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HomeMy WebLinkAboutMINUTES - 09101991 - 1.121 TO: BOARD OF SUPERVISORS (ern{ FROM: Harvey E. Bragdon v�,���,,'��....}tra Director of Community Development . ,, _ lJlAla DATE: September 4, 1991 �as:... : w SUBJECT: Reimbursement Agreements with Dougherty Valley Consultants SPECIFIC REQUEST(S) OR RECOMMENDATIONS(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS AUTHORIZE the Director of Community Development to sign reimbursement agreements with Windemere Ranch Partners and with Shapell Industries for consultant contracts related to the development of the Dougherty Valley Specific Plan. FISCAL IMPACT None. Developers will finance that agreement. BACKGROUND/REASONS FOR RECOMMENDATIONS The development of the Dougherty Valley Specific Plan and the preparation of the Environmental Impact Report will cost in excess of a half million dollars. These agreements will provide the basis for collecting funds from the project area landowners and dispersing of those funds to the consultants to pay for these required studies. The reimbursement agreements have been developed, in consultation with the County .Counsel's office. CONTINUED ON ATTACHMENT: YES SIGNATURE:�w G RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF B02MD COMMITTEE APPROVE OTHER SIGNATURE(S) ACTION OF BOARD ON 104 If APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS" A UNANIMOUS (ABSENT. ) TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. ATTESTED D / PHIL BXTCHELCfR, CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR cc: Community .Development CAO r.. County Counsel BY DEP UTY • Auditor-Controller hs/rhsc3:reimagr.bos REIMBURSEMENT AGREEMENT This REIMBURSEMENT AGREEMENT (the "Agreement" ) is entered into as of , 1991 , by and between the COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County") , and SHAPELL INDUSTRIES, INC. , a California corporation ("Shapell" ) . I. RECITALS A. Shapell owns certain unimproved real property consisting of approximately 2740 acres located in . the County of Contra Costa, California and described more fully on attached Exhibit A (the "Shapell Property" ) . B. Shapell desires to develop the Shapell Property for residential and commercial uses generally in the manner described in that certain Notice of Preparation prepared by County, dated April 22 , 1991 , with respect to the Shapell Property and certain adjacent property (the 11NOP" ) . C. While the Shapell Property is within County's urban limit line, County's general plan (the "General Plan" ) does not currently permit the Shapell Property to be so developed. Shapell has therefore requested County to prepare and approve an amendment to the General Plan (the "GPA" ) to permit the development of the Shapell Property upon receipt of all additional necessary permits and approvals. Shapell has paid to County certain fees , pursuant to Section 26-2 . 2802 of the Contra Costa County Code and County Ordinance No. 90-62 , for the preparation and consideration of the GPA (the* "GPA Preparation Fee" ) . The GPA Preparation Fee is adequate to cover all of County's costs in preparing and considering the GPA, including any and all costs incurred in connection with County's employment of additional personnel or consultants (including, without limitation, any and all amounts paid to Mr. Darwin Myers for his assistance in the planning efforts described in this Agreement) . D. Shapell has, requested County to prepare and approve a specific plan pursuant to Cala Gov't Code § 65450 et seg. (the "Specific Plan" ) , for both the Shapell Property and certain adjacent real property (the "Windemere Property" ) comprising approximately 2360 acres owned by Windemere Ranch Partners ("Windemere" ) , as described more fully in the NOP. 1 ' t E. Prior to approving the GPA or the Specific Plan, County is required to prepare and certify an environmental impact report pursuant to the California Environmental Quality Act (the "EIR" ) . F. In preparing the Specific Plan and the EIR, County will engage consultants and staff personnel experienced in the planning, administration and preparation of specific plan and EIR studies and documents . G. Shapell desires to pay certain fees and make . certain reimbursements to County, as more fully set forth below, to defray fifty percent (50%) of County' s costs in preparing, and thereby facilitate County' s preparation of , the Specific Plan and the EIR. County and Windemere are concurrently herewith entering into a Reimbursement Agreement (the "Windemere Agreement" ) pursuant to which Windemere shall pay certain fees and make certain reimbursements to County, as more fully set forth in the Windemere Agreement, to defray fifty percent (50%) of- County's costs in preparing, and thereby facilitate County's preparation of , the Specific Plan and the EIR. H. In consideration of Shapell's paying the fees and making the reimbursements described herein, County desires to prepare and consider the GPA, the Specific Plan , and the EIR (collectively, the . "Project Documents" ) . II. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. Preparation of the GPA. In consideration of Shapell's payment of the "GPA Preparation Fee" (described in Recital C above) and the covenants made by Shapell herein, County shall prepare for consideration by the Board, and the Board shall consider approving, the GPA. County shall prepare and complete the GPA in the manner described more fully below and shall submit the completed GPA to County's Planning Commission- or the appropriate regional planning .. commission (the "Commission" ) for its recommendation and to the Board for decision. County shall use its best efforts and exercise due diligence to accomplish such preparation, completion, submission and consideration by January 31 , 1992 . 2 2 . Reimbursement for and Preparation of the EIR and Specific Plan. (a) In consideration of Shapell's reimbursement of County's costs. as described in Paragraph 4 below, and the other covenants made by Shapell herein, County shall prepare for consideration by the Board, and the Board shall consider certifying and approving, respectively, the EIR and the Specific Plan. County shall prepare and complete the EIR and the Specific Plan in the manner described more fully below and shall submit the completed EIR and Specific Plan to the Commission or County' s' Zoning Administrator, as appropriate, for its or his recommendation, and to the Board for decision. County shall use its best efforts and exercise due diligence to accomplish such preparation, completion, submission and consideration by. January 31, 1992 . (b) As more fully described below, Shapell shall reimburse County for certain costs incurred by County in preparing and considering the EIR and the Specific Plan. County agrees that in no event shall any additional fee or reimbursement be required by County in connection with its preparation and consideration of the EIR or the Specific Plan, except for a twenty-five percent "EIR surcharge," pursuant to Section 26-2 . 2804(a ) of the Contra Costa County Code. 3 . Additional Covenants Regarding Preparation of Project Documents. (a) The EIR and Specific Plan will be prepared as described in certain agreements (the "Consulting Contracts" ) to be entered into by and between County and certain consultants , including (a) Jones & Stokes Associates , Inc. (with respect to the preparation of the EIR) , (b) PBR (with respect to the preparation of the Specific Plan) and (c) Brown & Caldwell (with respect to the preparation of certain engineering studies to be included in the EIR) . (b) County and Shapell may agree that additional consultants shall be engaged by- County or Shapell to assist in the preparation of the EIR or the Specific Plan; provided, however, that any consulting contract entered into by County pursuant to this subparagraph (b) shall , among other things , ( i) precisely describe the compensation to be paid to the contracting consultant, which compensation shall be based on competitive and commercially reasonable rates, ( ii ) require the contracting consultant (and any subcontracting consultant retained by such 3 contracting consultant) to respond to Shapell's inquiries , comments and reasonable suggestions pertaining to the Project Documents and to meet periodically with Shapell and County to discuss scheduling, status and other matters related to the project, (iii) otherwise be acceptable to Shapell and ( iv) , with respect to any consultant retained to assist in the preparation of the EIR, specify that Shapell shall have a proprietary interest in and right to use for any purpose all environmental data and analysis produced in connection with the preparation of the EIR and the studies on which it is based. (c) County and' Shapell recognize that ( i ) the preparation and consideration of the Project Documents will substantially affect the property interests of Shapell and ( ii) Shapell and its consultants have knowledge of issues and information related to the Shapell that could prove. valuable in the preparation and consideration of the Project Documents. Accordingly, it is in the best interest of County, Shapell and the public, and it is the intent of the parties hereto, that Shapell be permitted to participate actively in the preparation of the Project Documents (although County retains the right to organize and present the information to be contained in the Project Documents in any manner it deems necessary to comply with the California Environmental Quality Act and the general plan and zoning laws) . County agrees to work closely with Shapell and Shapell's counsel in connection with, and to give full consideration to their comments in making decisions with , respect .to, the preparation and consideration of the Project Documents. Nothing in this Paragraph is intended to prevent ( i) the Project Documents from reflecting County's independent judgment or ( ii) .the County from exercising its own review and analysis of the Project Documents. (d) Shapell shall have the right to review all drafts of the Project Documents prepared by County's staff or consultants at least fifteen ( 15 ) business days in advance of public distribution thereof . 4 . Additional Covenants Regarding Reimbursement of Costs for Preparation of EIR and Specific Plan. (a) Shapell shall reimburse County for certain costs incurred by County in the preparation of the EIR and the Specific Plan (the "Reimburseable Costs" ) . As used herein, the term "Reimburseable Costs" - shall mean fifty percent (50%) of the compensation, paid .to consultants under the consulting contracts entered into directly by County in accordance with the provisions of Subparagraphs 3 (a) and 4 3 (b) above, as such contracts may be amended from time to time upon the mutual consent of the parties to this Agreement. (b) Within thirty ( 30 ) calendar days after execution of this Agreement, Shapell shall deposit into a separate interest-bearing bank account (the "Reimbursement Account" ) , to be .established by County, the sum of Seventy- Five Thousand Dollars ($75 ,000 . 00) ("Deposit" ) . The Reimbursement Account shall be used solely to pay Reimburseable Costs to County. County may withdraw from the Reimbursement Account any amount representing a Reimburseable Cost upon the written signature of County's Director of Community Development or his or her designee. (c) If at any time the balance in the Reimbursement Account falls to an amount less than Thirty- Seven Thousand Five Hundred Dollars ( $37 , 500 . 00 ) , County shall provide notice of such fact to Shapell and Shapell shall , within five ( 5 ) business days following receipt of such notice from County, deposit into the Reimbursement Account funds necessary to increase the balance in the Reimbursement Account to an amount equal to at least Seventy-Five Thousand Dollars ($75 , 000 . 00) . Moreover, if any amount proposed to be withdrawn from the Reimbursement Account exceeds the existing balance in the Reimbursement Account, then Shapell shall deposit into the Reimbursement Account, within ten (10 ) business days after receipt of written notice from County, an amount equal to the sum of Seventy-Five Thousand Dollars ( $75 , 000 . 00) and the amount proposed to be withdrawn, less the amount of the existing balance in the Reimbursement Account. (d) County shall render monthly written accountings to Shapell setting forth the Reimburseable Costs withdrawn from, deposits made into and interest paid on the Reimbursement Account pursuant to this Agreement during the previous month. Upon the advance written request of Shapell , any such written accounting shall also set forth the name of the consultant or consultants paid with funds so withdrawn from the Reimbursement Account, the dates and nature of the services performed by such consultant or consultants , the identities of the person or persons employed by such consultant or consultants , the hours or increments thereof expended on the services provided and the hourly rate of the persons providing the services. (e) All interest earned on funds in the Reimbursement Account shall be added to the balance of the Reimbursement Account and treated as if deposited therein by Shapell . Within sixty ( 60 ) calendar days following 5 completion of all work that generates a Reimburseable Cost pursuant to this Agreement, County shall either ( i) render a final accounting to Shapell and pay to Shapell any amount remaining in the Reimbursement Account in excess of the amount necessary to compensate County for any Reimburseable Cost not yet withdrawn by County from the Reimbursement Account or, ( ii ) if the amount of Reimburseable Costs not yet withdrawn by County from the Reimbursement Account exceeds the .balance therein, request Shapell to pay the amount of such excess directly to County and, upon such payment by Shapell (which shall occur within ten ( 10 ) business days following County's request for payment) , render a final accounting. 5 . Indemnification. (a) Neither Shapell nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by County under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by County under this Agreement. County shall indemnify, defend and hold Shapell harmless from any liability imposed for damage or injury occurring to any third party by reason of anything done or omitted to be done by County under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by County under this Agreement. (b) Neither County nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by Shapell under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by Shapell under this Agreement. Shapell shall indemnify, defend and hold County harmless from any liability imposed for damage or injury occurring to any third party by reason of anything done or omitted to be done by Shapell under or in connection with any work, authority, jurisdiction or . action delegated to or undertaken by Shapell under this Agreement. 6 . Right to Use of Information. Within ten, ( 10 ) business days after any written request by Shapell or the termination of this Agreement pursuant to Paragraph 9 below, County shall deliver to Shapell , at Shapell' s cost, clear and legible copies ( including, to the extent possible, .. diskettes• containing information copied from the computer files of County and its consultants ) of all data , reports , analyses , plans , designs and other written materials prepared as of the date of such request by County or its consultants pursuant to this Agreement. Any and all such 6 information shall be deemed to be the common property of County., Shapell , Windemere and any consultant that prepared such information, and may be used by Shapell for any purpose it deems appropriate. Moreover, County agrees that, in the event of termination of this Agreement, no consultant retained by County or Shapell pursuant to the terms hereof shall be prevented from being retained by Shapell or any other local agency for the purpose of preparing or processing permits , approvals or environmental information relating to the development of the Shapell Property. 7 . Cooperation in the Event of Legal Challenge. In the event of any legal or equitable action or other proceeding instituted by a third party, governmental agency or official challenging the validity of any provision of this Agreement, the Project Documents or Additional Entitlements , the parties shall cooperate in defending the action or proceeding. Shapell shall bear its own costs of defense as a real party in interest in any such action or proceeding, and shall (together with Windemere) reimburse County for any court costs and attorneys fees ( including court-ordered awards of attorneys fees paid by County to third parties) which County expends in defense of any such action or other proceeding. 8 . No Joint Venture or Partnership. County and Shapell hereby renounce the existence of any form' of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making County and Shapell joint venturers or partners. 9 . Termination of Agreement. Shapell shall have the right, upon ten ( 10 ) business days prior written notice to County, to terminate this Agreement if Shapell , in its sole discretion, determines that it is in its best interest to do so. If Shapell so terminates this Agreement, Shapell shall be liable for only those Reimburseable Costs incurred prior to the effective date of such termination as a necessary incident to particular tasks in progress on the termination notice date. Upon termination of this Agreement, all funds remaining in the Reimbursement Account (and not owed to County) shall be paid to Shapell and neither party shall have any further rights or obligations hereunder. 10 . Notices. All notices or communications required hereunder between County and Shapell shall be in writing, and may be given either personally or by United States mail . If given by United States mail , the notice shall be deemed to have been given and received (except as 7 otherwise specified above) 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 ) business days after the letter containing the notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto, by giving ten ( 10 ) business days' written notice to the other, may designate any other address in substitution of the address to which the notice or communication shall be given. Notices or communications shall be given to the parties at the addresses set forth below unless and until specified otherwise in writing: If to County: County of Contra Costa Department of Community Development 651 Pine Street Martinez , California 94553 Att'n: Mr. James Cutler If to Shapell: Shapell Industries , Inc. 100 North Milpitas Blvd. Milpitas, California 95035 Att'n: Mr. Thomas J. Koch 11. Legal Action. Either party may institute legal action in the Superior Court of Contra Costa County to cure, correct or remedy any default', enforce any covenant or agreement herein, enjoin any threatened or attempted violation or enforce by specific performance the obligations and rights of the parties hereto, it being understood and agreed that money damages would not be a sufficient remedy for the failure of any party to perform its obligations under this Agreement. 12. Condition Precedent. This Agreement shall become effective only if and when the Windemere Agreement, which Windemere Agreement shall be in the form attached hereto as Exhibit B, becomes effective. 13 . Miscellaneous. (a) This Agreement shall apply to , bind and . inure to the benefit of successors in interest of the parties hereto, including heirs , assigns, executors , administrators and all other parties , whether they succeed by operation of law or voluntary acts of County or Shapell . 8 r (b) This Agreement is entered only for the benefit of the parties executing this Agreement and not for the benefit of any other individual , entity or person. (c) This Agreement may be amended in writing by the original parties or their successors in interest. (d) If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect. (e) This Agreement shall be construed and enforced in accordance with the laws of the State of California. (f) This Agreement, together with the exhibits attached hereto, constitutes the entire 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers as of the date first above written. APPROVED AS TO FORM: COUNTY OF CONTRA COSTA By: Victor J. Westman Harvey Bragdon Contra Costa County Counsel Its : Director of Community Development SHAPELL INDUSTRIES , INC. , Daniel J. Curtin a California corporation for McCUTCHEN, DOYLE, BROWN & By: ENERSEN Daniel W. Hancock Attorneys for Shapell Its : President F49302 9 c EXHIBIT A PROPERTY DESCRIPTION 1 r EXHIB.I.T A Page 1 of 3 Legal Description of the property REAL PROPERTY in the Sats of California, County of Contra Costa, particially in the -City of San Ramon and partially unincorporated, described as follows: A portion of the Vidor Grant of the Rancho San Ramon, a portion of Section 1 Township 2 South, Range 1 Test 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, shown on the Map entitled "Map of a Subdivision sof 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 Paye 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 he 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 3636.1222 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 an angle point, North 650 30' West, 613.80 feet; North 380 West 159 feet; North 360 30 West, 2112 feet; North 40 30' ' East, 264 feet; North 660 Bast, 561 feet; North 210 Bast, 1314.72 feet; North 10 15' West, 396 feet; North 140 15' East, 429 feet; North 190 45' West, 462 feet; North 300 15' East, 594 feet; North 270 30' West, 660 feet; North 120 30' East, 326.70 feet; North 320 151. East, 279.50 fedi.; North 15° 461 East, 564.30 feet, North 450 15' East, 316.80 feet; North 340 15' East, 809.82 feet; North 310 454 East, 798.60 feet; North 14° East, 710.16 feet; North 319 East, 372.24 feet; North 310 15' East, 825 feet; North 270 15' East, 396 feet; !forth 520 30' East, 330 feet; North 45° 45' East, 594 feet; 'i EXIMIT A Page 2 of 3 North 200 East, 481.80 feet "'Co the northern line of said San Ramon Rancho; along said northern line North 89° 45' West, 597.30 feet; leaving said northern line North 010 15' East, 2653.20 feet; North 890 15' West, 2105.40 feet; North 890 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 890 451 West, 2630.10 fleet to Station S.R. 8 of said Rancho San Ramon, said Station S.R. 8 being the southeast corner of the parcel of land d'escribed in the Deed from Tassajara !and 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 7918.73 acre parcel (59 D 525) along the southern line Of said Wiedemann Parcel North 890 45' West, 726 feet and South 71° 10' West, 1042.80 feet to the western line of said Rancho San Ramon, being a portion of the exterior line of said 7918.73 acre parcel (59 D 525) ; thence along said exterior line South 27' East, 11,654.28 feet to Station S.R. 12 of said Rancho San Ramon and South 270 151 East, 2220.90 feet to the northern line of the parcel of land described as Parcel One in the Deed from Ellene Mohr !camp 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 the northern line (392 OR 35) North 630 28' East, 297 feet and South 780 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 3771 ; thence along said western line being also along said center line as follv*,s: 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 50 17' 40" best 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. 2:8.44 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, Page 128, Official Records. 2. The interest conveyed to Contra Costa County, by Deed, recorded April 21, .1944, Book 775, Page 378, Official Records. EXHIBIT A Page 3 of 3 3. That portion thereof granted in the Deed to East Bay Municipal Utility District, recorded December 1.6, 1968, Sock 5771, Page 288, Official Records. 4. That portion thereof granted in the Deed to East Say Municipal Utility District, recorded May 19, 1978, Book 8845, Page 149, Official Records. S. The interest conveyed to Contra Costa County by Deed, recorded June 27, 1985, Book 12381, Page 751, Official Records. 6. All of 5ubdivisio^ 7010, as 5houm on Che map 47 .1ed September 6, i989, in Map Book 336, Page 46, Lantra Costa court? Records. i l . EXHIBIT B THE WINDEMERE AGREEMENT EXHIBIT B REIMBURSEMENT AGREEMENT This REIMBURSEMENT AGREEMENT (the "Agreement" ) is entered into as of , 1991 , by and between the COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County") , and WINDEMERE RANCH PARTNERS, a California limited partnership ("Windemere" ) . I . RECITALS A. Windemere owns certain unimproved real property consisting of approximately 2360 acres located in the County of Contra Costa, California and described more fully on attached Exhibit A (the "Windemere Property") . B. Windemere desires to develop the Windemere Property for residential and commercial uses generally in the manner described in that certain Notice of Preparation prepared by County, dated April 22 , 1991 , with respect to the Windemere Property and certain adjacent property (the ►►NOP" ) . C. While the Windemere Property is within County►s urban limit line, County►s general plan (the "General Plan" ) does not currently permit the Windemere Property to be so developed. Windemere has therefore requested County to prepare and approve an amendment to the General. Plan (the ►►GPA►► ) to permit the development of the Windemere Property upon receipt of all additional necessary permits and approvals. Windemere has paid to County certain fees, pursuant to Section 26-2 . 2802 of the Contra Costa County Code and County Ordinance No. 90-62 , for the preparation and consideration of the GPA (the ►►GPA Preparation Fee'►) . The GPA Preparation Fee is adequate to cover all of County►s costs in preparing and considering the GPA, including any and all costs incurred in connection with County►s employment of additional personnel or consultants ( including, without limitation, any and all amounts paid to Mr. Darwin Myers for his assistance in the planning efforts described in this Agreement) . D. Windemere has requested County to prepare and approve a specific plan pursuant to Cal . Gov►t Code § 65450 et seg. (the "Specific Plan") , for both the Windemere Property and certain adjacent real property (the "Shapell Property" ) comprising approximately 2740 acres owned by Shapell Industries , Inc. ("Shapell" ) ., as described more fully in the NOP. 1 E. Prior to approving the GPA or the Specific Plan, County is required to prepare and certify an environmental impact report pursuant to the California Environmental Quality Act (the "EIR" ) . F. In preparing the Specific Plan and the EIR, County will engage consultants and staff personnel experienced in the planning, administration and preparation of specific plan and EIR studies and documents . G. Windemere desires to pay certain fees and make certain reimbursements to County, as more fully set forth below, to defray fifty percent (50%) of County's costs in preparing, and thereby facilitate County's preparation of , the Specific Plan and the EIR. County and Shapell are concurrently herewith entering into a Reimbursement Agreement (the "Shapell Agreement" ) pursuant to which Shapell shall pay certain fees and make certain reimbursements to County, as more fully set forth in the Shapell Agreement, to defray fifty percent ( 50% ) of County's costs in preparing, and thereby facilitate County's preparation of , the Specific Plan and the EIR. H. In consideration of Windemere's paying the fees and making the reimbursements described herein, County desires .to prepare and consider the GPA, the Specific Plan and the EIR (collectively, the "Project Documents" ) . II . AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. Preparation of the GPA. In consideration of Windemere's payment of the "GPA Preparation Fee" (described in Recital C above) and the covenants made by Windemere herein, County shall prepare for consideration by the Board, and the Board shall consider approving, the GPA. County shall prepare and complete the GPA in the manner described more fully below and shall submit the completed GPA to County's Planning Commission or the appropriate regional planning commission (the "Commission" ) for its recommendation and to the Board for decision . County shall use its best efforts and exercise due diligence to accomplish such preparation, completion, submission and consideration by January 31 , 1992 . 2 2 . Reimbursement for and Preparation of the EIR and Specific Plan. (a) In consideration of Windemere's reimbursement of County's costs as described in Paragraph 4 below, and the other covenants made by Windemere herein, County shall prepare for consideration by the. Board, and the Board shall consider certifying and approving, respectively, the EIR and the Specific Plan. County shall prepare and complete the .EIR and the Specific Plan in the manner described more fully below and shall submit .the completed EIR and Specific Plan to the Commission or County's Zoning Administrator, as appropriate, for its or his recommendation, and to the Board for decision. County shall use its best efforts and exercise due diligence to accomplish such preparation, completion, submission and consideration by January 31 , 1992 . (b) As more fully described below, Windemere shall reimburse County for certain costs incurred by County in preparing and considering the EIR and the Specific Plan. County agrees that in no event shall any additional fee or reimbursement be required by County in connection with its preparation and consideration of the EIR or the Specific Plan, except for a twenty-five percent "EIR surcharge, " pursuant to Section 26-2 . 2804 (a) of the Contra Costa County Code. 3 . Additional Covenants Regarding Preparation of Project Documents. (a) The EIR and Specific Plan will be prepared as described in certain agreements (the "Consulting Contracts' ) to be entered into by and between County and certain consultants , including (a) Jones & Stokes Associates , Inc. (with respect to the preparation of the EIR) , (b) PBR (with respect to the preparation of the Specific Plan) and (c) Brown & Caldwell (with respect to the preparation of certain engineering studies to be included in the EIR) . (b) County and Windemere may agree that additional consultants shall be engaged by County or Windemere to assist in the preparation of the EIR or the Specific Plan; provided , however, that any consulting . contract entered into by County pursuant to this subparagraph (b) shall , among other things , ( i ) precisely describe the compensation to be paid to the contracting consultant, which compensation shall be based on competitive and commercially reasonable rates , (ii) require the contracting consultant (and any subcontracting consultant 3 1 retained by such contracting consultant) to respond to Windemere's inquiries, comments and reasonable suggestions pertaining to the Project Documents and to meet periodically with Windemere and County to discuss scheduling, status and other matters related to the project, ( iii) otherwise be acceptable to Windemere and ( iv) , with respect to any consultant retained to assist in the preparation of the EIR, specify that Windemere shall have a proprietary interest in and right to use for any purpose all environmental data and analysis produced in connection with the preparation of the EIR and the studies on which it is based. (c) County and Windemere recognize that ( i) the preparation and consideration of the Project Documents will substantially affect the property interests of Windemere and ( ii ) Windemere and its consultants have knowledge of issues and information related to the Windemere Property that could prove valuable in the preparation and consideration of the Project Documents. Accordingly, it is in the best interest of County, Windemere and the public, and it is the intent of the parties hereto, that Windemere be permitted to participate actively in the preparation of the Project Documents (although County retains the right to organize and present the information to be contained in the Project Documents in any manner it deems necessary to comply with the California Environmental Quality Act and the general plan and zoning laws) . County agrees to work closely with Windemere and Windemere's counsel in connection with, and to give full consideration to their comments in making decisions with respect to, the preparation and consideration of the Project Documents . Nothing in this Paragraph is intended to prevent ( i) the Project Documents from reflecting County's independent judgment or ( ii ) the County from exercising its own review and analysis of the Project Documents. (d) Windemere shall have the right to review all drafts of the Project Documents prepared by County's staff or consultants at least fifteen ( 15 ) business days in advance of public distribution thereof. 4 . Additional Covenants Regarding Reimbursement of Costs for Preparation of EIR and Specific Plan. (a) Windemere shall reimburse County for certain costs incurred by County in the preparation of the EIR and the Specific Plan (the "Reimburseable Costs" ) . As used herein, the term "Reimburseable Costs" shall mean fifty percent (50%) of the compensation paid to consultants under the consulting contracts entered into directly by County in 4 l accordance with the provisions of Subparagraphs 3(a) and 3(b) above, as' such contracts may be amended from time to time upon the mutual consent of the parties to this Agreement. (b) ' Within thirty ( 30 ) calendar days after execution of this Agreement, Windemere shall deposit into a separate interest-bearing bank account (the "Reimbursement Account") , to be established by County, the sum of Seventy- Five Thousand Dollars ($75 ,000.00 ) ("Deposit") . The Reimbursement Account shall be used solely to pay Reimburseable Costs to County. County may withdraw from the Reimbursement Account any amount representing a Reimburseable Cost upon the written signature of County's Director of Community Development or his or her designee. (c) If at any time the balance in the Reimbursement Account falls to an amount less than Thirty- Seven Thousand Five Hundred Dollars ( $37 , 500 . 00 ) , County shall provide notice of such fact to Windemere and Windemere shall , within five ( 5 ) business days following receipt of such notice from County, deposit into the Reimbursement Account funds necessary to increase the balance in the Reimbursement Account to an amount equal to at least Seventy-Five Thousand Dollars ($75 ,000 . 00 ) . Moreover, if any amount proposed to be withdrawn from the Reimbursement Account exceeds the existing balance in the Reimbursement Account, then Windemere shall deposit into the Reimbursement Account, within ten ( 10) business days after receipt of written notice from County, an amount equal to the sum of Seventy-Five Thousand Dollars ( $75 ,000 . 00 ) and the amount proposed to be withdrawn, less the amount of the existing balance in the Reimbursement Account. (d) County shall render monthly written accountings to Windemere setting forth the Reimburseable Costs withdrawn from, deposits made into and interest paid on the Reimbursement Account pursuant to this Agreement during the previous month. Upon the advance written request of Windemere, any such written accounting shall also set forth the name of the consultant or consultants paid with funds so withdrawn from the Reimbursement Account, the dates and nature of the services performed by such consultant or consultants , the, identities of the person or persons employed by such consultant or consultants, the hours or increments thereof expended on the services provided and the hourly rate of the persons providing the services . (e) All interest earned on funds in the Reimbursement Account shall be added to the balance of the Reimbursement Account and treated as if deposited therein by 5 Windemere. Within sixty (60 ) calendar days following completion of all work that generates a Reimburseable Cost pursuant to this Agreement, County shall either ( i ) render a final accounting to Windemere and pay to Windemere any amount remaining in the Reimbursement Account in excess of the amount necessary to compensate County for any . Reimburseable Cost not yet withdrawn by County from the Reimbursement Account or ( ii) , if the amount of Reimburseable Costs not yet withdrawn by County from the Reimbursement Account exceeds the balance therein, request Windemere to pay the amount of such excess directly to County and, upon such payment by Windemere (which shall occur within ten ( 10) business days following County's request for payment) , render a final accounting. . 5 . Indemnification. (a) Neither Windemere nor, any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by County under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by County under this Agreement. County shall indemnify, defend and hold Windemere harmless from any liability imposed for damage or injury occurring to any third party by reason of anything done or omitted to be done by County under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by County under this Agreement. (b) Neither County nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by Windemere under or in connection with any work, authority, jurisdiction or action delegated' to or undertaken by Windemere under this Agreement. Windemere shall indemnify, defend and hold County harmless from any liability imposed for damage or injury occurring to any third party by reason of anything done or omitted to be done by Windemere under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by Windemere under this Agreement. 6 . Right to Use of Information. Within ten ( 10 ) business days after any written request by Windemere or the termination of this Agreement pursuant to Paragraph 9 below, County shall deliver to Windemere, at Windemere' s cost, clear and legible copies ( including, to the extent possible, diskettes containing information copied from the computer files of County and its consultants) of all data , reports, analyses, plans, designs and other written materials 6 prepared as of the date of such request by County or its consultants pursuant to this Agreement. Any and all such information shall be deemed to be the common property of County, Windemere, Shapell and any consultant that prepared such information, and may be used by Windemere ,for any purpose it deems appropriate. Moreover, County agrees that, in the event of termination of this Agreement, no consultant retained by County or Windemere pursuant to the terms hereof shall be prevented from being retained by Windemere or any other local agency for the purpose of preparing or processing permits , approvals or environmental information relating to the development of the Windemere Property. 7 . Cooperation in the Event of Legal Challenge. In the event of any legal or equitable action or other proceeding instituted by a third party, governmental agency or official challenging the validity of any provision of this Agreement, the Project Documents or Additional Entitlements , the parties shall cooperate in defending the action or proceeding. Windemere shall bear its own costs of defense as a real party in interest in any such action or proceeding, and shall (together with Shapell ) reimburse, County for any court costs and attorneys fees ( including court-ordered awards of attorneys fees paid by County to third parties ) which County expends in defense of any such action or other proceeding. 8 . No Joint Venture or Partnership. County and Windemere hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making County and Windemere joint venturers or partners . 9 . Termination of Agreement. Windemere shall have the right, upon ten ( 10 ) business days prior written notice to County, to terminate this Agreement if Windemere, in its sole discretion, determines that it is in 'its best interest to do so. If Windemere so terminates this Agreement, Windemere shall be liable for only those Reimburseable Costs incurred prior to the effective date of such termination as a necessary incident to particular tasks in progress on the termination notice date. Upon termination of this Agreement, all funds remaining in the Reimbursement Account (and not owed to County) shall be paid to Windemere and neither party shall have any further rights or obligations hereunder. 10 . Notices. All notices or communications required hereunder between County and Windemere shall be in 7 writing, and may be given either personally or by United States mail . If given by United States mail , the notice shall be deemed to have been given and received (except as otherwise specified above) 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 ) business days after the letter containing the notice, properly addressed, with postage prepaid, is deposited in the United States mail . If personally delivered, notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto, by giving ten ( 10 ) business days' written notice to the other, may designate any other address in substitution of the address to which the notice or communication shall be given. Notices or communications shall be given to the parties at the addresses set forth below unless and until specified otherwise in writing: If to County: County of Contra Costa Department of Community Development 651 Pine Street Martinez , California 94553 Att'n: Mr. James Cutler If to Windemere: Windemere Ranch Partners 2430 Camino Ramon Suite 124 San Ramon, California 94583 Att'n: Mr. Darryl A. Foreman 11 . Legal Action. Either party may institute legal action in the Superior Court of Contra Costa County to cure , correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation or enforce by specific performance the obligations and rights of the parties hereto, it being understood and agreed that money damages would not be a sufficient. remedy for the failure of any party' to perform its obligations under this Agreement. 12 . Condition Precedent. This Agreement shall become effective only if and when the Shapell Agreement, which Shapell Agreement shall be in the form attached hereto as Exhibit B, becomes effective. 13 . Miscellaneous. (a) This Agreement shall apply to, bind and inure to the benefit of successors in interest of the parties hereto, including heirs, assigns, executors , 8 administrators and all other parties , whether they succeed by operation of law or voluntary acts of County or Windemere. (b) This Agreement is entered only for the benefit of the parties executing this Agreement and riot for the benefit of any other individual , entity or person. (c) This Agreement may be amended in writing by the original parties or their successors in interest. (d) If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable , the remaining provisions of this Agreement shall continue in full force and effect. (e) This Agreement shall be construed and enforced in accordance with the laws of the State of California. (f) This Agreement, together with the exhibits attached hereto, constitutes the entire understanding and agreement of the parties, and supersedes all negotiations or previous agreements between the parties 9 ' R with respect to all or any. part of the subject matter hereof . IN WITNESS WHEREOF, the parties hereto 'have caused this Agreement to be executed by their respective officers as of the date first above written. APPROVED AS TO FORM: COUNTY OF CONTRA COSTA By: Victor J. Westman Harvey Bragdon Contra Costa County Counsel Its : - Director of Community Development WINDEMERE RANCH PARTNERS , David A. Gold a California limited partnership for MORRISON & FOERSTER By: WINDEMERE GENERAL PARTNERS , Attorneys for Windemere a California general partnership Its: Managing General Partner By: WINDEMERE ASSOCIATES, a California general partnership Its: General Partner By: CJICO WINDEMERE GROUP, a California general partnership Its: General Partner By: James W. Sievers , General Partner By: CWL WINDEMERE GROUP, a California limited partnership Its : General Partner By: F. Allan Chapman , General Partner F30436 10 REIMBURSEMENT AGREEMENT This REIMBURSEMENT AGREEMENT (the "Agreement" ) is entered into as of , 1991 , by and between the COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County" ) , and WINDEMERE RANCH PARTNERS, a California limited partnership ("Windemere" ) . I . RECITALS A. Windemere owns certain unimproved real property consisting of approximately 2360 acres located in the County of Contra Costa , California and described more fully on attached Exhibit A (the "Windemere Property" ) . B. Windemere desires to develop the Windemere Property for residential and .commercial uses generally in the manner described in that certain Notice of Preparation prepared by County, dated April 22 , 1991 , with respect to the Windemere Property and certain adjacent property (the ►►NOP►► ) . C. While the Windemere Property is within County►s urban limit line, County►s general plan (the "General Plan" ) does not currently permit the Windemere Property to be so developed. Windemere has therefore requested County to prepare and approve an amendment to the General Plan (the ►►GPA'► ) to permit the development of the Windemere Property upon receipt of all additional necessary permits and approvals. Windemere has paid to County certain fees , • pursuant to Section 26-2 . 2802 of the Contra Costa County Code and County Ordinance No. 90-62 , for the preparation and consideration of the GPA (the ►►GPA Preparation Fee'►) . The GPA Preparation Fee is adequate to cover all of County►s costs in preparing and considering the GPA, including any and all costs incurred in connection with County►s employment of additional personnel or consultants ( including, without limitation, any and all amounts paid to Mr. Darwin Myers for his assistance in the planning efforts described in this Agreement) . D. Windemere has requested County to prepare and approve a specific plan pursuant to Cal . Gov►t Code § 65450 et seq. (the "Specific Plan" ) ., for both the Windemere Property and certain adjacent real property (the "Shapell Property" ) comprising approximately 2740 acres owned by Shapell Industries , Inc. ("Shapell" ) , as described more fully in the NOP. 1 f E. Prior to approving the GPA or the Specific Plan, County is required to prepare and certify an environmental impact report pursuantto the California Environmental Quality Act (the "EIR" ) . F. In preparing the Specific Plan and the EIR, County will engage consultants and staff personnel experienced in the planning, administration and preparation of specific plan and EIR studies and documents. G. Windemere desires to pay certain fees and make certain reimbursements to County, as more fully set forth below, to defray fifty percent (50%) of County's costs in preparing, and thereby facilitate County's preparation of , the Specific Plan and the EIR. County and Shapell are concurrently herewith entering into a Reimbursement Agreement (the I'Shapell Agreement" ) pursuant to which Shapell shall pay certain fees and make certain reimbursements to County, as more fully set forth in the Shapell Agreement, to defray fifty percent ( 50%) of County's costs in preparing, and thereby facilitate County's preparation of, the Specific Plan and the EIR. H. In consideration of Windemere's paying the fees and making the reimbursements described herein, County desires to prepare and consider the GPA, the Specific Plan and the EIR (collectively, the "Project Documents" ) . II. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. Preparation of the GPA. In consideration of Windemere's payment of the "GPA Preparation Feel' (described in Recital C above) and the covenants made by .Windemere herein, County shall prepare for consideration by the Board, and the Board shall consider approving, the GPA. County shall prepare and complete the GPA in the manner described more fully below and shall submit the completed GPA to County's Planning Commission or the appropriate regional planning commission (the "Commission" ) for its recommendation and to the Board for decision. County shall use its best efforts and exercise due diligence to accomplish such preparation, completion, submission and consideration by January 31 , 1992 . 2 2. Reimbursement for and Preparation of the EIR and Specific Plan. (a) In consideration of Windemere's reimbursement of County's costs as described in Paragraph 4 below, and the other covenants made by Windemere herein, County shall prepare for consideration by the Board, and the Board shall consider certifying and approving, respectively, the EIR and the Specific Plan. County shall prepare and complete the EIR and the Specific Plan in the manner described more fully below and shall submit the completed EIR and Specific Plan to the Commission or County's Zoning Administrator, as appropriate, for its or his recommendation, and to the Board for decision. . County shall use its best efforts and exercise due diligence to accomplish such preparation, completion, submission and consideration by January 31 , 1992 . (b) As more fully described below, Windemere shall reimburse County for certain costs incurred by County in preparing and considering the EIR and the Specific Plan. County agrees that in no event shall any additional fee or reimbursement be required by County in connection with its preparation and consideration of the EIR or the Specific Plan, except for a twenty-five percent WEIR surcharge, " pursuant to Section 26-2. 2804(a) of the Contra Costa County Code. 3 . Additional Covenants Regarding_ Preparation of Project Documents. (a) The EIR and Specific Plan will be prepared as described in certain agreements (the "Consulting Contracts") to be entered into by and between County and certain consultants , including (a) Jones & Stokes Associates , Inc. (with respect to the preparation of the EIR) , (b) PBR (with respect to the preparation of the Specific Plan) and (c) Brown & Caldwell (with respect to the preparation of certain engineering studies to be included in the EIR) . (b) County and Windemere may agree that additional consultants shall be engaged by County or Windemere to assist in the preparation of the EIR or the Specific Plan; provided, however, that any consulting contract entered into by County pursuant to this subparagraph (b) shall , among other things , ( i ) precisely describe the compensation to be paid to the contracting consultant, which compensation shall be based on competitive and commercially reasonable rates , ( ii ) require the contracting consultant (and any subcontracting consultant 3 retained by such contracting consultant) to respond to Windemere's inquiries, comments and reasonable suggestions pertaining to the Project Documents and to meet periodically with Windemere and County to discuss- scheduling, status and other matters related to the project, ( iii) otherwise be acceptable to Windemere and ( iv) , with respect to any consultant retained to assist in the preparation of the EIR, specify that Windemere shall have a proprietary interest in and right to use for any purpose all environmental data and analysis produced in connection with the preparation of the EIR and the studies on which it is based. (c) County and Windemere recognize that ( i) the preparation and consideration of the Project Documents will substantially affect the property interests of Windemere and ( ii ) Windemere and its consultants have knowledge of issues and information related to the Windemere Property that could prove valuable in the preparation and consideration of the Project Documents. Accordingly, it is in the best interest of County, Windemere and the public, and it is the intent of the parties hereto, that Windemere be permitted to participate actively in the preparation of the Project Documents (although County retains the right to organize and present the information to be contained in the Project Documents in any manner it deems necessary to comply with the California Environmental Quality Act and the general plan and zoning laws) . County agrees to work closely with Windemere and Windemere's counsel in connection with, and to give full consideration to their comments in making decisions with respect to, the preparation and consideration of the Project Documents. Nothing in this Paragraph is intended to prevent (i ) the Project Documents from reflecting County's independent judgment or ( ii ) the ' County from exercising its own review and analysis of the Project Documents. (d) Windemere shall have the right to review all drafts of the Project Documents prepared by County's staff or consultants at least fifteen ( 15) business days in advance of public distribution thereof. 4 . Additional Covenants Regarding Reimbursement of Costs for Preparation of EIR and Specific Plan. (a) Windemere shall reimburse County for certain costs incurred by County in the preparation of the EIR and the Specific Plan (the "Reimburseable Costs" ) . As used herein, the term "Reimburseable Costs", shall mean fifty percent (50%) of the compensation paid to consultants under the consulting contracts entered into directly by County in 4 accordance with the provisions of Subparagraphs 3 (a) and 3 (b) above, as such contracts may be amended from time to time upon the mutual consent of the parties to this Agreement. (b) Within thirty ( 30 ) calendar days after execution of this Agreement, Windemere shall deposit into a separate interest-bearing bank account (the "Reimbursement Account" ) , to be established by County, the sum of Seventy- Five Thousand Dollars ( $75 ,000 . 00) ("Deposit") . The Reimbursement Account shall be used solely to pay Reimburseable Costs to County. County may withdraw from the Reimbursement Account any amount representing a Reimburseable Cost upon the written signature of County's Director of Community Development or his or her designee. (c) If at any time the balance in the ReimbursementAccount falls to an amount less than Thirty- Seven Thousand Five Hundred Dollars ( $37 ,500 . 00 ) , County shall provide notice of such fact to Windemere and Windemere shall , within five (5 ) business days following receipt of such notice from County, deposit into the Reimbursement Account funds necessary to increase the balance in the Reimbursement Account to an amount equal to at least Seventy-Five Thousand Dollars ($75 ,000. 00 ) . Moreover, if any amount proposed to be withdrawn from the Reimbursement Account exceeds the existing balance in the Reimbursement Account, then Windemere shall deposit into the Reimbursement Account, within ten ( 10) business days after receipt of written notice from County, an amount equal to the sum of Seventy-Five Thousand Dollars ($75 ,000 .00) and the amount proposed to be withdrawn, less the amount of the existing balance in the Reimbursement Account. (d) County shall render monthly written accountings to Windemere setting forth the Reimburseable Costs withdrawn from, deposits made into and interest paid on the Reimbursement Account pursuant to this Agreement during the previous month. Upon the advance written request of Windemere, any such written accounting shall also set forth the name of the consultant or consultants paid with funds so withdrawn from the Reimbursement Account, the dates and nature of the services performed by such consultant or consultants , the identities of the person or persons employed by such consultant or consultants , the hours or increments thereof expended on the services provided and the hourly rate of the persons providing the services . (e) All interest earned on funds in the Reimbursement Account shall be added to the balance of the Reimbursement Account and treated as if deposited therein by 5 Windemere. Within sixty (60) calendar days following completion of all work that generates a Reimburseable Cost pursuant to this Agreement, County shall either ( i) render a final accounting to Windemere and pay to Windemere any amount remaining in the Reimbursement Account in excess of the amount necessary to compensate County for any Reimburseable Cost not yet withdrawn by County from the Reimbursement Account or ( ii) , if the amount of Reimburseable Costs not yet withdrawn by County from the Reimbursement Account exceeds the balance therein, request Windemere to pay the amount of such excess directly to County and, upon such payment by Windemere (which shall occur within ten ( 10 ) business days following County's request for payment) , render a final accounting. 5 . Indemnification. (a) Neither Windemere nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by County under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by County under this Agreement. County shall indemnify, defend and hold Windemere harmless from any liability imposed for damage or injury occurring to any third party by reason of anything done or omitted to be done by County under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by County under this Agreement. (b) Neither County nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by Windemere under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by Windemere under this Agreement. Windemere shall indemnify, defend and hold County harmless from any liability imposed for damage or injury occurring to any third party by reason of anything done or omitted to be done. by Windemere under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by Windemere under this Agreement. 6 . Right to Use of Information. Within ten ( 10 ) business days after any written request by Windemere or the termination of this Agreement pursuant to Paragraph 9 below, County shall deliver to Windemere, at Windemere' s cost, clear and legible copies '( including, to the extent possible, diskettes containing information copied from the computer files of County and its consultants) of all data, reports, analyses, plans, designs and other .written materials 6 prepared as of the date. of such request by County or its consultants pursuant to this Agreement. Any and all such information shall be deemed to be the common property of County, Windemere, Shapell and any consultant that prepared such information, and may be used by Windemere for any purpose it deems appropriate. Moreover, County agrees that, in the event of termination of this Agreement, no consultant retained by County or Windemere pursuant to the terms hereof shall be prevented from being retained by Windemere or any other local agency for the purpose of preparing or processing permits , approvals or environmental information relating to the development of the Windemere Property. 7 . Cooperation in the Event of Legal Challenge. In the event of any legal or equitable action or other proceeding instituted by a third party, governmental agency or official challenging the validity of any provision of this Agreement, the Project Documents or Additional Entitlements, the parties shall cooperate in defending the action or proceeding. Windemere shall bear its own costs of defense as a real party in interest in any such action or proceeding., and shall (together with Shapell) reimburse County for any court costs and attorneys fees ( including court-ordered awards of attorneys fees paid by County to third parties ) which County expends in defense of any such action or other proceeding. 8 . No Joint Venture or Partnership. County and Windemere hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making County and Windemere joint venturers or partners. 9 . Termination of Agreement. Windemere shall have the right, upon ten ( 10 ) business days prior written notice to County, to terminate this Agreement if Windemere, in its sole discretion, determines that it is in its best interest to do so. If Windemere so terminates this Agreement, Windemere shall be liable for only those Reimburseable Costs incurred prior to the effective date of such termination as a necessary incident to particular tasks in progress on the termination notice date. Upon termination of this Agreement, all funds remaining in the Reimbursement Account (and not owed to County) shall be paid to Windemere and neither party shall have any further rights or obligations hereunder. 10 . Notices. All notices or communications required hereunder between County and Windemere shall be in 7 writing, and may be given either personally or by United States mail . If given by United States mail , the notice shall be deemed to have been given and received (except as otherwise specified above) 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 ) business days after the letter containing the notice, properly addressed, with postage prepaid, is deposited in the United States mail . If personally delivered, notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto, by giving ten ( 10) business days' written notice to the other, may designate any other address in substitution of the address to which the notice or communication shall be given. Notices or communications shall be given to the parties at the addresses set forth below unless and until specified otherwise . in writing: If to County: County of Contra Costa Department of Community Development 651 Pine Street Martinez, California 94553 Att'n: Mr. James Cutler If to Windemere: Windemere Ranch Partners 2430 Camino Ramon Suite 124 San Ramon, California 94583 Att'n: Mr. Darryl A. Foreman 11. Legal Action. Either party may institute legal action in the Superior Court of Contra Costa County to cure, correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation or enforce by specific performance the obligations and rights of the parties hereto, it being understood and agreed that money damages would not be a sufficient remedy for the failure of any party to perform its obligations under- this Agreement. 12. Condition Precedent. This Agreement shall become effective only if and when the Shapell Agreement, which Shapell Agreement shall be in the form attached hereto as Exhibit B, becomes effective. 13 . Miscellaneous. (a) This Agreement shall apply to, bind and inure to the benefit of successors in interest of the parties hereto, including heirs, assigns, executors , 8 administrators and all other parties, whether they succeed by operation of law or voluntary acts of County or Windemere. (b) This Agreement is entered only for the benefit of the parties executing this Agreement and not for the benefit of any other individual , entity or person. (c) This Agreement may be amended in writing by the original parties or their successors in interest. (d) If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect. (e) This Agreement shall be construed and enforced in accordance with the laws of the State of California. (f) This Agreement, together with the exhibits attached hereto, constitutes the entire . understanding and agreement of the parties , and supersedes all negotiations or previous agreements between the parties 9 with respect to all or any part of the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers as of the date first above written. APPROVED AS TO FORM: COUNTY OF CONTRA COSTA .By: Victor J. Westman Harvey Bragdon Contra Costa County Counsel Its: Director of Community Development WINDEMERE RANCH PARTNERS, David A. Gold a California limited partnership for MORRISON & FOERSTER By: WINDEMERE GENERAL PARTNERS , Attorneys for Windemere a California general partnership Its: Managing General Partner By: WINDEMERE ASSOCIATES, a California general partnership Its : General Partner By: CJICO WINDEMERE GROUP, a California general - partnership Its: General Partner By: James W. Sievers, General Partner By: CWL WINDEMERE GROUP, a California limited partnership Its: General Partner By: F. Allan Chapman, General Partner F30436 10 EXHIBIT A Leqal Description DESCRIPTION: TEE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIgOgNIA# COUNT! OF CONTRA COSTA, UNINCORPORATED, DESCRIBED AS FOLLWS= PORTION OF LOTS 4. 6 . 16, 17 AND 18 AND ALL OF LOTS 19. 20, 21, 22 23, 24, 25. 26, 27, 28, 290, 30 AND 31, PORTION OF LOT 32 AND ALL OF LOTS 33, 34, 37 AND 38, ;MAP OF THE PROPERTY OF THE ESTATE OF ELIZABETH A. DOUGHERTY# DECEASED* IN ALAMEDA AND CONTRA COSTA COUNTIES, WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, ON MAY 4 , 1891. IN BOOK C OF MAPS , PAGE 63, AND FILED IN TOE OFFICE OF TEE RECORDER OF TEE COUNTY OF ALAMEDA, STATE OF CALIFORNIA, ON MAY 11. 1891• IN BOOK 8 OF MAPS , PAGE 73# DESCRIBED AS FOLLOWS; BEGINNING AT THE INTERSECTION OF THE LINE BETWEEN LOTS 18 AND 19, WITS THE MOST WESTERLY LINE OF LOT 8, AS DESIGNATED ON THE MAP AM REFERRED TOt THENCE FROM SAID POINT OF BEGINNING ALONG TBE LICE BETWEEN LOT i8 AND LOTS 8 AND 9 , SOUTH 1 WEST, 6 .13 CHAINSI SOUTH 5• EAST 17.50 CHAINS AND SOUTH 11. 15 ' WEST 17.18 CHAINS TO TSM CORNER COMMON TO LOTS 9, 10, 17 AND 18, SAID CORNER BEING AN ANGLE POINT IH THE EXTERIOR LINE OF TEE PARCEL OF LAND DESCRIBED IN THE DEED TO FRANC PINE, ET AL, RECORDED MARCH 19• 1912• BOOK 179, DEEDS, PAGE 1841 THENCE ALONG SAID EXTERIOR LINE AS FOLLOWS: NORTH 77. 50' WEST, 7 .98 CHAINS= SOUTH 61' 05 ' WEST 13 .42 CHAINS: AMID SOUTH 750 WEST 24 CHAINS TO TEE LINE BETWEEN LOTS 17 AND 311 THE= ALONG SAID LINE SOOTS 5` WEST 11 CHAINS AND SOUTH 18' 300 WEST 9 CHAINS TO THE NORTHWEST CORNER OF LOT 161 THENCE ALONG TNM LIU BETWEEN LOTS 16 AND 32, SOUTH 250 WEST, 3.95 CHAINSI THENCE LEAVING SAID LINE SOUTH 14' 15' WEST, 11.79• CHAINS TO A POINT ON SM LIU BETWEEN LOTS 16 AND 321 THENCE ALONG SAID LINE SOUTH 220 NEST 1.61 CHAINS TO THE NORTHWEST CORNER OF TBE 135.80 ACRE TRACT Ol LAND DESCRIBED IH THE DEED TO M. S. DUARTE* RECORDED NOVEMBER 16, 19110 BOOK 1995• DEEDS, PAGE 162, ALAMEDA COMM RBCORDSI THENCE SOCTB 220 WEST, 2.87 CHAINS] THENCE SOUTH 66. 30' WEST 7.13 CHAINSI THENCa SOUTH 21' 15' WEST, 12.54 CHAINS TO TEE SOUTH LINE OF LOT 321 TR9vM ALONG THE SOUTH LINE OF LOTS 32, 33 AND 34, NORTH 68. 43' WEST 52.67 CRAIa8 TO THE MOST WESTERLY CORNER OF LOT 341 THENCE ALONG TBE WEST LIGE OF LOTS 31 AND 34, NORTH 28. 15' EAST, 71.9 CHAINS TO TBE SOVTM MBT Llai OF LOT 301 THENCE ALONG TEE LINE BETWEEN LOTS 30 AND 33# NORTH So* 43• WEST 792 FEET1 NORTH 38. 12' WEST 759.20- FEET, AND NORTH 65. 43' NES! 132 FEET TO TES CORNER CODON TO LOTS 30o, 3 5 AND 361 THENCE ALOb10 TBE LINE BETWEEN SAID LOTS 30 AND 36, NORTH 650 43' WMBT, 481.8 lEMT AM NORTH 38. 13' WEST 759 FEET TO THE CORNER COMMON TO LOTS 30, 36 AM 37l THEM ALONG TBE LINE BETINZZN SAID LOTS, 36 AND 3 7, NORT8 360 43• VEST 2112 FEET TO TBE CORAMR commit TO LO'!'S 3 6. 3 7, 39* AM 48# TMMAM ALONG THE LIRE BETWEEN SAID LOTS 37 AAD 39, NORTE 41' 171 Milli' 294 FSE= NORTH 85' 47' EAST 561 FEET AND NORTH 20. 47' EAST 1314.72 FENT TO THE CORNER COMMON TO ,LOTS 27 * 37, AND 391 THENCE ALONG TSE LINE BETWEEN SAID LOTS 27 AND 39* NORTH 1. 28 ' WEST 396 FEET, NORTH 14. 02' EAST 429 FEET, NORTH 19• S8' WEST# 462 FEET, NORTH 30. 02' EAST 594 FEET AND NORTH 27' 43' WEST 660 FEET TO THE CORNER COMMON TO LOTS 27, 39 AND 401 THENCE ALONG THE LINE BETWEEN SAID LOTS 27 AND 40* NORTH 12' 17 ' EAST 326.70 FEET AND NORTH 32. 02' EAST 280.5 FEET TO TSM CORNER COMMON TO LOTS 26* 27 AND 401 THENCE ALONG THE LING .BETWEEN SAID LOTS 26 AND 40, NORTH 15. 32' EAST 564.30 FEET AND NORTH 45. 02' EAST 326.8 FEET TO THE CORNER COMMON TO LOTS 26* 40 AND 411 THENCE ALONG TSE LINE BETWEEN SAID LOTS 26 AND 41* NORTH 34. 02' EAST 809.82 FEET TO THE CORNER COMMON TO LOTS 23s, 26 AND 411 THENCE ALONG THE LINE BETWEEN, SAID LOTS 25 AND 41, NORTH 37' 32' EAST 534.6 FEET* NORTH 13' 47 ' EAST 710.16 FEET AND NORTH 30. 47 ' EAST 372.24 FEET TO THE CORNER COMMON TO LOTS 24* . 25* 41 AND 421 THENCE ALONG THE LINE BETWZZU SAID LOTS 24 AND 421 NORTH 21' 02' EAST $25 FEET, NORTH 27. 02' EAST 396 FEET, NORTH 52° 02' EAST 330 FEET, NORTH 45. 32' ; EAST 594 FEET AND NORTH 19. 47' EAST 481.8 FEET TO THE NORTH LINE OF SAID LOT 241 THENCE ALONG SAID NORTH LINE OF LOT 24 AND ALONG THE NORTH LINE OF LOT 23 , SOUTH 89. 45' EAST 5946.60 FEET TO THE NORTHWEST CORNER OF LOT 1; THENCE ALONG TSE LINE BETWEEN LOTS 1 AND 231 SOUTH 510 WZST 10 CHAINS TO THE CORNER COMMON TO LOTS 1 AND 2, ON THE EAST LINE OF LOT 13; THENCE ALONG THE EAST LINE OF LOTS 23 AND 22* SOUTH 5* WEST 8 CHAINSt SOUTH 26' EAST 14.80 CHAINS AND SOUTH 1. 45' WEST 13 CHAINS AND SOUTH 450 WEST 7.70 CHAINS TO THE CORNER COMMON BETWEEN LOTS 2 AND 3 ON TRE EAST LINE OF LOT 22, BEING THE NORTHWEST CORNER OF TSE PARCEL OF LAZA. DESCRIBED IN THE DEED TO MANUEL S. MATTOSt RECORDED NOVEMBER 26* 1923, BOOK 453 , DEEDS, PAGE 661 THENCE ALONG TSE WEST LINE OF SAID MATTOS PARCELt AS FOLLOWS: SOUTH S3• WEST* 3.5 CHAINS: SOUTH 19' WBSTt 14.8 CHAINS' SOUTH 500 45 EAST* 5 CHAINS AND SOUTH 1. 30 ' WEST 6 .64 CHAINS TO A WHITE OAK TREE AT THE NORTHWEST CORNER OF THE 2.54.97 ACRE PARCEL OF LAND D2SCRIBED IN THE DEED TO ANTONE PERRY SILVA* ET AL, RECORDED JUNE 23. 19231 BOOK 435 DEEDS, PAGE 417; THENCE ALONG THE WEST LINE OF SAID SILVA PARCEL* AS FOLLOWSs SOUTH 37` 30' WEST, 12.25 CHAINS# SOUTH 12' WEST* 2.2 CHAINS# SOUTH 1.28 CHAINSI SOUTH 5. 30' WEST* 9.90 CHAINS# SOUTH 0' 45' RUT 23.92 CHAINS AND SOUTH 48. 30' EAST 9.05 CHAINS 'TO TSE NORTERMST CORNER OF THE 146.48 ACRE PARCEL OF LAND DESCRIBED IN TSE DEED TO THEODORE NISSEN, RWORDED OCTOBER 24• 1908* BOOK 140 DEEDS* PAGE 83, CONTRA COSTA COUNTZ RECORDSI TOM= ALONG THE MOST WBSTERLY LINZ OF . SAID PARCEL OF LAND* SOUTH 23. 44' 15' WEST 1412.01 FEET AND SOUTH 40' 39 35' WEST 554.24 FEET TO TBE SOUTHREST CORNER OF SAID PARCEL, 821810 ALSO THS NORTHWEST CORNER OF TEE PARCBL OF LAND DESCRIBED IN THE DEED TO W. H. DONAgUEt RECORDED APRIL 8t 1903* BOOK 110 D2ED8* PAGE 407* CONTRA COSTA COUNTY RECORDS# THENCE ALONG THE WEST LINE OF SAID PAWAM SOUTH 0. 41' 30• WEST, 1146.!3 FEET TO THE POINT OF BEGINNIZ4'G. EXCEPTING THEREFROM: THE ESTATE AWARDED TO UNITED STATES OF AMERICA IN THE FINAL JUDGMENT DATED JULY 21. 1947• UNDER ACTION NO. 22352-R IN THE DISTRICT COURT OF THE UNITED STATES, IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA , SOUTHERN DIVISION, A CERTZFIED COPY OF WHICH WAS RECORDED AUGUST A 1947, BOOK 1104 OFFICIAL RECORDS, PAGE 377. ALSO EXCEPTING THEREFROM: THE RIGHTS RESERVED IN THE DEED FRM ,EMIL GUMPERT, ET AL# TO EDCEL N.B. , A NETHERLANDS ANTILLES CORPORATION, RECORDED MARCS 28, 1980. AS INSTRUMENT NO. 80-39830, AS FOLLovol *BUT ONLY AS TO THE AREA LYING MORE THAN FIVE HUNDRED (500) g88T BELOW THE LAND SURFACE OF THE REAL PROPERTY, AN UNDIVIDED ONE-RAJ (1/2) INTEREST IN AND TO ALL RIGHTS TO, AND ONE—HALF (1/2) OF ALL OIL, GAS, MINERALS, PETROCHEMICALS AND OTHER HYDROCARBON SUBSTANCES IN, UNDER OR PRODUCED AND SAVED FROM, THE REAL PROPERTY WHETHER OR NOT OF RECORDo APN: 206-050-001 206-050-002 206-050-003 206-050-004 206-070-001 206-070-002 206-090-001 206-090-002 206-110-001 EXHIBIT B REIMBURSEMENT AGREEMENT This REIMBURSEMENT AGREEMENT (the "Agreement" ) is entered into as of , 1991 , by and between the COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County" ) , and SHAPELL INDUSTRIES, INC. , a California corporation ("Shapell") . I. RECITALS A. Shapell owns certain unimproved real property consisting of approximately 2740 acres located in the County of Contra Costa, California and described more fully on attached Exhibit A (the "Shapell Property" ) . B. Shapell desires to develop the Shapell Property for residential and commercial uses generally in the manner described in that certain Notice of Preparation prepared by County, dated April 22 , 1991 , with respect to the Shapell Property and certain adjacent property (the "NOP" ) . C. While the Shapell Property is within County's urban limit line, County's general plan (the "General Plan") does not currently permit the Shapell Property to be so developed. Shapell has therefore requested County to prepare and approve an amendment to the General Plan (the "GPA" ) to permit the development of the Shapell Property upon receipt of all additional necessary permits and approvals. • Shapell has paid to County certain fees , pursuant to Section 26-2 . 2802 of the Contra Costa County Code and County Ordinance No. 90-62, for the preparation and consideration of the GPA (the "GPA Preparation Fee" ) . The GPA Preparation Fee is adequate to cover all of County's costs in preparing and considering the GPA, including any and all costs incurred in connection with County's employment of additional personnel or consultants (including, without limitation, any and all amounts paid to Mr. Darwin Myers for his assistance in the planning efforts . described in this Agreement) . D. Shapell has requested County to prepare and approve a specific plan pursuant to Cal . Gov't Code § 65450 et sem. (the "Specific Plan" ) , for both the Shapell Property and certain adjacent real property (the "Windemere Property" ) comprising approximately 2360 acres owned by Windemere Ranch Partners ( "Windemere") , as described more fully in the NOP. 1 E. Prior to approving the GPA or the Specific Plan, County is required to prepare and certify 'an - environmental impact report pursuant .to the California Environmental Quality Act (the "EIR" ) . F. In preparing the Specific Plan and the EIR, County will engage consultants •and staff personnel experienced in the planning, administration and preparation of specific plan and EIR studies and documents . G. Shapell desires to pay certain fees and make certain reimbursements to County, as more fully set forth below, to defray fifty percent ( 50% ) of County' s. costs in preparing, and thereby facilitate County's preparation of , the Specific Plan and the EIR. County and Windemere are concurrently herewith entering into a Reimbursement Agreement (the "Windemere Agreement" ) pursuant to which Windemere shall pay certain fees and make - certain reimbursements to County, as more fully set forth in the Windemere Agreement,- to defray fifty percent ( 50%) of County's costs in preparing, and thereby facilitate County's preparation of , the Specific Plan and the EIR. H. In consideration of Shapell 's paying the fees and making the reimbursements described herein, County desires to prepare and consider the GPA, the Specific Plan and the EIR• (collectively, the "Project Documents" ) . II. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1 . Preparation of the GPA. In consideration of Shapell' s payment of the "GPA Preparation Fee" (described in Recital C above) and the covenants made by Shapell herein, County shall prepare for consideration by the Board, and the Board shall consider approving, the GPA. County shall prepare and complete the GPA in the manner described more fully below and shall submit the completed GPA to County's Planning Commission or the appropriate regional .planning commission (the "Commission" ) for its recommendation and to the Board for decision. County shall use its best efforts and exercise due diligence to accomplish such preparation, completion, submission and consideration by January 31 , 1992. 2 2 . Reimbursement for and Preparation of the EIR and Specific Plan. (a) In consideration of Shapell ' s reimbursement of County's costs as described in Paragraph 4 below, and the other covenants made by Shapell herein, County shall prepare for consideration by the Board, and the Board shall consider certifying and approving , respectively, the EIR and the Specific Plan. County shall prepare and complete the EIR and the Specific Plan in the manner described more fully below and shall submit the completed EIR and Specific Plan to the Commission or County' s Zoning Administrator, as. appropriate, for its or his recommendation, and to the Board for decision. County shall , use its best efforts and exercise due diligence to accomplish such preparation, completion, submission and consideration by January 31 , 1992. (b) As more fully described below, Shapell shall reimburse County for certain costs incurred by County in preparing and considering the EIR and the Specific Plan. County agrees that in no event shall any additional fee or reimbursement be required by County in connection with its preparation and consideration of the EIR or the Specific Plan, except for a twenty-five percent "EIR surcharge , " pursuant to Section 26-2 . 2804(a) of the Contra Costa County Code. 3 . Additional Covenants Regarding Preparation of Project Documents. (a) The EIR and Specific Plan will be prepared as described in certain agreements (the "Consulting Contracts" ) to be entered into by and between County and certain consultants , including (a) Jones & Stokes Associates , Inc. (with respect to the preparation of the EIR) , (b) PBR (with respect to the preparation of the Specific Plan) and (c). Brown & Caldwell (with respect to the preparation of certain engineering studies to be included in the EIR) . (b) County and Shapell may agree that additional consultants shall be engaged by County or Shapell to assist in the preparation of the EIR or the Specific Plan; provided, however, that any consulting contract entered into by County pursuant to this subparagraph (b) shall , among other things , ( i) precisely describe the compensation to be paid to the contracting consultant , which compensation shall be based on competitive and commercially reasonable rates , ( ii) require the contracting consultant (and any subcontracting consultant retained by such 3 contracting consultant) to respond to Shapell ' s inquiries , comments and reasonable suggestions pertaining to the Project Documents and to meet periodically with Shapell and County to discuss scheduling, status and other matters related to the project, ( iii ) otherwise be acceptable to ' Shapell and ( iv) , with respect to any consultant retained to assist in the preparation of the EIR, specify that Shapell shall have. a proprietary interest in and right to use for any purpose all environmental data and analysis produced in connection with the preparation of the EIR and the studies on which it is based. (c) County and Shapell recognize that ( i) the preparation and consideration of the Project Documents will substantially affect the property interests of Shapell and ( ii ) Shapell and its consultants 'have knowledge of issues and information related to the Shapell that. could prove valuable in the preparation and consideration of the Project Documents. Accordingly, it is in the best interest of County, Shapell and the public, and it is the intent of the parties hereto , that Shapell be permitted to participate actively in the preparation of the Project Documents (although County retains the right to organize and present . the information to be contained in the Project Documents in any manner it deems necessary to comply with the California Environmental Quality Act and the general plan and zoning laws) . County agrees to work closely with Shapell and Shapell's counsel in connection with, and to give full consideration to their comments in making decisions with respect to, the preparation and consideration of the Project Documents . Nothing in this Paragraph is intended to prevent ( i ) the Project Documents from reflecting County's independent judgment or (ii) the County from exercising its own review and analysis of the Project Documents . (d) Shapell shall have the right to review all drafts of the Project Documents prepared by County's staff or consultants at least fifteen ( 15 ) business days in advance of public distribution thereof . 4 . Additional Covenants Regardinq Reimbursement of Costs for Preparation of EIR and Specific Plan. (a) Shapell shall reimburse County for certain costs incurred by County in the preparation of the EIR and the Specific Plan (the "Reimburseable Costs" ) . As used herein, the term "Reimburseable Costs" shall mean fifty percent ( 50%) of the compensation paid to consultants under the consulting contracts' entered into directly by County in accordance with the provisions of Subparagraphs . 3 (a) and 4 3 (b) above, as such contracts may be amended from time to time upon the mutual consent of the parties to this Agreement. ." (b) Within thirty ( 30 ) calendar days after execution of this Agreement, Shapell shall deposit into a separate interest-bearing bank account (the "Reimbursement Account" ) , to be established by County, the sum of Seventy- Five Thousand Dollars ( $75 ,000 . 00 ) ( "Deposit" ) . The Reimbursement Account shall be used solely to pay Reimburseable Costs to County. County may withdraw from the Reimbursement Account any amount representing a Reimburseable Cost upon the written signature of County' s Director of Community Development or his or her designee. (c) If at any time the balance in the Reimbursement Account falls to an amount less than Thirty- Seven Thousand Five Hundred Dollars ( $37 , 500 . 00 ) , County shall provide notice of such fact to Shapell and Shapell shall , within five ( 5 ) business days following receipt of such notice from County, deposit into the Reimbursement Account funds necessary .to increase the balance in the Reimbursement Account to an amount equal to at least Seventy-Five Thousand Dollars ( $75 ,000 ..00 ) . Moreover, if any amount proposed to be withdrawn from the Reimbursement Account exceeds the existing balance in the Reimbursement Account, then Shapell shall deposit into the Reimbursement Account, within ten ( 10 ) business days after receipt of written notice from County, an amount equal to the sum of Seventy-Five Thousand Dollars ( $75 , 000 . 00.) and the amount proposed to be withdrawn, less the amount of the existing balance in the Reimbursement Account. (d) County shall render monthly written accountings to Shapell setting forth the Reimburseable Costs withdrawn from, deposits made into and interest paid on the Reimbursement Account pursuant to this Agreement during the previous month. Upon the advance written request of Shapell , any such written accounting shall also set forth the name of the consultant or consultants paid with funds so withdrawn from the Reimbursement Account, the dates and nature of the services performed by such consultant or consultants , the identities of the person or persons employed by such consultant or consultants , the hours or increments thereof expended on the services provided and the hourly rate of the persons providing the services . (e) All interest earned on funds in the Reimbursement Account shall be added to the balance of the Reimbursement Account and treated as if, deposited therein by Shapell . Within sixty ( 60 ) calendar days following 5 completion of all work that generates a Reimburseable Cost pursuant to this Agreement, County. shall either ( i ) render a final accounting to Shapell and pay to Shapell any amount remaining in the Reimbursement Account in excess. of the amount necessary to compensate County for any Reimburseable Cost not yet withdrawn by County from the Reimbursement Account or, ( ii) if the amount of Reimburseable Costs not yet withdrawn by County from the Reimbursement Account exceeds the balance therein, request Shapell to pay .the amount of such excess directly to County and, upon such payment by Shapell (which shall occur within ten ( 10 ) business days following County' s request for payment) , render a final accounting. 5 . Indemnification. (a) Neither Shapell nor any officer or employee thereof shall be responsible 'for any damage or liability occurring by reason of anything . done or omitted to be done by County under or in connection with any work, authority, jurisdiction or 'action delegated to or undertaken by County under this Agreement. County shall indemnify, defend and hold Shapell harmless from any liability imposed for damage or injury occurring to any third party by reason of anything done or omitted to be done by County under -.or in connection with any work, authority, jurisdiction or action , delegated to or undertaken by County under this Agreement. (b) Neither -County nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to . be done by Shapell under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by Shapell under this Agreement. Shapell shall indemnify, defend and hold County harmless from any liability imposed for damage or injury occurring to any third party by reason of anything done or omitted to be -done by Shapell under or in connection with any work, authority, jurisdiction or action delegated to or undertaken by Shapell under this Agreement. 6 . Right to Use of Information. Within ten ( 10 ) business days after any written request by Shapell 'or the termination of this Agreement pursuant to Paragraph 9 below, County shall deliver to Shapell , at Shapell ' s cost, clear and legible copies ( including, to the extent possible ; diskettes containing information copied from the computer files -of County and its consultants ) of all data , reports , analyses , plans , designs and other written materials prepared as of the date of such request by County -or its consultants pursuant to this Agreement. Any and all such 6 information shall be deemed to be the common property of County, Shapell , Windemere and any consultant that prepared such information, and may be used by Shapell for any purpose it deems appropriate. Moreover, County agrees that, in the event of termination of this Agreement, no consultant retained by County or Shapell pursuant to the terms hereof shall be prevented from being retained by Shapell or any other local agency for the purpose of preparing or processing permits , approvals or environmental information relating to the development of the Shapell Property. 7 . Cooperation in the Event of Legal Challenge. In the evert of any legal or equitable action or other proceeding instituted by a third party, governmental agency or official challenging the validity of any provision of this Agreement, the Project Documents or Additional Entitlements , the parties shall cooperate in defending the action or proceeding. Shapell shall bear its own costs of defense as a real party in interest in any such action or proceeding, and shall (together with Windemere) reimburse County for any court costs and attorneys fees ( including court-ordered awards of attorneys fees paid .by County to third parties ) which County expends in defense of any such action or other proceeding. 8 . No Joint Venture or Partnership. County and Shapell hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith .shall be construed as making County and Shapell joint venturers or partners . 9 . Termination of Agreement. Shapell shall have the right, upon ten ( 10 ) business days prior written notice to County, to terminate this Agreement if Shapell , in its sole discretion, determines that it is in its best interest to do so. If Shapell so terminates this Agreement, Shapell shall be liable for only .those Reimburseable Costs incurred prior to the effective date of such termination as a . necessary incident to particular tasks in progress on the ' termination notice date. Upon termination of this Agreement, all funds remaining in the Reimbursement Account (and not owed to County) shall be paid to Shapell and neither party shall have any further rights or obligations hereunder. 10. Notices . All notices or communications required hereunder between County and Shapell shall be in writing, and may be given either personally or by United States mail . If given by United States mail , the notice shall be deemed to have been given and received (except as 7 otherwise specified above) 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 ) business days after the letter containing the notice, properly addressed, with postage prepaid, is deposited in the United States mail . If personally delivered, notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto,. by giving ten ( 10) business days' written notice to the other, may designate any other address in substitution of the address to which the notice or communication shall be given. Notices .or •communications shall be given to the parties at the addresses set forth below unless and until specified .otherwise in . writing: If to County: _ County of Contra Costa Department of Community Development 551 Pine Street Martinez , California 94553 Att'n: Mr. James Cutler If to Shapell : Shapell Industries , Inc. 100 North Milpitas Blvd. Milpitas , California 95035 Att'n: Mr. Thomas J. Koch 11 . Legal Action. Either party may institute legal action in the Superior Court, of Contra Costa County to cure , correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation or enforce by specific performance the obligations and rights. of the parties hereto, it being understood and agreed that money damages would not be a sufficient remedy for the failure of any party to perform its obligations under this Agreement. 12. Condition Precedent. This Agreement shall .become effective only if and when the Windemere Agreement, which Windemere Agreement shall be in the form attached hereto as Exhibit B, becomes effective. 13 . Miscellaneous. (a) This Agreement shall apply to , bind and inure to the benefit of successors in interest of the parties hereto, including heirs , assigns , executors , administrators and all other parties , whether they succeed by .operation of law or voluntary acts of County or Shapell . 8 (b) This Agreement is entered only for the benefit of the parties executing this Agreement and not for the benefit of any other. individual , entity or person. (c) This Agreement may be amended in writing , by the original parties or their successors in interest. (d) If any term, provision , covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid , void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect. (e) This Agreement shall be construed and enforced in accordance with the laws of the State of California. ( f ) This Agreement, together with the exhibits attached hereto, constitutes the entire 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers as of the date first above written. APPROVED AS TO FORM: COUNTY OF CONTRA COSTA By: Victor J. Westman Harvey Bragdon Contra Costa County Counsel Its': Director of Community Development SHAPELL INDUSTRIES , INC. , Daniel J. Curtin a California corporation for McCUTCHEN, DOYLE,. BROWN & By: ENERSEN Daniel W. Hancock Attorneys for Shapell Its : President F49302 9 EXHIBIT A PROPERTY DESCRIPTION