- Gita, . Rly t., the eK4eRt 0 tl,e nor- ai:*, eth - . . of this Agr-eemeRt (other- thaR the subsectieR of this AgreemeRt r-elatiRg to +eaduetiens iR peFmitted developmeRt i9ertieR 4.1] shall limit the authority of the (1988) rludiRg but Rot I imitea t„ .. , A ..tieR p1aR or- fees. f i Designation of Preferred Water Provider. In consequence of the court -sanctioned EBMUD Settlement Agreement, Policy U-1 of the Specific Plan which identifies alternative water suppliers shall be interpreted and applied to the Gale Ranch development as follows: DSRSD The Dublin San Ramon Services District ["DSRSD" I is the preferred water provider for the Gale Ranch Site (except for one or two school sites as provided in the EBMUD Settlement Agreement). EBMUD is an alternative water provider, but only pursuant to the terms and conditions set forth in the EBMUD Settlement Agreement. Staff will support and diligently process an amendment which will incorporate such language into the Specific Plan. (g-) tD Design Program for Dougherty Valley Village Center. Paragraphs 2, 3(a) and 3(b) of the NGO Settlement Agreement require certain actions to be taken with respect to the design of Gale Ranch, including participation in the development of a design program for the "Village Center" of the Dougherty Valley and provision of approximately forty (40) acres of additional open space (provided that such reconfiguration is physically feasible and permitted by law). Any obligation of Developer or County under such provisions of the NGO Settlement Agreement shall be satisfied in connection with any tentative map covering the area of the Gale Ranch Site affected by such obligation, whie' teRt..ti map will be appreved t,. eche with ,neoessattysueh obligation,which tentative map will be approved together with any necessary general plan amendment, specific plan amendment or rezoning. (h)fM Coordination of On -Site Improvements. County shall require that access or right- of-way for those certain roadway improvements described on Exhibit B, attached hereto and incorporated herein by reference, as roadway segments W-1 and W-2, offered for dedication as and at the times provided in the conditions to the PDP; provided, however, that if the Windemere project generates the need for access or right-of-way for roadway segments W-1 and/or W-2, prior to the time such access or right-of-way is required for the Gale Ranch, then County shall ensure that the provision of such access or right-of-way is subject to the following: In order to accommodate Windemere's development schedule, Windemere may elect to assume responsibility for constructing, without reimbursement from Shapell, roadway segments W-1 and/or W-2 in which case Shapell shall dedicate or offer to dedicate, as required by County, the necessary access or right 8 REDLINE.01 MA952950.0M of way to County upon satisfaction of the following conditions: (a) Shapell will have reasonably reviewed and approved Bollinger Canyon Road's horizontal and vertical alignment, grading and improvement plans; (b) Windemere shall have provided to Shapell improvement agreements deemed acceptable by County and executed by all parties, together with completion and payment bonds so that the improvements shall be duly completed and no liens shall remain on Shapell's property; and (c) Windemere shall have procured a policy of Comprehensive General Liability Insurance in an amount and from an insurance company reasonably satisfactory to County naming Shapell as an additional insured. Shapell shall have the right but not the obligation reasonably to designate the source of cut/fill dirt (from the Gale Ranch Site) which shall be used to the extent needed for roadway segments W-1 and/or W-2. (. hl Danville/San Ramon/County Traffic Impaet Mitigation: (1) Certain traffic improvements within the County, San Ramon and Danville are or may be required to accommodate development under the Specific Plan (the "Project Traffic Improvements"). The Project Traffic Improvements include (i) the on-site traffic improvements described in the Specific Plan as the "Internal Circulation System" (the "On -Site Traffic Improvements"), (ii) the off-site traffic improvements described on Exhibit C-1, attached hereto and incorporated herein by reference (the "Initial Project Traffic Improvements") and (iii) certain additional off-site traffic improvements described on Exhibit C-2, attached hereto and incorporated herein by reference (the "Additional Project Traffic Improvements"). The Initial Project Traffic Improvements and the Additional Project Traffic Improvements are sometimes referred to collectively below as the "Off -Site Traffic Improvements." (2) Subject to the provisions of 3.1(h)Developer and- `�duemere shall be responsible for the construction of the On -Site Traffic Improvements made necessary by the Gale Ranch. (3) Developer And- 1AUB810-FROFe Will GOHStMet an&eF pay the rest of any needed - initial D~^je^t shall pay to County a per-unit traffic impact fee (the "Traffic Impact Fee") in the amount necessary., but no more than the amount necessary, to fund Developer's fair share of the cost of construction of the Off -Site Traffic Improvements whish Gest shall be shared by DeyelepeF and Windemer-e in pr-epeFti nis tee bbea dettermined as set €e 'rth bele::; provided, however, that Windemere shall have responsibility for constructing roadway segment W-3 and Shapell shall have responsibility for constructing roadway segments S-1 and S-2 as shown on Exhibit B to this Agreement. In calculating Developer's and Windemere's respective obligations for the construction and/or funding of the initial Pr-eje * Off -Site Traffic Improvements, the costs of S-1, S-2, and W-3 shall be deducted from the aggregate total cost of the initial PFGjeCt Off -Site Traffic Improvements and not considered in making such calculations. Windemere and Shapell will ,.,,nsult allthOFities. Any third paFty mimbuFsefnent fOF expenses feF OR Site Feadway developments will be paid te, and retained by, the developer- that aetually paid feF the eenstr-uGtien oests e 9 REALINE.01 /CA952950.004 the roadway feF whirah reimbursement is obtained. Deve!Opff may elest to pay a fee te fund t,' h eas iate eFt;e of the al „f surh initial _Dg;e.f _T__r-affinim The amount of the Traffic Impact Fee applicable to Gale Raesh shall be determined as set forth in subsection (4) below, and shall apply to residential units developed on the Gale Ranch Site, The Traffic Impact Fee applicable to a residential unit shall be paid when the buildings permit for such unit is issued. The County will retain responsibility for the issuance of buildings permits and collectinll the fees notwithstanding the municipal annexation of any portion of the Gale Ranch (n) Developer- shall pay to County ^ peF nit tr^rf;,. ; ^Ot fee 0he «Trr^ff;^ r»,..Fee") in the amount > > deser-ibed in (3) j4 -The amount of the Traffic Impact Fee shall be determined within six (6) ^^ set f^rt>, i ubse^tion (6` below, and shall apply to residential unit shall be paid when the building peFmit for- sueh unit is; issued er-, if it is the stan pr-ar.tir.e of Cennty at the time, when the applie-ah-le final subdivision map is filed C-Aff pase�atie�r: r--elieved- of the abligation te pay T-r-affie 1friparat Fees commensur-ate with the value of such Off Si f$iieFReH r, at Developer's ptien, (ii) (`eunt„ shall establish and (6) Within three months following County's approval of this Agreement, but no later than the date upon which the County first approves a tentative subdivision map showing individual , the —ameunt Af the Traffic, Impaet Fee shall be deter -mined residential lots for any portion of the Doug7her1y Valley (other than for the Country Club Site), in.the following manner: County, Developer, Windemere and, as required by the San Ramon Settlement Agreement, representatives of Danville and San Ramon, shall meet and confer in good faith to determine (i) the estimated reasonable cost of the Off -Site Traffic Improvements and (ii) the respective proportions of such cost that fairly should be borne by Shapell and Wigidemere. (takings into account, among other thing=s, development planned for the Country Club Site and the fees being paid by hapell with respect thereto and other projects or parties, if any, segi>g contribution to the need for such improvements ; and to whom the Traffic Impact Fee will apply, In making such determinations, and establishingthe amount of the Traffic Impact Fee, it shall be reco nize I that (a) Developer's pro rata contribution to the traffic improvements described on Exhibit C-3, attached hereto and incorporated herein by reference, shall be no more than is specified in, and shall be paid as described in, Exhibit C-3; and (b) Developer and Windemere shall, taken together,. be responsible for the entire cost of the Initial Proiect Traffic Improvements as set forth in 10 REDLI NE.01 /CA952950.004 the San Ramon Settlement Agreement (although each shall be responsible only for its fair share of the cost of such improvements). The costs and proportions so determined and agreed upon by County and Developer shall be reflected, as appropriate, in the Traffic Impact Fee. The amount of the Traffic Impact Fee shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. (5) County shall enter into such agreements with San Ramon and Danville as may be necessary or appropriate to establish a joint exercise of powers agreement ("JEPA"),_ or some other program or mechanism (the "Local TIF Program"), to provide for (i) the collection of traffic impact fees from development projects in San Ramon. Danville and Contra Costa County within the JEPA bound q that will contribute to the need for the Additional Project Traffic Improvements, which fees shall be in amounts consistent with the determinations made under Subsection (4) above, (ii) the establishment of an account or accounts (the "Local TIF Account", to hold Traffic Impact Fees collected from Developer and Windemere, and traffic impact fees collected for the developers of other projects that will contribute to the need for the Additional Project Traffic Improvements (collectively, the "Local TIF Funds"), and (rii) the transfer to San Ramon, Danville and County of Local TIF Funds attributable to the Off -Site Traffic Improvements to be developed within those jurisdictions, (6) The timing of when an Off -Site Traffic Improvement is needed is determined by Measure C and by any conditions of approval for subsequent subdivision maps. If the Local TIF Program has not received sufficient developer fees to fund an improvement when it is needed, then Developer will fund the difference, or construct the improvement, to ensure the improvement is built on time. In such case, eveloper shall enter into a reimbursement agreement with County to credit or reimburse Developer the eligible construction costs that were advanced to build the project. Any credit so provided shall be applied in full against(" In deteFm" ing the aeIMA4-e€ the Traffic Impact Fee, for each residential nit that receives a building permit following completion of the Off -Site Traffic Improvement by Developer (rather than pro rata against the Traffic Impact Fee for all remaining residential units in the Projectl_until-such-time as the full credit has been provided. (7) County shall establish and implement a mechanism to reimburse Developer, and shall reimburse Developer, that portion of the costs to be incurred by Developer in connection with the funding or construction of the On -Site Traffic Improvements and the Off -Site Traffic Improvements that represents the extent to which the OR Site 'TFaffir. such traffic improvements will serve traffic generated by Gale- Raneh. projects that are developed pursuant to general plan amendments approved on or after the Effective Date. (8)(8) To the extent that any Project Traffic Improvement funded or constructed by Developer is included on a project list under any Measure C Action Plan 11 REDLINE.01 /CA952950.004 or CMP Deficiency Plan, and provided such tran_snortation improvement has sufficient priority under such Action Plan or Deficiency Plan. Developer shall receive a credit against, or reimbursement from, any regional traffic fee imposed upon Developer under Sections (h)(1 1)and 3.1(_k) of this Agreement M Some portion of the Traffic Impact Fee may be allocated to and collected from commercial development (on a per -square -foot basis) to occur as a part of Gale Ranch, provided, however, that the total amount of Traffic Impact Fee to be collected from residential development to occur as a part of Gale Ranch (as determined above) shall be reduced by the amount of funds to be so collected from commercial development. (9)fLO) County shall make its final determination of compliance with the standards of the Growth Management Element of the General Plan relating to traffic in conjunction with the review and approval of tentative subdivision maps. (4-0)(Ul County shall not impose on Developer any fee or other obligation with respect to roads or traffic impacts other than as set forth in this Agreement, Section 4.4 of the San Ramon Settlement Agreement (relating to assurance of compliance with traffic service objectives), Paragraph 1 of the Walnut Creek Settlement Agreement or Paragraph 1 of the Pleasanton Settlement Agreement (relating to Developer's payment of fees to Pleasanton). Notwithstanding the foregoing, nothing in this Agreement shall prevent the County from (i) applying to the Gale Ranch to any tentative maps any subregional traffic impact fee required by Measure C (1988) and adopted and applied consistently and on a uniform basis throughout the Tri -Valley subregion by each of the seven jurisdictions that are now signatories to the Tri -Valley Transportation Council joint powers authority which is adopted prior to the vesting date of any tentative map (provided, however, that County shall provide to Developer a credit against any such fee for traffic improvements constructed and/or funded by Developer under this Agreement or the Settlement Agreement) or (ii) imposing on the Gale Ranch reasonable requirements for the funding or construction of additional minor traffic improvements made necessary by Gale Ranch and identified through CEQA review of individual tentative map applications for Gale Ranch r (iii) imposing on the Gale Ranch a subregional traffic fee developed by the JEPA identified in Section 3.1(1)(5) to satisfy Measure C requirements and for the sole purpose of funding a fair 5hare contribution of the Alcosta ramp realignment project at I-680 and the auxiliary lanes project on I- 680 between Bollinger Canyon Road and Diablo Road (i) Pleasanton Traffic Mitigation. Separate and apart from the Traffic Impact fee. Developer shall pay to County $150 for each residential unit developed on the Gale Ranch Site pursuant to the Project Approvals ("Pleasanton Traffic Fees"), The Pleasanton Traffic Fees will be collected by County upon its issuance of the building permit for each such unit and delivered to Pleasanton for the mitigation of traffic impacts on roadways located in its jurisdiction. If for any reason San Ramon assumes the re pop ibiljty for issuing buildin 12 REDLI NE.01 /CA952950.004 nermjts for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of the Gale Ranch), San Ramon shall collect and deliver the Pleasanton Traffic Fees as set forth above, As Provided in Paragraph 5(b) of the Pleasanton Settlement Agreement, Developer's obligations pursuant to this Section 3.1(k) and Paragraph 1 of the Pleasanton Settlement Agreement shall cease in the event that Pleasanton files any legal action challenging any use or approval or any modification to any use or approval relating to Dougherty Valley.. Dublin Traffic Mitigation. County and Developer shall work with the City of ublin to establish a mutually acceptable fee to account for the cost of mitigation the traffic - related impacts of the Project on roadways located in the City of Dublin net of the cost of mitigating the traffic -related impacts of development projected to occur within the Cjty of Dublin (includipg, without limitation, the East Dublin project) on the On -Site and Off -Site Traffic Improv ments, if any, If County, Developer and the City of Dublin are unable to arrive at a mutually acceptable fee within six (66) moths following the Effective Date, then County and Developer may themselves determine the amount of such fee. Any fee imposed on the Project pursuant to this Section 3.1(i) shall be approved by the Board of Supervisors and, except as otherwise agreed by County and Developer, remain fixed in an amount no to exceed $490 per residential unit throughout the term of this Agreement: provided, however, tha such fee may be subject to escalation in accordiance with the "Construction Cost Index" published zn Engineering New Record. Such fee, if any, shall be paid upon the issuance of the building permit for each residential unit in the Project and delivered to Dublin for the mitigajton of traffic impacts on roadways in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of the Gale Ranch), San Ramon shall collect and deliver the fees to Dublin as set forth above. k) Wal-n—ut Creek Traffic Mitigation. Notwithstanding any other provision contained herein, all future tentative subdivision maps covering the Gale Ranch Site shall be subject to all standards and requirements adopted by the County pursuant to Measure C (1988) including but not limited to the Tri -Valley Action Plan or fees adopted thereunder, and all standards and requirements adopted pursuant to Title 7, Division 1. Chapter 2.5 of the Government Code (Section 65080 et seg.), including but not limited to all congestion management plans and deficiency plans adopted thereunder. provided that (a) such standards and requirements are designed to mitigate congestion on the Interstate 680/Highwav 24 interchange or 5treets within Walnut Creek. (b) are applied to all other major residential projects within the member jurisdictions of SWAT, TRANSPAC, and TRANSPLAN, an c) are imposed by the County or City only to the extent of the project's impacts on the interchange or streets within Walnut Creek Neither the foregoing provision nor any other provision of this Agreement (other than the subsection of this Agreement relating to Traffic= Based reductjons in permitted development [Section 4.11 shall limit the authority of the County to apply the standards and requirements described above adopted pursuant to Measure C_ 1988), including but not limited to any Action plan or fees. 13 RED LIN E.01 /CA952950.004 LU9 �} Dougherty Road Improvements. County shall not require, as a condition to any Planning Action or Subsequent Approval or in any other manner, that Developer construct or cause to be constructed a realigned Dougherty Road, as shown in the Specific Plan and Preliminary Development Plan, prior to 10 years from the effective date of this Agreement. Prior to County imposing any requirement involving a realigned Dougherty Road, County may require, as a condition to a Subsequent Approval, that Developer improve existing Dougherty Road in a manner acceptable to County. shall pay to Pleasanton $150 for. eh(m) Mitigation Monitoring Developer shall fund development and operation of a system (the "Permit Tracking System") to monitor compliance with the requirements of the Settlement Agreement regarding the provision of certain capital facilities, compliance with mitigation measures in the Dougherty Valley EIR, and compliance with project conditions, through the payment of a fee not to exceed $100 per residential unit developed on the Gale Ranch Sitepayable at recordation of the final map encompassing such unit. Developer shallat the time services are performed, pay the County staff costs of carrying out the County's p.-sua t to the Pr-ejectApprovals ("Pleasanton -Trace -Pees"). The purpose of Pleasanten T-r-affir. Fees is to mitigate the impact-,-; An Neas-anten *Vhieh the Pr-ejeet'& traffie is likely to eause. The Pleasanton Traffir. Fees will be celleeted- 4effi. ShapeN by the County at. the time the County issues a building peFmit fer- e -a -ch u -n -it W the unit is then in the unineer-per-ated area of the County. As pr-evided in Paragraph 5(b) of the Pleasanton Settlement Agrvement, Developer's obligations pursuant to this Seetien 3.1 @E) and Paragraph 1 ef the Pleasanten SeWefn AgFeeMeRt shall cease in the event that Pleasanton files any legal aetion r0hallenging any use a approval or any .� ..l. o ,aids,.♦.,, toanyuse OF .,l rel.,ting to r,,,ughe,.ty N'Ae.. - (4) Mitigation Monitoring. Developer- shall fund County's mitigation nit„r:„,... r^.. two Bch Program as adopted by the Board on December , 1992, and as it may hereafter be amended for the purposes of compliance with CEQA(the "Mitigation *, enit,.. ing Dreg^ m"` through the payment of .. fee not to o ee d _$100 per re -cid -e .t;al unit .developed on the Gale 1?.,arh Site.., which are attributable to development of the Gale Ranch Site, on a time and materials basis, and shall pay the reasonable costs of consultants as necessary to implement the Mitigation Monitoring Program. (m)Q County Service Area. As more fully described in Section 3.2(b) of this Agreement, Developer shall cooperate in establishment of the County Service Area and in the establishment of any special tax, benefit assessment or other supplemental financing method necessary for the provision of services and operation and maintenance described in Section 3.2(b)(iii). 3.2 Obligations of County. (a) Generally. The Parties acknowledge and agree that Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein is material consideration 14 REDL1NE.01=952950.004 for County's agreement to perform and abide by the covenants and gbligations of County set forth herein. (b) Establishment of County Service Area. (1) County and Developer shall cooperate in (i) the formation, as soon as reasonably practicable but in any event prior to any development in the Dougherty Valley, of a County Service Area or other financing entity to receive certain funds and provide certain services, including the operation and maintenance of facilities and infrastructure, as described in Section 3.3 of the San Ramon Settlement Agreement and (ii) the establishment, as soon as reasonably practicable but in any event prior to any development in the Dougherty Valley, of a mechanism and adequate to fund the provision of such services as described in Section 3.3 of the San Ramon Settlement Agreement. (2) As described in Section 3.4 of the San Ramon Settlement Agreement, to ensure that the Community Center, Senior Center, Library, Corporation Yard and Police Substation described in the Specific Plan will be constructed on a timely basis and made available to Dougherty Valley residents at the appropriate time, County shall (except to the extent some other method for the financing or provision of such facilities is requested or established by Developer or Windemere, as appropriate) assess against residential units to be developed in the Dougherty Valley a fee, special tax or assessment in an amount sufficient to fund Developer's and Windemere's obligation to contribute to the cost of such facilities (the "Facilities Fee"). Funds so collected will be held in a separate account and made available to Developer and Windemere, as appropriate, for the construction of such facilities. The precise form, timing, and amount of such fee, tax, or assessment shall be in accordance with the terms and provisions of Exhibit D attached hereto. Section 4. Standards, Laws and Procedures Governing Gale Ranch. 4.1 Permitted Uses, Etc.; Applicable Law. (a) Permitted Uses, Etc., of the Gale Ranch Site. The permitted uses of the Gale Ranch Site; the density and intensity of use of the Gale Ranch Site; the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the location of public utilities; and other terms and conditions of development applicable to the Gale Ranch, shall be as set forth in the Planning Actions and, as and when they are adopted or issued, the Subsequent Approvals. Not in limitation of the foregoing, the permitted uses of the Gale Ranch Site combined with the Country Club Site shall include 5,830 residential units at the densities provided for in the Specific Plan and 266,008 450,800 square feet of commercial space, (exclusive of any community college uses) subject to the following limitations: (1) All development of the Gale Ranch Site shall be consistent with the General Plan, including the Growth Management Element thereof as it existed on the Approval Date. County may modify the permitted uses of the Gale Ranch Site to the extent necessary to attain such consistency, provided no other method of attaining such consistency is feasible. 15 REDLIN E.01 /CA952950.004 (2) Subject to Section 4.1(f) of this Agreement and the provisions of CEQA, County may modify the permitted uses of the Gale Ranch Site to the extent necessary to satisfy County's obligations under CEQA and (as provided in Section 4.2, below,) other State and federal laws, provided no other method of satisfying such obligations is feasible. (3) The Parties acknowledge and agree that the terms and provisions of the Settlement Agreements include certain conditions to and limitations on the development of the Gale Ranch. All development of the Gale Ranch Site shall be consistent with such conditions and limitations. County may modify the permitted uses of the Gale Ranch Site to the extent necessary to attain such consistency, provided no other method of attaining such consistency is feasible. (4) Except to the extent otherwise specifically required by state or federal law, no modification of the permitted uses of the Gale Ranch Site shall occur with respect to any portion of the Gale Ranch Site for which County has approved a tentative or vesting tentative subdivision map. (b) Applicable Law. The rules, regulations, official policies, standards and specifications applicable to the Gale Ranch (the "Applicable Law") shall be those in force and effect on the Approval Date, including without limitation, the Planning Actions. The Applicable Law shall also be the rules, regulations, official policies, standards and specifications set forth in the Subsequent Approvals as and when they are adopted or issued. (c) No Conflicting Enactments. Except as otherwise specifically set forth herein, County, whether by action of the Board or otherwise, or by initiative, referendum, issuance of a subsequent approval or other means, and whether through the exercise of County's police power or its taxing power, shall not apply to the Gale Ranch any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each, individually, a "County Law") that is in conflict with Applicable Law, including this Agreement, or that reduces the rights provided by this Agreement unless agreed to in writing by Developer. Without limiting the generality of the foregoing, any County Law shall be deemed to conflict with Applicable Law, including this Agreement, or to reduce the rights provided by this Agreement, if it would accomplish any of the following results, either by specific reference to the Gale Ranch or as part of a general enactment that applies to or affects the Gale Ranch: (1) reduce the number of residential units permitted to be developed on the Gale Ranch Site to fewer than 4,614 (and any additional units that may be transferred from the Country Club Site to central residential receiver sites as permitted under the Specific Plan) or revise the densities permitted by the Specific Plan, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (2) reduce the square footage of commercial development permitted to be developed on the Gale Ranch Site to fewer than 266,000 450,800 square feet (exclusive of community college uses), except as otherwise specifically provided in Section 4.1(a) of this Agreement; 16 REDLIN E.01 /CA952950.004 (3) otherwise limit or reduce the density or intensity of the Gale Ranch, or any part thereof, or otherwise require any reduction in the square footage or number of proposed buildings or other improvements, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (4) otherwise change any land use designation or permitted use of the Gale Ranch Site, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (5) limit or control the location of buildings, structures, grading, or other improvements of the Gale Ranch in a manner that is inconsistent with or more restrictive than the limitations included in the Planning Actions and the Subsequent Approvals, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (6) limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water connections, sewage capacity rights, sewer connections, etc.) for the Gale Ranch, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (7) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Gale Ranch as set forth in Section 4.1(e), below, or in any other manner; except as otherwise specifically provided in Section 4.1(a) of this Agreement; (8) apply to the Gale Ranch any County Law otherwise allowed by this Agreement that is not uniformly applied on a County -wide basis to all substantially similar types of development projects and project sites; (9) require the issuance of additional permits or approvals by the County other than those required by Applicable Law; (10) establish, enact, or increase in any manner applicable to the Gale Ranch, or impose against the Gale Ranch, any fees, taxes (including, without limitation, general, special and excise taxes), assessments, liens or other financial obligations other than (i) those specifically permitted by this Agreement (including Traffic Impact Fees,, Facilities Fees, Processing Fees, fees to fund the Mitigation Monitoring Program and financial obligations associated with the financing of the operation and maintenance of the facilities and infrastructure, and provision of the services, set forth in Section 3.2(b) above) and made necessary by the Gale Ranch; (ii) any County -wide taxes and assessments; (11) except as provided in Section 4.1(c)(10) of this Agreement, establish, enact, or increase in any manner applicable to the Gale Ranch, or impose against the Gale Ranch, any rules, regulations, policies or standards that were not in effect on the Approval Date, or otherwise impose against the Gale Ranch any condition, dedication or other exaction not specifically authorized by Applicable Law and, except as authorized by the Settlement Agreement and required by the conditions to the PDP, not made necessary by the Gale Ranch; or 17 REDLIN E.01 /CA952950.004 (12) limit the processing of applications for, or the obtaining of, Subsequent Approvals. Notwithstanding the foregoing, none of the Settlement Agreements shall be considered a "conflicting enactment" for the purposes of this Agreement. (d) Exceptions. Notwithstanding the foregoing, the following provisions shall apply: (1) Uniform Codes. County may apply the then -current California Building Standard Code, referred to in Health &Safety Code _& 18935 and other uniform construction codes to the Gale Ranch throughout the Term of this. Agreement, provided that any such uniform code shall apply to the Gale Ranch only to the extent that the code is in effect on a County -wide basis. (2) Road and storm drainage design. County may apply throughout the terms of this Agreement its then -current design standards for construction of roads and storm drainage facilities, provided that any such standard shall apply to the Gale Ranch only to the extent that such standard has been adopted by County and is in effect on a County -wide basis. (3) Processing fees. Fees charged by County which solely represent the reasonable costs to County for County staff time and resources spent reviewing and processing Subsequent Approvals are referred to in this Agreement as "Processing Fees." Processing Fees do not include the Mitigation Monitoring Program fee described in Section 3.1(h) of this Agreement. County may charge Developer the applicable Processing Fees that are operative and in force and effect on a Countywide basis at the time such fees are customarily required by County to be paid. (e) Moratoria and Restrictions and Limitations on the Rate or Timing of Development. In the event a County Law is enacted, whether by action of the Board, the County Zoning Administrator, any County planning commission, or County staff, or by initiative, referendum, issuance of a Subsequent Approval or any other means, which relates to the growth rate, timing, phasing or sequencing of new development or construction in County or, more particularly, development and construction of all or any part of the Gale Ranch, such County Law shall not apply to the Gale Ranch, or any portion thereof. County Laws made inoperative by this provision include, but are not limited to, those not in force and effect on the Approval Date that tie development or construction to the availability of public services and/or facilities (for example, the presence of a specified traffic level of service or water or sewer availability). . (f) Further CEQA Review. County's environmental review of Subsequent Approvals pursuant to CEQA shall utilize the Dougherty Valley EIR and Dougherty Valley EIR Addendum to the fullest extent permitted by law. (g) Further Assurances. 18 REDLINE.01/CA952950.004 (1) County shall not support, adopt or enact any County Law, or take any other action which would violate the express or implied provisions, conditions, spirit or intent of the Planning Actions or the Subsequent Approvals. (2) Developer reserves the right to challenge in court any County Law that would, in Developer's opinion, conflict with Applicable Law, including this Agreement, or reduce the rights regarding development provided by this Agreement. (3) County shall take any and all actions as may be necessary or appropriate to ensure that the rights provided by this Agreement can be enjoyed by Developer including, without limitation, any actions as may be necessary or appropriate to ensure the availability of public services and facilities to serve the Gale Ranch as development occurs. (4) Should any initiative, referendum, or other measure be enacted, and any County lack of application thereof to the Gale Ranch be legally challenged, Developer agrees to fully defend the County against such challenge, including providing all necessary legal services, bearing all costs therefor, and otherwise holding the County harmless from all costs and expenses of such legal challenge and litigation. (h) Life of Subdivision Maps, Development Plans, and Permits. The term of any subdivision map or other permit approved as a Subsequent Approval shall automatically be extended as provided under Government Code section 66452.6(a) or Government Code section 65863.9. Notwithstanding the foregoing, the vested rights associated with any vesting tentative map (but not the term of such tentative map) shall terminate upon the expiration of the Term of this Agreement. 4.2 State and Federal Law. As provided in Government Code section 65869.5, this Agreement shall not preclude the application to the Gale Ranch of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations ("Changes in the Law"). Not in limitation of the foregoing, nothing in this Agreement shall preclude County from imposing on Developer any fee specifically mandated and required by state or federal laws or regulations. In the event the Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with the Changes in the Law, and County and Developer shall take such action as may be required pursuant to this Agreement, including, without limitation, Section 6. (Cooperation - Implementation) and Section 9.4 (Enforced Delay; Extension of Time of Performance) of this Agreement. 43 Timing of Construction and Completion. (a) Notwithstanding Sections 84-66.1406(1) and 84-66.1602 of the County Code, there is no requirement that Developer initiate or complete development of the Gale Ranch or any particular phase of the Gale Ranch within any particular period of time, and County shall not impose such a requirement on any Subsequent Approval. 19 REOUN E.01 /CA952950.004 (b) The Parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. In light of the foregoing and except as set forth in subsection (c) below, the Parties agree that Developer shall be able to develop in accordance with Developer's own time schedule as such schedule may exist from time to time, and that Developer shall determine the order in which portions of the Gale Ranch shall be developed. Not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984),'that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later -adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the Parties' desire to avoid that result by acknowledging that Developer shall have the right to develop the Gale Ranch in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. 4.4 Developer Review of On -Site Infrastructure Improvements. Developer shall have the right to review and comment on plans for any infrastructure improvement (including, without limitation, streets, roads, trails, and detention basins) to be constructed on the Gale Ranch Site by any private entity. Section 5. Amendment. 5.1 Amendment of Planning Actions and Subsequent Approvals. To the extent permitted by state and federal law, any Planning Action (other than this Agreement) or Subsequent Approval may, from time to time, be amended or modified in the following manner: (a) Administrative Amendments. Upon the written request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Subsequent Approval, the Community Development Director or his/her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Gale Ranch as a whole; and (ii) whether the requested amendment or modification is consistent with Applicable Law, other than that portion of Applicable Law sought to be amended. If the Community Development Director or his/her designee finds that the proposed amendment or modification is both minor and consistent with Applicable Law (other than that portion of Applicable Law sought to be amended), the amendment shall be determined to be an "Administrative Amendment," and the Community Development Director or his designee may, except to the extent otherwise required by law, approve the Administrative Amendment without notice and public hearing. For the purposes of this Section 5 and without limiting the generality of the foregoing, lot line adjustments, changes in trail alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of lots or homesites that do not substantially alter the design concepts of the Gale Ranch, and variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Gale Ranch, shall be treated as Administrative Amendments. (b) Non -Administrative Amendments. Any request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Subsequent Approval which is 20 REDLINE.01=952950.004 determined not to be an Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to Applicable Law (other than subsection (1) above). Nothing in this section 5.01 shall limit any obligations of the County under the San Ramon Settlement Agreement to submit any amendment or modification of a Planning Action or Project Approval to the "Dougherty Valley Oversight Committee," established under the San Ramon Settlement Agreement, for its review and comment or to submit or provide any documentation required by any Settlement Agreement in accordance with the terms of such Settlement Agreement.. 5.2 Amendment of This Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the Parties or their successors in interest, in accordance with this Agreement and the provisions of Government Code sections 65867, 65867.5, and 65868 as follows: (a) Insubstantial Amendments. Paragraph G of the County's "Procedures and Requirements for the Consideration of Development Agreements," adopted by Board Resolution No. 85/412, permits a development agreement to establish an alternative procedure for the processing of "insubstantial amendments" to such an agreement. Notwithstanding the other provisions of this Section 5.2, and pursuant to said Paragraph G, any amendment to this Agreement which does not relate to (i) the Term of this Agreement; (ii) permitted uses of the Gale Ranch Site, (iii) provisions for reservation or dedication of land, (iv) conditions, terms, restrictions, or requirements for subsequent discretionary actions, (v) the density or intensity of use of the Gale Ranch Site, (vi) the maximum height or size of proposed buildings, or (vii) monetary contributions by Developer, shall not, except to the extent otherwise required by law, require notice or public hearing before the Parties may execute an amendment hereto. (b) Amendments of Planning Actions, Subsequent Approvals or the Affordable Housing Program. No amendment of a Planning Action (other than this Agreement) or Subsequent Approval requested by Developer shall require an amendment to this Agreement. Instead, any such amendment automatically shall be deemed to be incorporated into the Gale Ranch and made subject to this Agreement. (c) Parties Required to Amend. Where a portion of Developer's rights or obligations have been transferred and a "Transfer Agreement" (as described in Section 13 below) has been executed in connection therewith, the signature of the person to whom such rights or obligations have been transferred shall not be required to amend this' Agreement unless such amendment would materially alter the rights or obligations of such transferee hereunder; provided, however, that any such transferee shall be provided with thirty (30) days' prior written notice of any amendment to this Agreement. (d) Non -Assuming Transferees. In no event shall the signature or consent of any "Non - Assuming Transferee" (described in Section 14.3 below) be required to amend this Agreement. Section 6. Cooperation -Implementation. 6.1 Processing. 21 REDLI NE.01 /CA952950.004 (a) In taking the Planning Actions, County has established basic planning principles, standards, and procedures to guide development of the Gale Ranch Site. The Subsequent Approvals shall be deemed to be tools to implement those principles, standards and procedures and must be consistent therewith. (b) Without limiting the generality of the foregoing, County shall not, through any Subsequent Approval or the imposition of any condition of approval thereto, either: (i) except as specifically required pursuant to Section 4.1(a) of this Agreement, reduce the number of residential units permitted to be developed on the Gale Ranch Site to fewer than 4,614 (plus any additional units transferred from the Country Club Site to central residential receiver sites as permitted under the Specific Plan) or change the distribution of those units by density as provided in the Specific Plan or reduce the square footage of commercial development permitted to be developed on the Gale Ranch Site to fewer than 266,000 450,800 square feet (exclusive of community college uses); or (ii) otherwise enact or impose any ordinance, resolution, rule, regulation, standard, directive, condition or other measure that is in conflict with Applicable Law (including this Agreement) as it exists immediately prior to the adoption of such Subsequent Approval or that reduces the rights provided by this Agreement. (c) Upon submission by Developer of all appropriate applications and processing fees for any Subsequent Approval, County shall commence and complete (and shall use its best efforts to promptly and diligently commence and complete) all steps necessary to act on the Subsequent Approval application including, without limitation, (i) the notice and holding of all required public hearings, and (ii) the decision on the Subsequent Approval application as set forth below. (d) County may deny an application for a Subsequent Approval by or requested by Developer only if (i) such application does not comply with Applicable Law, (ii) such application is inconsistent with the Planning Actions (provided, however, that inconsistency with a Planning Action shall not constitute grounds for denial of an application for a Subsequent Approval requested by Developer that is an amendment to that Planning Action), or (iii) County is unable to make all findings related to the Subsequent Approval required by state law. County may approve an application for such a Subsequent Approval subject to any conditions necessary to bring the Subsequent Approval into compliance with Applicable Law, make the Subsequent Approval consistent with the Planning Actions, or allow County to make the findings required by state law, so long as such conditions comply with Section 6.1(b) of this Agreement. If County denies any application for a Subsequent Approval, County must specify in making such denial the modifications required to obtain approval of such application. Any such specified modifications must be consistent with Applicable Law (including Section 6.1(b) of this Agreement), and County shall approve the application if subsequently resubmitted for County review if it complies with the specified modifications. (e) Developer shall, in a timely manner, provide County with all documents, applications, plans, and other information necessary for County to carry out its obligations hereunder and cause Developer's planners, engineers, and all other consultants to submit, in a timely manner, all required materials and documents therefor. It is the express intent of Developer and County to cooperate and diligently work to obtain any and all Subsequent Approvals. 22 REDU N E.01 MA952950.004 (f) Any reduction in the amount of permitted development in the Dougherty Valley resulting from either the application of Section 4.1(a) of this Agreement or the application of any comparable provision in any development agreement to which the Windemere Site is subject shall be subject to the following provisions: (1) If the reduction is the result of impacts of development in the Dougherty Valley that cannot feasibly be allocated between the Gale Ranch and Windemere projects, the reduction in permitted development shall be allocated between Shapell and Windemere such that the permitted development on the Gale Ranch Site and Country Club Site, combined, shall be 53 percent of the permitted development in the Dougherty Valley and the permitted development on the Windemere Site shall be 47 percent of the permitted development in the Dougherty Valley. Reductions based on traffic -related impacts shall be allocated 53% to Shapell and 47% to Windemere. No failure or delay by Windemere in constructing its first 3,995 residential units shall prevent or delay Shapell from or in developing any units beyond its first 4,505 residential units (in both the Country Club Site and the Gale Ranch Site). (2) If the reduction is the result of impacts of development in the Dougherty Valley that can be feasibly allocated to the Gale Ranch or Country Club project or to the Windemere project, such project shall bear such reduction. (g) Subject to the provisions of Section 6.1(f) of this Agreement, 4,505 (53 percent) of the first 8,500 units of development in the Dougherty Valley (including the Gale Ranch Site and the Country Club Site) shall be allocated to Shapell and 3,995 (47 percent) of the first 8,500 units to Windemere. Fifty-three percent of any development permitted in the Dougherty Valley beyond 8,500 units shall be allocated to Shapell and 47 percent to Windemere. 6.2 Eminent Domain Powers. County shall cooperate with Developer in implementing the Planning Actions and Subsequent Approvals. To the extent permitted by law, such cooperation shall include, without limitation, the use by County of its eminent domain powers where necessary to implement the Planning Actions and any Subsequent Approvals. 6.3 Other Governmental Permits. Developer shall apply for such other permits and approvals as may be required by other governmental or quasi -governmental agencies in connection with the development of, or the provision of services to, the Gale Ranch. County shall cooperate with Developer in its efforts to obtain such permits and approvals and shall, from time to time at the request of Developer, use its best efforts to enter into binding agreements with any such agency as may be necessary to ensure the availability of such permits and approvals. Section 7. Cooperation in the Event of Legal Challenge. 7.1 Cooperation. (a) In the event of any administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of any Planning Action, including this Agreement, or Subsequent Approval, the Parties shall cooperate in defending such action or proceeding to settlement or final judgment. Each Party shall select its 23 REDLI N E.01 /CA9 52950.004 own legal counsel and retain such counsel at its own expense, and in no event shall County be required to bear the fees and costs of Developer's attorneys. Developer shall save and hold harmless County from and against any and all claims and awards for third party attorneys' fees associated with such action or proceeding. (b) The Parties agree that this Section 7.1 shall constitute a separate agreement entered into concurrently with this Agreement, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification, or setting aside. 7.2 Cure; Reapproval. (a) If, as a result of any administrative, legal or equitable action or other proceeding as described in Section 7.1, all or any portion of the Planning Actions (including, but not limited to, this Agreement) or Subsequent Approvals are set aside or otherwise made ineffective by any judgment (a "Judgment") in such action or proceeding (based on procedural, substantive or other deficiencies, hereinafter "Deficiencies"), the Parties agree to use their respective best efforts to sustain and reenact or readopt those Planning Actions and/or Subsequent Approvals that the Deficiencies related to, as follows, unless the Parties mutually agree in writing to act otherwise. (1) If any Judgment requires reconsideration or consideration by County of any matter, then the County shall consider or reconsider that matter in a manner consistent with the intent . of this Agreement. If any such Judgment invalidates or otherwise makes ineffective all or any portion of any Planning Action or Subsequent Approval, then the Parties shall cooperate and shall cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of this Agreement. County shall then readopt or reenact the Planning Action or Subsequent Approval, or any portion thereof, to which the Deficiencies related. (2) Acting in a manner consistent with the intent of this Agreement includes, but is not limited to, recognizing that the Parties intend that, subject to the provisions of Section 4.1(a) of this Agreement, the permitted uses of the Gale Ranch Site shall include 4,614 residential units (plus any units that may be transferred from the Country Club Site to central residential receiver sites, as permitted under the Specific Plan) at the densities provided in the Specific Plan and 266,000 450,800 square feet of commercial uses (exclusive of community college uses), and adopting such ordinances, resolutions, and other enactments, including but not limited to, zoning ordinances, a specific plan and general plan amendments, as are necessary to readopt or reenact all or any portion of the Planning Actions and/or Subsequent Approvals without contravening the Judgment. (3) The provisions of subsections (a) and (b), above, are subject to the following limitations: Any additional, revised or modified environmental mitigation measures or alternatives that might be imposed as a result of a Judgment shall comply with Section 7.2(a)(2) of this Agreement. County's discretion in reviewing any information 24 REDLINE.01 /CA952950.004 regarding environmental impacts or alternatives shall be limited only by Section 7.2(a)(2) of this Agreement. (b) I The Parties agree that this Section 7.2 shall constitute a separate agreement entered into concurrently with this Agreement, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terns of this section, which shall survive such invalidation, nullification, or setting aside. Section 8. Dispute Resolution. With regard to any dispute involving development of the Dougherty Valley, the resolution of which is not provided for by Applicable Law, Developer shall, at County's request, meet with County and/or any party designated by County. The parties to any such meetings shall attempt in good faith to resolve any such disputes. However, nothing in this provision shall in any way be interpreted as requiring that Developer and County and/or County's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on County or Developer unless expressly agreed to by the Parties. Section 9. Default; Termination; Annual Review. 9.1 General Provisions. (a) Defaults. Any failure by either Party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other Party, unless such period is extended by written mutual consent, shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30 -day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such 30 -day period. Upon the occurrence of a default under this Agreement, the non -defaulting Party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, then no default shall exist and the noticing Party shall take no further action. (b) Termination. If County elects to consider terminating this Agreement due to a material default of Developer, then County shall give a notice of intent to terminate this Agreement and the matter shall be scheduled for consideration and review by the Board at a duly noticed and conducted public hearing. Developer shall have the right to offer written and oral evidence prior to or at the time of said public hearings. If the Board determines that a material default has occurred and is continuing and elects to terminate this Agreement, County shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter; provided, however, that Developer files an action to challenge County's termination of this Agreement within such sixty-day period, then this Agreement shall remain in full M REDLINE.01 /CA952950.004 force and effect until a trial court has affirmed County's termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired). 9.2 Annual Review. (a) On or before October 15 of each year, the Developer shall submit to the County Community Development Department a report demonstrating the good -faith compliance with the terms of this Agreement. (b) The Community Development Director shall, at a noticed public hearing, consider a staff report regarding Developer's compliance with the terms of this Agreement. After considering the evidence presented at such public hearing, the Community Development Director shall adopt, adopt with modification or deny the staff report. (c) Prior to January 30 of each calendar year, and based on the staff report, the Community Development Director shall make a determination regarding compliance with the Agreement. If the Community Development Director finds and determines that Developer has not complied with the terms and conditions of this Agreement, and non-compliance may amount to a default if not cured, then the Community Development Director may deliver a Default Notice pursuant to Section 9.1(a) of this Agreement, in which case the provisions of Section 9.1(a) shall apply. If the Community Development Director does not send such a Default Notice, then the Community Development Director and County shall take no further action. The County, including the Community Development Director, may exercise its right relating to any event of default only after complying with Section 9.1(a) of this Agreement. (d) County shall deliver to Developer a copy of all staff reports and documents to be used or relied upon in conducting the Annual Review and, to the extent practical, related exhibits concerning Developer's performance hereunder, at least ten (10) days prior to any such Annual Review. Developer shall be permitted during the Annual Review to respond orally or by a written statement, or both, to County's evaluation of Developer's performance. The Annual Review shall be limited in scope to compliance with the terms of this Agreement. (e) In the event County fails to either: (i) conduct the Annual Review or (ii) notify Developer in writing (following the time during which the review is to be conducted) of County's determination as to compliance or noncompliance with the terms of this Agreement and such failure remains uncured as of 60 days following the anniversary of the Effective Date in any year during the term of this Agreement, such failure shall be deemed a determination by County of Developer's compliance with the terms of this Agreement for that Annual Review period. (f) With respect to any year for which an Annual Review is conducted and compliance is determined, or with respect to any year in which County is deemed to have determined that Developer complied with this Agreement pursuant to the preceding paragraph, County, upon request of Developer, shall provide Developer with a written "Notice of Compliance," pursuant to Section 15 of this Agreement. 26 REDLINED 7 /CA952950.004 9.3 Default by County. In the event County defaults under the terms of this Agreement, Developer shall have all rights and remedies provided herein. 9.4 Enforced Delay; Extension of Time of Performance. Notwithstanding anything to the contrary contained herein, neither Party shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities, enactment of conflicting state or federal laws or regulations, new or supplemental environmental regulations, or, similar basis for excused performance which is not within the reasonable control of the Party to be excused. Upon the request of either Party hereto, an extension of time for such cause will be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon. Section 10. Defense and Indemnity. (a) Developer's Actions. Developer shall defend, hold harmless, and indemnify County and its elected and appointed officers, agents, employees, and representatives from claims, costs, and liabilities for any personal injury, death, or physical property damage (including inverse condemnation) which arises directly or indirectly, as a result of the construction of the Gale Ranch, or of operations performed under this Agreement, by Developer or by Developer's contractors, subcontractors, agents or employees, whether such operations were performed by Developer or any of Developer's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for Developer or any of Developer's contractors or subcontractors. (b) County's Actions. Nothing in this section shall be construed, to mean that Developer shall defend, indemnify, or hold County or its elected and appointed representatives, officers, agents and employees harmless from any claims of personal injury, death or property damage arising from, or alleged to arise from, the maintenance or repair by County of improvements that have been offered for dedication and accepted by County for maintenance. (c) Subdivision Agreement and Defense. County and Developer may from time to time enter into subdivision improvement agreements, as authorized by the Subdivision Map Act, Gov't Code § 66000 66010 et sea., which agreements may include defense and indemnity provisions different from those contained in subsections (1) and (2) above. In the event of any conflict between such provisions in any such subdivision improvement agreement and subsections (1) and (2) above, the provisions of such subdivision improvement agreement shall prevail. Section 11. No Agency, Joint Venture or Partnership. It is specifically understood and agreed to by and between the Parties that: (1) the subject development is a private development; (2) County has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that County accepts the same pursuant to the provisions of this Agreement or in connection with the various Planning Actions or Subsequent Approvals; (3) Developer shall have full power over and exclusive control of the Gale Ranch herein described, subject only to the limitations and obligations of Developer under the Planning Actions and Subsequent Approvals, and (4) County and Developer 27 REDLINE.01 /CA952950.004 hereby renounce the existence of any form of agency relationship, joint venture or partnership between County and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between County and Developer. Section 12. Miscellaneous. 12A Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. 12.2 Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, Developer may, in Developer's sole and absolute discretion, terminate this Agreement by providing written notice of such termination to County. 12.3 Other Necessary Acts. Each Party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Planning Actions and Subsequent Approvals and to provide and secure to the other Party the full and complete enjoyment of its rights and privileges hereunder. 12.4 Construction. Each reference in this Agreement to any of the Planning Actions or Subsequent Approvals shall be deemed to refer to the Planning Action or Subsequent Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both County and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. 12.5 Other Miscellaneous Terms. The singular shall include the plural; the masculine gender shall include the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement, the signer obligations are joint and several. 12.6 Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Gale Ranch, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions .contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to applicable laws including, without limitation, Civil Code section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Gale Ranch, as appropriate, runs with the Gale Ranch and is binding upon the 28 REDLINE.01 /CA952950.004 owner of all or a portion of the Gale Ranch and each successive owner during its ownership of such property. 12.7 Dougherty Valley Development Strategy. The Dougherty Valley is the subject of a comprehensive and integrated planning effort. It has been designed to allow development by phases. The timing of phase development will reflect market conditions and business decisions of the developers of the Dougherty Valley, while requiring that each phase make provision for its needs for infrastructure, services and amenities. Recognizing this development strategy, it is the intent of the Parties that while development must occur in furtherance of the valley -wide Dougherty Valley planning effort and the County's Growth Management Element, developers of the Dougherty Valley should be able to pursue development in a manner commensurate with their own goals and resources. In imposing conditions of approval, County shall, to the extent reasonably feasible, allocate to Windemere and Shapell their separate and distinct obligations. The Parties recognize that this may require that, for example, with regard to the construction of facilities involving both Shapell and Windemere, County may need to allocate the separate obligations of each Developer. Nothing in this Section 11 shall in any way modify the provisions of Section 4.3.3 of the Settlement Agreement. 12.8 Mortgage Rights. Any mortgagee that wishes to receive notices of default from the County pursuant to this Section 12.8 may provide written notice to the County requesting such notice. County shall notify any such mortgagee requesting notice of any event of default by Developer under this Agreement and provide to any such mortgagee the same opportunity to cure such event of default as is provided to Developer under this Agreement. Failure to so notify any such mortgagee shall not give rise to any liability on the part of County, provided that this Agreement shall not be terminated by County as to any mortgagee (1) who has requested notice but the mortgagee is not given notice by the County or (2) to whom notice is given and to which either or the following is true: (1) the mortgagee cures any default involving the payment of money by Developer within sixty (60) days after notice of default; (2) as to defaults requiring title or possession of all or any portion of the Gale Ranch to effectuate a cure: (i) the mortgagee agrees in writing, within ninety (90) days after the written notice of default, to perform the proportionate share of Developer's obligations under this Agreement allocable to that part of the Gale Ranch Site in which the mortgagee has an interest conditioned upon the mortgagee's acquisition of that part by foreclosure (including a trustee sale) or by a deed in lieu of foreclosure; (ii) the mortgagee commences foreclosure proceedings to reacquire title to all or the applicable portion of the Gale Ranch Site within the ninety (90) days and thereafter diligently pursues the foreclosure to completion; and (iii) the mortgagee (or any purchaser of the Developer's interest at foreclosure, or trustee sale, or by deed in lieu of foreclosure promptly and diligently cures the default after obtaining title or possession. Subject to the foregoing, in the event any mortgagee records a notice of default as to its mortgage or deed of trust, Developer's rights and obligations under this Agreement may be transferred to the mortgagee or to any purchaser of the Developer's interest at a foreclosure or trustee sale and Developer shall remain liable for such obligations 29 REDLIN E.01 /CA952950.004 unless released by County or unless County has approved the transfer in accordance with Section 14. 1, Section 14.2 and Section 14.3. 12.9 Approval by Mortgagees. County recognizes that the provisions of this Agreement may be a matter of concern to any mortgagee intending to make a loan secured by a mortgage or deed of trust encumbering the Gale Ranch Site, or a portion thereof. If such mortgagee should require, as a condition to such financing, any modification of this Agreement to protect its security interest in the Gale Ranch Site or portion thereof, County shall execute the appropriate amendments; provided, however, that County shall not be required (but is permitted) to make any modification that would (i) materially and adversely affect County's rights hereunder, (ii) increase County's obligations hereunder, (iii) reduce Developer's obligations hereunder or (iv) constitute an amendment other than an "Insubstantial Amendment" as described in Section 5.2 of this Agreement. 12.10 Notice of Proposed Amendment to Mortgagee. This Agreement may be amended without the approval or execution of any such amendment by any mortgagee. However, if County receives notice from a mortgagee requesting a notice of proposed amendment, County shall provide a copy of any proposed amendment to such mortgagee. 12.11 Remedies. Either Party may, in addition to any other rights or remedies, institute an equitable action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the foregoing and the purpose of this Agreement. In no event shall either County or Developer be entitled to monetary damages for breach of contract by the other Party to this Agreement. 12.12 California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 12.13 Other Public Agencies. Nothing in this Agreement shall be construed to limit the County's discretion to determine when and if it will enter into any agreements with other public agencies concerning the subject -matter and provisions of this Agreement or require that the County take any legal action concerning such other public agencies and their provision of services or facilities. 12.14 Attorneys' Fees. In the event of any litigation or arbitration between the Parties regarding an alleged breach of this Agreement, neither Party shall be entitled to any award of attorneys' fees. 12.15 Annexation to San Ramon. The Settlement Agreement anticipates the potential annexation of the Gale Ranch Site to the City of San Ramon. To the extent any portion of the Gale Ranch Site is so annexed, this Agreement shall continue to apply to the Gale Ranch Project until the expiration of the Term (to the maximum extent permitted by law) and, to the extent such construction is reasonable, appropriate and consistent with the terms of the Settlement Agreement, any annexation agreement that may then exist between Developer and San Ramon and any property tax exchange agreement or other agreement that may then exist between San Ramon and County relating to the Gale Ranch Site, with respect to any portion of the Gale, Ranch Site that has been 30 REDLINE WCA952950.004 annexed, (i) the term "County" as used herein shall mean "San Ramon" and (ii) San Ramon shall be deemed to be.a successor in interest to County's rights and obligations under this Agreement. Section 13. Notices. Any notice or communication required hereunder between County or Developer must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any Party may at any time, by giving ten (10) days written notice to the other Party, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: If to County, to: Director of Community Development Contra Costa County Administration Building 651 Pine Street Martinez, CA 94553 Telephone: (510) 646-2026 Facsimile: (510) 646-1309 With Copies to: County Counsel Contra Costa County Administration Building 651 Pine Street, 9th Floor Martinez, CA 94553 Telephone: (510) 646-2074 Facsimile: (510) 646-1078 Director of Public Works 255 Glacier Drive Martinez, CA 94553 Telephone: (510) 313-2000 Facsimile: (510) 313-2333 31 REDLINE.01/CA952950.004 If to Developer, to: Shapell Industries, Inc. 100 North Milpitas Boulevard Milpitas, CA 95035 Attention: Daniel W. Hancock Thomas J. Koch Telephone: (408) 946-1550 Facsimile: (408) 946-9687 With Copies to: McCutchen, Doyle, Brown & Enersen P.O. Box V Walnut Creek, CA 94596-1270 Attention: Daniel J. Curtin, Jr. Maria P. Rivera Telephone: (510) 937-8000 Facsimile: (510) 975-5390 Section 14. Assignment, Transfer and Notice. 14.1 Assignment of Interests, Rights and Obligations. Developer shall have the right to assign or transfer all or any portion of its interests, rights or obligations under the Planning Actions (including this Agreement) and the Subsequent Approvals to third parties acquiring an interest or estate in the Gale Ranch or the Gale Manch Site, or any portion thereof, including, without limitation, purchasers or long-term ground lessees of individual lots, parcels, or any lots, homes or facilities comprising a portion of the Gale Ranch. 14.2 Transfer Agreements. (a) In connection with the transfer or assignment by Developer of all or any portion of the Gale Ranch (other than a transfer or assignment by Developer to an affiliated party, a mortgagee or a "Non -Assuming Transferee" (as defined in Section 14.3 of this Agreement)), Developer and the transferee shall enter into a written agreement (a "Transfer Agreement") regarding the respective interests, rights and obligations of Developer and the transferee in and under the Planning Actions and the Subsequent Approvals. Such Transfer Agreement may (i) release Developer from obligations under the Planning Actions (including this Agreement) or the Subsequent Approvals that pertain to that portion of the Gale Ranch being transferred, as described in the Transfer Agreement, provided that the transferee expressly assumes such obligations, (ii) transfer to the transferee vested rights to improve that portion of the Gale Ranch being transferred and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. 32 REDLI NE.01 /CA952950.004 (b) Developer shall seek County's consent to any Transfer Agreement, which consent shall not be unreasonably withheld or delayed. Failure by County to respond within forty-five (45) days to any request made by Developer for such consent shall be deemed to be County's approval of the Transfer Agreement in question. County may refuse to give its consent only if, in light of the proposed transferee's business experience and financial resources, such transferee would not in County's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Such determination shall be made by the Community Development Director and is appealable by Developer to the Board. (c). Any Transfer Agreement shall be binding on Developer, County and the transferee. Upon recordation of any Transfer Agreement in the Official Records of Contra Costa County, Developer shall automatically be released from those obligations assumed by the transferee therein. (d) Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a transferee pursuant to a Transfer Agreement. No breach or default hereunder by any person succeeding to any portion of Developer's obligations under this Agreement shall be attributed to Developer, nor may Developer's rights hereunder be cancelled or diminished in any way by any breach or default by any such person. - (e) No breach or default hereunder by Developer shall be attributed to any person succeeding to any portion of Developer's rights or obligations under this Agreement, nor shall such transferee's rights be cancelled or diminished in any way by any breach or default by Developer. 14.3 Non -Assuming Transferees. Except as otherwise required by Developer in Developer's sole discretion, the burdens, obligations, and duties of Developer under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor County's consent shall be required in connection with (i) any single residential parcel conveyed to a purchaser, (ii) any property transferred as fewer than fifty (50) lots to a single retail builder, or (iii) any property that has been established as one or more separate legal parcels for office, commercial, industrial, open space, park, school or other nonresidential uses. The transferee in such a transaction and its successors ("Non -Assuming Transferees") shall be deemed to have no obligations under this Agreement, but shall continue to benefit from the vested rights provided by this Agreement for the duration of the Term. Nothing in this section shall exempt any property transferred to a Non - Assuming Transferee from payment of applicable fees and assessments or compliance with applicable conditions of approval.. Section 15. Notice of Compliance. 15.1 Generally. Within thirty (30) days following any written request which Developer may make from time to time, County shall execute and deliver to Developer a written "Notice of Compliance," in recordable form, duly executed and acknowledged by County, certifying that: (a) This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modification; 33 REDLINE.D11CA952950.DD4 (b) There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default; and (c) Any other reasonable information requested by Developer. The failure to deliver such a notice within such time shall constitute a conclusive presumption against County that this Agreement is in full force and effect without modification except as may be represented by the Developer and that there are no uncured defaults in the performance of the Developer, except as may be represented by the Developer. Developer shall have the right at Developer's sole discretion, to record the Notice of Compliance. Section 16. Entire Agreement, Counterparts and Exhibits. This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of (_) pages, _ notary acknowledgment pages, and four (4) exhibits which constitute in full, the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of County and the Developer. The following exhibits are attached to this Agreement and incorporated herein for all purposes: Exhibit A Legal Description of the Gale Ranch Site Exhibit B Responsibilities for Certain Traffic Improvements Exhibit C Cost Allocations For Certain Off -Site Traffic Improvements Exhibit C-1 Initial Project Traffic Improvements Exhibit C-2 Additional Project Traffic Improvements Exhibit C-3 Cost Allocations for Certain Additional Project Traffic Improvements Exhibit D Establishment of Capital Facilities Fee Section 17. Recordation of Development Agreement. Pursuant to Government Code section 65868.5, no later than ten (10) days after County enters into this Agreement, the County Clerk shall record an executed copy of this Agreement in the Official Records of the County of Contra Costa. 34 REDLINE.O1/CA952950.004 IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and County as of the day and year first above written. COUNTY OF CONTRA COSTA Harvey Bragdon Community Development Director ATTEST: COUNTY CLERK APPROVED AS TO FORM: Victor J. Westman County Counsel Silvano Marchesi Assistant County Counsel DEVELOPER: By: Title: And REDLINE.01 /CA952950.004 By: Title: By:_ Title: 35 SAN FRANCISCO LOS ANGELES SAN JOSE WALNUT CREEK MENLO PARK COUNSELORS AT LAW 1331 North California Boulevard Post Office Box V Walnut Creek, California 94596 Telephone: (510) 937-8000 Facsimile: (510) 975-5390 RECEIVED NOV - 2 1995 CLERK BOARD OF SUPERVISORS Date: November 1, 1995 To: DVOC Distribution From: Maria P. Rivera Re: Shapell Development Agreement WASHINGTON, D.C. TAIPEI AFFILIATED OFFICES BANGKOK BEIJING SHANGHAI RECT DIAL NUMBER INTERNET mrivera@mdbe.com Debbie Chamberlain has asked us to deliver to you the enclosed draft development agreement for the Gale Ranch [Shapell]. This document is redlined to show changes from the May 24, 1994 version previously before the Board of Supervisors. The changes included in this development agreement are intended to incorporate relevant provisions of the various settlement agreements and to reflect progress made by the parties since 1994 on matters such as the capital facilities fee. Certain changes were also made to coordinate this Agreement with the Development Agreement for Country Club at Gale Ranch, and some minor changes were made to clarify certain "boilerplate" provisions. As Ms. Chamberlain noted in her DVOC notice, County Counsel has not yet commented on the document. We have already incorporated suggestions made by Community Development, but the comments from Public Works have not been reduced to specific language. We will be discussing these over the next few days, and will submit any additional language to you as early as possible. We look forward to your review and comments. RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: McCutchen, Doyle, Brown & Enersen 1331 North California Boulevard Post Office Box V Walnut Creek, CA 94596 Draft of November 1, 1995 Marked to show changes from draft of May, 1994 (Space Above This Line Reserved For Recorder's Use) DEVELOPMENT AGREEMENT BETWEEN COUNTY OF CONTRA COSTA AND SHAPELL INDUSTRIES, INC. RELATING TO THE DEVELOPMENT COMMONLY KNOWN AS THE GALE RANCH 1� Draft of November 1, 1995 Marked to show changes from draft of May, 1994 DEVELOPMENT AGREEMENT BETWEEN COUNTY OF CONTRA COSTA AND SHAPELL INDUSTRIES, INC. RELATING TO THE DEVELOPMENT COMMONLY KNOWN AS THE GALE RANCH THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of this _ day of 1994 November, 1995, by and between SHAPELL INDUSTRIES, INC., a Delaware corporation ("Developer" or "Shapell"), and the COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"), pursuant to Government Code section 65864 et seq. Developer and County are from time to time hereinafter referred to individually as a "Party" and collectively as the "Parties." This Agreement supersedes and replaces in its entirety that certain development agreement entered into by and between Developer and County dated October 2, 1990, which is hereby terminated. 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 section 65864 et seq. (the "Development Agreement Statute"), which authorizes County to enter into an agreement with any person having a legal or equitable interest in real property, regarding the development of such property. B. Pursuant to Government Code section 65865, County has adopted rules and regulations establishing procedures and requirements for consideration of development agreements (Ordinance No. 92-73 and Board Resolution No. 85/412). This Development Agreement has been processed, considered and executed in accordance with those County rules and regulations. C. Developer has a legal interest in certain real property consisting of approximately two thousand seven hundred eight (2,708) acres located in the unincorporated portion of the County; known as the Dougherty Valley, which property is commonly referred to as the Gale Ranch. The property which is the subject of this agreement is a portion of the Gale Ranch comprised of approximately two thousand and ninety (2.090) acres as described in Exhibit A attached hereto (the "Gale Ranch Site"). The property is adjacent to property owned by Windemere Ranch Partners ("Windemere") also located in the Dougherty Valley. REDLIN E.Ol /CA952950.004/CA940230.008 D. Developer intends to develop the Gale Ranch Site as a residential planned community of 5,830 units 4.614 units us any units that may be transferred from the Country Club Site to central residential receiver s➢tes, as permitted under the Specific Plan), along with retail and office uses, , AgFeement (the "Gale . in accordance with the Dougherty Valley Specific Plan, E. County has determined that this Agreement is appropriate for the Gale Ranch and desires to enter into this Agreement. This Agreement establishes planning principles, standards, and procedures to: eliminate uncertainty in planning and guide the orderly development of the Gale Ranch consistent with the General Plan and the Dougherty Valley Specific Plan; mitigate significant environmental impacts; ensure installation of necessary on-site and off-site public improvements; provide for the preservation of substantial permanent open space; make provision for public trail facilities; provide funding for traffic improvements; provide for public services appropriate to the development of the Gale Ranch; provide affordable housing; ensure attainment of the maximum effective utilization of resources within the County at the least economic cost to its citizens; and otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted. Furthermore, development of the Gale Ranch pursuant to the Agreement would result in increased tax, fee and other revenues resulting in fiscal benefits to the County and an improved balance between jobs and housing within the County and the region. F. This Agreement requires, through the provisions that follow, that any future development of the Gale Ranch Site comply with the Growth Management Element of the General Plan. As a result, County is precluded from approving development of the Gale Ranch absent compliance with certain standards relating to water, sanitary facilities, fire, police, parks, flood control and traffic. G. In exchange for the benefits to County described in Recital E of this Agreement, together with the other public benefits that will result from the development of the Gale Ranch, Developer will receive by this Agreement assurance that it may proceed with the Gale Ranch in accordance with the "Applicable Law" (defined below), and therefore desires to enter into this Agreement. In the absence of this Agreement, Developer would have no present assurance that it could proceed with the Gale Ranch in accordance with the Applicable Law. H. County has taken various environmental review and planning actions relating to the development of the Gale Ranch. These actions include, without limitation, the following: 1. Dougherty Valley EIR On December 22, 1992, pursuant to the California Environmental Quality Act, the "CEQA Guidelines" and County's local guidelines promulgated therdunder (hereinafter collectively referred to as "CEQA") and in accordance with the recommendation of the County's Zoning Administrator, the Board, by Resolution 92/864, certified a final environmental impact report regarding the Gale Ranch (the "Dougherty Valley EIR"). 2. General Plan Amendment. On December 22, 1992, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, and after duly noticed, public hearing and certification of the Dougherty Valley EIR, the Board, by Resolution 92/866, approved an F4 R EOLI N E.O t /CA952950.004/CA940230.008 amendment to the County General Plan (the "General Plan Amendment"), addressing the Gale Ranch Site and certain real property adjacent to the Gale Ranch Site including (i) approximately 618 acres, also owned by Sha ell, known as Country Club at Gale Ranch (the "Country Club Site"). (ii) approximately 2379 acres owned by Windemere Ranch Partners (the "Windemere Site"), and (4)(W approximately 892 acres owned by the United States Department of the Army ("Camp Parks"). 3. Specific Plan. On December 22, 1992, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission and recommendation by the County Planning Commission, certification of the Dougherty Valley EIR, adoption of the General Plan Amendment, and duly noticed public hearing, the Board adopted, by Resolution 92/867, a single specific plan for the Gale Ranch Site, the Country Club Site. the Windemere Site, and Camp Parks (collectively, &,e "Dougherty Valley"), which specific plan is entitled the "Dougherty Valley Specific Plan" (the "Specific Plan"). 4 Country Club at Gale Ranch Approvals On December 20. 1994. following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission. and recommendation by the County Planning Commission. the Board's consideration and certification of the Country Club at Gale Ranch FEIR: and my noticed public hearing. the Board adopted Resolutions 94/640. 94/641 and 94/649 and adopted Ordinance No 94-77 and Ordinance No. 94-79, by which a General Plan Amendment, Rezoning_, Preliminary Development Plan, Final Development Plan. Vesting Tentative Map and Development Agreement for development of the Country Club at Gale Ranch (adjacent to the Gale Ranch Site) were approved 5. Settlement Agreements. County. together wjth Developer and Windemere as entered into varjous agreements to settle litigation brought by certain parties against the County as respondent. and against Developer and Windemere as real parties in interest. relating to County's approval of the General Plan Amendment and Specific Plan and its certification of the Dougherty Valley EIR (collectively. the "Settlement Agreements"). The Settlement Agreements establish, among other thjngs. certain procedures and standards that will be applied to County's consideration and approval of the "Project Approvals" (defined below). The Settlement Agreement consist of the following: (a) San Ramon and Danville: That certain agreement entered into by and among County. Developer. Windemere. the City of guL Ramon ("San Ramon") and e Town of Danville ("Danville") on May 11. 1994 to settle certajn claims brought by San Ramon and Danville as more fully. described therein (the "San Ramon Settlement Agreement"). i (c) Pleasanton: That certain agreement entered into by and between County, Developer. Windemere, and the City of Pleasanton ("Pleasanton") on June21 1995. to settle certain claims brought by Pleasanton as more fully described therein (the "Pleasanton Settlement Agreement"). REDLI NE.01 /CA952950.004/CA940230.008 �(b) Walnut Creek: That certain agreement entered into by and among County, Developer. Windemere. and the City of Walnut Creek ("Walnut Creek") o July 11, 1995. to settle claims brought by Walnut Creek as more fatly described therei (the "Walnut Creek Settlement Agreement"), (d) East Bay Municipal Utility District: That certain agreement entered into b3! and among County. Developer. Windemere, and the East Bav Municipal Utility District " BMUD") on September 26. 1995 to settle claims brought by EBMUD as more ally described therein (the "EBMUD Settlement Agreement"l. (e) Alamo Improvement Association: That certain agreement entered into by and among County_. Developer. Windemere, and the Alamo Improvement Association ("AIA") on October 12, 1995, to settle claims brought by the AIA as more fully described therein (the "AlA Settlement Agreement"). _(f) Non -Governmental Organizations: That certain agreement entered into 4 and among County. Developer. Windemere, and several non-governmental organizations viz.. the Sierra Club, the Greenbelt Alliances Preserve Area Rdgelands Committee. Save Our Hills and the Mount Diablo Audubon Socier�• on October 12. 1995. to settle claims brought by such non-governmental organizations as more fully described therein (the "NGO Settlement Agreement"). ¢. P-1 Zoning and Preliminary Development Plan. On , 4994 IM, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, the Board's consideration of an addendum to the Dougherty Valley EIR prepared in accordance with Section 15164 of the CEQA Guidelines (the "Dougherty Valley EIR Addendum") with the Dougherty Valley EIR, and duly noticed public hearing, the Board adopted County Ordinance No. rezoning the Gale Ranch Site to County's "P-1" zoning district consistent with the General Plan and the Specific Plan (the "P-1 Zoning") and, pursuant to Resolution , approved a Preliminary Development Plan for the Gale Ranch Site in accordance with its P-1 zoning (the "Preliminary Development Plan"). The General Plan Amendment, Specific Plan, P-1 Zoning, Preliminary Development Plan, and this Agreement are sometimes collectively referred to herein as the "Planning Actions." I. The Parties acknowledge and agree that applications for specific land use approvals, entitlements, permits and agreements (collectively, the "Subsequent Approvals") must be made by Developer and reviewed (in compliance with CEQA) and approved, issued or entered into by County prior to any development on the Gale Ranch Site. The Subsequent Approvals may include, without limitation, the following: design review approvals, improvement agreements and other agreements relating to the Gale Ranch, use permits, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, subdivision maps (including tentative, vesting tentative, parcel, vesting parcel, and final subdivision maps), preliminary and final development plans, rezonings, development agreements, landscaping plans. encroachment permits, 4 REDLINE. 01 /CA952950.0041CA940230.008 resubdivisions, and amendments to, or repealing of, the Planning Actions or the Subsequent Approvals. J. On November 6, 1992, following a duly noticed public hearing, the County Zoning Administrator made the appropriate findings required by County Resolution No. 85/412 and recommended that the Board approve this Agreement. K. On , 1995("San V&4"' GeReFal Nall . things,Ceuaty ef Gomm Gesta, et al., Gase No. C93 00231, Gentfa Costa Count), Superier- G9014 (the eefUin "SubsequeRt Approvals" (defined bejew)-. L. 011, 1994 (the "Approval Date"), after duly noticed public hearing and considering the Dougherty Valley EIR Addendum with the DeagheFty Valley CTD the Board took the following actions: (1) made findings required by Board Resolution No. 85/412, that the provisions of this Agreement are consistent with the General Plan and the Specific Plan; (2) by Board Resolution No. , made the findings required by CEQA; and (3) adopted Ordinance No. , approving and authorizing the execution of this Agreement. M L. Each Party acknowledges that it is entering into this Agreement voluntarily. NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth herein, the receipt and adequacy of which consideration is hereby acknowledged, the Parties agree as follows: Section 1. 1.1 Effective Date. This Agreement shall become effective upon the date the Ordinance approving this Agreement becomes effective, or the date upon which this Agreement is executed by Developer and County, whichever is later (the "Effective Date"). However, the "Applicable Law" to which the Gale Ranch shall be subject shall be as set forth in Section 4.1 below. 1.2 Term. The .term of this Agreement (the "Term") shall commence upon the Effective Date and continue for a period of twenty five (25) years. Section 2. Definitions. "Affordable Housing Program" shall have that meaning set forth in Section 3.1(d) of this Agreement. "Applicable Law" shall have that meaning set forth in Section 4.1 of this Agreement. 5 REDLI NE.01 /CA952950.004/CA940230.008 "Approval Date" shall have that meaning set forth in Recital L K of this Agreement. "Board" shall mean the Board of Supervisors of the County. "Changes in the Law" shall have that meaning set forth in Section 4.2 of this Agreement. "Community Development Director" shall mean the Director of the County's Department of Community Development, or his or her designee. "Country Club Site" shall mean the -approximately 618 acres within the Shapell Site for which the County approved a general plan amendment, rezoning, preliminary development Dian, final development_ Dian—sub&OWon map. and development agreement on December -20, f0 "County" shall mean the County of Contra Costa, and shall include, unless otherwise provided, any of the County's agencies, departments, officials, employees or consultants. "County General Plan" or "General Plan" shall mean the General Plan of the County. "—Danville" ..hall haNIe t-h—At M. ser f i4i in Rowis;4 K Af this Agfeefner.4 "Deficiencies" shall have that meaning set forth in Section 7.2 of this Agreement. "Developer" shall have that meaning set forth in the preamble, and shall further include, unless otherwise provided, Developer's successors, heirs, assigns, and transferees. "Dougherty Valley EIR" shall have that meaning set forth in Recital H of this Agreement. "Dougherty Valley EIR Addendum" shall have that meaning set forth in Recital H of this Agreement. "Effective Date" shall have that meaning set forth in Section 1.1 of this Agreement. "Facilities Fee" shall have that meaning set forth in Section 34(x4 3.2,(b)(2) of this Agreement. "Gale Ranch" shall mean the Gale Ranch Site and all improvements to be constructed thereon by Developer as described in the Planning Actions and (as and when they are adopted or issued), the Subsequent Approvals, and all off-site improvements to be constructed in connection therewith. "Gale Ranch Site" or "Shapell Site" shall mean the approximately 2.090 acres owned by Shapell Industries. Inc.. located in Dougherty Valley and excluding the Country Club Site. "General Plan Amendment" shall have that meaning set forth in Recital H of this Agreement. 6 REDLI NE.0I /CA952950.004/CA940230.008 "Growth Management Element" shall mean, ef this Agreement, the Growth Management Element of the General Plan as of the Approval Date, "Notice of Compliance" shall have that meaning set forth in Article 15 of this Agreement. "Off -Site Traffic Improvements" shall have that meaning set forth in Section 3.1(f) of this Agreement. "P-1 Zoning" shall have that meaning set forth in Recital H of this Agreement. "Planning Actions" shall have that meaning set forth in Recital H of this Agreement. "Planning'Commission" shall mean the County Planning Commission. "Preliminary Development Plan" shall have that meaning set forth in Recital H of this Agreement. "San Ramea"Settlement Agreements" shall have that meaning set forth in Recital Ie€this Agreement. H of this Agreement. Sc(RGI1TCTrc YtgFCCii}eRt S�l}arrhave —vthat —meaning --set —€eft -h iii--R-e&ital--:�6€ this Agfeemem"Shapell Site" or "Gale Ranch Site" shall mean the approximately 2.090 acres caned by Shanell Industries. Inc., located in Dougherty Valley and excluding the Country Club i e. "Specific Plan" shall have that meaning set forth in Recital H of this Agreement. "Subsequent Approvals" shall have that meaning set forth in Recital I of this Agreement. "Traffic Impact Fee" shall have that meaning set forth in Section 34. #) 3,IW of this Agreement. "Windemere" shall have that meaning set forth in Recital K -C of this Agreement. "Windemere Site" shall have that meaning set forth in Recital H of this Agreement. Developer and Cou , i 3.1 Obligations of Developer. (a) Generally. The Parties acknowledge and agree that County's agreement to perform and abide by the covenants and obligations of County set forth herein is material consideration for Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein. 7 REDLI N E.01 /CA952950.004/CA940230.008 • I JI. 1 1 i U.' 1 _ JJ I� 111 ! J.1 1 1 1 1 1 1 11 • J J 1 1 �I 1 11 I J. i I I I I L' �� J I. 1 1 1 J 1.1. \ : 1 1,' I 1 S] II II -ML 11I. 1 11 1 t! I I 1 II ' 1 IM4 }• • JJ : I 1 11 WIN ki [a I I 1AN I idswunI . J JI 1 UNUTWIMI I STUAr I J ]IT41 1 } 11 1 1 1 1 1 1_ 1 1) 1 [ 1 I I I KroWl 7W4 W161 time)1 lit 11 I l i } I 11 t o 11 1 1.11 J : I 1 1 1} �J_ ' J 1 n 1. ' I J. 1 1 1 1 1 1' 1 J I. 1 1' )t: II 1 I. I 11 11 1 1 J. 1 _W Preliminary Development Plan. Except as otherwise specifically agreed by Count;, Developer shall comply with all conditions of approval to the Preliminary Development Plan. (e) Feeilities Fee. Te easum that the CemmuRify Center-, Senior- Geaw, bibffiff.afld Pelke Substation deser-ibed in the Speraifir. Plan will be senstmeated aft a timely basis and made available to --veleped in the Deughefty Valley a fee, speeial ta* OF assessment OR AR $-A- fi_'ffid t_h.A_ T_)01,'@j8P0r-S' held- SepaFate aeeeunt and addSM:lah-le to U/:.,. eam-e rer- Shape!!, as appFepeiau1 f the assessment shall apply t., the Gale Rmwh_Qae (d) Affordable Housing. Developer shall, in connection with its development of the Gale Ranch, implement the terms and provisions of the Affordable Housing Program adopted by the Board on March 22, 1994 pursuant to Board Order it may he —amend -ed &,,.,, time t„ +:..,e(the "Affordable Housing Program"), which requires that a minimum of twenty-five percent (25%) of all dwelling units be developed as affordable to low, very low and moderate income households. 1 V'' 1 }} 1 } 1 11 1: 1 1 1: I/ J I. 1 ' \ 1 E: t 1 1 1• yr nm I V ' I I' I 11 II 1 I I tJ :JwinM: : I I 1 11 I _1=JM111T#TN 11 1 1 1 1 I in 11 c l a ' 11141111111 1 : I I 1• j y 1 ? I : 11 1 1 1 1 1 11 1 I1 ! 1 ';. �} 1 I }I 11' T 1 1 1( 11 � i �•� �. ' 1: 1..1 1_ y'a : Me T 1111 REDLIN E.01 /CA952950.004/CA940230.008 \. ' ' 11 • 1 1 I. 1 1 &- 1 k- 1 1 1 1 • I Ion 1 \' 1 1 1 !' 1 I- 1 1 11 1/ :1 1 1 1 11 1 1 ' s' 11 1 1 1 I I 1 1s 111 1 1 i'II' fin 1' 1 ; rM.111.1a FM 11,T. N I1 I I 1' MM ' 1. 1 1 Mum 1 1 y1 1 1 11 1 1 a 1 1 1 111 1• I 1 1 1 1 11 1I(IM111MA4411 UMMIN WTIT-TIMMPTA 11 ll 1 W77. - 1 _1TWMI, 1 ,' i 11 1 LI. ' :�I 11 Jl 1 1 1 MM additional open space (provided that such reconfiguration is physically feasible and permitted v law). Any obligation of Developer or County under such provisions of the NGO Settlement Agreement shall be satisfied in connection with any tentative map covering the area of the Gale Ranch Site affected by such obligation. which tentative map will be approved together with any necessary such obligation, which tentative map will be approved together with any necessary general plan amendment. specific plan amendment or rezoning. (h) Coordination of On -Site Improvements. County shall require that access or right-of- way for those certain roadway improvements described on figure -1 Exhibit B, attached hereto and incorporated herein by reference, as roadway segments W-1 and W-2, offered for dedication as and. at the times provided in the conditions to the PDP; provided, however, that if the Windemere project generates the need for access or right-of-way for roadway segments W-1 and/or W-2,. prior to the time such access or right-of-way is required for the Gale Ranch, then County shall ensure that the provision of such access or right-of-way is subject to the following: In order to accommodate Windemere's development schedule, Windemere may elect to assume responsibility for constructing, without reimbursement from Shapell, roadway segments W-1 and/or W-2 in which case Shapell shall dedicate or offer to dedicate, as required by County, the necessary access or right of way to County upon satisfaction of the following conditions: (a) Shapell will have reasonably reviewed and approved Bollinger Canyon Road's horizontal and vertical alignment, grading and improvement plans; (b) Windemere shall have provided to Shapell improvement agreements deemed acceptable by County and executed by all parties, together with completion and payment bonds so that the improvements shall be duly completed and no liens shall remain on Shapell's property; and (c) Windemere shall have procured a policy of Comprehensive General Liability Insurance in an amount and from an insurance company reasonably satisfactory to County naming Shapell as an additional insured. Shapell shall have the right but not the obligation reasonably to designate the source of cut/fill dirt (from the Gale Ranch Site) which shall be used to the extent needed for roadway segments W-1 f14l6f and/or W-2. Z RE DLINE.01 /CA952950.004/CA940230.008 1 1 1 • 1 1 1 1 1 �- : 1 1N UFFITT.-1 1 I , 1J. 1 L1 } 1 1J ji 1 FM MM ' 1. LI 1 '_ p _ 7 , NUM11 Mum Il 1 a 1 1 1 111 ' 1. I-. 1. 1 1 1 11 , UMMIN WTIT-TIMMPTA 11 ll 1 W77. - 1 _1TWMI, 1 ,' i 11 1 LI. ' :�I 11 Jl 1 1 1 MM additional open space (provided that such reconfiguration is physically feasible and permitted v law). Any obligation of Developer or County under such provisions of the NGO Settlement Agreement shall be satisfied in connection with any tentative map covering the area of the Gale Ranch Site affected by such obligation. which tentative map will be approved together with any necessary such obligation, which tentative map will be approved together with any necessary general plan amendment. specific plan amendment or rezoning. (h) Coordination of On -Site Improvements. County shall require that access or right-of- way for those certain roadway improvements described on figure -1 Exhibit B, attached hereto and incorporated herein by reference, as roadway segments W-1 and W-2, offered for dedication as and. at the times provided in the conditions to the PDP; provided, however, that if the Windemere project generates the need for access or right-of-way for roadway segments W-1 and/or W-2,. prior to the time such access or right-of-way is required for the Gale Ranch, then County shall ensure that the provision of such access or right-of-way is subject to the following: In order to accommodate Windemere's development schedule, Windemere may elect to assume responsibility for constructing, without reimbursement from Shapell, roadway segments W-1 and/or W-2 in which case Shapell shall dedicate or offer to dedicate, as required by County, the necessary access or right of way to County upon satisfaction of the following conditions: (a) Shapell will have reasonably reviewed and approved Bollinger Canyon Road's horizontal and vertical alignment, grading and improvement plans; (b) Windemere shall have provided to Shapell improvement agreements deemed acceptable by County and executed by all parties, together with completion and payment bonds so that the improvements shall be duly completed and no liens shall remain on Shapell's property; and (c) Windemere shall have procured a policy of Comprehensive General Liability Insurance in an amount and from an insurance company reasonably satisfactory to County naming Shapell as an additional insured. Shapell shall have the right but not the obligation reasonably to designate the source of cut/fill dirt (from the Gale Ranch Site) which shall be used to the extent needed for roadway segments W-1 f14l6f and/or W-2. Z RE DLINE.01 /CA952950.004/CA940230.008 (�) Traffic Impact Mitigation. (1) Certain traffic improvements are or may be required to accommodate development under the Specific Plan (the "Project Traffic Improvements"). The Project Traffic Improvements include (i) the on-site traffic improvements described in the Specific Plan (the "On -Site Traffic Improvements"), (ii) the off-site traffic improvements described on Exhibit B __C-1, attached hereto and incorporated herein by reference (the "Initial Project Traffic Improvements") and (iii) certain additional off-site traffic improvements described on Exhibit 13-2, attached hereto and incorporated herein by reference (the "Additional Project Traffic Improvements"). The Initial Project Traffic Improvements and the Additional Project Traffic Improvements are sometimes referred to collectively below as the "Off -Site Traffic Improvements." (2) Developer and Windemere shall be responsible for the construction of the On - Site Traffic Improvements made necessary by the Gale Ranch. (3) Developer and Shape!! Windemm will construct and/or pay the cost of any needed Initial Project Traffic Improvements (which cost shall beshared by Developer and Windemere in proportions to be determined as set fQAh below; provided, however, that Windemere shall have responsibility for constructing roadway segment W-3 . and Shapell shall have responsibility for constructing roadway segments S-1 and S-2 as shown on Fiigum1) Exhibit B to this Agreement. In calculating Developer's and Windemere's respective obligations for the construction and/or funding of the Initial Project Traffic Improvements, the costs of S-1, S-2, and W-3 shall be deducted from the aggregate total cost of the Initial Project Traffic Improvements and not considered in making such calculations. Windemere and Shapell will consult regarding roadway improvements, as appropriate, to assure coordination and to reduce the overall costs of roadway improvements to the extent permitted by relevant governmental authorities. Any third party reimbursement for expenses for on-site roadway developments will be paid to, and retained by, the developer that actually paid for the construction costs of the roadway for which reimbursement is obtained. Developer may elect to pay a fee to fund all or a portion of an Initial Project Traffic Improvement in lieu of constructing same, in which case an appropriate portion of the value of such Initial Project Traffic Improvement shall be included in the calculation of the Traffic Impact Fee applicable to Gale Ranch. (4) Developer shall pay to County a per-unit traffic impact fee (the "Traffic Impact Fee") in the amount necessary, but no more than the amount necessary, to fund Developer's fair share of the cost of construction of the Additional Project Traffic Improvements (and any Initial Project Traffic Improvement with respect to which Developer elects to pay a fee as described in subsection (3) above). The amount of the Traffic Impact Fee shall be determined as set forth in subsection (6) below, and shall apply to residential units developed in the DeugheFty 5414ey Gale Ranch Site. The Traffic Impact Fee applicable to a residential unit shall be paid when the building permit for such unit is issued or, if it is the standard practice of County at the time, when the applicable final subdivision map is filed for recordation. 10 REDLI NE.O1 /CA952950.004/CA940230.008 (5) Developer may elect to construct any Off -Site Traffic Improvement. In the event that Developer does so elect to construct an Off -Site Traffic Improvement, (i) Developer shall be relieved of the obligation to pay Traffic Impact Fees commensurate with the value of such Off -Site Traffic Improvement or, at Developer's option, (ii) County shall establish and implement a mechanism to provide reimbursement to Developer of such portion of the cost of construction of such improvements as is attributable to the use of such improvements by traffic generated by development projects outside of the Dougherty Valley. (6) The amount ef the Tmffie linpast Fee shall be deterinined, Within three months following County's approval of this Agreement, but no later than the date upon which the County first approves a tentative subdivision map showing individual lots for Gale Ranch, the amount of the Traffic Impact Fee shall be determined in the following manner: County, Developer, Windemere and, as required by the Settlement Agreement, representatives of Danville and San Ramon, shall meet and confer in good faith to determine (i) the estimated reasonable cost of the Off -Site Traffic Improvements and (ii) the respective proportions of such cost that fairly should be borne by Windemere Ranch and Gale Ranch and other projects or parties, if any, contributing to the need for such improvements; provided, however, that Developer's pro rata contribution to the traffic improvements described on Exhibit 13-3, attached hereto and incorporated herein by reference, shall be no more than is specif ed in, and shall be paid as described in, Exhibit 13-C-3. The costs and proportions so determined and agreed upon by County and Developer shall be reflected, as appropriate, in the Traffic Impact Fee. The amount of the Traffic Impact Fee shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. (7) In determining the amount of the Traffic Impact Fee, County may credit Developer for that portion of the costs to be incurred by Developer in connection with the construction of On -Site Traffic Improvements that represents the extent to which the On -Site Traffic Improvements will serve subregional and regional traffic other than traffic generated by Gale Ranch. (8) Some portion of the Traffic Impact Fee may be allocated to and collected from commercial development (on a per -square -foot basis) to occur as a part of Gale Ranch, provided, however, that the total amount of Traffic Impact Fee to be collected from residential development to occur as a part of Gale Ranch (as determined above) shall be reduced by the amount of funds to be so collected from commercial development. (9) County shall make its final determination of compliance with the standards of the Growth Management Element of the General Plan relating to traffic in conjunction with the review and approval of tentative subdivision maps. (10) Count, shall not impose on Developer any fee or other obligation with respect to roads or traffic impacts other than as set forth in this Agreement of, Section 4.4 of the $moi Ramon Settlement Agreement (relating to assurance of compliance with traffic service objectives)Paragraph 1 of the Walnut Creek Settlement Agreement or Paragraph 1 of e Pleasanton Settlement Agreement frelating to Developer's payment of fees to REDLINE.01 /CA952950.004/CA940230.008 Pleasanton). Notwithstanding the foregoing, nothing in this Agreement shall prevent the County from (i) applying to lbe Gale Ranch to any tentative mans any subregional traffic impact fee required by Measure C (1988) and adopted and applied consistently and on a uniform basis throughout the Tri -Valley subregion by bfe86h 2&6 of the seven jurisdictions that are now signatories to the Tri -Valley Transportation Council joint powers authority which is adopted prior to the vesting date of any tentative map (provided, however, that County shall provide to Developer a credit against any such fee for traffic improvements constructed and/or funded by Developer under this Agreement or the Settlement Agreement) or (ii) imposing on JU Gale Ranch reasonable requirements for the funding or construction of additional minor traffic improvements made necessary by Gale Ranch and identified through CEQA review of individual tentative map applications for Gale Ranch. (11) County shall enter into such agreements with San Ramon and Danville as may be necessary or appropriate to provide for the transfer of such portion of the Traffic Impact Fee attributable to the Traffic Improvements to be developed within those jurisdictions. (ft Dougherty Road Improvements. County shall not require, as a condition to any Planning Action or Subsequent Approval or in any other manner, that Developer construct or cause to be constructed a realigned Dougherty Road, as shown in the Specific Plan and Preliminary Development Plan, prior to 10 years from the effective date of this Agreement. Prior to County imposing any requirement involving a realigned Dougherty Road, County may require, as a condition to a Subsequent Approval, that Developer improve existing Dougherty Road in a manner acceptable to County. Pleasanton Traffic Mitigation. Separate and apart from the Traffic Impact fee rx -40 1 ITS '-TM1s3TWJ1 WIMMUS W7.77 -A- =*— J70 W13 'ii'j XT411TIMINIMT-1i �VA111114 RMI L(,)(#) Mitigation Monitoring. Developer shall fund County's mitigation monitoring program for the Gale Ranch as adopted by the Board on December 22, 1992, and as it may hereafter be amended for the purposes of compliance with CEQA (the "Mitigation Monitoring Program"), through the payment of a fee not to exceed $100 per residential unit developed on the Gale Ranch Site. f� County Service Area. As more fully described in Section 3.2(b) of this Agreement, Developer shall cooperate in establishment of the County Service Area and in the establishment of any special tax, benefit assessment or other supplemental financing method necessary for the provision of services and operation and maintenance described in Section 3.2(b)(iii). 12 REDLINE.01 /CA952950.004/CA940230.008 3.2 Obligations of County. (a) Generally. The Parties acknowledge and agree that Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein is material consideration for County's agreement to perform and abide by the covenants and obligations of County set forth herein. (b) Establishment of County Service Area. W County and Developer shall cooperate in (i) the formation, as soon as reasonably practicable but in any event prior to any development in the Dougherty Valley, of a County Service Area or other financing entity to receive certain funds and provide certain services, including the operation and maintenance of facilities and infrastructure, as described in Section 3.3 of the San Ramor Settlement Agreement and (ii) the establishment, as soon as reasonably practicable but in any event prior to any development in the Dougherty Valley, of a mechanism adequate to fund the provision of such services as described in Section 3.3 of the San Ramon Settlement Agreement. 1 1 �I !. 1 I 1SaV><I�I�ISf��:_: 1! 1 I. .lid! 11 1 �• II • J. 1 '� I 1 11111 l •1 1. 1 J[�j 111.1 .f. 11 1 _�_1 11 1 1 1 11 • IN I 1' 1Milli1411)@) 1 1 / 1 I I1. 1 .. I I a 1 1 11, 1 1 1 1 1 1 1 1 1 69 419AMMI 11,14 1I_' : M1j11 IR 1. 1 / 1. 1 1 1 ' Zr" 7 Icy 1 4 11 ' 1 1 1 1 1 1 1 1 1 1 1 1 y �• 1 1 1 1 1 11 1 1 T11 M. lam= t1ra 81 iq ►: 1 1 1 1. 1 1 1 t 1 1 1 1' 1 1 I ,1 I I �_4 1 1 � 1 1� 1• 1 11 • I 1 .11. 4.1 Permitted Uses, Etc.; Applicable Law. (a) Permitted Uses, Etc., of the Gale Ranch Site. The permitted uses of the Gale Ranch Site; the density and intensity of use of the Gale Ranch Site; the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the location of public utilities; and other terns and conditions of development applicable to the Gale Ranch, shall be as set forth in the Planning Actions and, as and when they are adopted or issued, the Subsequent Approvals. Not in limitation of the foregoing, the permitted uses of the Gale Ranch Site combined with the Country Club Site shall include 5,830 13 REDLIN E.O i /CA952950.004/CA940230.008 residential units at the densities provided for in the Specific Plan and 266,000 square feet of commercial space, (exclusive of an), community college uses) subject to the following limitations: (1) All development of the Gale Ranch Site shall be consistent with the General Plan, including the Growth Management Element thereof as it existed on the Approval Date. County may modify the permitted uses of the Gale Ranch Site to the extent necessary to attain such consistency, provided no other method of attaining such consistency is feasible. (2) Subject to Section 4.1(f) of this Agreement and the provisions of CEQA, County may modify the permitted uses of the Gale Ranch Site to the extent necessary to satisfy County's obligations under CEQA and (as provided in Section 4.2, below,) other State and federal laws, provided no other method of satisfying such obligations is feasible. (3) The Parties acknowledge and agree that the tetras and provisions of the Settlement Agreetaea include certain conditions to and limitations on the development of the Gale Ranch. All development of the Gale Ranch Site shall be consistent with such conditions and limitations. County may modify the permitted uses of the Gale Ranch Site to the extent necessary to attain such consistency, provided no other method of attaining such consistency is feasible. (4) Except to the extent otherwise specifically required by state or federal law, no modification of the permitted uses of the Gale Ranch Site shall occur with respect to any portion of the Gale Ranch Site for which County has approved a tentative or vesting tentative subdivision map. (b) Applicable Law. The rules, regulations, official policies, standards and specifications applicable to the Gale Ranch (the "Applicable Law") shall be those set Aboh in in force and effect n the Approval Date. including without limitation the Planning Actions, the Settlemen Agr-eement; The Applicable Law shall also be the rules, regulations. official policies standards and specifications set forth in the Subsequent Aper_ ovals as and when they are adopted or issued , eFdinanees and resolutions, iH fOFre and effeet an the Approval Date. (c) No Conflicting Enactments. Except as otherwise specifically set forth herein, County, whether by action of the Board or otherwise, or by initiative, referendum, issuance of a subsequent approval or other means, and whether through the exercise of County's police power or its taxing power, shall not apply to the Gale Ranch any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each, individually, a "County Law") that is in conflict with Applicable Law, including this Agreement, or that reduces the rights provided by this Agreement unless agreed to in writing by Developer. Without limiting the generality of the foregoing, any County Law shall be deemed to conflict with Applicable Law, including this Agreement, or to reduce the rights provided by this Agreement, if it would accomplish any of the following results, either by specific reference to the Gale Ranch or as part of a general enactment that applies to or affects the Gale Ranch: 14 REDLIN E.01 /CA952950.004/CA940230.00B (1) reduce the number of residential units permitted to be developed on the Gale Ranch Site to fewer than 3;$38 4,614 (and any additional units that may be transferred from the Country Club Site to central residential receiver sites as permitted under the Specific Plan) or revise the densities permitted by the Specific Plan, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (2) reduce the square footage of commercial development permitted to be developed on the Gale Ranch Site to fewer than 266,000 square feet (exclusive of community college uses), except as otherwise specifically provided in Section 4.1(a) of this Agreement;! (3) otherwise limit or reduce the density or intensity of the Gale Ranch, or any part thereof, or otherwise require any reduction in the square footage or number of proposed buildings or other improvements, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (4) otherwise change any land use designation or permitted use of the Gale Ranch Site, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (5) limit or control the location of buildings, structures, grading, or other improvements of the Gale Ranch in a manner that is inconsistent with or more restrictive than the limitations included in the Planning Actions and the Subsequent Approvals, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (6) limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water connections, sewage capacity rights, sewer, connections, etc.) for the Gale Ranch, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (7) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Gale Ranch as set forth in Section 4.1(e), below, or in any other manner; except as otherwise specifically provided in Section 4.1(a) of this Agreement; (8) apply to the Gale Ranch any County Law otherwise allowed by this Agreement that is not uniformly applied on a County -wide basis to all substantially similar types of development projects and project sites; (9) require the issuance of additional permits or approvals by the County other than those required by Applicable Law; (10) establish, enact, or increase in any manner applicable to the Gale Ranch, or impose against the Gale Ranch, any fees, taxes (including, without limitation, general, special and excise taxes), assessments, liens or other financial obligations other than (i) those specifically permitted by this Agreement (including Traffic Impact Fees, Facilities Fees, Processing Fees, fees to fund the Mitigation Monitoring Program and financial obligations associated with the financing of the operation and maintenance of the facilities and 15 REDLINE.01 /CA952950.004/CA940230.008 infrastructure, and provision of the services, set forth in Section 3.2(b) above) and made necessary by the Gale Ranch; (ii) any County -wide taxes and assessments; (11) except as provided in Section 4.1(c)(10) of this Agreement, establish, enact, or increase in any manner applicable to the.Gale Ranch, or impose against the Gale Ranch, any rules, regulations, policies or standards that were not in effect on Dedember 22, °= the Approval Date, or otherwise impose against the Gale Ranch any condition, dedication or other exaction not specifically authorized by Applicable Law and, except as authorized by the Settlement Agreement and required by the conditions to the PDP, not made necessary by the Gale Ranch; or (12) limit the processing of applications for; or the obtaining of, Subsequent Approvals. Notwithstanding the foregoing, none of the Settlement AgFeemeat shall fiet be considered a raenflieting eaaestment"conflictive enactment" for the purposes of this Agreement. (d) Exceptions. Notwithstanding the foregoing, the following provisions shall apply: (1) Uniform Codes. County may apply the then -current Uniform Building Code and other uniform construction codes to the Gale Ranch throughout the Term of this Agreement, provided that any such uniform code shall apply to the Gale Ranch only to the extent that the code is in effect on a County -wide basis. (2) Road and storm drainage desiem. County may apply throughout the terms of this Agreement its then -current design standards for construction of roads and storm drainage facilities, provided that any such standard shall apply to the Gale Ranch only to the extent that such standard has been adopted by County and is in effect on a County -wide basis. (3) Processing fees. Fees charged by County which solely represent the reasonable costs to County for County staff time and resources spent reviewing and processing Subsequent Approvals are referred to in this Agreement as "Processing Fees." Processing Fees do not include the Mitigation Monitoring Program fee described in Section 3.1(h) of this Agreement. County may charge Developer the applicable Processing Fees that are operative and in force and effect on a Countywide basis at the time such fees are customarily required by County to be paid. (e) Moratoria and Restrictions and Limitations on the Rate or Timing of Development. In the event a County Law is enacted, whether by action of the Board, the County Zoning Administrator, any County planning commission, or County staff, or by initiative, referendum, issuance of a Subsequent Approval or any other means, which relates to the growth rate, timing, phasing or sequencing of new development or construction in County or, more _ particularly, development and construction of all or any part of the Gale Ranch, such County Law shall not apply to the Gale Ranch, or any portion thereof. County Laws made inoperative by this provision include, but are not limited to, those not in force and effect on the Approval Date that tie development or E R ED LI N E.O t /CA952950.004/CA940230.008 construction to the availability of public services and/or facilities (for example, the presence of a specified traffic level of service or water or sewer availability). (f) Further CEQA Review. County's environmental review of Subsequent Approvals pursuant to CEQA shall utilize the Dougherty Valley EIR and Dougherty Valley EIR Addendum to the fullest extent permitted by law. (g) Further Assurances. (1) Te the maximum extem peFmiaed bY law; Agfeemeat in full fer-.e and eff et (4) County shall not support, adopt or enact any County Law, or take any other action which would violate the express or implied provisions, conditions, spirit or intent of the .Planning Actions or the Subsequent Approvals. (34W Developer reserves the right to challenge in court any County Law that would, in Developer's opinion, conflict with Applicable Law, including this Agreement, or reduce the rights regarding development provided by this Agreement. (4)(3) County shall take any and all actions as may be necessary or appropriate to ensure that the rights provided by this Agreement can be enjoyed by Developer including, without limitation, any actions as may be necessary or appropriate to ensure the availability of public services and facilities to serve the Gale Ranch as development occurs. (59U Should any initiative, referendum, or other measure be enacted, and any County lack of application thereof to the Gale Ranch be legally challenged, Developer agrees to fully defend the County against such challenge, including providing all necessary legal services, bearing all costs therefor, and otherwise holding the County harmless from all costs and expenses of such legal challenge and litigation. (h) Life of Subdivision Maps, Development Plans, and Permits. The term of any subdivision map or other permit approved as a Subsequent Approval shall automatically be extended as provided under Government Code section 66452.6(a) or Government Code section 65863.9. Notwithstanding the foregoing, the vested rights associated with any vesting tentative map (but not the term of such tentative map) shall terminate upon the expiration of the Term of this Agreement. 4.2 State and Federal Law. As provided in Government Code section 65869.5, this Agreement shall not preclude the application to the Gale Ranch of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations ("Changes in the Law"). Not in limitation of the foregoing, nothing in this Agreement shall preclude County from imposing on Developer any fee specifically mandated and required by state or federal laws or regulations. In the event the Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary 17 REDLIN E.01 /CA952950.004/CA940230.008 to comply with the Changes in the Law, and County and Developer shall take such action as may be required pursuant to this Agreement, including, without limitation, Section 61 (Cooperation - Implementation) and Section 9.4 (Enforced Delay; Extension of Time of Performance) of this Agreement. 4.3 Timing of Construction and Completion. (a) Notwithstanding Sections 84-66.1406(1) and 84-66.1602 of the County Code, there is no requirement that Developer initiate or complete development of the Gale Ranch or any particular phase of the Gale Ranch within any particular period of time, and County shall not impose such a requirement on any Subsequent Approval. (b) The Parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. In light of the foregoing and except as set forth in subsection (c) below, the Parties agree that Developer shall be able to develop in accordance with Developer's own time schedule as such schedule may exist from time to time, and that Developer shall determine the order in which portions of the Gale Ranch shall be developed. Not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later -adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the Parties' desire to avoid that result by acknowledging that Developer shall have the right to develop the Gale Ranch in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. 4.4 Developer Review of On-site Sitg Infrastructure Improvements. Developer shall have the right to review and comment on plans for any infrastructure improvement (including, without limitation, streets, roads, trails, and detention basins) to be constructed on the Gale Ranch Site by any private entity. Section 5. Amendment, 5.1 Amendment of Planning Actions and Subsequent Approvals. To the extent permitted by state and federal law, any Planning Action (other than this Agreement) or Subsequent Approval may, from time to time, be amended or modified in the following manner: (a) Administrative Amendments. Upon the written request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Subsequent Approval, the Community Development Director or his/her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Gale Ranch as a whole: and (ii) whether the requested amendment or modification is consistent with Applicable Law, other than that portion of Applicable Law sought to be amended. If the Community Development Director or his/her designee finds that the proposed amendment or modification is both minor and consistent with Applicable Law (other than that portion of Applicable Law sought to be amended), 18 REDLINE 01/CA952950.0041CA940230.008 the amendment shall be determined to be an "Administrative Amendment," and the Community Development Director or his designee may, except to the extent otherwise required by law, approve the Administrative Amendment without notice and public hearing. For the purposes of this Section 5 and without limiting the generality of the foregoing, lot line adjustments, changes in trail alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of lots or homesites that do not substantially alter the design concepts of the Gale Ranch, and variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Gale Ranch, shall be treated as Administrative Amendments. (b) Non -Administrative Amendments. Any request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Subsequent Approval which is determined not to be an Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to Applicable Law (other than subsection (,1)above). Nothing is this section 5.0I shall limit any obligations of the County under the San Ramon Settlement Agreement to submit any amendment or modification of a Planning Action or Project Approval to the "Dougherty Valley Oversight Committee." established under the San Ramon Settlement Agreement, for its review and comment or to submit or provide any documentation Muired by any Settlement Agreement in accordance with the terms of such Settlement 5.2 Amendment of This Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the Parties or their successors in interest, in accordance with this Agreement and the provisions of Government Code sections 65867, 65867.5, and 65868 as follows: (a) Insubstantial Amendments. Paragraph G of the County's 'Procedures and Requirements for the Consideration of Development Agreements," adopted by Board Resolution No. 85/412, permits a development agreement to establish an alternative procedure for the processing of "insubstantial amendments" to such an agreement. Notwithstanding the other provisions of this Section 5.2, and pursuant to said Paragraph G, any amendment to this Agreement which does not relate to (i) the Term of this Agreement; (ii) permitted uses of the Gale Ranch Site, (iii) provisions for reservation or dedication of land, (iv) conditions, terms, restrictions, or requirements for subsequent discretionary actions, (v) the density or intensity of use of the Gale Ranch Site, (vi) the maximum height or size of proposed buildings, or (vii) monetary contributions by Developer, shall not, except to the extent otherwise required by law, require notice or public hearing before the Parties may execute an amendment hereto. (b) Amendments of Planning Actions, Subsequent Approvals or the Affordable Housing Program. No amendment of a Planning Action (other than this Agreement)-, g Subsequent Approval by Developer shall require an amendment to this Agreement. Instead, any such amendment automatically shall be deemed to be incorporated into the Gale Ranch and made subject to this Agreement. (c) Parties Required to Amend. Where a portion of Developer's rights or obligations have been transferred and a "Transfer Agreement" (as described in Section 13 below) has been executed RE DLINE.Ol /CA952950.004/CA940230.008 in connection therewith, the signature of the person to whom such rights or obligations have been transferred shall not be required to amend this Agreement unless such amendment would materially alter the rights or obligations of such transferee hereunder; provided, however,. that any such transferee shall be provided with thirty (30) days' prior written notice of any amendment to this Agreement. (d) Non -Assuming Transferees. In no event shall the signature or consent of any "Non - Assuming Transferee" (described in Section 43-314. below) be required to amend this Agreement. Section 6. Cooperation= Implementation, 6.1 Processing. (a) In taking the Planning Actions, County has established basic planning principles, standards, and procedures to guide development of the Gale Ranch Site. The Subsequent Approvals shall be deemed to be tools to implement those principles, standards and procedures and must be consistent therewith. (b) Without limiting the generality of the foregoing, County shall not, through any Subsequent Approval or the imposition of any condition of approval thereto, either: (i) except as specifically required pursuant to Section 4.1(a) of this Agreement, reduce the number of residential units permitted to be developed on the Gale Ranch Site to fewer than 5,M 4.614 (plus any additional units transferred from the Country Club Site to central residential receiver sites as permitted under the Specific Plan) or change the distribution of those 3;439 units by density as provided in the Specific Plan or reduce the square footage of commercial development permitted to be developed on the Gale Ranch Site to fewer than 266,000 square feet (exclusive of community college uses): or (ii) otherwise enact or impose any ordinance, resolution, rule, regulation, standard, directive, condition or other measure that is in conflict. with Applicable Law (including this Agreement) as it exists immediately prior to the adoption of such Subsequent Approval or that reduces the rights provided by this Agreement. (c) Upon submission by Developer of all appropriate applications and processing fees for any Subsequent Approval, County shall commence and complete (and shall use its best efforts to promptly and diligently commence and complete) all steps necessary to act on the Subsequent Approval application including, without limitation, (i) the notice and holding of all required public hearings, and (ii) the decision on the Subsequent Approval application as set forth below. (d) County may deny an application for a Subsequent Approval by or requested by Developer only if (i) such application does not comply with Applicable Law, (ii) such application is inconsistent with the Planning Actions (provided, however, that inconsistency with a Planning Action shall not constitute grounds for denial of an application for a Subsequent Approval requested by Developer that is an amendment to that Planning Action), or (iii) County is unable to make all findings related to the Subsequent Approval required by state law. County may approve an application for such a Subsequent Approval subject to any conditions necessary to bring the Subsequent .Approval into compliance with Applicable Law, make the Subsequent Approval 20 REDLINE. 01 /CA952950.004/CA940230.008 consistent with the Planning Actions, or allow County to make the findings required by state law, so long as such conditions comply with Section 6.1(b) of this Agreement. If County denies any application for a Subsequent Approval, County must specify in making such denial the modifications required to obtain approval of such application. Any such specified modifications must be consistent with Applicable Law (including Section 6.1(b) of this Agreement), and County shall approve the application if subsequently resubmitted for County review if it complies with the specified modifications. (e) Developer shall, in a timely manner, provide County with all documents, applications, plans, and other information necessary for County to cant' out its obligations hereunder and cause Developer's planners, engineers, and all other consultants to submit, in a timely manner, all required materials and documents therefor. It is the express intent of Developer and County to cooperate and diligently work to obtain any and all Subsequent Approvals. (f) Any reduction in the amount of permitted development in the Dougherty Valley resulting from either the application of Section 4.1(a) of this Agreement or the application of any comparable provision in any development agreement to which the Windemere Site is subject shall be subject to the following provisions: (I) If the reduction is the result of impacts of development in the Dougherty Valley that cannot feasibly be allocated between the Gale Ranch and Windemere projects, the reduction in permitted development shall be allocated between Shapell and Windemere such that the permitted development on the Gale Ranch Site and County Club Site, combined, shall be 53 percent of the permitted development in the Dougherty Valley and the permitted development on the Windemere Site shall be 47 percent of the permitted development in the Dougherty Valley. Reductions based on traffic -related impacts shall be allocated 53% to Shapell and 47% to Windemere. No failure or delay by Windemere in constructing its first 3,995 residential units shall prevent or delay Shapell from or in developing any units beyond its first 4,505 residential units (in both the Country Club Site and the Gale Ranch &W. (2) -If the reduction is the result of impacts of development in the Dougherty Valley that can be feasibly allocated to either the Gale Ranch or Country Club project or IQ the Windemere project, such project shall bear such reduction. (g) Subject to the provisions of Section 6.1(f) of this Agreement, 4,505 (53 percent) of the first 8,500 units of development in the Dougherty Valley (including the Gale Ranch Site and the Counta Club Site) shall be allocated to Shapell and 3,995 (47 percent) of the first 8,500 units to Windemere. Fifty-three percent of any development permitted in the Dougherty Valley beyond 8,500 units shall be allocated to Shapell and 47 percent to Windemere. 6.2 Eminent Domain Powers. County shall cooperate with Developer in implementing the Planning Actions and Subsequent Approvals. To the extent permitted by law, such cooperation shall include, without limitation, the use by County of its eminent domain powers where necessary to implement the Planning Actions and any Subsequent Approvals. 21 REDLINE.01 /CA952950.004/CA940230.006 6.3 Other Governmental Permits. Developer shall apply for such other permits and approvals as may be required by other governmental or quasi -governmental agencies in connection with the development of, or the provision of services to, the Gale Ranch. County shall cooperate with Developer in its efforts to obtain such permits and approvals and shall, from time to time at the request of Developer, use its best efforts to enter into binding agreements with any such agency as may be necessary to ensure the availability of such permits and approvals. 7.1 Cooperation. (a) In the event of any administrative, legal or equitable action or other proceeding instituted by any person rot a party to this Agreement challcnging the validity of any provision of any Planning Action, including this Agreement, or Subsequent Approval, the Parties shall cooperate in defending such action or proceeding to settlement or final judgment. Each Party shall select its own legal counsel and retain such counsel at its own expense, and in no event shall County be required to bear the fees and costs of Developer's attorneys. Developer shall save and hold harmless County from and against any and all claims and awards for third party attorneys' fees associated with such action or proceeding. (b) The Parties agree that this Section 7.1 shall constitute a separate agreement entered into concurrently with this Agreement, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification, or setting aside. 7.2 Cure; Reapproval. (a) If, as a result of any administrative, legal or equitable action or other proceeding as described in Section 7.1, all or any portion of the Planning Actions (including, but not limited to, this Agreement) or Subsequent Approvals are set aside or otherwise made ineffective by any judgment (a "Judgment") in such action or proceeding (based on procedural, substantive or other deficiencies, hereinafter "Deficiencies"), the Parties agree to use their respective best efforts to sustain and reenact or readopt those Planning Actions and/or Subsequent Approvals that the Deficiencies related to, as follows, unless the Parties mutually agree in writing to act otherwise. (1) If any Judgment requires reconsideration or consideration by County of any matter, then the County shall consider or reconsider that matter in a manner consistent with the intent of this Agreement. If any such Judgment invalidates or otherwise makes ineffective all or any portion of any Planning Action or Subsequent Approval, then the Parties shall cooperate and shall cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of this Agreement. County shall then readopt or reenact the Planning Action or Subsequent Approval, or any portion thereof, to which the Deficiencies related. 22 REDLINE. 01 /CA952950.OD4/CA940230.008 (2) Acting in a manner consistent with the intent of this Agreement includes, but is not limited to, recognizing that the Parties intend that, subject to the provisions of Section 4.1(a) of this Agreement, the permitted uses of the Gale Ranch Site shall include 3;539 4,614 residential units at the densities provided in the Specific Plan and 266,000 square feet of commercial uses (exclusive of community college uses), and adopting such ordinances, resolutions, and other enactments, including but not limited to, zoning ordinances, a specific plan and general plan amendments, as are necessary to readopt or reenact all or any portion of the Planning Actions and/or Subsequent Approvals without contravening the Judgment. (3) The provisions of subsections (a) and (b), above, are subject to the following limitations: Any additional, revised or modified environmental mitigation measures or alternatives that might be imposed as a result of a Judgment shall comply with Section 7.2(a)(2) of this Agreement. County's discretion in reviewing any information regarding environmental impacts or alternatives shall be limited only by Section 7.2(a)(2) of this Agreement. (b) The Parties agree that this Section 7.2 shall constitute a separate agreement entered into concurrently with this Agreement, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification, or setting aside. With regard to any dispute involving development of the Dougherty Valley, the resolution of which is not provided for by Applicable Law, Developer shall, at County's request, meet with County and/or any party designated by County. The parties to any such meetings shall attempt in good faith to resolve any such disputes. However, nothing in this provision shall in any way be interpreted as requiring that Developer and County and/or County's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on County or Developer unless expressly agreed to by the Parties. Section 9. Default; Termination; Annual Review. 9.1 General Provisions. (a) Defaults. Any failure by either Party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other Party, unless such period is extended by written mutual consent, shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence shall specify the nature of the alleged failure and, where appropriate, the manner in which. said failure satisfactorily may be cured. if the nature of the alleged failure is such that it cannot reasonably be cured within such 30 -day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within 23 REDLI N E.01 /CA952950.004/CA940230.008 such 30 -day period. Upon the occurrence of a default under this Agreement, the non -defaulting Party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, then no default shall exist and the noticing Party shall take no further action. (b) Termination. If County elects to consider terminating this Agreement due to a material default of Developer, then County shall give a notice of intent to terminate this Agreement and the matter shall be scheduled for consideration and review by the Board at a duly noticed and conducted public hearing. Developer shall have the right to offer written and oral evidence prior to or at the time of said public hearings. If the Board determines that a material default has occurred and is continuing and elects to terminate this Agreement, County shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter; provided, however, that Developer files an action to challenge County's termination of this Agreement within such sixty-day period, then this Agreement shall remain in full force and effect until a trial court has affirmed County's termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired). 9.2 Annual Review. (a) On or before October 15 of each year, the Developer shall submit to the County Community Development Department a report demonstrating the good -faith compliance with the terms of this Agreement. (b) The Community Development Director shall, at a noticed public hearing, consider a staff report regarding Developer's compliance with the terms of this Agreement. After considering the evidence presented at such public hearing, the Community Development Director shall adopt. adopt with modification or deny the staff report. (c) Prior to January 30 of each calendar year, and based on the staff report, the Community Development Director shall make a determination regarding compliance with the Agreement. If the Community Development Director finds and determines that Developer has not complied with the terms and conditions of this Agreement, and non-compliance may amount to a default if not cured, then the Community Development Director may deliver a Default Notice pursuant to Section 9.1(a) of this Agreement, in which case the provisions of Section 9.1(a) shall apply. If the Community Development Director does not send such a Default Notice, then the Community Development Director and County shall take no further action. The County, including the Community Development Director, may exercise its right relating to any event of default only after complying with Section 9.1(a) of this Agreement. (d) County shall deliver to Developer a copy of all staff reports and documents to be used or relied upon in conducting the Annual Review and, to the extent practical, related exhibits concerning Developer's performance hereunder, at least ten (10) days prior to any such Annual Review. Developer shall be permitted during the Annual Review to respond orally or by a written statement, or both, to County's evaluation of Developer's performance. The Annual Review shall be limited. in scope to compliance with the terms of this Agreement. 24 REDLIN E.01 /CA952950.004/CA940230.008 (e) In the event County fails to either: (i) conduct the Annual Review or (ii) notify Developer in writing (following the time during which the review is to be conducted) of County's determination as to compliance or noncompliance with the terms of this Agreement and such failure remains uncured as of 60 days following the anniversary of the Effective Date in any year during the term of this Agreement, such failure shall be deemed a determination by County of Developer's compliance with the terms of this Agreement for that Annual Review period. (f) With respect to any year for which an Annual Review is conducted and compliance is determined, or with respect to any year in which County is deemed to have determined that Developer complied with this Agreement pursuant to the preceding paragraph, County, upon request of Developer, shall provide Developer with a written "Notice of Compliance," pursuant to Section 15 of this Agreement. 9.3 Default by County. In the event County defaults under the terms of this Agreement, Developer shall have all rights and remedies provided herein. 9.4 Enforced Delay; Extension of Time of Performance. Notwithstanding anything to the contrary contained herein, neither Party shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities, enactment of conflicting state or federal laws or regulations, new or supplemental environmental regulations, or similar basis for excused performance which is not within the reasonable control of the Party to be excused. Upon the request of either Party hereto, an extension of time for such cause will be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon. Section 10. DEFENSE AND 1NDEMNITY Defense and Indemnity (a) Developer's Actions. Developer shall defend, hold harmless, and indemnify County and its elected and appointed officers, agents, employees, and representatives from claims, costs, and liabilities for any personal injury, death, or physical property damage (including inverse condemnation) which arises directly or indirectly, as a result of the construction of the Gale Ranch, or of operations performed under this Agreement, by Developer or by Developer's contractors, subcontractors, agents or employees, whether such operations were performed by Developer or any of Developer's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for Developer or any of Developer's contractors or subcontractors. (b) County's Actions. Nothing in this section shall be construed to mean that Developer shall defend, indemnify, or hold County or its elected and appointed representatives, officers, agents and employees harmless from any claims of personal injury, death or property damage arising from, or alleged to arise from, the maintenance or repair by County of improvements that have been offered for dedication and accepted by County for maintenance. (c) Subdivision Agreement and Defense. County and Developer may from time to time enter into subdivision improvement agreements, as authorized by the Subdivision Map Act, Gov't Code § 66000 et sea., which agreements may include defense and indemnity provisions different 25 REDLI N E.01 /CA952950.004/CA940230.008 from those contained in subsections (1) and (2) above. In the event of any conflict between such . provisions in any such subdivision improvement agreement and subsections (1) and (2) above, the provisions of such subdivision improvement agreement shall prevail. Section 11. NO AG ENCY, jOINT VENTURE OR PARTNERSMP Joint Venture or Partnership, It is specifically understood and agreed to by and between the Parties that: (1) the subject development is a private development; (2) County has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that County accepts the same pursuant to the provisions of this Agreement or in connection with the various Planning Actions or Subsequent Approvals; (3) Developer shall have full power over and exclusive control of the Gale Ranch herein described, subject only to the limitations and obligations of Developer under the Planning Actions and Subsequent Approvals, and (4) County and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between County and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between County and Developer. Section 12. MISCELLANEOUS Miscellaneous. 12.1 Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. 12.2 Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, Developer may, in Developer's sole and absolute discretion, terminate this Agreement by providing written notice of such termination to County: 123 Other Necessary Acts. Each Party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to cant' out the Planning Actions and Subsequent Approvals and to provide and secure to the other Party the full and complete enjoyment of its rights and privileges hereunder. 12.4 Construction. Each reference in this Agreement to any of the Planning Actions or Subsequent Approvals shall be deemed to refer to the Planning Action or Subsequent Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both County and Developer, and no presumption or rule that ambiguities shall be construed against -the drafting party shall apply to the interpretation or enforcement of this Agreement. 26 REDLINE.O1 /CA952950.004/CA940230.008 12.5 Other Miscellaneous Terms. The singular shall include the plural; the masculine gender shall include the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement, the signer obligations are joint and several. 12.6 Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Gale Ranch, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to applicable laws including, without limitation, Civil Code section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Gale Ranch, as appropriate, runs with the Gale Ranch and is binding upon the owner of all or a portion of the Gale Ranch and each successive owner during its ownership of such property. 12.7 Dougherty Valley Development Strategy. The Dougherty Valley is the subject of a comprehensive and integrated planning effort. It has been designed to allow development by phases. The timing of phase development will reflect market conditions and business decisions of the developers of the Dougherty Valley, while requiring that each phase make provision for its needs for infrastructure, services and amenities. Recognizing this development strategy, it is the intent of the Parties that while development must occur in furtherance of the valley -wide Dougherty Valley planning effort and the County's Growth Management Element, developers of the Dougherty Valley should be able to pursue development in a manner commensurate with their own goals and resources. In imposing conditions of approval, County shall, to the extent reasonably feasible, allocate to Windemere and Shapell their separate and distinct obligations. The Parties recognize that this may require that, for example, with regard to the construction of facilities involving both Shapell and Windemere, County may need to allocate the separate obligations of each Developer. Nothing in this Section 12.2 shall in any way modify the provisions of Section 4.3.3 of the Settlement Agreement. 12.8 MoFtgagee Mort Rights. Any mortgagee that wishes to receive notices of default from the County pursuant to this Section 12.8 may provide written notice to the County requesting such notice. County shall notify any such mortgagee requesting notice of any event of default by Developer under this Agreement and provide to any such mortgagee the same opportunity to cure such event of default as is provided to Developer under this Agreement. Failure to so notify any such mortgagee shall not give rise to any liability on the part of County, provided that this Agreement shall not be terminated by County as to any mortgagee (1) who has requested notice but the mortgagee is not given notice by the County or (2) to whom notice is given and to which either or the following is true: (1) the mortgagee cures any default involving the payment of money by Developer within sixty (60) days after notice of default; (2) as to defaults requiring title or possession of all or any portion of the Gale Ranch to effectuate a cure: (i) the mortgagee agrees in writing, within ninety (90) days after the written notice of default. to perform the proportionate share of Developer's obligations under 27 REDLIN E.01 /CA952950.0041CA940230.008 this Agreement allocable to that part of the Gale Ranch Site in which the mortgagee has an interest conditioned upon the mortgagee's acquisition of that part by foreclosure (including a trustee sale) or by a deed in lieu of foreclosure; (ii) the mortgagee commences foreclosure proceedings to reacquire title to all or the applicable portion of the Gale Ranch Site within the ninety (90) days and thereafter diligently pursues the foreclosure to completion; and (iii) the mortgagee (or any purchaser of the Developer's interest at foreclosure, or trustee sale, or by deed in lieu of foreclosure promptly and diligently cures the default after obtaining title or possession. Subject to the foregoing, in the event any mortgagee records a notice of default as to its mortgage or deed of trust, Developer's rights and obligations under this Agreement may be transferred to the mortgagee or to any purchaser of the Developer's interest at a foreclosure or trustee sale and Developer shall remain liable for such obligations unless released by County or unless County has approved the transfer in accordance with Section 14. 1, Section 14.2; and Section 14.3. 12.9 Approval by Mortgagees. County recognizes that the provisions of this Agreement may be a matter of concern to any mortgagee intending to make a loan secured by a mortgage or deed of trust encumbering the Gale Ranch Site, or a portion thereof. If such mortgagee should require, as a condition to such financing, any modification of this Agreement to protect its security interest in the Gale Ranch Site or portion thereof, County shall execute the appropriate amendments; provided, however, that County shall not be required (but is permitted) to make any modification that would (i) materially and adversely affect County's rights hereunder, (ii) increase County's obligations hereunder, (iii) reduce Developer's obligations hereunder or (iv) constitute an amendment other than an "Insubstantial Amendment" as described in Section 5.2 of this Agreement. 12.10 Notice of Proposed Amendment to Mortgagee. This Agreement may be amended without the approval or execution of any such amendment by any mortgagee. However, if County receives notice from a mortgagee requesting a notice of proposed amendment, County shall provide a copy of any proposed amendment to such mortgagee. 12.11 Remedies. Either Party may, in addition to any other rights or remedies, institute an equitable action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the foregoing and the purpose of this Agreement. In no event shall either County or Developer be entitled to monetary damages for breach of contract by the other Party to this Agreement. 12.12 California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 12.13 Other Public Agencies. Nothing in this Agreement shall be construed to limit the County's discretion to determine when and if it will enter into any agreements with other public agencies concerning the subject -matter and provisions of this Agreement or require that the County take any legal action concerning such other public agencies and their provision of services or facilities. 28 REOLINE.0I /CA952950.0041CA940230.008 12.14 Attorneys' Fees. In the event of any litigation or arbitration between the Parties regarding an alleged breach of this Agreement, neither Party shall be entitled to any award of attorneys' fees. 12.15 Annexation to San Ramon. The Settlement Agreement anticipates the potential annexation of the Gale Ranch Site to San Ramon. To the extent any portion of the Gale Ranch Site is so annexed, this Agreement shall continue to apply to the Gale Ranch Project until the expiration of the Term (to the maximum extent permitted by law) and; to the extent such construction is reasonable, appropriate and consistent with the terms of the Settlement Agreement, any annexation agreement that may then exist between Developer and San Ramon and any property tax exchange agreement or other agreement that may then exist between San Ramon and County relating to the Gale Ranch Site, with respect to any portion of the Gale Ranch Site that has been annexed, (i) the term "County" as used herein shall mean "San Ramon" and (ii) San Ramon shall be deemed to be a successor in interest to County's rights and obligations under this Agreement. Any notice or communication required hereunder between County or Developer must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the. first to occur of (i) actual receipt by any of the addressees designated below as the parry to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the parry to whom it is addressed. Any Party may at any time, by giving ten (10) days written notice to the other Party, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: If to County, to: Director of Community Development Contra Costa County Administration Building 651 Pine Street Martinez, CA 94553 Telephone: (510) 646-2026 29 REDLINE.O1/CA952950.004/CA940230.008 Facsimile: (510) 646-1309 With Copies to: County Counsel Contra Costa County Administration Building 651 Pine Street, 9th Floor Martinez, CA 94553 Telephone: (510) 646-2074 Facsimile: (510) 646-1078 Director of Public Works 255 Glacier Drive Martinez, CA 94553 Telephone: (510) 313-2000 Facsimile: (510) 313-2333 If to Developer, to: Shapell Industries, Inc. 100 North Milpitas Boulevard Milpitas, CA 95035 Attention: Daniel W. Hancock Thomas J. Koch Telephone: (408) 946-1550 Facsimile: (408) 946-9687 With Copies to: McCutchen, Doyle, Brown & Enersen P.O. Box V Walnut Creek, CA 94596-1270 Attention: Daniel J. Curtin, Jr. Maria P. Rivera Telephone: (510) 937-8000 Facsimile: (510) 975-5390 Section 14. ASSIGNMENT, TRANSFER AND NOTICE Assignment, Transfer and Notice. 14.1 Assignment of Interests, Rights and Obligations. Developer shall have the right to assign or transfer all or any portion of its interests, rights or obligations under the Planning Actions (including this Agreement) and the Subsequent Approvals to third parties acquiring an interest or 30 REDLINE.O t /CA952950.004/CA940230.008 estate in the Gale Ranch or the Gale Ranch Site, or any portion thereof, including, without limitation, purchasers or long -tern ground lessees of individual lots, parcels, or any lots, homes or facilities comprising a portion of the Gale Ranch. 14.2 Transfer Agreements. (a) In connection with the transfer or assignment by Developer of all or any portion of the Gale Ranch (other than a transfer or assignment by Developer to an affiliated party, a mortgagee or a "Non -Assuming Transferee" (as defined in Section 14.3 of this Agreement)), Developer and the transferee shall enter into a written agreement (a "Transfer Agreement") regarding the respective interests, rights and obligations of Developer and the transferee in and under the Planning Actions and the Subsequent Approvals. Such Transfer Agreement may (i) release Developer from obligations under the Planning Actions (including this Agreement) or the Subsequent Approvals that pertain to that portion of the Gale Ranch being transferred, as described in the Transfer Agreement, provided that the transferee expressly assumes such obligations, (ii) transfer to the transferee vested rights to improve that portion of the Gale Ranch being transferred and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. .(b) Developer shall seek County's consent to any Transfer Agreement, which consent shall not be unreasonably withheld or delayed. Failure by County to respond within forty-five (45) days to any request made by Developer for such consent shall be deemed to be County's approval of the Transfer Agreement in question. County may refuse to give its consent only if, in light of the proposed transferee's business experience and financial resources, such transferee would not in County's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Such determination shall be made by the Community Development Director and is appealable by Developer to the Board. (c) Any Transfer Agreement shall be binding on Developer, County and the transferee. Upon recordation of any Transfer Agreement in the Official Records of Contra Costa County, Developer shall automatically be released from those obligations assumed by the transferee therein. (d) Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a transferee pursuant to a Transfer Agreement. No breach or default hereunder by any person succeeding to any portion of Developer's obligations under this Agreement shall be attributed to Developer, nor may Developer's rights hereunder be cancelled or diminished in any wad' by any breach or default by any such person. (e) No breach or default hereunder by Developer shall be attributed to any person succeeding to any portion of Developer's rights or obligations under this Agreement, nor shall such transferee's rights be cancelled or diminished in any way by any breach or default by Developer. 14.3 Non -Assuming Transferees. The Except as otherwise required by Developer in Developer's sole discretion, the burdens, obligations, and duties of Developer under this Agreement shall terminate with respect t ' dissFe6e ,-,-and neither a Transfer Agreement nor County's consent shall be required in connection with) (i) any single residential parcel conveyed to a purchaser, (ii) any property transferred as fewer 31 REDLIN E.0l /CA952950.0041CA940230.008 than fifty (50) lots to a single retail builder, or (iii) any property that has been established as one or more separate legal parcels for office, commercial, industrial, open space, park, school or other nonresidential uses. The transferee in such a transaction and its successors ("Non -Assuming Transferees") shall be deemed to have no obligations under this Agreement, but shall continue to benefit from the vested rights provided by this Agreement for the duration of the Term. Nothing in this section shall exempt any property transferred to a Non -Assuming Transferee from payment of applicable fees and assessments or compliance with applicable conditions of approval. Section 15. Notice of Compliance. 15.1 Generally. Within thirty (30) days following any written request which Developer may make from time to time, County shall execute and deliver to Developer a written "Notice of Compliance," in recordable form, duly executed and acknowledged by County, certifying that: (a) This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modification; (b) There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default; and (c) Any other reasonable information requested by Developer. The failure to deliver such a notice within such time shall constitute a conclusive presumption against County that this Agreement is in full force and effect without modification except as may be represented by the Developer and that there are no uncured defaults in the performance of the Developer, except as may be represented by the Developer. Developer shall have the right at Developer's sole discretion, to record the Notice of Compliance. • Y OW&TAI 21-10 SM • • • 0 A 2!3 Y This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of (_) pages, _ notary acknowledgment pages, and eve --(2) four _M exhibits Nvhich constitute in full, the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of County and the Developer. The following exhibits are attached to this Agreement and incorporated herein for all purposes: Exhibit A Legal Description of the Gale Ranch Site Exhibit B Off Site Responsibilities for Certain Traffic Improvements L4,A Exhibit C Cost Allocations For Certain Off -Site Traffic Improvements 32 REOLI ME.O t /CA952950.004/CA940230.008 MJ �i; 1-» •1 1 �' 1 �. 1 IT, � �� •Xigfil • MM"AM&WTA. • m ..I q1.'%M RWYJM • , .1 Pursuant to Government Code section 65868.5, no. later than ten (10) days after County enters into this Agreement, the County Clerk shall record an executed copy of this Agreement in the Official Records of the County of Contra Costa. IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and County as of the day and year first above written. COUNTY OF CONTRA COSTA Harvey Bragdon Community Development Director ATTEST: COUNTY CLERK APPROVED AS TO FORM: Victor J. Westman County Counsel By: Silvano Marchesi Assistant County Counsel By: Title: And REDLI N E.01 /CA952950.004/CA940230.008 By: Title: By:_ Title: 33