HomeMy WebLinkAboutMINUTES - 10021990 - H.5 r�1
Tb: ; BOARD Of SUPERVISORS
FROM: Harvey E. " Bragdon, . Contra
Director of Community Development CJlJ.7la
DATE'. co Urrt/
September 25, 1990 � WI ily
sueJECT 'Development Agreement between Contra Costa County and Kaufman &
Broad of Northern California Relative to the Property Known as
Boeger 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.
b. Adopt the attached ordinance approving the Boeger 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 Kaufman & Broad of Northern
.California.
BACKGROUND/REASONS FOR RECOMMENDATION
This" mat ter was heard by the .Zoning Administrator on September
17, 1990 when he closed the public hearing and 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 SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
'APPROVE OTHER
SIGNATURE S
;.ACT/ON OF BOARD ON APPROVED AS RECOMMENDED _� OTHER
This is the time fixed• for hearing on th'e request by Kaufman and
Broad of Northern California, Inc. for a development agreement for
property known as Boeger Ranch, West Pittsburg/Concord area.
Karl Wandry of the Community Development Department reviewed the
above recommendations of the Department.
Sandford M. Skaggs, P.. O. Box V, Walnut Creek, Attorney for the
Applicant, - described -the property and advised that it was intended to
provide an entry level, affordable housing project. He. described the
planning process .to date. He commented that the
agreement contains no entitlements that the proposed development
full review of all. count project is subject to•
y processes, and that the purpose is to allow
the planning process which has been underway for- some time to be
continued. He reviewed some of the commitments of the applicant
contained in the agreement, including financing of road improvements,
open space, and conditions relating to growth management and TSM. He
urged the Board to approve the development agreement.
Supervisor Torlakson commented on the benefit to the .area of the
proposed road improvements.
Amos Picker, Fremont, appeared and advised that he is the owner
of adjacent property. He commented 'on the circulation .problem and
advised that 'he had traded some land with P. G. - & E" to provide access
to Highway 4 which would provide access to Boeger Ranch- as well as his
property. , He suggested the Board consider development of his property
as well.
Gus Petsas, 3939 Rimrock Drive, Antioch, representing Calvary
Temple Church, advised that the Church is in :the process of trying to
build a new church and related facilities. He stated that he felt the
proposed' project is a plus for the community and urged the Board to
approve the proposed development agreement.
Karl Wandry advised that staff had one amendment for- Board
consideration relative to the transportation issues:, area of benefit
and Delta Expressway, and requested a change in wording related
thereto. -
There being no further speakers? . the Chair declared the hearing;
closed.
Supervisor Torlakson described the planning process, stating it.
,had begun two years ago, and moved to approve the above
recommendations, including the development agreement as amended to
include the items discussed this day.
Board members .discussed the benefits of the development agreement
and the need for affordable housing.
'Supervisor McPeak inquired of Mark Evanoff if the letter on
behalf of the Sierra Club, Mt. Diablo Audubon Society and Greenbelt
Alliance which he had submitted earlier this day during a previous
hearing- on a different development agreement (opposing any development
agreement in the County) also applied to this agreement.
Mark Evanoff advised that the arguments contained in the letter
are in opposition to. a process.
The Chair called for a vote on the motion to approve. The vote
was unanimous, with Supervisor .Schroder' absent.
VOTE OF SUPERVISORS
1 HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS (ABSENT ) 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 !O
County tCOUI1S21 y Development
PHIL BATCHELOR. CLERK OF THE BOARD OF
CSUPERVISORS' AND COUNTY ADMINISTRATOR
M382,1-83 BY DEPUTY
A
}
ORDINANCE NO. 90-qO _
(Boeger Ranch Development Agreement)
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 be the
County of Contra Costa and Kaufman and Broad of Northern
California, Inc. relating to the property known as Boeger .
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 finds 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 Boeger
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 'secr. of the
Government Code of the State of California, the Development
Agreement between the County of Contra Costa and Kaufman and
Broad of Northern California, Inc. relating to the property
known as Boeger 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 IV. 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: /
Deputy Board�Ch • "
Date: Octo er 2, 1990.
a
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WHEN RECORDED RETURN
TO CLERK,
BOARD OF SUPERVISORS
DEVELOPMENT AGREEMENT BY AND BETWEEN THE
COUNTY OF CONTRA COSTA AND
KAUFMAN AND BROAD OF NORTHERN CALIFORNIA, INC.
RELATIVE TO THE PROPERTY KNOWN AS
THE BOEGER RANCH
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TABLE OF CONTENTS
Pa e
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1 . General Provisions 7
A. Incorporation of Recitals . . . . . . . . . . . 7
B. Covenants 8
C. Effective Date . . . . . . . . . . . . . . . . . . . . . . 8
D. Term; Termination . . . . . . . . . . . . . . . . . . . 8
E. Amendment of Agreement . . . . . . . . . . . . . . 8
(1 ) Procedural Exemptions . . . . . . . . . . 8
(2) Amendment Exemptions . . . . . . . . . . . 9
Section 2 . Regulations Applicable to
theProperty . . . . . . . . . . . . . . . . . . . 9
A. Exemption from the Initiative . . . . . . . 9
B. Rules, Regulations and Official
Policies 9
(1) Effective Standards 9
(2) Future General Plan
Amendments for the
Property . . . . . . . . . . . . . . . . . . . . . . . 10
(3) Moratoria . . . . . . . . . . . . ... . . . . . . . . 11
(4) State and Federal Laws . . . . . . . . . 11
C. Development Timing . . . . . . . . . . . . . . . . . . 12
D. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Section 3 . Obligations of
Property Owner 12
A. Evora-Driftwood _Extension . . . . . . . . . . . 12
B. - Open Space . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. Limitations on Development
of Ridgelines, Slopes and
Creek Areas . . . 13
D. Development in Accordance
with Transportation
Improvement and Growth
Management Program . . . . . . . . . . . . . . . . . . 13
Section 4 . Cooperation in the Event
of Legal Challenge . . . . . . . . . . . . 14
Section 5 . Default and Remedies . . . . . . . . . . . 15
A. General Provisions . . . . . . . . . . . . . . . . . . 15
B. Annual Review . . . . . . . . . . . . . . . . . . . . . . . 17
C. Default by County . . . . . . . . . . . . . . . . . . . 19
D. Enforced Delay; Extension of
Time of Performance . . . . . . . . . . . . . . . . . 19
E. Legal Action . . . . . . . . . . . . . . . . . . . . . . . . 20
F. Construction of Agreement . . . . . . . . . . . 20'
Section 6 . Hold Harmless Provisions . . . . . . . 20
Section 7 . No Joint Venture or
Partnership . . . . . . . . . . . . . . . . . . . . 21
Section B . General 21
Section 9 . Notices . . . . . . . . . . . . . . . . . . . . . . . . -23
Section 10 . Consent of Other Parties 25
Section 11 . Assignment and Notice . . . . . . . . . . 25
Section. 12 . Estoppel Certificate 26
Section 13 . Counterparts and Exhibits . . . . . . 26
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6037T/5987T
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DEVELOPMENT AGREEMENT BETWEEN THE
COUNTY OF CONTRA COSTA AND
KAUFNIAN AND BROAD OF NORTHERN CALIFORNIA, INC
RELATIVE TO THE PROPERTY KNOWN AS
THE BOEGER RANCH
THIS DEVELOPMENT AGREEMENT (hereinafter this
"Agreement" ) is entered into this Z a� day of �r, 1990 ,
by and between KAUFMAN AND BROAD OF NORTHERN CALIFORNIA, 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 Section 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. Property Owner holds fee title to approximately
150 acres of the 159-acre area in the County commonly known as
the "Boeger Ranch. " Property Owner ' s 150-acre parcel is
hereinafter referred to. as the "Boeger Ranch Property" or the
"Property. "
B. The East Contra Costa County area, including the
Boeger Ranch Property, is critical to the future of the County
and the larger region. While the location and topography of
the Boeger Ranch Property make it valuable as open space, its
proximity to several major employment centers indicates that an
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appropriate amount of residential development on the Property
iaould facilitate a jobs/housing balance in the region. Such a
balance would result in a reduction in commute riles,
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 future open space or residential uses on the
Boeger Ranch Property is likely to have important environmental
effects .
C. The Boeger Ranch Property is presently the
subject of intense, comprehensive planning efforts . The
County' s planning area includes the Property. The Property is
presently zoned Agricultural Preserve (A-4) and is designated
in the County General Plan as General Open Space.
D . It is the intent of Property Owner to preserve
approximately two-thirds of the Boeger Ranch Property
( 102 . 3 acres) as permanent open space, to develop less than
one-third of the Property (42 . 5 acres) and to improve the
remaining portion of the Property (4 . 5 acres) for park and
recreational purposes .
E . On April 10, 1989 Property Owner filed an
application for a General Plan amendment (revising that
application on July 7, 1989) , to amend the General Plan
Designation for the Boeger Ranch Property from Agricultural
Preserve to Single-Family Residential .
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F. No final land use planning decisions have been
made with regard to the Boeger Ranch Property. The needs for
bath, open space and residential development have been discussed
and considered in a variety ,of forums . However, the thorough
public discussion and studies required for an environmentally
sensitive and well-reasoned decision have not yet run their
course. Although it is clear that the major portion of the
Property should remain open space, it has not been determined
whether, and to what degree, residential and related
development should be allowed as well .
G. 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,
. 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 County
planning process to which the Boeger Ranch Property has been
subject . The Initiative would preclude the Board of
Supervisors (the "Board" ) , until December 31, 2010 , from
authorizing uses other than agricultural and 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 paths, riding trails and picnic areas .
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H. If the Initiative is enacted, the substantial
expenditures of effort and money already undertaken by Property
owner and County for comprehensive land use planning and
environmental review related to the Boeger Ranch ,Property will
be rendered worthless . The future of the Property will have
been determined without review of the environmental impacts of
that decision, since the Initiative has not undergone CEQA
review. In addition, the threat of Initiative enactment
discourages the ongoing land use planning and environmental
review processes that would otherwise take place between now
and the election.
I . 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.
J . Property Owner has a legal and equitable interest
in the Boeger Ranch Property. The Property is shown on the Map
set forth in Exhibit A, and is legally described in Exhibit A-1 .
K. Property Owner hopes to one day develop the
Boeger Ranch Property. Property Owner ' s desire is that
approximately two-thirds of the Property be dedicated to
permanent open space, that a portion of the Property be
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developed for single-family residences (marketed toward
first--time buyers) and that a portion of the Property be
improved for park and recreational purposes .
L. Property Owner recognizes that the comprehensive
land use planning process for the Boeger Ranch 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, amendment (or amendments) of the County' s
General Plan (the "General Plan" ) , rezoning of the Property to
P-1 for Planned Unit Development ( including approval of
Preliminary and Final Development Plans) , approval of Vesting
Tentative and Final Subdivision Maps, and issuance of Building
Permits . In particular , Property Owner .is willing to make
commitments regarding the protection of open space, the
improvement of park and recreation area, the development of
public transit, compliance with growth management and the
protection of viewshed, ridgelines, hillsides, slopes, and
creek areas .
M. The Subsequent Potential Development Approvals ,
should they occur, would be subject to intensive review by
professional planning staff, public hearing and approval by
appropriate decision-making bodies , and would be subject to,
and in compliance with, CEQA.
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N. By entering into this Agreement, the County
planning process that has already begun would not be
discouraged from continuing and, in fact, would be required to
continue. Absent this Agreement, the parties ' continuation of
planning and environmental review would be discouraged. By
entering into this Agreement, the parties desire to .ensure that
the land use planning and environmental review which has taken
place (and that may take place before the Initiative is
enacted) , will not be rendered moot should the Initiative be
enacted.
0. On September 17, 1990 , the County Zoning-
Administrator , the County' s hearing body for purposes of
Development Agreement review pursuant to Government Code
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 . Qb 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 .
P. 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
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Statute was enacted. Depending on the uses that the County may
eventually authorize for the Property, this Agreement may
provide for : the preservation of substantial permanent open
space; the improvement of parks and recreation areas; the;
funding or dedication of land to aid in the development of
public transit to benefit the County and the larger region;
compliance with growth management; and the opportunity for an
improved regional jobs/housing balance. In 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 the County and Property Owner 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 .
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B. Covenants . The provisions of this Agreement
:;gall 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
of adaption 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
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conditions, terms, restrictions and requirements relating to
subsequent discretionary actions, monetary contributions by
Propt)r ty 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
(2) Amendment Exemptions . Any amendment of the
County' s land use regulations that, pursuant to this Agreement,
are 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
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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
amended, specifically including, but not limited to, County
Measure C, the 615/35 Contra Costa County Land Preservation
Plan, should it be enacted. However, notwithstanding the
foregoing, 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. Consistent with Section 2 . B( i) above, 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 Initiative and its implementing ordinances,
resolutions, regulations, or other implementing measures .All
County actions requiring consistency with the General Plan
shall be made on the basis of the foregoing exclusion.
(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,
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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
complete development of the Property within any period of time
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to be set by the County, or 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 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. Evora-Driftwood Extension. 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 assist in the financing of the
"Evora-Driftwood extension, " a roadway which will ease traffic
circulation patterns and congestion when the Port Chicago
Highway is permanently closed by the United States Department
of the Navy.
B. Open Space. If approval for residential
development is sought and obtained, and residential units are
constructed on the Property, a minimum of sixty five (65)
percent of the Property will remain as "open space" , if desired
by the County. For the purposes of this Agreement,. "open
space" is defined to include but not necessarily be limited to
land used for agriculture, grazing, waterways, wetlands, public
and private recreation, golf courses, parks , trails, community
landscaped areas, buffer or setback corridors (including, but
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not limited to, scenic easements and creek setback and similar
corridors) , rural residential parcels and agricultural
Lcuctures allowed by the General Plan, and such other
non-urban uses to which the parties may mutually agree.
C. Limitations on Development of Ridqelines, 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.
D. 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,
rules, regulations and official policies, including without
limitation an area of benefit or other regulation that may be
approved by the Board relating to the proposed Delta
Expressway, which substantially conform to infrastructure and
service standards set forth in the Growth Management Measure .
County acknowledges and agrees that Property Owner ' s
agreement to abide by these requirements and expend the
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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
any provision of this Agreement or the Subsequent Potential
Development Approvals, should any be obtained, the parties
hereby agree to cooperate in defending said actionor
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 defenses) (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 .
14
8.1/59877.008/10040/89000-094
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
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.
15
8.1/5987T.008/10040/89000-094
Subject to the foregoing, after notice and expiration
of the 90day 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
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 .
16
8.1/59877.008/10040/89000-094
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 County Board of Supervisors, and any appeal shall
otherwise be governed by the provisions of Article 26-2 . 24 of
the Contra Costa County Code. 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 of Supervisors that it 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 connection with the herein described annual review
process shall be borne by Property Owner .
In the manner prescribed in Section 10 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
17
8.1/5987T.008/10040/89000-094
t.
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
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 Ownershall have
all rights and remedies provided herein or under applicable
law, including without limitation the right to seek specific
18
8.1/5987T.008/10040/89000-094
e
performance by the County. But in no event shall Property
O;ruer 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, riots, 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, resolution, 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
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 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
19
8.1/5987T.008/10040/89000-094
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
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.
20
8.1/5987T.008/10040/89000-094
C. The promise and agreement in this Section 6 are
mot conditioned or dependent on whether or not ; (a) the
inde{(initee has prepared, supplied, or reviewed any plan(s) or
specification(s) in connection with this Project; 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,
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,
21
8.1/59877.008/10040/89000-094
regulations or policies which 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 . 401) . Those findings
are incorporated into this Agreement by this reference as if
set forth herein in full .
1
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 material Provision of this
Agreement 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
22
8.1/5987T.008/10040/89000-094
r
a
Sections 4, 5 .E, and 6 shall remain in full force and effect as
beti,,7ee.(i 'the parties .
D. Each reference in this Agreement to this
Agreem.e-at shall be deemed to refer to the Agreement as it may
be amended from time to time, whether or not the particular
reference refers �o 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 or
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
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
23
8.1/5987T.008/10040/89000-094
e
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
Copy to :
County Counsel
Contra Costa County Administration Building
651 Pine Street
Martinez, CA 94553
Telephone No . (415) 646-2074
Facsimile No . : (415) 646-1078
Director of Public Works
255 Glacier Drive
Martinez, CA 94553
Telephone No . : (415) 646-4470
Facsimile No . : (415) 646-1147
If to Property Owner, to :
Kaufman and Broad of Northern California, Inc .
6379 Clark Avenue
Dublin, CA 94568
Telephone No. : (415) 829-4500
Facsimile No . : (415) 829-7663
With Copies to :
McCutchen, Doyle, Brown & Enersen
1331 North California Blvd.
P. 0. Box V
Walnut Creek, CA •94596
Attention: Sanford M. Skaggs
Michael P. Durkee
Telephone No . : (415) 937-8000
Facsimile No . : (415) 975-5390
24
8.1/5987T.008/10040/89000-094
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 .
Section 12 . Estoppel Certificate. Within thirty (30)
days following any 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,
25
8.1/5987T.008/10040/89000-094
o
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 Exhibits . This Agreement
is executed in four (4) duplicate counterparts, each of which is
deemed to be an original . This Agreement consists of
twenty-seven (27) pages of text and signatures; a cover sheet,
table of contents and notary acknowledgment forms on additional
pages; and, in addition, two (2) exhibits . This Agreement and
. its exhibits constitute the entire understanding and agreement
of the parties . The following exhibits are attached to this
26
8.1/59877.008/10040/89000-094
Agreement and are incorporated into this Agreement for all
purposes by this reference:
Exhibit A Map of the Property
Exhibit A---1 Legal Description
IN WITNESS WHEREOF, Property Owner and County have
executed this Agreement as of the date first hereinabove written.
COUNTY:
COUNTY OF ONTRA /COSTA
-Harvey Bragdon, Director,
Department of Community
d Development
Approved as to Form:
VICTOR WESTMAN
County unsel
By,
Title Com` 2
PROPERTY OWNER:
KAUFMANBROAD OF NORTHERN CALIFORNIA, INC. ,
a Delaware C por n
By: �-
o n Polk, President
Dated: l G - S; -? 0
By: t,..
Title: V!cf- PIE-sl 04y-1
Dated:
KJT:kab/8.1
5987T.008/6037T/10.04.0
89000-094
27
8.1/5987T.008/10040/89000-094
i
L.
STATE OF CALIFORNIA )
ss
CO TY OF CONTRA COSTA )
On this e day of , in the year
1990, before me, a notary public in and for said county
state, personally appeared Karl Wandry,
me.4or 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.
N tary Public
OFFICIAL SEAL
KRIS SHAD
Notary Publro-Cglifom►e
CONTRA COSTA COUNTY
My Comm Exp Apr 5.1991
STATE OF CALIFORNIA )
ss
COt-jgTY OF CONTRA COSTA )
On this day of _e_ , in the year 1990,
before me, a notary pia is i<e-ntas
andforsaid county and state,
personally appeared Mary Epersonally known to me (or
proved to me on the basis ory evidence) to be the
person who executed this ins Director of the Contra Costa
County Department of Co iment and acknowledged to me
that the Contra Cost ountyit .IN WI SS WHEREOF, reunto set my hand and
official se the day and yeitten.
Notary Public
STATE OF CALIFORNIA )
) SS
COU-NTY OF CONTRA COSTA )
On this �' h day of in the year 1990 , before
me, a notaryublic in and for said county and state, personally
appeared % personally known to me
(or proved to a on the basis of satisfactory evi ence) to be the
person who executed the within instrument as -'t-Z�;:-,e-'- of
Kaufman and Broad of Northern California, 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 r
OFFICIAL
SEAL
STATE OF CALIFORNIA ) JILL D.SCHU
S S =
NOTARY PUBLIC
ALAMEDA C
COUNTY OF CONTRA COSTA ) ' MY COMMISSION EXPI
On this Vv day ofQcr�_e,L), in the year 1990 , before
me, a notary public in and for said .county and state, personally
appeared personally known to me
(or proved to me on the b sis of satisfactory evidence) to be the
person who executed the within instrument as of
Kaufman and Broad of Northern California, Inc . , a Delawa e
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.
Notory Public
28 OFFICIAL SEAL
8.1/5987T.008/10040/89000-094 JILL D.SCHUMACHER
? ® v e NOTARY PUBLIC-CALIFORNIA
i ALAMEDA COUNTY
MY COMMISSION EXPIRES JULY 2,1993
_ Exhibit A
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Exhibit A-1.
LEGAL DESCRIPTION
;,UAL PROPERTY 1n an unincorporated area, County of Contra Costa, State of
California, described as follows:
PARCEL ONE:
Being a portion of the southwest one quarter of Section 9, Township 2
. Worth, Range 1 West, Mount Diablo Base and Meridian, and more particularly
described as 4®11ows:
Beginning at the southwest corner of said Section 9; thenca Worth 00 18° 3411
West 2633.98 feet along the Kest line of said Section 9 to the West one
quarter corner of said Section 9; thence North 880 151 37" East 2321.96
feet along the North tine of the southwest one quarter of said Section 9 to
the South line of that parcel of land described as Parcel Five 1n the
Judgement on the Declaration of Taking, dated December 27, 1938, under
Action No. 21085 1n the District Court of the Unitad States, in and for
the Northern District of California, southern division entitled, United
States of America, plaintiff, vs. Henrietta R. Sellers, at al defendents, a
certified copy of which was recorded December 29, 1938, 1n Book 487 of
Official Records, at Page 214; thence southeasterly along said South line
of Parcel 5 South 67. 01' 250 East 239.01 feet; thence continuing along the
South line of said Parcel Five South 55. 12' 250 East 97.33 feet to the
East line of said Section 9; thence South 00 13' 44" West 2478064 feet
along the East tine of said Section 9; thence South 880 18' 23" West
2597.87 feet along the South line of said Section 9 to the point of
beginning.
EXCEPTING THEREFROM:
"All oil , gas, casinghead gasoline, and other hydrocarbon and mineral
substances, under said land, for a depth below 500 feet of the surface of
said land without right of entry upon the surface of said lands for the
purpose of exploring, taking, removing, disposing, mining and operating for
oil , gas and other hydrocarbon and mineral substances" as reserved in the
Deed from Elvira Dutra Dykins, recorded April 22, 1964, Book 4601, Page
2046 Official Records and in the Deed from Louise B. Dutra, at al , recorded
April 22, 1964, Book 4601, Page 207, Official Records.
A.P. No.: 099-110-026 and 027