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HomeMy WebLinkAboutMINUTES - 10021990 - 2.4 To �, BOARD OF SUPERVISORS FROM ; Oo Itra Harvey E. Bragdon, Director of Community Development uOS a DATE . September 17, 1990 Cougy SUBJECT; Development Agreement between Contra Costa County and Shapell Industries, Inc. Relative to the Property Known as Gale Ranch SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. Find the Development Agreement exempt from the California Environmental Quality Act. 2 . Should the Board of Supervisors decide to approve the Development Agreement: a. Waive the reading. a. Adopt the attached ordinance approving the Gale Ranch Development Agreement. C. Authorize the Director of Community Development to sign and execute the Development Agreement after it has been duly signed on behalf of Schapell Industries, Inca BACKGROUND/REASONS FOR RECOMMENDATION This matter was heard by the Zoning Administrator on September 10, 1990 when he closed the public hearing and continued the matter to September 14, 1990 for decision. On September 14, 1990 the Zoning Administrator found that the Development Agreement does not provide for any entitlements and any applications for development entitlements would require an Initial Study for compliance with CEQA and a public hearing before the appropriate body of the County's planning agency, and is adequate for the Board of Supervisors to adopt the ordinance. The ' Zoning Administrator recommends that the Board of Supervisors find that the Development Agreement is consistent with State Law, County Policy, Development Agreement procedures and the General Plan of Contra Costa County. CONTINUED ON ATTACHMENT: YES SIGNATUR RECOMMENDATION OF COUNTY ADMINISTRATOR. REC M TION B ARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON _October 22, 1990 APPROVED AS RECOMMENDED _yjOTHER X The Board approved the above recommendations- with amendments to the Development Agreement as discussed by the Board and agreed upon by- the applicants-. VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS (ABSENT 1._ AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. CC: ATTESTED October-.2,-- 1990 Community Development Department PHIL BATCHELOR, CLERK OF THE BOARD OF Public Works SUPERVISORS AND COUNTY ADMINISTRATOR County Counsel M382%7-83 BY DEPUTY � - --- ORDINANCE NO. 90-$7_ (Gale Ranch Development Agreement) Page 1 of 1 The Board of Supervisors of the County of Contra Costa ordains as follows : Section I . Findings . The Board hereby finds that the provisions of that certain Development Agreement between the County of Contra Costa and Shapell Industries, Inca relating to the property known as Gale Ranch, a copy of which is attached to this Ordinance as Exhibit 1, and which has been found by the County Zoning Administrator to be adequate for approval, is consistent with the County' s General Plan as established by the terms of the Development Agreement, the determinations of the County Community Development Department, the County Zoning Administrator, and such other information in the record provided to the Board. The Board hereby further fiends that it can be seen with certainty that there is no possibility that the Development Agreement may have a significant effect, directly or ultimately, on the physical environment. The approval of the Development Agreement will not result in development of Gale Ranch or any other effect on the physical environment and, therefore, the adoption of the Agreement is not subject to the California Environmental Quality Act ("CEQA") pursuant to Section 15061(b) of the CEQA Guidelines . Section II . Approval. The Board hereby approves, pursuant to the authorization provided in sections 65864 et sea. of the Government Code of the State of California, the Development Agreement between the County of Contra Costa and Shapell Industries, Inc. relating to the property known as Gale Ranch, a copy of which is attached as Exhibit 1 and is incorporated into this .Ordinance for all purposes by this reference. The Board hereby authorizes the Director of Community Development to execute the Development Agreement on behalf of the County of Contra Costa and post a notice of exemption pursuant to Section 21152 of the California Public Resources Code and Section 15062(c) of the CEQA Guidelines . Section III . Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional or invalid, such a decision shall not affect the validity of the remaining portions of this ordinance. The Board hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance irrespective of the unconstitutionality or invalidity of any section, subsection, subdivision, paragraph, sentence, . clause or phrase. Section Iy. Effective Date. This ordinance becomes effective 30 days after passage and, within 15 days of passage, shall be published once with the names of Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. . PASSED and ADOPTED on October 2, 1990 by the following vote: AYES: Supervisors Powers, McPeak, Torlakson and Fanden NOES: None ABSENT: Supervisor Schroder ABSTAIN: None ATTEST: PHIL BATCHELOR, Clerk of the Board of Supervisors and County Administrator By: Depu y Board Chair Date• ! 90 Y WHEN RECORDED RETURN TO CLERK, BOARD OF SUPERVISORS DEVELOPMENT AGREEMENT BY AND BETWEEN THE COUNTY OF CONTRA COSTA AND SHAPELL INDUSTRIES, INC. RELATIVE TO THE PROPERTY KNOWN AS THE GALE RANCH TABLE OF CONTENTS Page RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 AGREEMENT . . . . . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . 8 Section 1 . General Provisions . . . . . . . . . . . . . 8 A. Incorporation of Recitals 8 B. Covenants 8 C. Effective Date . . . . . . . . . . . . . . . . . . . . . . 8 D. Term; Termination 9 E. Amendment of Agreement . . . . . . . . . . . . . . 9 ( 1 ) Procedural Exemptions . . . . . . . . . . 9 (2) Amendment Exemptions 10 Section 2 . Regulations Applicable to the Property 10 A. Exemption from the Initiative . . . . . . . 10 B. Rules , Regulations and Official Policies 10 (1) Effective Standards . . . . . . . . . . . . 10 (2) Future General Plan Amendments for the Property . . . . . . . . . . . . . . . . . . . . . . . 11 (3). Moratoria 11 (4). State and Federal Laws . . . . . . . . . 12 C. Development Timing . . . . . . . . . . . . . . . . . . 12 D. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 i P_ aqe Section 3 . Obligations of Property Owner 13 A. Light Rail Transit . . 13 B. Affordable Housing . . 13 C. open Space; Development in Accordance with the 65/35 Contra Costa County Land Preservation Plan .. . . . . . 14 D. Limitations on Development of Ridgelines , Slopes and Creek Areas . . . . . . . . . . . . . . . . . . . . . . . . . 14 E. . Development in Accordance with Transportation Improvement and Growth . Management Program . . . . . . . . . . . . . . . . . . 14 F. County Staff Time . . . . . . . . . .. . . . . . . . 15 . Section 4 . Cooperation in the Event of Legal Challenge „ 15 Section 5 . Default and Remedies . . . .. . . . .`. . . 16 A. General Provisions . . . . . . . . . 16 B. Annual Review . . . . . . . . . . . . . . . . . . 18 C. Default by County . . 20 D. Enforced Delay; Extension of Time of Performance . . . . . . . . . . . . . . . . . 20 E. , Legal Action 21 F. Construction of Agreement 21 Section 6 . Hold Harmless Provisions . . . . . . . 21 Section 7 . No Joint Venture or. Partnership . . . 22 Section. 8 . General . . . . . . . . . . . . . . . . . . . 22 ii a Page Section 9 . Notices 24 Section 10 . Consent of Other Parties . . . . . . . 26 Section 11 . Assignment and Notice . . . . . . . . . . 26 Section 12 . Estoppel Certificate . . . . . . . . . . . 27 Section 13 . Counterparts and Exhibit. . . . . . . . 27 iii DEVELOPMENT AGREEMENT BETWEEN THE COUNTY OF CONTRA COSTA AND' SHAPELL INDUSTRIES, INC. RELATIVE TO THE PROPERTY KNOWN AS THE GALE RANCH THIS DEVELOPMENT AGREEMENT (hereinafter this "Agreement" ) is entered into as of this ,2 24 day of [�C'�t? 1� 1990 , by and between SHAPELL INDUSTRIES, INC. , a Delaware corporation (hereinafter "Property Owner" ) , and the COUNTY OF CONTRA COSTA, a political subdivision of the State of California (hereinafter "County" ) , pursuant to Sections 65864 et seq. of the California Government Code . Property Owner and County are from time to time hereinafter referred to individually as "party" and collectively as the "parties . " RECITALS A. The Dougherty Valley, including the Gale Ranch, is critical to the future of Contra Costa County and the larger region. Its location and topography make it valuable as open space. The ridgelines in the area are particularly important as a visual resource . At the same time, its proximity to several major employment centers and a large number of jobs indicates that an appropriate amount of residential development could make it a key to achieving a jobs/housing balance in the area. The result of improved jobs/housing balance. is likely to 1 • 1 be a reduction in commute miles , with concomitant decreases in traffic congestion and air pollution, and an improved quality of life for those who live and work in the region. Given the need for both open space and residential development close to existing and future jobs , any decision to limit either open space or residential uses on the Gale Ranch in the future is likely to have important environmental consequences . B. The Gale Ranch has been and continues to be the subject of intense comprehensive planning efforts . Both the County and the City of San Ramon (the "City" ) include the Gale Ranch within their respective planning areas . The County' s San Ramon Valley Area General Plan designates the Gale Ranch as "Agricultural Preserve the City' s General Plan designates the Gale Ranch as "Residential Low Density. " Under a Memorandum of Understanding between the County and the City, dated March 23 , 1990 (the "Memorandum of Understanding" ) , the County and City have agreed to a joint planning process for the Dougherty Valley. Pursuant to the Memorandum of Understanding, the City and County have undertaken preparation of a comprehensive Specific Plan for the entire Dougherty Valley. An environmental impact report will be prepared under the California Environmental Quality Act ( "CEQA" ) , Public Resources Code section 21000 et seq. , in order to evaluate thoroughly the effects of the land use regulations established by the Specific Plan. These comprehensive planning and environmental review efforts are still in progress . 2 C. The preparation of the Dougherty Valley Specific Plan is being paid for by the two primary property owners in the Dougherty Valley: Windemere Ranch Partners, owner of Windemere, and Shapell Industries (the Property Owner) , owner of the Gale Ranch . Shapell Industries is paying for one half of the cost of the preparation of the Specific Plan, environmental review of the Specific Plan and certain county planning costs to a maximum amount of $491 , 000 . 00 . D. No final land use planning decisions have been made yet with regard to the Dougherty Valley, generally, or the Gale Ranch in particular . The needs for both open space and residential development have been discussed and considered in a variety of forums . In view of the size of the Dougherty Valley and the unique planning opportunities it presents , the Specific Plan and related studies represent only part of a long-range planning process for this area . Because the thorough public discussion and studies required in order for an environmentally sensitive, rational , and fully evaluated decision to be made are still in progress , final decisions regarding land uses have .not been made. Although it is clear that a substantial portion of the Gale Ranch will remain as open space, it has not been determined whether, and to what degree, residential and related development should be allowed as well . E. An initiative (the "Land Use Initiative For The Unincorporated Area Of Contra Costa County, " hereinafter, the "Initiative" ) has been placed on the ballot for the November 6 , 3 1990 election in Contra Costa County (the "Election" ) . The Initiative will be identified as Measure F on the ballot . If enacted, the Initiative would interrupt the ongoing comprehensive joint County/City planning process to which the Gale Ranch has been subject . The Initiative would preclude the County Board of Supervisors (the "Board" ) , until December 31 , 2010 , from authorizing uses for Gale Ranch other than agriculture, associated residential uses at a maximum density of one unit per 320 acres; commercial and industrial activities that primarily serve and are directly related to local agriculture; soil , water and wildlife conservation activities; and recreational uses such as hiking and riding trails, and picnic areas . F. If the Initiative is enacted, the substantial expenditures of effort and money already made by the Property Owner, the 'City, and the County towards a comprehensive land use planning process related to the Gale Ranch will be rendered worthless . Furthermore, the threat of the Initiative being enacted will discourage the ongoing land use planning and environmental review process that would otherwise take place between now and the Election. G. If the Initiative is enacted, the future of the Gale Ranch will have been determined without review under CEQA of the environmental impacts of that decision, since the Initiative has not undergone CEQA review. 4 t H. To strengthen the public planning process , encourage private participation in comprehensive planning, and reduce the economic risk of development , the Legislature of the State of California adopted Section 65864 et seq. of the Government Code (the "Development Agreement Statute" ) , which authorizes the County to enter into a development agreement with any person having a legal or equitable interest in real property for the development of the property. I . Property Owner has a legal or equitable interest in the property which is the subject of this Agreement , which property is described on Exhibit A attached hereto (the "Property" ) . J. Property Owner recognizes that the comprehensive land use planning process for the Property has not been completed and that its ability to develop the Property for residential and related use is speculative at this point . However , Property Owner is willing to make certain commitments that would apply should residential development be authorized by future approvals . These potential future approvals (the "Subsequent Potential Development Approvals" ) may include, but are not limited to, an amendment or amendments to the County' s General Plan (the "General Plan" ) , adoption of a Specific Plan, rezoning, and subdivision map approval . In particular, Property Owner is willing to make commitments regarding the provision of ,affordable housing, compliance with growth management, funding of County staff time related to joint 5 1 County/City planning efforts, and the protection of open space, viewshed, ridgelines, hillsides, slopes , and creek areas . Furthermore, irrespective of whether residential development proceeds, Property Owner shall pay sums into , a non-profit fund to study the feasibility of a light rail system for Contra Costa County. K. The Subsequent Potential Development Approvals, should they occur, would be subject to intensive review by professional planning staff, public hearings and approval by the appropriate decision-making body, and would be subject to CEQA. L. By entering into this Agreement, the joint County/City planning process that has already begun would not be discouraged from continuing and, in fact, would be required to continue prior to any changes from the existing General Plan designation occurring. M. By entering into this Agreement, certainty is provided that the land use planning and environmental review that has taken place and that may take place before the Initiative is enacted, should it be enacted, will not be rendered moot . Absence of this certainty will discourage Property Owner ' s , City' s, and County' s continuation of these planning and environmental review activities . N. On September 14 , 1990 , the County Zoning Administrator , the County' s hearing body for purposes of development agreement review pursuant to Government Code 6 Section 65867, following a duly noticed public hearing on the subject, found that the Agreement is consistent with the General Plan, exempt from CEQA, and adequate for adoption by the Board. On October 2 , 1990 , following a duly noticed public hearing, the Board adopted Ordinance No . -90 approving this Agreement (the "Ordinance" ) , made appropriate findings that the provisions of this Agreement are consistent with the General Plan and that this Agreement is exempt from CEQA, and approved the execution of this Agreement . 0. This Agreement will provide for orderly planning for the future of the Property, ensure attainment of the maximum effective utilization of resources within the County at the least economic cost to its citizens , and otherwise achieve the goals and purposes for which the Development .Agreement Statute was enacted. The Property Owner shall provide non-refundable funding to aid in the development of public transit to benefit the County and the larger region. Depending on the uses that the County may eventually authorize for the Property, this Agreement also may provide for preservation of substantial open space .and the protection of viewsheds , ridgelines, hillsides , slopes and creek areas, provide affordable housing and help the County provide its fair share of the region' s housing needs, provide for compliance with growth management, provide funding of County stafftime related to joint County/City planning efforts, and preserve the opportunity for an improved regional jobs/housing balance. In 7 exchange for these benefits to the County, together with the public benefits that will result from the ability of local government to plan the future uses of the Property, Property Owner desires to receive the assurance that it , the County and the City may proceed with the ongoing comprehensive land use planning and environmental review process in accordance with this Agreement and with the knowledge that these activities will not be rendered meaningless by the Initiative. NOW, THEREFORE, in consideration of the premises , covenants and provisions set forth herein, the parties agree as follows : AGREEMENT .Section 1 . General Provisions . A. Incorporation of Recitals . The Recitals set forth above, and all defined terms set forth in such Recitals and in the introductory paragraph preceding the Recitals , are hereby incorporated into this Agreement as if set forth herein in full . B. Covenants. The provisions of this Agreement shall constitute covenants or servitudes which shall run with the land comprising the Property, and the burdens and benefits hereof shall bind and inure to all estates and interests in the Property and all successors in interest to the Property Owner . C. Effective Date . This Agreement shall be effective upon the later of ( i) thirty (30) days from the date 8 of adoption of the Ordinance by the Board, or ( ii) the date on which the Agreement is executed by both parties hereto (said effective date shall be referred to herein as the "Effective Date" ) . D. Term; Termination. The term of this Agreement shall commence upon the Effective Date .and shall extend through December 31 , 2010, unless said term is otherwise extended by circumstances set forth in this Agreement or by the mutual consent of the parties . This Agreement may be terminated by the mutual consent of the parties at any time in accordance with the applicable provisions of state and local law. E. Amendment of Agreement . This Agreement may be amended from time to time by mutual consent of the parties or their successors in interest , in accordance with the provisions of California Government Code Sections 65867 and 65868 , provided that : ( 1) Procedural Exemptions . Any amendment to this Agreement which does not relate to the term, permitted uses , provisions for reservation and dedication of land, or conditions , terms, restrictions and requirements relating to subsequent discretionary actions , monetary contributions by Property Owner or any. conditions or covenants relating to the use of the Property, shall not require notice or public hearing (unless the Director of the County Department of Community Development deems such to be appropriate) before the parties may execute an amendment hereto; and 9 (2) Amendment Exemptions . Any amendment of the County' s land use regulations that , pursuant to this Agreement , is applicable to the Property, including, but not limited to, amendments to the County' s General Plan and Zoning Ordinance, shall not require an amendment to this Agreement . Instead, any such amendment shall be deemed to be incorporated into this Agreement at the time that such amendment is approved. Section 2 . Regulations Applicable to the Property• A. Exemption from the Initiative. The Property shall be exempt from the provisions of the Initiative and any of its implementing ordinances, resolutions , regulations or official policies . B. Rules , Regulations and Official Policies . ( 1 ) Effective Standards . Pursuant to Government Code Sections 65865 . 2 and 65866 , the ordinances , rules, regulations , and official policies governing permitted uses of the Property, governing permitted density or intensity of use of the Property, provisions for the reservation or dedication of land for public purposes, maximum height and size of buildings, and governing design, improvement, and construction standards and specifications applicable to development of the Property (the "Effective Standards" ) , shall be: (a) those County ordinances, rules , regulations and official policies , in force on October 2, 1990 , including, but not limited to, general and specific plans; or (b) such County ordinances, rules, regulations and official policies as they may be 10 t amended, specifically including, but not limited to, County Measure C, the 65/35 Contra Costa County Land Preservation Plan, should it be enacted. Notwithstanding the foregoing: . (a) the Effective Standards with regard to ridgeline, hillside, slope, and creek area development shall be limited to those County ordinances , rules, regulations and official policies in effect on October 2, 1990 and as they may be amended by the County within one year of the Effective Date; and (b) the Property shall be exempt from the provisions of the Initiative and any of its implementing ordinances, resolutions, regulations or official policies . (2) Future General Plan Amendments for the Property. During the term of this Agreement, the General Plan, as it concerns the Property, may be amended, and any such amendment shall not be subject to the following: (a) the Initiative and its implementing ordinances, resolutions , regulations, or other implementing measures; or (b) future ridgeline, hillside, slope and creek area standards other than as set forth in Section 2 . B( 1 ) , above . All County actions requiring consistency with the General Plan shall be made on the basis of the foregoing exclusions . (3) Moratoria . In the event an ordinance, resolution or other measure is enacted, whether by action of the County, by initiative,, referendum, or otherwise., which relates to the rate, timing, sequencing, or phasing of the development or construction on all or any part of the Property, it County agrees that such ordinance, resolution or other measure shall not apply to the Property or this Agreement . Without limiting the foregoing, County agrees that no moratorium or . other limitation (whether relating to the rate, timing, .sequencing or phasing. thereof) affecting zoning, subdivision maps, building permits or other entitlements to use which are approved or 'to be approved, issued or granted within the County, or 'portions of the County, shall apply to the Property or this Agreement . (4) State and Federal Laws . As provided in California Government Code Section 65869 . 5, and notwithstanding any other provision of this Agreement , this Agreement shall not preclude the application to the Property of changes in County laws, regulations , fees , plans or policies , to the extent that such changes in County laws , regulations , fees , plans , or policies are specifically mandated and are required to be applied to this Property by changes in state or federal laws or regulations . In the event such changes in state or •federal laws prevent or preclude compliance with one or more provisions of this Agreement, or require a change in this Agreement, County and Property Owner shall take such action as may be required by law or pursuant to Section 5 .D (Enforced Delay; Extension of Time of Performance) of this Agreement . C. Development Timing. There is no requirement under this Agreement that Property Owner must initiate or 12 complete development of the Property within any period of time to be set by the County, or to initiate or complete development of the Property at all . . D . Fees . Property Owner shall be required to' pay such fees as may be lawfully required and imposed in the discretion of the County and the City of San Ramon at the time such fees are imposed. Section 3 . Obligations of Property Owner . In consideration of the County entering into this Agreement, Property Owner agrees that it will comply with the following requirements : A. Light Rail Transit . By the Effective Date, Property Owner shall pay $25, 000 into a non-profit fund to study the feasibility of a light rail system for Contra Costa County. Property owner shall pay up to an -additional $25, 000 into such fund upon a demonstration of need by the County. Under all circumstances, said payments shall be non-refundable. B . Affordable Housing. If approval for residential and related development of the Property is sought and obtained, and residential units are constructed on the Property, Property Owner will , in the discretion of the County, either : (1) Provide. for 25 percent of all residential units to be affordable. "Affordable" means that the monthly rent or mortgage payment for such units will be no more than 30-35 percent of the gross monthly income of a household with an income between 80 and 120 percent of the County' s median income; or, 13 (2) Pay an in-lieu fee adequate for providing the units described in the preceding paragraph. C. Open Space; Development in Accordance with the 65/35 Contra Costa County Land Preservation Plan. If approval for residential and related development is sought and obtained, Property Owner agrees to develop the Property in accordance with the 65/35 Contra Costa County Land Preservation Plan, if enacted, and with subsequently-enacted ordinances , regulations , and official policies that substantially conform to said Plan, if enacted. D. Limitations on Development of Ridgelines, Slopes and Creek Areas . If approval for residential and related development is sought and obtained and residential units are constructed on the Property, Property Owner agrees to develop in accordance with County' s ridgeline, hillside, slope, and creek area development regulations in effect on October 2, 1990 and as they may be amended by the County within one year of the Effective Date . E. Development in Accordance with Transportation Improvement and Growth Management Program. If approval for residential and related development is sought and obtained, Property Owner agrees to develop the Property in accordance with. the Contra Costa Transportation Improvement and Growth Management Program adopted on August 3, 1988 and approved by the voters on November 8, 1988 , as amended (the "Growth Management Measure" ) , and with subsequently enacted ordinances , 14 rules, regulations and official policies which substantially conform to infrastructure and service standards set forth in the Growth Management Measure . F. County Staff Time. During the ongoing joint planning efforts between the City and County, the Property Owner shall pay for County staff time relating to the joint planning efforts and, if needed, for processing of development applications . County acknowledges and agrees that Property Owner ' s agreement to abide by these requirements and expend the substantial funds necessary to do so is a material consideration for County' s execution of this Agreement . Property Owner acknowledges and agrees that all of the terms of this Agreement , including those requirements under Section 3 of this Agreement, are reasonable, legal and valid and that Property Owner is barred from any action or proceeding or any defense of invalidity or unreasonableness of said Terms and related County decisions . Further , Property Owner agrees that during the period that this Agreement is in effect , Property Owner will not attack or otherwise assail the reasonableness , legality or validity of any terms and conditions of this Agreement . Section 4 . Cooperation in the Event of Legal Challenge. In the event of any legal or equitable action or other proceeding instituted by any third party ( including a governmental entity or official) challenging the validity of 15 any provision of this Agreement or the Subsequent Potential Development Approvals , should any be obtained, the parties hereby agree to cooperate in defending such action or proceeding. In the event County and Property Owner are unable to select mutually agreeable legal counsel to defend such action or proceeding, each party may select its own legal counsel at each party' s expense . In no event shall the County be required to bear the cost of such defense(s) (except for the costs of the County' s own attorneys) , and Property Owner shall save and hold County harmless from claims or awards for third party attorneys ' fees and costs . If any third party legal or equitable action or other proceeding is instituted to challenge the Subsequent Potential Development Approvals , should any be adopted, and one or more of the Subsequent Potential Development Approvals are set aside or otherwise made ineffective by any judgment in such action, the parties shall cooperate to cure any procedural or substantive deficiencies in the Subsequent Potential Development Approvals and in documents or plans related to the Subsequent Potential Development Approvals and to readopt or reenact such Subsequent Potential Development Approvals following such cure of procedural or substantive deficiencies , at the sole cost of the Property Owner . Section 5 . Default and Remedies . A. General Provisions . Failure or unreasonable delay by either party to perform any term or provision of this 16 Agreement for a period of ninety (90) days after written notice thereof from the other party shall constitute a default under this Agreement , subject. to extensions of time by mutual consent in writing. Said notice shall specify the nature of the alleged default and the manner in which said default may be satisfactorily cured. If the nature of the alleged default is such that it cannot reasonably be cured within such 90-day period, the commencement of the cure within such time period and the diligent prosecution to completion of the cure shall be deemed a cure within such period. Subject to the foregoing, after notice and expiration of the 90-day period without cure, the other party to this Agreement, at its option, may institute legal proceedings pursuant to this Agreement and/or give notice of intent to terminate the Agreement pursuant to California Government Code Section 65868 . Following such notice of intent to terminate, the matter shall be scheduled for consideration and review by the Board within sixty (60 ) calendar days in the manner set forth in California Government Code Sections 65867 and 65868 . Following consideration of the evidence presented in said review before the Board, and a determination by the Board based thereon, the party alleging the default by the other party may give written notice of termination of this Agreement to the other party. Evidence of default may also arise in the course of the regularly scheduled annual. review of this Agreement as 17 described in Section 5 .B, below, and any such default shall be subject to the provisions of this Section 5 .A, in addition to the provisions of Section 5 .B, below. B. Annual Review. Each year during the term of this Agreement, beginning in 1991 , the County shall review the extent of good faith compliance by Property Owner with the terms of this Agreement . This review shall be conducted by the County Zoning Administrator pursuant to California Government Code Section 65865 . 1 . During this review, Property Owner shall be required to demonstrate good faith compliance with the terms of this Agreement . At the conclusion of this review, the County Zoning Administrator shall make written findings and determinations , on the basis of substantial evidence, whether or not Property Owner or its successor in interest has complied in good faith with the terms and conditions of this Agreement . The decision of the County Zoning Administrator shall be appealable directly to the Board, and any appeal shall otherwise be governed by the provisions of Article 26-2 . 24 of the Contra Costa County Code, as amended from time to time . If the Zoning Administrator finds and determines that Property Owner has not complied with such terms and conditions, the Zoning Administrator may recommend to the Board that the County terminate or modify this Agreement by giving notice of its intention to do so in the manner set forth in California Government Code Sections 65867 and 65868 . The reasonable costs incurred by County in 18 connection with the herein described annual review process shall be borne by Property Owner . In the manner prescribed in Section 9 of this Agreement, the County shall deposit in the mail to Property Owner a copy of any public staff reports .and documents to be used or relied upon in conducting the review and, to the extent practical , related exhibits concerning Property Owner 's performance hereunder , at least ten ( 10) days prior to any such periodic review. Property Owner shall be permitted an opportunity to respond to the County' s evaluation of Property Owner ' s performance, either orally at a public hearing or in a written statement, at Property Owner ' s election. Such response shall be made to the County Zoning Administrator . In the event the County fails to either ( 1) conduct the annual review or (2) notify Property Owner in writing (following the time during which the review is to be conducted) of the County' s determination as to compliance or noncompliance with the terms of this Agreement and such failure remains uncured as of December 31 of any year during the term of . this Agreement, such failure shall be deemed an approval by County of Property Owner ' s compliance with the terms of this Agreement . with respect to each year for which an annual review of compliance with this Agreement is conducted, and with respect to each year in which the County finds the Property Owner in compliance or is deemed to approve of Property Owner ' s compliance with this Agreement pursuant to the preceding 19 paragraph, the County, upon request of Property Owner , shall provide Property Owner with a written notice of compliance, in recordable form, duly executed and acknowledged by the County. Property Owner shall have the right , in Property Owner ' s sole discretion, to record this notice of compliance . C. Default by County. In the event County defaults under the terms of this Agreement , Property Owner shall have all rights and remedies provided herein or under applicable law, including without limitation the right to seek specific performance by the County. But in no event shall Property owner- have any right to monetary damages . D. Enforced Delay; Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war , insurrection, strike, walk-out, riot , flood, earthquake, fire, casualty, act of God, governmental restriction imposed or mandated by other governmental entities, enactment of conflicting state or federal laws or regulations, judicial decisions, or any similar basis for excused performance that is not within the reasonable control of the party to be excused. Litigation attacking the validity of this Agreement or any permit, ordinance, entitlement or other action of a governmental agency necessary for the development of the Property consistent with this Agreement shall be deemed to create an excusable delay as to Property Owner . Upon the 20 s request of either party hereto, an extension of time for such cause will be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon. E. Legal Action. Either party may, in addition to any .other rights or remedies , institute legal action 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. In such event, the prevailing party shall not be entitled to its attorneys ' fees and costs , if any. F. Construction of Agreement . This Agreement shall be construed and enforced in accordance with the laws of the State of California . Section 6 . Hold Harmless Provisions . Property Owner shall defend, hold harmless . and indemnify the indemnitee (the County, and its special districts; its elective and appointive boards and commissions; and its officers, agents and employees) as follows : A. The liabilities protected against are any liability or claim for damage of any kind allegedly suffered, incurred or threatened because of actions defined below, and including personal injury, death, property damage, inverse condemnation, or any combination of these, and regardless of whether or not such liability, claim or damage was unforeseeable at any time before the County reviewed any plans or accepted the work as complete, and including the defense of 21 . L any suits , actions or other proceedings concerning said liabilities and claims . B. The actions causing liability are any act or omission (negligent or non-negligent) in connection with the matters covered by this Agreement and attributable to the Property Owner, contractor, subcontractor or .any officer , agent or employee of one or more of them. C. The promise and agreement in this Section 6 are not conditioned or dependent on whether or not : (a) the indemnitee has prepared, supplied, or reviewed any plan(s) or specification(s) in connection with any development; or (b) has insurance or other indemnification covering any of these matters; or (c) the alleged damage resulted partly from negligent or willful misconduct of any party. — Section 7 . No Joint Venture or Partnership. County and Property Owner hereby renounce the existence of any form of joint venture or partnership between the County and Property Owner and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making County and Property Owner joint venturers or partners . Section 8 . General . A. Unless this Agreement is amended or terminated pursuant to its provisions, this Agreement shall be enforceable by any party hereto notwithstanding any change hereafter enacted or adopted (whether by ordinance, resolution, initiative, or any other means) in any applicable General Plan, 22 Specific Plan, zoning ordinance, subdivision ordinance or any other ordinances or building ordinances , resolutions or other rules, regulations or policies of the County which change purports to change, alter or amend the .Effective Standards . This Agreement shall not prevent the County in subsequent actions applicable to the Property from applying new rules , regulations or policies that do not directly or indirectly conflict with the Effective Standards . . B. County hereby finds and determines that execution of this Agreement furthers public health, safety, and general welfare and that the provisions of this Agreement are . consistent with the General Plan. In adopting the Ordinance, the Board found that this Agreement is consistent with the General Plan. Those findings are included in the Ordinance and are public records available for review in the County Community Development Department (County File No . 112) . Those findings are incorporated into this Agreement by this reference as if set forth herein in full . C. If any term, provision, covenant or condition ( "Provision" ) of this Agreement or the application of any Provision of this Agreement to a particular situation is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining Provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect . Notwithstanding any other Provision of this Agreement, if any Provision of this Agreement 23 by itself, or as applied in any particular situation, is held to be invalid, void or unenforceable, Property Owner may, in Property Owner ' s sole and absolute discretion, terminate this Agreement by providing written notice of such termination to the County, except that the Provisions of Sections 4 , 5 .E, and 6 shall remain in full force and effect as between the parties . D. Each reference in this Agreement to this Agreement shall be deemed to refer to the Agreement as it may be amended from time to time, whether or not the particular reference refers to such possible amendment . E. This' Agreement has been reviewed and revised by legal counsel for both Property Owner and County, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement . Section 9 . Notices . Any notice or communication required hereunder between County or Property Owner must be in writing, and may be given either personally, by telecopy facsimile transmission (followed immediately by depositing an original copy in the mail) or by registered or certified mail , return receipt requested. If given by registered or certified mail , the same shall be deemed to have been given and received on the first to occur of ( i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage 24 prepaid, is deposited in the United States mail . If personally delivered or transmitted by telecopy, a notice shall be deemed to have been given when delivered or transmitted to the party to whom it is addressed. Any party hereto may at any time, by giving ten ( 10) days ' written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to County, to: Director of Community Development Contra Costa County Administration Building 651 Pine Street Martinez , CA 94553 Telephone No . : (415) 646-2026 Facsimile No . : -(415) 646-1309 With Copies to County Counsel Contra* Costa County Administration Building 651 Pine Street Martinez , CA 94553 Telephone No . : (415) 646-2.074 Facsimile No . : (415) 646-1078 _ Director of Public Works 255 Glacier 'Drive Martinez, CA 94552 Telephone No . : (415) 646-4470 Facsimile No . : (415) 646-1147 If to Property Owner, to : Shapell Industries, Inc . 100 North Milpitas Boulevard Milpitas , CA 95035 Telephone No.. : (408) 946-1550 Facsimile No . : (408) 946-9687 25 With Copies to : McCutchen, Doyle, Brown & Enersen 1331 North California Blvd. P. 0. Box V Walnut Creek, CA 94596 Attention: Daniel J . Curtin, Jr . M. Thomas Jacobson Telephone No . : (415) 937-8000 Facsimile No . : (415) 975-5390 Section 10 . Consent of Other Parties . Property Owner may, at its discretion, elect to have other holders of legal , equitable or beneficial interests in the Property, or portions thereof , acknowledge and consent to the execution and recordation of this. Agreement by executing a document in recordable form to such effect . The execution of any such document by other holders of any legal , equitable, or beneficial interests in the Property is not a condition precedent to this Agreement . Section 11 . Assignment and Notice . Property Owner shall have the right to assign or transfer all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Property, including, without limitation, purchasers or long term ground lessees of individual parcels or facilities located on the Property. The assignment or transfer by Property Owner of an obligation of Property Owner ' s under this Agreement shall relieve Property Owner of that obligation. Property Owner shall have no obligation whatsoever to provide notice of any proposed assignment or transfer . 26 Section 12 . Estoppel Certificate. Within thirty (30) days following . ariy written request which either party may make from time to time, the other party to this Agreement shall execute and deliver to the requesting party a statement certifying that : (a) This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modification; (b) There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default; and- (c) Any other reasonable information requested. The failure to deliver such a statement within such time shall constitute a conclusive presumption against the ,party which fails to deliver such statement that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may .be represented by the requesting party. Section 13 . Counterparts and Exhibit. This Agreement is executed in four (4) duplicate counterparts , each of which is deemed to be an original . This Agreement consists of twenty-eight (28) pages of text and signatures; a cover sheet , table of contents and notary acknowledgment forms on additional pages; and, in addition, one ( 1) exhibit . This Agreement and its exhibit constitute the entire understanding and agreement of the parties . The following exhibit is attached to this 27 Agreement and are incorporated into this Agreement for all purposes by this reference: Exhibit A Description of the Property IN WITNESS WHEREOF, Property Owner and County have executed this Agreement as of the date first hereinabove written . COUNTY: COUNTY OF ONN'TRA COSTA B arvey Bragdon, Directo Department of Community Development Approved as to Form: Victor Westman, Coun Counsel Title : DEVELOPER: SHAPELL INDUSTRIES, INC. , a Delaware Corporat ' on By: Daniel W. nco , Vice Presid t By: ARTHUR P. LOMBARDI Title: ASST. SECRETARY 28 STATE OF CALIFORNIA ) ss COUNTY OF CONTRA COSTA ) On this .__L_jday of , in the year 1990, before me, a notary public in and for said cou ty and state personally appeared Karl Wa ndry, wc&--dor proved to me on the basis of satisfactory evidence- to be the person who executed this instrument as Deputy Director of the Contra Costa County Department of Community Development and acknowledged to me that the Contra Costa County executed it. IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year above written. OFFICIAL SEAL KRIS SAAD k!z Notary Public-California Nota Pu li CONTRA COSTA COUNTY My Comm.Exp.Apr 5.1991 STATE OF CALIFORNIA ) ss COUNTY OF CONTRA COSTA ) On this day of in the year 1990 , before me, a notary pub is in a for said county and state, personally appeared AR E. GDON, personally known to me (or proved to me on the basis satisfactory evidence) to be the person who executed this ' s ument as Director of the Contra Costa County Department of Co unity evelopment and acknowledged to me that the Contra Costa ounty exe ted it . IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year above written. Notary Public STATE OF CALIFORNIA ) SS COUNTY OF, SANTA CLARA ) On this 3nd day of Octobea in the year 1990 , before me, a notary public in and for said county and state, personally appeared DANIEL W. HANCOCK, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Vice President of Shapell Industries , Inc . , a Delaware corporation, on behalf of said Corporation and acknowledged to me that said Corporation executed the same . IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year above written. No bj is OFFICItiL SEAL, STATE OF CALIFORNIA PAROLE MORRIS SS \\ .0 ,,:yra�o NOTARY PUBLIC•CALIFORNIA COUNTY OF SANTA CLARA ) SANTA CLARA COUNTY MY Comm.Expires Mar.14.1994 On this 3nd day of October in the year 199 'efore me, a notary public in and for said county and state, personally appeared ARTHUR P. LOMBARDI personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument .as ASST. SECRETARY of Shapell Industries, Inc . , a Delaware corporation, on behalf of said Corporation and acknowledged to me that said Corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year above w tten. Not c 29 "°F OFFICIAL SEAL (AROiE MORRIS z C' NOTARY PUBLIC-CALIFORNIA SANTA CLARA COUNTY =c y'P MY Comm.Expires Mar. 14,1994 EXHIBIT A Page 1 of 3 Legal Description of the Property REAL PROPERTY in the State of California, County of Contra Costat particially in the City of San Ramon and partially unincorporated, described as follows: A portion of the Amador Grant of the Rancho San Ramon, a portion of Section 1 Township 2 South, Range 1 west and a portion of Section 6, Township 2 South, Range i East, being a portion of lots 359 36 and 67 and all of lots 39, 40, 41, 42, 43. 44, 45, 46, 47, 48, 49, 50, S1, 62. 53. 54 and 55, Shown on the Map entitled akap of a Subdivision of Plot A of the Dougherty Ranch, Alameda and Contra Costa Counties. Caltfornia", tiled on May 2, 1894, in the Office of the County Recorder of said Contra Costa County in Book 8 of Maps. at Page 45, described as follows: Beginning on the eastern line of the 7918.73 acre parcel of land set apart to Charles M. Dougherty by that certain Decree in Partition, rendered February 26. 1891g by the Superior Court of the State of California, in and for the County of Alameda, in that certain action had therein, entitled Charles M., Dougherty. plaintiff vs. Ada N. Dougherty, at a1 , defendants, Case No. 64799 a certified copy of which Decree was recorded March 3. 1891, in Book 59 of Deeds at Page $25, at the northern tine of the 3636.1222 acre parcel of land described in the final Judgment rendered July 21, 19470 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. at al , defendants, Case No. 22352. a certified copy of which Final Judgment was recorded August 2. 1047. in Book 1104 of Official Records at Pape 377; thence from said point of beginning northerly and westerly along the exterior line of said 7918.73 acre parcel X59 0 625j as follows: North 38° Westg 331 test, care or iess to an an p 1e point. North 650 30' West, 613.80 feet; .North 380 West 759 feet; North 36. 30 West, 2112 feet; North 4. 30' East, 264 feet; North 460 East, 561 feet; North 210 East, 1314.72 feet; North 1. 15' West, 396 feet; North 140 15' East, 429 feet; North 19. 45' Wast, 462 feet; North 300 16' East, $94 feet; North 27° •30' West, 660 feet; •North 12. 301 East. 326.70 feet; North 32. 15' East, 279.50 feet; North 150 45' East, 564.30 feet; North 450 _15' East, 316.80 feet; North 34. 15' East, 809.62 feet; North 37. 45' East, 796.60 feet; .North 140 East, 710.16 feet; North 310 East, 372.24 feet; North 218 15' East, 825 feet; North 27. 15' East, 396 feet; .North 52. 30' East, 330 feet; North 450 45' East. 594 feet; � EXHIBIT A Page 2 of 3 North 20' East, 481.80 feet to the northern line of said San Ramon Rancho; along said northern line North 89. 45' Wast. 597.30 fast; leaving said northern line North 0. 15' East, 2653.20 feet; North 89' 15' West, 2105.40 feet; North 89' 45' West, 1907.40 feet; South 85. 45' West,-2686.20 feet North V 15' East, 1518 feet; South 89. 45' West, 2613.60 feet; South 00 30' West, 3927 feet; North 89' 45' West, 2630.10 feet to Station S.R. 8 of said Rancho San Ramon. said Station S.R. 8 being the southeast corner of the parcel of land described in the Deed from Tassajara Land Company to Henry F. Wiedemann, et ux, recorded Septafter 28, 1922. in Book 428 of Deeds at Page 52; thence leaving the exterior line of said 7918.73 acre parcel (59 0 525) along the southern line of said Wiedemann Parcel North 89. 45' West, 726 feet and South 71. 20' 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 0 525); thence along said exterior line South 270 East, 11,654.28 fest to Station S.R. 12 of said Rancho San Ramon and South 270 15' East.— 2220.90 feet to the northern tine of the parcel of land described as Parcel One in the Deed from Eilene Mohr !Camp to American Trust Company, as Trustee, recorded July 20 19359 in Book 392 of Official Records, at Page 35; thence leaving said exterior line along the northern line (392 OR 35) North 63' 28' East, 297 feet and South 78' 08' East. 3024.33 feet to the center line of the County Road known as Dougherty Road as said road is described in the Deed from Charles A. -Galet at al, to Contra Costa County. recorded February 6, 1935, in Bock 408 of Official Records, at Page 128; said center tine being the western line of said United States of America 3636.1222 acre parcel (1104 OR 377); thence along said western line being also alonp said center tine as follows: northerly along the arc of a curve to the lest with a radius of 1000 feet, an are distance of 100 feet, more or less: North 6. 171 400 West tangent to last Mentioned arc 423.44 feet, and northerly along the arc of a curve to the right with a radius of 1500 feet, tangent to last mentioned course, an arc distance of 218.44 feet, to the northwestern corner of the said United States of America 3636.1222 acre pa%cel; 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 Ig 29369 Book 408, Page 128, Official Records. t. The interest conveyed to Contra Costa County, by Deed, recorded April 21, 1944, Book 775, Page 376, Official Records. EXHIBIT A Page 3 of 3 3. That portion thereof granted In the Deed to East Bay Municipal Utility District, recorded DICember 16. 1968. Book 5771# Page 248. Official Records. '4. That portion thereof granted In the Deed to East Bay Municipal Utility District, recorded May 190 19789 Book 4845. Page 149, .Official Records. 5. The Interest Conveyed to Contra Costa County by Deed,. recorded June 271, 19859 Book 12381, Page 751, Official Records. 6. All of Subdivision 7010, as shown on the lap filed September 6, 1989, in Hsp book 336,. ?age 469 .Contra Costa Gouuty Records.