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HomeMy WebLinkAboutMINUTES - 12191995 - D11 REVISED c, .- _•.o -= • Contra TO: BOARD OF SUPERVISORS Costa !'lilliup � County FROM: HARVEY E. BRAGDON DIRECTOR OF COMMUNITY DEVELOPMENT . ,' T. ° �4 sr•• •-gip. DATE: December 12 , 1995 SUBJECT: Hearings on Rezoning with Preliminary Development Plans 2992-RZ and 2993-RZ, and Development Agreements Proposed by Windemere and Shapell Industries , in the Dougherty Valley Area SPECIFIC REQUEST(S) OR RECOMMENDATIONS) &BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. Accept the Addendum to the Final Environmental Impact Report and the Final Environmental Impact Report prepared for the Dougherty Valley Specific Plan, as being adequate for purposes of compliance with CEQA. 2 . Adopt the Mitigation Monitoring Program as prepared for this project. 3 . Approve Rezoning 2992-RZ and 2993-RZ with Conditions of Approval as recommended by the County Planning Commission and with the modifications recommended by staff . 4 . Approve the Findings contained in Resolutions 70-1992 and 71- 1992 as the basis for the Board ' s action. 5. Introduce the. ordinance giving effect to Rezoning 2992-RZ and 2993-RZ , waive reading and adopt. 6 . Find the attached development agreements are consistent with the County General Plan, Dougherty Valley Specific Plan and the Settlement Agreement between Contra Costa County, the City of San Ramon, Town of Danville, and Developers to settle the claims brought by San Ramon and Danville on the DVSP. CONTINUED ON ATTACHMENT: X YES SIGNATURE`, RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMIT EE APPROVE OTHER SIGNATURE(S) : ACTION OF BOARD ON December 19 , 1995 APPROVED AS RECOMMENDED _x_ OTHER SEE ADDENDUM FOR BOARD ACTION VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN AYES: 1 , 2 , 4 5 NOES: 3 ACTION TAKEN AND ENTERED ON THE ABSENT: none ABSTAIN: none MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact:Debbie Chamberlain - 646-2031 Orig: Community Development Department ATTESTED December 19 , 1995 cc: Public Works PHIL BATCHELOR, CLERK OF Shapell Industries THE BOARD OF SUPERVISORS Windemere Ranch Partners CLr COU ADMINISTRATOR Town of Danville D City of San Ramon BY , DEPUTY J 2 . 8 . Introduce the ordinance giving effect to Development Agreements #117 and #118 , waive reading and adopt. 9 . Authorize the Director of Community Development to sign and execute the agreements after they have been duly signed by Windemere Ranch Partners and Shapell Industries. 10. Direct staff to file a Notice of Determination with the County Clerk. FISCAL IMPACT None. BACKGROUND/REASONS FOR RECOMMENDATIONS The Board of Supervisors on December 22 , 1992 certified the Final Environmental Impact ("FEIR" ) , which is a tiered FEIR and addressed policy-level planning decisions, including a General Plan Amendment, Specific Plan, rezonings with preliminary development plans and development agreements . The Board further approved the General Plan Amendment and Specific Plan. Concurrently, the Board closed the public hearing and continued the rezonings, preliminary development plans and development agreements. Subsequently, lawsuits were filed challenging the validity of the Environmental Impact Report and planning approvals. These items have been continued numerous times to complete settlement discussions with the City of San Ramon and Town of Danville, City of Walnut Creek, City of Pleasanton, Alamo Improvement Association, East Bay Municipal Utility District, and the Non-Governmental Organizations. All of the lawsuits have been settled as of October 12 , 1995 . The Dougherty Valley Oversight Committee ("DVOC") met on October 6, 1995 and October 20, 1995 to discuss the deferred rezoning with preliminary development plan applications and the pending development agreements., The DVOC voted to recommend approval of the applications to the Board of Supervisors with modifications to Conditions of Approval #1 and #4 . Condition of Approval #1 has been added to ensure the project ' s consistency with the San Ramon Settlement Agreement. Condition of Approval #4 requires the developers to dedicate certain lands under their control which are considered "Master Improvements" when deemed necessary by the County. The requirement to dedicate lands designated as open space has been included. With the two noted modifications, the rezonings and preliminary development plan applications as presented, are unchanged from the Planning Commission recommendation of December 1 , 1992 and December 2 , 1992 . The development agreements are presented with minor modifications to acknowledge settlement of the lawsuits related to the Dougherty Valley Specific Plan and to identify certain procedures and standards that will apply to the County' s consideration and approval of applications in the Dougherty Valley. The agreements have also been updated to recognize the Joint Exercise of Powers Agreement ("JEPA") currently being completed and completion of the Community Facilities Fee . The JEPA is an agreement between the County, City of San Ramon, and the Town of Danville to provide a mechanism for collection of traffic impact fees from development projects in the three jurisdictions. The Community Facilities Fee will ensure timely construction of the facilities as required by the San Ramon Settlement Agreement. As presented, the development agreements have the recommendation of the DVOC. 3 . The development agreements were reviewed by the Zoning Administrator when they were first introduced at which time the findings required by Board Resolution No. 85/412 were made. There were no revisions to the development agreements pertinent to those findings; accordingly, there was no need for additional review by the Zoning Administrator. Further Environmental Review Staff has determined that the Final Environmental Impact report prepared for the Dougherty Valley Specific Plan is complete and adequate to serve as the environmental document for the Board ' s action. The rezoning with preliminary development plans applications and the development agreements are within the scope of the EIR because they do not contain any provisions for new development that were not set forth in the Dougherty Valley Specific Plan nor do they alter in any significant way the proposed land uses described in the Dougherty Valley Specific Plan. Staff finds none of the criteria which would require preparation of a subsequent or supplemental EIR as defined in Public Resources Code Section 21166 and in Section 15162 of the CEQA Guidelines exist in this situation. An Addendum has been prepared to provide an explanation for the decision and to clarify and update the information in the original approval and EIR. The Addendum demonstrates that there have, been no changes to the project, no changes in circumstances under which the project is being undertaken and no new information that would require major revisions in the environmental impact report. Clarification of Recommendation The original Board Order requested the Board adopt the ordinance giving effect to the rezoning request. Since the rezonings are- presented at a noticed public hearing, the Board may waive the second reading and adopt the ordinance authorizing the rezoning applications in the same meeting. Staff recommends the Board introduce the ordinance giving effect to the Rezoning 2992-RZ and 2993-RZ, waive reading and adopt. DJC/aa BDVIII/2992-RZ. DJC ADDENDUM TO ITEMS D. 11 AND D. 12 DECEMBER 19, 1995 On December 12 , 1995, the Board of Supervisors deferred to this date the decision on recommendations of the Contra Costa County Planing Commission and the San Ramon Valley Regional Planning Commission and the San Ramon Valley Regional Planning Commission on the application (2992-RZ) of Windemere Ranch Partners (applicant and owner) for approval of a rezoning with preliminary development plan approval for approximately 2 , 416 acres from A-80 (Agricultural District) to P-1 (Planned Unit Development) to construct up to 5, 170 residential units . The project further incorporates 1, 145 acres of open space and park and recreation public/semi-public uses, and the recommendation of the County Zoning Administrator on the request of Contra Costa County and Windemere Ranch Partners to review and approve a development agreement known as Windemere Ranch Partners as being consistent with the County General Plan and the Dougherty Valley Specific Plan in the Dougherty Valley area; and Decision on the recommendations of the Contra Costa County Planning Commission and the San Ramon Valley Regional Planning Commission on the application (2992-RZ) of Shapell Industries (applicant and owner) for approval of a rezoning with preliminary development plan approval for approximately 2, 708 acres from A-80 (Agricultural District) to P-1 (Planned Unit Development) construct up to 4 , 614 residential units . The project further incorporates 1, 386 acres of open space and park and recreation facilities, 26 acres of non-residential uses and 38 acres as public/semi-public uses and the recommendation of the County Zoning Administrator on the request of Contra Costa County and Shapell Industries to review and approve a development agreement known as Shapell Industries as being consistent with the County General Plan and Dougherty Valley Specific Plan in the Dougherty Valley area. Dennis Barry, Community Development Department, presented the staff report commenting on the agreement reached between the developers and the City of San Ramon and correspondence between staff and the Dublin San Ramon Services District indicating their commitment to be the primary water service provider for the Dougherty Valley. Mitch Avalon, Public Works Department, commented on his memo to the Board regarding the status of the fee discussions with the City of Dublin. The Board discussed the development agreements . The following people presented comments : Councilperson Ron Raab, 278 Ludlow Place, San Ramon; Herb Moniz, 2222 Camino Ramon, San Ramon, City Manager, City of San Ramon; Michael Sipos, 2540 Toltec Grove, San Ramon. Supervisor Bishop expressed her concerns with the matters before the Board. Supervisor Torlakson moved approval of the staff recommendations . Supervisor DeSaulnier seconded the motion. IT IS BY THE BOARD ORDERED that staff recommendation 1, 2 , 3 , 4 , 5 with Ordinances 95-56 and 95-62, giving effect to the rezonings ADOPTED, 6 , 7 with Ordinances 95-63 and 95-64 giving effect to Development Agreements for Shapell Industries and Windemere Ranch Partners ADOPTED, 8, 9 and 10 are APPROVED. RECEIVED V;1; DEC 19 1995 fl/ � 111 CITY OF DUBLIN K BOARD OF SURE.. RS P.O. Box 2340, Dublin, California 94568 C City Offices, 100 Civic TR ST December 18, 1995 Gayle Bishop, Chairperson Board of Supervisors Contra Costa County 651 Pine Street, Rm 106 Martinez CA 94553 SU Bi ECT: Bvar.Jvf SapivSvrS Meeting of nGIG. bei -19, 199J.0 i ILl i Vi i0 Dougherty Valley Development Agreement Agenda Item Honorable Gayle Bishop: V';, would like to thank you and your staff for addressing and supporting the City of Dublin's concerns regarding the language included in the Traffic Mitigation portion of the Dougherty Valley Development Agreement. It is the City's hope that the Contra Costa County Board and staff will further address and support Dublin's request to delete the fee cap on the Development Agreement and to eliminaie or modify the timing of this Agreement. As stated in the City's letter dated December 12, 1995, we have always appreciated the good working relationship with Contra Costa County, and it is hoped that this will be an example to other Tri-Valley jurisdictions in dealing with interagency issues. Sincerely, Lee S. Thompson Public Works Director LST/mb cc: Millie Greenberg, Mayor, Town of Danville Curt Kinney, mayor, San Ramon Mitch Avalon, Contra Costa County g:Icorreslmsldough val Administration (510)833-6650 • City Council (510)833-6605 • Finance (510)833-6640 Building Inspection (510)833-6620 Code Enforcement (510)833-6620 • Engineering (510)833-6630 • Parks&Community Service (510)833-6645 Police (510)833-6670 • Public Works (510)833-6630 • Planning (510)833-6610 Request to SPeak Form ( THREE (3) MINUTE UMID Complete this form and place it In the box near the speakers' rostrum before addressing the Board. Nance 90A). 1 am speaking for ayself=or organization: ane of CHECK ONE: 1 wish to speak on /agenda Item # �- Dat My comments will be: general _tor . 1 wish to speak on the subject of . _ 1 do not wish to speak bnt leave these Comments for the Board to COIN r: P Request to S eak Form ( THREE (3) MINUTE LIMIT) . Complete this form and place it In the box near the speakers' rostrum before addnsdng the Board. - M(CH>` -et, P 0 S .W DMM Car 1 a;n speawns for nvyself or . t�of o—ntsatioN GiHX ONS 1 wish to speak on /agenda Item My comments will be: general _for_,*W 1 wish to speak on the subject of I do not wish to spealc but leave these oomntents for the Board to consider, - San Ramon 4 2?.1 0111C CITY OF SAN RAMON P.O.FCAMMO RAMON .O.SqX Slse SAN RAMON.�A IORNIA 945{13 ($10)275-1200 FAX,(9 101 No.1436 December 18, 1995 RECEIVED Mr, Dan Hancock i 19 19 96, Shapell Industries P.O. Box 361169 t RK BOARD OF SUPERVISORS Milpitas, CA 95035 OOMRA COSTA CO. Re: Dougherty Valley Dear Mr. Hancock: This letter will memorialize our understanding that Shapell and the City of San Ramon will enter into an agreement- recorded and intended to run with the land - whereby the individual property owners of your Dougherty Valley development will be obligated to pay the City of San Ramon an amount equal to that received from the County Service Area created under the Dougherty Valley Settlement Agreement in the event the County Service Area, as a funding source, Is ever terminated for whatever reason. The maximum annual obligation of an Individual parcel would not exceed $453.00, escalated to reflect annual cost of living increases. The agreement is entered into pursuant to Section 3.3.8 of the Dougherty Valley Settlement Agreement It is our understanding that the above-described agreement Will be similar in form and content to the draft Funding Servioes Agreement previously provided to you. This letter is further intended to advise the Contra Costa County Board of Supervisors that Shapell and the City of San Ramon have reached agreement concerning this matter and that the City of San Ramon withdraws any objection to proceeding on Deoember 19, 1995,with approval of the Shapell Development Agreement. t a"COUMOU vs11)0 A1Nk0Wl:?M F WYM ms un roust.alive M-ft" CM wvMOW MWO WilLCI AM Sf =4 MARTS 4 CWAMUWM asnwa:VS-OW RANWWQ ns.sre C"W a 8AC V%"M T"IdP TATIOIE tlW136 4ulwM p pwrow t 54M s1l410R C.N1 HG 7►3-Su 40FMROMBIC Ai7110 z0 'd L99v9MOb ON Xdd 1d3G ONV1 ON I S V I ;b I 3fli I Mr. Dan Hancock December 1$, 1995 Page 2. Thank you very much. Very truly yours, HERB MON City Manager The above tetter accurately reflects the understanding and agreement reached between Shapell Industries and the City of San Ramon Dated: By: , DAN HANG CK i 60 'd L99bWoov ON xv3 1d3Q QNV7 ON1 S 91 :V1 ani 96-61-030 DEG-919 95) TUE 14: 14 S I NO LAND DEPT FAX N0. 4089464657 P. 01 1 -FACSIMILE TRANSMISSION SHEET DATE:_ �� ���'�I� NO. PAGES `� INCL. COVER TO: /,z'f . d� /1 r FROM: COMPANY: SHAPELL INDUSTRIES OF N. CALIF. RE: `� PHONE:408-946-1550 FAX#: FAX/ ` FAX#408-946-4657 COMMENTS, A/1flVr h 41 s IF ALL PAGES ARE NOT RECEIVED OR IF COPIES ARE ILLEGIBLE, PLEASE CONTACT OUR OFFICE AT THE ABOVE NUMBER. a San Ramon cR Oiltli o 2722 CAMIMQ RAMON CITY OF SAN RAMON r.o.Box$141, SAN RAMON.CAtIPORN1A 74W (5te)275-.200 Fp,z,(5101 1;0p-1436 December 19, 1995 Mr. Dan Han000k Shapelt Industries P.Q. Box 361169 Milpitas, CA 95035 Re. Dougherty Valley Dear Mr. Hancock; This letter will memorialize our understanding that Shapell and the City of San Ramon will enter into ars agreement- recorded and intended to run with the land - whereby the individual property owners of your Dougherty Valley development will be obligated to pay the City of San Ramon an amount equal to that received from the County Service Area created under the Dougherty Valley Settlement Agreement in the event the County Service Area, as a funding source, is ever terminated for whatever reason. The maximum annual obligation of an individual parcel would not exceed $453.00, escalated to reflect annual cost of living increases. The agreement is entered into pursuant to Section 3.3.6 of the Dougherty Valley Settlement Agreement. It is our understanding that the above-described agreement will be similar in form and content to the draft Funding Services Agreement previously provided to you. This letter is further intended to advise the Contra Costa County Board of Supervisors that Shapell and the City of San Ramon have reached agreement concerning this matter and that the City of San Ramon withdraws any objection to proceeding on December 19, 1995, with approval of the Shapell Development Agreement. Grnr COVMGL-27t2330 ANWM4"ATM RRMF4 275.4371 F%1G[:V&nn 1 NQWaR.MG:475_yj,50 CTT nv1NR0lu 275.233e PUBLIC SEAY !275.2250 FARO s CXM4MUnm RW11.10!a3S4M F%NOHNa 27-nit CRY CLOM 275.1190 TOAkWATAMUM:17W330 C0kM"rrrtZ% Yt`275-2300 BUILUM 1M5f000:275.M2'0 MH"CIN10t 2*3-nI4 0404`UCFMMT:275.920 K 'd L99V9b6OOP 'ON kdd 1.dEa 0V I ON I S H :P 13Oi 96-61-OIG Mr. Dan Hancock December 18, 1955 Page 2 Thank you very much. Very truly yours, HERB MON . City Manager The above letter accurately reflects the understanding and agreement reached between Shapell Industries and the City of San Ramon Dated: l �� By: 4 DAN HANG CK 00 'd LSMV680V 'ON Xdd UK QNVI ONIS 91 :�l Ki 86-61-03a San Ramon Yr` —011.1c 11.11 CAMINO RAMQN CITY OF SAN RAMON F.o.sox 5148 SAN RAMON.CALIFORNIA 94583 1518)175.2200 F)\X (5101960.1436 December 18, 1895 -v RECEIVED Mr, Dan Hancock ; DEC 19 1995 Shapell1ndustries. ' P.O:Bax.361169 , gip(RA COSTACO.ISORS Milpitas, CA 95035 Re: Dougherty Valley Dear Mr. Hancock: This letter will memorialize our understanding that Shapell and the City of San Ramon will eater into an agreement- recorded and intended to run with the land - whereby the individual property owners of your Dougherty Valley development will be obligated to pay the City of San Ramon an amount equal to that received from the County Service Area created under the Dougherty Valley Settlement Agreement In the event the County Service Area, as a funding source, is ever terminated for whatever reason. The maximum annual obligation of an individual parcel would not exceed $453.00, escalated to reflect annual cost of living increases. The agreement is entered into pursuant to Section 3.3.8 of the Dougherty Valley Settlement Agreement. It Is our understanding that the above-described agreement will be similar in form and content to the draft Funding Services Agreement previously provided to you. This letter is further intended to advise the Contra Costa County Board of Supervisors that Shapell and the City of San Ramon have reached agreement oonceming this matter and that the City of San Ramon withdraws any objection to proceeding on December 19, 1995,with approval of the Shapell Development Agreement. Cm'COVMCIL•275-2330 Armd"2NATM SF�m 17-w333 POU[[:i73.227C EE*IGweE>t1NG475-X29D 13TT MMMORR 273d)3C 4V80C3LX W!27122" PARkS i QIMMUMR 64RVIC10:2rS•2.2fD PLA�>rQ 77s221D CRY CLOW 273.225-8 TtAbOMATKft 275,2230 COMA43RT►O»'ttt!277�230D BUILOIMO 823n CrIM:Vs.2220 swlGca,+IEK rs.naaFYnaPMF3+r.27z.nFa ZO 'd L99VM80V 'ON Xd� 1d3Q ONV I ON I S V I ;b i E01 96-61-03C y Mr. Dan Hancock December 18, 1995 Page 2 Thank you very much. Very truly yours, 1� HERB MON City Manager The above letter accurately reflects the understanding and agreement reached between Shapell Industries and the City of San Ramon Dated. f - By: E DAN HANG CK n £0 'd L99V9V680V 'ON Xd3 Id30 QNV1 ONIS 9I :VI ani 96-6I-om -j8-95 MON 15:31 EBRPD GENERAL MANAGER FAX NO, 5105691417 P. 02 S PAJr*'%F _ EGIONAL EAST SAY REGIONAL PARK DISTRICT December 18, 1995 Vme rIBU Urs, Valentin Alexcef, Director Growth Management&Economic Development 651 Pine Street, 2nd Floor ve�1v L:ov Martinez, CA 94553 Pat Subject: Dougherty Valley Open Space Maintenance & Operation Dear Val'. As you know, the East Bay Regional Park District has been an active participant in the extensive planning process for the Dougherty Valley_ The Park District, with sixty years experience.in managing large natural open space areas, assisted the County and Dougherty Valley project sponsors by providing detailed information on open space design, planning and management issues. District-recommended adjustments approved by the Board of Supervisors will ultimately improve open space configurations and provide better connections to surrounding regional open space and trails. In the many meetings attended by this District, we attempted to provide positive input to resolve the many conflicts which arose during the process. A number of cities, other agencies and environmental organizations filed lawsuits against the County and project sponsors when the Dougherty Valley project was approved. The East Bay Regional Park District consciously decided not to enter into litigation against the project and was also not a party to the subsequent settlement agreement. At that time, the District was assured that issues that we have repeatedly raised, including the need for adequate financing to manage the development-related open space, would be addressed to our satisfaction. The project conditions and the settlement agreement language state that a County Service Area U areas 17 (CSA)will be responsible for project open space and trails, "excluding those eas managed by EBRPD or another public agency." While County staff have assured the District that a CSA would provide the financing0 mechanism for District-managed open space in the Dougherty Valley, there appears to be no ambiguity in this settlement agreement language. As each phase of the Dougherty Valley project comes before the Board of Supervisors for -approval, the entity responsible for managing the open space must be identified: The District has consistently emphasized that regardless of the management entity, there will be substantial casts for maintaining and operating the open space. The fact remains that this project-related open space is predominantly grassland, will directly interface with over 11,000 units of nearby development and will cost more to manage than regional open space parks in other areas, &6 ID 2950 Perziiia Oai<s cour, P.(). Dox 5381 Ohkl&r,0 CA 94606 0381 Tal:5106_z5013,1� DEC-18-95 MON 15;32 EBRPD GENERAL MANAGER FAX NO, 5105691417 P. 03 1 Page Two Valentin Alexeef December 18, 1995 Resolution of the open space funding issue is critical both to fulfilling project mitigation requirements and enhancing the marketability of the project. The District is concerned that Tom Koch, Shapell Industries' representative, continues to oppose committing to any funding for regional level open space. His position is based on the assumption that the property tax revenue to the District generated by the new development should be sufficient to cover all District costs for maintenance and operation of the required Dougherty Valley Open Space. The Park District now has a source of funding for the maintenance of regional trails, including the regional trail within this project, through our existing trail assessment district. However, it does not have additional funding for development-related open space that is not required within our Master Plan, but is rather an opportunity for a cooperative effort with the County and the developers. Additionally, District costs and revenue projections show that significant difficulties lie ahead for sustaining the District's levels of operation, maintenance and service for a rapidly expanding East Bay population. Although, the District may well be asked to accept the Dougherty Valley open space, we would not be able to do so without an adequate revenue stream for this large project. The District looks forward to working with the County and the project sponsors on a responsible resolution of the open space maintenance funding issue. In order to provide a forum for discussion of this issue, we believe it would be an appropriate to agendize this item for the next Contra Costa County/EBR:PD Liaison meeting. cerely, r �r Robert E. D41 Assistant General Manager Advanced Planning and Land Acquisition cc: Contra Costa County Board of Supervisors EBRPD Board of Directors Pat O'Brien,General Manager Shapell Industries of Northern California Windemere Ranch Partners Mayor Millie Greenberg, Danville Mayor Curtis Kinney, San Ramon DEC-18-95 MON 15:31 EBRPD GENERAL MANAGER FAX NO, 5105691417 P. 02 Yl Ir-q T7' A PA EAST SAY RECIONAL PARK DISTRICT December 18, 1995 Valentin Alexeef, Director Growth Management &Economic Development (7;"'w! 651 Pine Street, 2nd Floor Martinez, CA 945533 Subject: Dougherty Valley Open Space Maintenance & Operation Dear Val: As you know, the East Bay Regional Park District has been an active participant in the extensive planning process for the Dougherty Valley. The Park District, with sixty years experience in Dougherty " I managing large natural open space.areas, assisted the County and Dougherty Valley project sponsors by providing detailed information on open space design, planning and management M, issues. Distnot-recommended adjustments approved by the Board of Supervisors will ultimately improve open space configurations and provide better connections to surrounding regional open space and trails. In the many meetings attended by this District, we attempted to provide positive input to resolve the many conflicts .vEch arose during the process. A number of cities, other agencies and environmental organizations filed lawsuits against the County and project sponsors when the Dougherty V 'ley project was approved. The East Bay Regional Park District Consciously decided not to e• ?.r into litigation against the pro'ject and was also not a party to the subsequent settlement agreement. At that time, the.District was assured that issues that we have repeatedly raised, including the need for adequate financing to manage the development-related open -,,pace, would be addressed to our satisfaction. The project conditions and the settlement agreement langruage state that a County Service Area (CSA)will be responsible for project open space and trails, "excludinla,those areas managed by EBRPD or another public agency." While County staff have assured the District that a CSA Would provide the financing mechanism for District-managed open space in the Dougherty Valley, there appears to be no ambiguity in this settlement agreement language. As each phase of the Dougherty Valley project comes before the Board of Supervisors for approval, the entity responsible for managing the open space must be identified. The District has consistently emphasized that regardless of the mariagernent entity, there will be substantial dosts for maintaining and operating Zn the open space, The fact remains that this project-related open space is predominantly grassland, will directly interface with over 11,000 units of nearby development and will cost more to manage than regional open space parks in other areas, "_"aks DEC-18-95 MON 15:32 EBRPD GENERAL MANAGER FAX N0, 5105691417 P. 03 Page Two Valentin Alexeef December 18, 1995 Resolution of the open space funding issue is critical both to fulfilling project mitigation requirements and enhancing the marketability of the project. The District is concerned that Tom Koch, Shapell Industries' representative, continues to oppose coixmutting to any funding for regional level open space_ His position is based on the assumption that the property tax revenue to the District generated by the new development should be sufficient to cover all District costs for maintenance and operation of the required Dougherty Valley Open Space. The Park District now has a source of funding for the maintenance of regional trails, including the regional trail within this project, through our existing trail assessment district. However, it does not have additional funding for development-related open space that is not required within our Master Plan, but is rather an opportunity for a cooperative effort with the County and the developers. Additionally, District costs and revenue projections show that significant difficulties lie ahead for sustaining the District's levels of operation, maintenance and service for a rapidly expanding East Bay population. Although, the District may well be asked to accept the Dou-�erty Valley open space, we would not be able to do so without an adequate revenue stream for this large project. The District looks forward to working with the County and the project sponsors on a responsible resolution of the open space maintenance funding issue. In order to provide a forum for discussion of this issue, we believe it would be an appropriate to agendize this item for the next Contra Costa County/EBRPD Liaison meeting. S"Icerely, Robert E. Doyil Assistant General Manager Advanced Planning and Land Acquisition cc: Contra Costa County Board of Supervisors EBRPD Board of Directors Pat. O'Brien, General Manager Shapell Industries of Northern California Windemere Ranch Partners Mayor Millie Greenberg, Danville Mayor Curtis Kinney, San Ramon DnmFT December 7, 1995 Dennis M. Diemer Acting General Manager East Bay Municipal Utility District 375 11th Street Oakland, CA 94607 Re: pougherty Valley Development Agreements Dear Mr. Diemer: This letter is sent on behalf and at the direction of the Contra Costa County Board of Supervisors pursuant to action taken by the Board at its December 12, 1995 meeting. At that meeting the Board approved Development Agreements and other approvals for the Dougherty Valley project. The Agreement to Settle Litigation between EBMUD, the County, and the Dougherty Valley developers entered into on September 26, 1995 provides that the 'Dublin San Ramon Service District ('DSRSD") shall be the "preferred water provider for specified portions of the Dougherty Valley project and that the Dougherty valley developers shall use their best efforts to secure permanent water service from DSRSD. EBMUD is a potential alternative water provider subject to certain conditions and limitations specified in the Settlement Agreement. In paragraph 4(e) of the Settlement Agreement, the ✓ County agreed to initiate �' "'} ^" an amendment to the Dougherty Valley Specific Plan to designate DSRSD as. the preferred water provider for the specified portions of the project. This provision also requires action on the amendment no later than the time of action by the Board of Supervisors on the Development Agreements and rezoning for the project. The County wishes to reassure EBMUD that the County remains committed to implementing paragraph 4(e) of the Settlement Agreement through the required amendment to the Dougherty Valley Specific Flan. For reasons of efficiency, the County intends to process the amendment as part of a comprehensive General Plan/Specific Plan Amendment$Vwhich the County is processing to reflect the results of planning and ,, settlement activities since 1992. The .County wishes to reassure EBMUD that it will move forward diligently to prepare and take i i i Dennis M. Diemer December 7, 1995 Page 2 action on the General Plan/Specific Plan Amendment, including the amendme tie.ZXparagraph 4 (e) of the Settlement Agreement. The County also desires to reiterate its intention to interpret and apply the Specific Plan consistent with the provisions of the Settlement Agreement, including its intention to interpret and apply the Specific Plan as though the amendment -req ired-4ay paragraph 4 (e) of the Specific Plan had been completed. Please also see section 3.1(4) of the Shapell Development Agreement and section 3.06 of the Windemere Development Agreement, which confirm the County's intention. i Finally, it is the County's understanding that nothing in this letter or EBMUD's acquiescence in the procedure to be followed by the County described in this letter .constitates a waiver by EBMUD of any rights it may have under the Settlement Agreement. Sincerely, Val .Alexeeff, Director Growth Management and Economic Development Agency II y T ip ADDENDUM TO ENVIRONMENTAL IMPACT REPORT FOR THE DOUGHERTY VALLEY GENERAL PLAN AMENDMENT, SPECIFIC PLAN AND IMPLEMENTING ENTITLEMENTS (COUNTY FILE NO. 2-91-SR; STATE CLEARINGHOUSE NUMBER 91053014) I. INTRODUCTION AND SUMMARY A. Background. On December 22, 1992, the Board of Supervisors ("Board") of Contra Costa County ("County") approved the Dougherty Valley General Plan Amendment ("General Plan Amendment") and the Dougherty Valley Specific Plan ("Specific Plan"). The Specific Plan and General Plan are collectively referenced as the "Dougherty Valley Plan." The subject of the Dougherty Valley Plan is 5,979 acres of unimproved land in the unincorporated area of Contra Costa County, located generally adjacent to the City of San Ramon ("Planning Area"). Shapell Industries, Inc. ("Shapell") owns approximately 2,708 acres of the Dougherty Valley Planning Area, a property formerly known as Gale Ranch ("Gale Ranch Site"). Windemere Ranch Partners ("Windemere") owns approximately 2,379 acres ("Windemere Site"). The remaining 892 acres is owned by the United States Army and is used as a reserve forces training area ("Camp Parks"). In November, 1990 the voters of Contra Costa County adopted Measure C, which established an Urban Limit Line delineating the Contra Costa County 65/35 Land Preservation Plan border. With minor exceptions the property is located inside the Urban Limit Line. Prior to the Board's approval of the Dougherty Valley Plan, the Gale Ranch Site and the Windemere Site were designated by the County's General Plan for agricultural uses and were also zoned for such uses. The General Plan Amendment redesignated the Dougherty Valley Planning Area to plan for urban uses. The Specific Plan provides guidance regarding the development of the Dougherty Valley Planning Area consistent with the County's General Plan as amended by the General Plan Amendment. The proposal to develop the Dougherty Valley pursuant to the Dougherty Valley Plan was the subject of an environmental impact report ("EIR") prepared and certified pursuant to the California Environmental Quality Act, Public Resources Code § 21000 et seq. ("CEQA"). Certification of the EIR occurred together with the adoption of the Dougherty Valley Plan. These approvals were challenged in court by the East Bay Municipal Water District, several cities, and a number of neighborhood and environmental groups. Ultimately, however, all of the cases were resolved by settlement agreements. By their terms, the lawsuits were dismissed with the result that the 1992 approvals (Dougherty Valley Plan and EIR) remain in full force and effect. ' B. Scope of the 1992 EIR As noted above, the proposal to develop the Dougherty Valley was the subject of a comprehensive EIR. When that EIR was prepared, the County was considering several proposed planning actions relating to the Planning Area, i.e., the General Plan Amendment, Specific Plan, rezonings, preliminary development plans and development agreements ("Planning Actions"). Accordingly, the EIR was prepared with sufficient specificity to address the various proposed Planning Actions to the extent reasonably feasible, but stated that further environmental review, based on the EIR, may be required for the subsequent detailed land use approvals necessary for the development of the Planning Area, such as final development plans, tentative subdivision maps and other discretionary actions ("Entitlements"). Final EIR, Volume 1, page A-2. As required by CEQA, the Board adopted extensive findings in connection with the Dougherty Valley Plan regarding its potentially significant impacts, potential mitigation measures and alternatives and overriding considerations that justified approval of the Dougherty Valley Plan notwithstanding its unmitigable impacts ("Findings"). The Findings reflected the statements in the EIR regarding the need for further environmental review of the Entitlements and also suggested that further review might be required of the Planning Actions that were not adopted by the Board when the Dougherty Valley Plan was approved. This Addendum describes the further environmental review performed by the County of those remaining Planning Actions. C. Decisions Now Before the County. As discussed in Section LA and B of this memorandum, Shapell and Windemere had applied for rezonings, preliminary' development plans and development agreements for both the Gale Ranch Site and the Windemere Site prior to the approval of the Dougherty Valley Plan. These additional Planning Actions were the subject of a joint hearing by the San Ramon Valley Planning Commission and the County Planning Commission. The Commission recommended approval of the Actions. These Actions were pending before the Board when the trial court issued its decision in the legal challenges described above. As a result, the items were continued indefinitely pending resolution of the lawsuits. These Planning Actions have now been restored to the Board's agenda. In considering the rezonings, preliminary development plans and development agreements, the County is required by CEQA and the terms of its approval of the Dougherty Valley Plan to consider whether a supplemental or subsequent EIR is required. As discussed in Section LA of this Addendum, the EIR was prepared to be sufficiently specific to serve as the environmental document. for all of the Planning Actions. The rezonings, preliminary development plans and development agreements are within the scope of the EIR because they do not contain any provisions for new development that were not set forth in the Dougherty Valley Plan nor do they alter in any significant way the proposed land uses described in the Dougherty Valley Plan. 3 i CEQA requires the preparation of a subsequent or supplemental EIR only if one of the following criteria has been met: 1. Substantial changes are proposed in the project which will require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; 2. Substantial changes have occurred with respect to the circumstances under which the project will be undertaken, which will require major revisions in the EIR due to the involvement of new significant effects or a substantial increase in the severity of previously identified significant effects; or 3. New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete, shows any of the following: (1) The project will have one or more significant effects not discussed in the previous EIR; (2) Significant effects previously examined will be substantially more severe than shown in the previous EIR; (3) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more of the significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or (4) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. The County has considered whether any of the foregoing criteria have been met since the Dougherty Valley Plan was approved on December.22, 1992 and has concluded that under those criteria, a supplemental or subsequent EIR is not required. Pursuant to CEQA Guidelines Section 15164, this Addendum is adopted to provide an explanation for the decision not to prepare a subsequent EIR pursuant to Section 15162, and also to clarify and update the information in the original approval and EIR. II. IMPACTS OF THE PLANNING ACTIONS The first criterion for preparation of a subsequent or supplemental EIR has not been met because the rezonings, preliminary development plans and development agreements are based upon and consistent with the Dougherty Valley Plan. The primary change to the' proposed Planning Actions is the incorporation of provisions from the settlement agreements into the development agreements, thus reflecting various commitments made by the developers. The only physical changes to the project are (a) minor adjustments in location and use of the property, all within the parameters of and consistent with the Dougherty Valley Plan, and (b) deletion of the property comprising Country Club at Gale Ranch, ;which has already 4 received its Planning Action approvals and Entitlements, in conformance with the Dougherty Valley Plan (and which were essentially identical to the Planning Actions originally proposed for that area). The County's review therefore focused on whether either of the two remaining criteria are present, Le: whether there has been a substantial change in circumstances or whether there is previously unavailable new information of substantial importance within the .meaning of CEQA. This section sets forth the County's conclusions with respect to each type of impact previously identified by the EIR. In order to provide some context for these conclusions, Exhibit A to this Addendum briefly summarizes the EIR's conclusions and recommendations regarding these impacts, and the Board's actions relating thereto. A. Land Use. There have been no changes in circumstances or new information since December 22, 1992, indicating that significant new or substantially more severe land use impacts will occur than predicted in the EIR or that other mitigation measures or alternatives would substantially reduce the impacts. . Physical conditions surrounding the development of the Planning Area were found by the County to be the same as when the Dougherty Valley Plan was approved. Various other development proposals in the region are in process; however, these proposals are within the scope of the cumulative build-out analysis of the EIR and no new significant cumulative impacts associated with the Dougherty Valley Plan are predicted because of any new proposals. B. Public Services and Utilities. 1. Wastewater Services. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to wastewater services than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 2. Potable Water. Since December 22, 1992, there has been no change in circumstances or new information to indicate that there will be significant new impacts or substantially more severe impacts relating to potable water than those predicted in the EIR, or that there are further mitigation measures or alternatives that should be considered to mitigate the impacts. The Planning Actions include a requirement to designate the Dublin San Ramon Services District rather than the East Bay Municipal Utility District as the preferred water provider outside of Country Club at Gale Ranch and the adjacent school sites. However, this is not a substantial change in the project and would not result in any significant new impacts or more severe impacts than those previously identified in the EIR. The EIR did find that the impacts relating to off-site water facilities were too speculative to be assessed because of inadequate information regarding such facilities. This information is still unavailable. Further environmental review would be required before the off- site facilities could be approved. 5 3. Recycled Water. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to recycled water than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 4. Drainage. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to drainage than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 5. Solid Waste. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to solid waste disposal than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 6. Law Enforcement. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to law enforcement services than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 7. Fire Protection Services. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to fire protection services than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 8. Educational Facilities. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to educational facilities than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 9. Child Care Facilities. Since December 22, 1992, there have been no changes'in circumstances or new information which would result insignificant new impacts or substantially more severe impacts relating to child care facilities than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 6 10. Parks and Recreational Facilities. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to parks and recreational facilities than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 11. Library Facilities. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to library facilities than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. C. Circulation. There have been no changes in circumstances or new information since December 22, 1992 indicating that significant new impacts or substantially more severe impacts relating to traffic and circulation will occur than predicted in the EIR or that other mitigation measures or alternatives would substantially reduce the impact. None of the factual data upon which the EIR's traffic study was based has changed. The cumulative impacts identified in the EIR presume full buildout of all city and county general plans and full realization of all general plan amendments in the Tri-Valley subregion that were pending at the time that the Dougherty Valley Plan was approved. As discussed in Section ILMA of this Addendum, the potential for cumulative development in the subregion has changed somewhat since the certification of the EIR, but these changes do not substantially affect the EIR's analysis, or require major revisions to the EIR. D. Air Quality. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to air quality than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. E. Noise. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to noise than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. F. Soils and Geology. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to soils and geology than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 7 G. Hydrology and Water Quality. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to hydrology and water quality than those predicted in the previous EIR, nor are there . new mitigation measures or alternatives which would substantially reduce the impacts. H. Biological Resources. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to biological resources than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. I. Cultural Resources. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to cultural resources than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. J. Electromagnetic Fields. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to electromaagnetic fields than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. K. Visual Quality. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to visual quality than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. L. Energy Conservation. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to energy conservation than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. M. Miscellaneous Impacts. 1. Short-Term Uses Versus Long-Term Productivity. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new impacts or substantially more severe impacts relating to short-term uses versus long term productivity than those predicted in the previous 8 EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 2. Significant Irreversible Environmental Changes. There have been no changes in circumstances or new information since December 22, 1992, indicating that new significant irreversible environmental changes will '.occur than predicted in the EIR. 3. Growth-Inducing Impacts of the Dougherty Valley Project. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new growth-inducing impacts or substantially more severe growth-inducing impacts than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. 4. Significant Cumulative Impacts. Since December 22, 1992, there have been no changes in circumstances or new information which would result in significant new cumulative impacts or substantially more severe cumulative impacts than those predicted in the previous EIR, nor are there new mitigation measures or alternatives which would substantially reduce the impacts. The cumulative impact analysis of the EIR assumed a level of development based on projected growth in the subregion. Since certification of the EIR, there have been some changes to these projections, based on revisions to general plan amendment applications, denials of proposed projects and revised forecasts of expected growth. These changes do not require revisions to the EIR because the amount and general distribution of growth and resulting impacts are expected to be substantially the same or less than that predicted in the EIR. III. CONCLUSION The circumstances that would require the preparation of a subsequent or supplemental EIR are not present because since December 22, 1992, there have been no changes in the project, changes in circumstances or previously unavailable new information indicating that the Planning Actions will have significant new impacts or substantially more severe significant impacts than predicted in the EIR, or that new mitigation measures or alternatives would substantially lessen the significant impacts of the Planning Actions. 9 EXHIBIT A IMPACTS, MITIGATION MEASURES AND ALTERNATIVES ANALYZED IN THE EIR This exhibit is provided for the purpose of summarizing the findings made by the County with respect to the previous EIR, and is included for background purposes only. It is intended to provide a context within which to review the Addendum and its conclusions that there are no significant, new or more severe impacts relating to the Planning Approvals. This exhibit does not readopt, supersede or in any fashion replace the Findings and Statement of Overriding Considerations approved by the County in December 1992. A. Land Use. The EIR identified five project-specific potentially significant impacts relating to land use and one potentially significant cumulative impact. These impacts are listed below: 1. Conversion of substantial portions of the County's stock of convertible land to urban use; 2. Conversion of approximately 6,000 acres of non-prime but important agricultural land to urban and open space uses (project specific and cumulative); 3. Potential internal land use incompatibility of residential land uses with Camp Parks; 4. Potential incompatibility with adjacent land uses; and 5. Potential internal incompatibility of residential land uses with existing electric transmission lines. 6. Cumulative loss of open space. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to address these impacts. Impact Nos. 1, 2, 4 and 6 were found to be significant and unavoidable, for which overriding considerations were adopted. The remaining impacts were found to be mitigated to a less than significant level by the mitigation measures adopted by the County. B. Public Services and Utilities. 1. Wastewater Services. The EIR identified a potentially significant impact relating to the Dougherty Valley Plan's need for collection and treatment of 2.5 to 3.1 million gallons per day of wastewater. As recommended by the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce this impact to a less than significant level, including annexation to the Central Contra Costa Sanitary District or another service provider. The EIR indicated that the impacts of off-site wastewater facilities for the Dougherty Valley Plan were too speculative to be assessed because of insufficient information regarding their design. 2. Potable Water. The EIR identified significant impacts relating to the need for distribution and treatment of approximately 4.7 to 5.4 million gallons per day of potable water. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce the impacts. However, these impacts were found to be significant and unavoidable, for which overriding considerations were adopted. The EIR indicated that the impacts of off-site water facilities for the Dougherty Valley Plan were too speculative to be assessed because of insufficient information regarding their design. 3. Recycled Water. The mitigation measures adopted for the Dougherty Valley potable water service impacts include the use of recycled water where feasible. Implementation of this mitigation measure would require approximately 1,100 gallons per minute of recycled water and a recycled water distribution system. The EIR identified a significant impact relating to the need for recycled water facilities. As recommended in the EIR, the County adopted mitigation measures for impacts relating to recycled water to reduce those impacts to a less than significant level. 4. Drainage. The EIR identified as potentially significant impacts the need for drainage infrastructure to serve the Planning Area. As recommended in the EIR, the County adopted mitigation measures to reduce this impact to a less than significant level. 5. Solid Waste. The EIR identified potentially significant impacts relating to the generation of approximately 25,000 tons of solid waste per year by the development of the Planning Area. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce the Plan's solid waste impacts to a less than significant level. ' 11 6. Law Enforcement. The EIR identified potentially significant impacts relating to the need for approximately two California Highway Patrol positions and approximately five sheriffs deputies with necessary equipment. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to mitigate these impacts to a less than significant level. 7. Fire Protection Services. The EIR identified potentially significant impacts relating to the need for additional fire stations and equipment and increased fire hazards. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce these impacts to a less than significant level. 8. Educational Facilities. The EIR identified potentially significant impacts relating to the need for additional elementary school, middle school, high school and community college capacity. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce the impact on elementary, middle and high schools to a less than significant level. Mitigation of the need for community college facilities as a part of this project was found to be infeasible, requiring future efforts of the Contra Costa Community College District in conjunction with the County and the Cities of San Ramon and Danville. 9. Childcare Facilities. The EIR identified potentially significant impacts relating to the need for childcare facilities. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce the impacts to a less than significant level. 10. Parks and Recreational Impacts. The EIR identified potentially significant impacts relating to the need for managed open space, regional trail easements and neighborhood and community parks. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to mitigate these impacts to a less than significant level. 11. Library Facilities. The EIR identified a substantially significant impact relating to the need for 11,600 square feet of library facilities. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce this impact to a less than significant level. 12 C. Circulation. The EIR identified the following potentially significant impacts relating to traffic and circulation: 1. Exceedence of the planned capacity of several roadway segments and unacceptable levels of service on several interstate segments (project specific and cumulative impact). 2. Change in vehicle to capacity ratio from acceptable to unacceptable conditions at several intersections and further degradation of already unacceptable levels of services at several other intersections (project specific and cumulative impact). As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to address the potentially significant project and cumulative impacts listed above. These mitigation measures were predicted to improve traffic conditions to an acceptable level at many of the roadway segments and intersections. However, the conditions at other intersections and interstate segments were determined to be significant and unavoidable, for which overriding considerations were adopted. D. Air Quality. The EIR identified potentially significant air quality impacts relating to violations of standards for particulate matter, carbon monoxide and ozone precursors. These impacts are both project specific and cumulative. As recommended by the EIR, the County adopted mitigation measures for the above impacts in connection with the approval of the Dougherty Valley Plan. However, the impacts were identified as significant and unavoidable, for which overriding considerations were adopted. E. Noise. The EIR identified the following potentially significant impacts relating to noise: 1. Exposure of on-site and off-site land uses to construction noise; 2. Exposure of residents and other noise sensitive.land uses on site to noise from traffic and Camp Parks training activities at levels in excess of County standards; 3. Exposure of residents along Old Ranch Road and Dougherty Road near Old Ranch Road to increased and excessive noise levels; 4. Exposure of new residents to noise from recreational and cultural facilities; and 5. Exposure of existing and planned noise sensitive locations to noise levels in excess of County noise standards. 13 As recommended by the EIR, the County imposed mitigation measures in connection with the approval of the Dougherty Valley Plan to address the noise impacts. These mitigation measures are expected to reduce to a less than significant level all of the Dougherty Valley Plans direct noise impacts except No. 5. Impact No. 5 was expected to remain significant and unavoidable, for which overriding considerations were adopted. F. Soils,and Geology. The EIR identified the following potentially significant impacts relating to soils and geology: 1. Substantial change in topography from grading operations; 2. Potential for structural damage and injury to people from development and in open space and park areas in locations susceptible to landsliding, slope failure and slope instability and development on materials susceptible to liquefaction; 3. Potential for increased short-term and long-term soil erosion rates from development on soils with moderate to high erosion hazards; 4. Potential for structural damage from development on soils with high shrink-swell potentials; 5. Grading on hillsides with slopes of 26 percent and greater; 6. Development of Windemere Parkway extension on potentially unstable land east of the planning area; 7. Development of water, waste water and recycled water infrastructure on potentially geologically unstable land within and adjacent to the Planning Area. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce the soils and geology impacts to a less than significant level. G. Hydrology and Water Quality. The EIR identified the following potentially significant impacts relating to hydrology and water quality: 1. Increased runoff from the Planning Area; 2. Risk of flood damage from development in the 100-year flood plain; 3. Increased erosion during construction; 4. Increased water quality degradation because of urban runoff (project specific and cumulative impact); 5. Hazardous material spills during construction; 14 6. Increased runoff and flooding downstream of the Planning Area (cumulative impact); and 7. Increased channel erosion due to construction of bridge crossings (cumulative impact). As recommended in the EIR, the County adopted mitigation measures in .connection with the approval of the Dougherty Valley Plan to reduce the hydrology and water quality impacts to a less than significant level. H. Biological Resources. The EIR identified the following potentially significant impacts on biological resources: 1. Loss, degradation or fragmentation of 3,911 acres of annual grasslands (project specific and cumulative impact); 2. Elimination or degradation of Valley Oak woodland, Valley Oak riparian woodland and individual Oak trees; 3. Elimination or degradation of 2.6 acres of willow riparian forest, .4 acres of fresh water marsh, approximately 2 acres of alkali meadows, 2.1 acres of seeps, stock ponds and perennial and seasonal creeks; 4. Potential loss of San Joaquin spearscale and brittlescale habitat; 5. Pollution of Coyote Creek by fertilizers and chemicals from the golf course; 6. Loss of special-status aquatic species and special-status raptors (burrowing owl) and their habitats; 7. Potential direct and indirect adverse effects on nesting raptors; 8. Loss of tri-color blackbird nesting and foraging habitat and long term disturbance to tri-colored blackbird nesting habitat; 9. Loss of 3,911 acres of American badger breeding and foraging habitat; 10. Adverse effects to seeps, riparian habitat, annual grass lands, western pond turtle and California red legged frog from construction of Windemere Parkway extension to Camino Tassajara Road; and As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan for the above listed impacts. These mitigation measures are expected to reduce most of the above listed impacts to a less than significant level. However, the EIR predicted that Impact No. 1 (cumulative) and No. 6 would remain significant and unavoidable, for which overriding considerations were adopted. 15 ' I. Cultural Resources. The EIR identified the following potentially significant impacts relating to cultural resources. 1. Damage to or destruction of the historic Lewis-Banke house (CA-Cco- 440H); 2. Damage to or destruction of a historic- archeological site (CA-723); 3. Damage to or destruction of several important prehistoric and historic archeological sites located on Camp Parks; and 4. Damage to or destruction of potential buried archeological resources. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to mitigate the above listed*impacts to a less than significant level. J. Electromagnetic Fields. The EIR identified a potentially significant impact relating to the exposure of new residents to electromagnetic fields. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan to reduce the impacts to a less than significant level. K. Visual Quality. The EIR predicted the following ' potentially significant impacts from the Dougherty Valley Plan: 1. Change in visual character from rural/pastoral to residential/commercial; 2. Modification of a County-designated scenic route; 3. Substantial alteration of natural land forms; 4. Forty-five percent reduction in visually prominent open space; 5. Introduction of structures and other build features that may reduce visual quality; 6. Siting of infrastructure elements and other vertical elements that reduce visual quality; 7. Visual impacts of roads.and road improvements in creek corridors; 8. Introduction of recreational features and elements that reduce visual quality; 16 9. Visual impacts of removal of visually important vegetation; 10. Visual impacts of fencing, fire breaks and fire roads; 11. Visual impacts of introduction of stormwater detention facilities; 12. Light and glare impacts on residents both on site and off site; and 13. Cumulative regional loss of rural/pastoral visual character, reduced views of open space and loss of scenic views in the region. 14. Visual impacts of construction of Windemere Parkway extension from Dougherty Valley east to Camino Tassajara Road. 15. Views from adjacent existing and approved residential areas. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the Dougherty Valley Plan for the above listed impacts. Most of those impacts were predicted to be mitigated to a less than significant level by the mitigation measures adopted. However, impact Nos. 1, 2, 3, 4, 13, 14 and 15 were predicted to be significant and unavoidable, for which overriding considerations were adopted. L. Energy Conservation. The EIR identified a potentially significant impact on energy demands relating to the operation of the planned development in the Dougherty Valley. As recommended in the EIR, the County adopted mitigation measures in connection with the approval of the planned the Dougherty Valley Plan to mitigate this impact to a less than significant level. M. Miscellaneous Impacts. 1. Short-Term Uses Versus Long-Term Productivity. The EIR identified the following potentially significant impacts: 1. Conversion of approximately 6,000 acres of undeveloped open space and seasonal grazing/dry farming land to urban uses; 2. Loss, degradation or fragmentation of 3,911 acres of annual grass lands; 3. Elimination or degradation of Valley Oak Savannah, Valley Oak riparian woodland and individual Oak trees; 4. Elimination or degradation of 2.6 acres of willow riparian forest, .4 acres of fresh water marsh, 2.0 acres of alkali meadow, 2.1 acres of seeps, stock ponds and perennial and seasonal creeks; 5. Possible long term health risks associated with developing residences within an electromagnetic fields associated with existing high voltage electric transmission lines. 17 ' As recommended in the EIR, the County adopted mitigation measures to address the above listed impacts. Impact Nos. 2, 3, 4 and 5 were predicted to be reduced to a less than significant level; Impact No. 1 was found to be significant and unavoidable. 2. Significant Irreversible Environmental Changes. The EIR did not identify any potentially significant adverse impacts relating to significant irreversible environmental changes. 3. Growth-Inducing Impacts of the planned the Dougherty Valley Plan. The EIR identified the following potentially significant growth inducing impacts of the planned the Dougherty Valley Plan: 1. Impacts of increasing housing and residents in the region. 2. Impacts of extending public services and infrastructure closer to the Tassajara Valley; 3. Impacts of converting open space and agricultural lands to urban uses; 4. Impacts of increasing growth intensity in the planning areas; 5. Impacts of converting land from agricultural uses to residential, commercial and open space uses; and 6. Impacts of extending service areas boundaries. Impact No. 1 was found to involve beneficial effects rather than significant adverse impacts. As recommended by the EIR, the County adopted mitigation measures in connection with the approval of the planned the Dougherty Valley Plan to reduce the Impacts Nos. 2 - 6. However, the EIR predicted that these impacts would remain significant and unavoidable, for which overriding considerations were adopted. 4. Significant Cumulative Impacts. The significant cumulative impacts of the planned the Dougherty Valley Plan are discussed impact-by-impact under each of the categories listed in Section ILA - II. L of this Addendum. 18 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopts this Order on December 19, 1995, by the following vote: AYES: Supervisors Rogers, Smith, DeSaulnier, Torlakson NOES: Supervisor Bishop ABSTAIN: None ABSENT: None SUBJECT: In the Matter of Shapell ) RESOLUTION NO. 951-639 Industries Application for ) Rezoning and Approval of ) Preliminary Development Plan ) The Board of Supervisors of the County of Contra Costa County RESOLVES as follows: This Board adopted the Dougherty Valley General Plan Amendment and the Dougherty Valley Specific Plan on December 22, 1992, by Resolution Nos. 92/866 and 92/867. These approvals were the subject of an environmental impact report('BIR"). On December 22, 1992, by Resolution No. 92/864, which resolution is incorporated herein by reference,this Board certified the EIR and adopted CEQA Findings and Resolutions Related to Approval of the Dougherty Valley General Plan Amendment and Specific Plan, and on December 19, 1995, this Board considered the EIR and an Addendum to the EIR. Based upon its review and consideration of the EIR,the Addendum and other evidence in the record, the Board has determined that the EIR and the Addendum have been prepared in accordance with CEQA and, as more fully described in the Addendum, no subsequent or supplemental EIR would be appropriate for this Board's consideration of the Preliminary Development Plans, Rezonings and Development Agreements. we-3267 1 95/639 There is filed with the Community Development Department an application pertaining to approximately 2,000 acres within the planning area of the Dougherty Valley Specific Plan, seeking to rezone the site from Agricultural District(A-80)to Planned Unit District(P-1) and requesting the adoption of the Preliminary.Development Plan. This application,together with the Dougherty Valley General Plan Amendment and Specific Plan, were the subject of duly noticed public hearings by the County.Zoning Administrator,the County Planning Commission, the San Ramon Valley Regional Planning Commission and this Board. On December 1, 1992,the County Planning Commission adopted Resolution No. 70- 1992, recommending that this Board adopt the requested Rezoning and Preliminary Development Plans, with recommended conditions of approval. On December 15, 1992,this Board directed staff to incorporate certain minor modifications into the development to address issues raised by the County Planning Commission, staff reports of November 16, 1992,November 22, 1992, and December 1, 1992, and the San Ramon Valley Regional Planning Commission. This Board declined to take action on the Rezonings, Development Agreements and Preliminary Development Plans in 1992, pending the resolution of certain issues. Since that time, the County's efforts have focused on resolving those issues and on resolving litigation associated with the project. As this time, all issues have been resolved and all litigation associated with the project has been settled. Having considered the EIR, the Addendum, oral and written public testimony, and other evidence before the Board, and based on findings in Resolution 70-1992 by the Planning Commission,this Board is satisfied that: A. The development is a large-scale integrated development which provides a cohesive design in harmony with the surrounding area and demonstrates compliance with the Growth Management Element of the General Plan. The mitigation measures imposed as Conditions of Approval will ensure that the Project meets service performance standards established in the General Plan,the Dougherty Valley Specific Plan and County Code. B. The applicant has indicated that it intends to commence construction within two and one-half years of the effective date of the Rezoning and Preliminary Development Plan, approval. C. The project is consistent with the County General Plan as amended by the 1992 Dougherty Valley General Plan Amendment and the Dougherty Valley Specific Plan, which designate this site for residential and commercial uses, substantial open space, retail, offices and community service uses. D. The project will constitute a residential environment of sustained desirability and stability, and will be in harmony with the character of the nearby community. The project we-3267. 2 95/639 u - t density is in accord with the 1992 Dougherty Valley General Plan Amendment and Specific Plan for this area. E. The project is needed at the proposed location to provide adequate commercial facilities to support the residential development. Such facilities will not create an impact on roadway systems because of the implementation of mitigation measures as described in the Final Environmental Impact Report and the Addendum. The design of commercial facilities will be reviewed under Final Development Plan applications for said areas to ensure that traffic congestion will be obviated by presently projected improvements; and by demonstrable provisions in the Preliminary Development Plan for proper entrances and exits; and by internal provision for traffic and parking. Also, such review will ensure that the proposed commercial facilities will be an attractive and efficient center and fit harmoniously into and will have no adverse effects upon the adjacent or surrounding developments. F. Overall, the project represents a harmonious, integrated plan whose long-term buildout justifies exceptions from the normal applications of the County Code to allow for flexibility and the ability to respond to changing planning needs over time. G. The requested Rezoning and Preliminary Development Plan are consistent with those certain Agreements to Settle Litigation Relating to the Dougherty Valley General Plan Amendment, Specific Plan and Environmental Impact Report entered into by and between Contra Costa County, Windemere Ranch Partners and Shapell Industries of Northern California and(i)the City of San Ramon,the Town of Danville (dated May 11, 1994); (ii)the City of Pleasanton(dated June 20, 1995); (iii)the City of Walnut Creek(dated July 11, 1995); (iv)the East Bay Municipal Utility District(dated September 26, 1995); (v)the Alamo Improvement Association(dated October 12, 1995); (vi) several non-governmental organizations, viz., the Sierra Club, the Greenbelt Alliance, Preserve Area Ridgelands Committee, Save Our Hills, and the Mount Diablo Audubon Society (dated October 12, 1995). Being satisfied of the foregoing matters, this Board on this date has by Ordinance No. 95-62 amended the Zoning Map to rezone the project site from Agricultural District(A-80) to Planned Unit District(P-1). NOW, THEREFORE, BE IT RESOLVED that this Board hereby adopts the Preliminary Development Plan, subject to the conditions attached hereto as Exhibit A. Orig. Dept.: Director of Community Development I hereby certify that this Is a true and correct coPY of CC: County Administrator an action taken and entered on the minutes of the ty Board of Su sora on VA date shown. Director of Growth Management and ATTESTED: 5 Economic Development Agency PHIL BATCHELOR,cierk of n Board upervis and Coun inistrator County Counsel v By Deputy we-3267 3 95/639 v CONDITIONS OF APPROVAL FOR RZ922993 (SHAPELL) 1. Rezoning 922993 as authorized under the following Conditions of Approval, is subject to provisions contained within the Agreement to Settle Litigation Relating to the Dougherty Valley General Plan Amendment, Specific Plan and Environmental Impact Report ("Settlement Agreement"), executed among Contra Costa County, the City of San Ramon, the Town of Danville and landowners on May 11,1994. Exhibits B and G of the Settlement Agreement summarize the performance standards that the project is required to meet. The Conditions of Approval are not intended to interpret or be a complete recital of all obligations of the parties under the Settlement Agreement nor do they constitute any modification of that Agreement. The project as proposed, is consistent with the Settlement Agreement. 2. The Preliminary Development Plan(PDP) application is ap�roved for construction of up to 4,614 residential units and any additonal units that may be tFansfered from Country Club site to central residential receiver site as permitted under the-Dougherty Valley Specific Plan.No further discretionary development entitlement shall be accepted as complete until the conditions of approval for the PDP are satisfied. A. For each Final Development Plan,submit an economic feasibility report and analysis of all commercial and industrial uses, if any proposed to be located within the final development plan area under review. B. For each Final Development Plan,a feasibility analysis of all public and semi-public recreational and educational areas and facilities proposed to be located within the Final Development Plan area under review, stating anticipated financing, development and maintenance. C. A statement of the stages of development proposed for the entire development.which indicates the sequence of units and explaining why each unit standing by itself would constitute reasonable and orderly development in relation to the entire contemplated development. Where it is proposed to file final development plans by units for portions of the area to be covered by the preliminary development plan. This statement should address the phasing for the 25% affordable housing units, the roadway and drainage systems,the trail and park facilities, the commercial uses and the public services uses (fire, police, schools, library, etc.) D. Grading plan for the entire Shapell site. E. Grading plans for the area to be developed, along with such supplemental information as County may require in order to ensure a comprehensive and coordinated approach to grading and other infrastructure improvements for the Dougherty Valley. F. A colored cut and fill map,along with such supplemental information as County may require in order to ensure a comprehensive and coordinated approach to grading and other infrastructure improvements for the Dougherty Valley. 2 G. A creek alteration or restoration plan. H. A report on the interim and ultimate service standards for fire, sheriff and emergency services applicable to the entire Dougherty Valley as required by the Specific Plan. I. Phasing plan of public improvements as required by the Specific Plan. J. Circulation plan for all vehicular and pedestrian access. K. A land use density calculation map which superimposes the Preliminary Development Plan on a land use map,which separates land uses according to Figure 5 in the Specific Plan. Density calculation tables shall be provided for each land use district found in the Specific Plan. This map will be used to determine whether or not the density for each land use category found in Figure 5 of the Specific Plan has been met. L. Within the Final Development Plan area under review, submit schematic drawings indicating the architectural design of non-residential buildings and structures and all residential buildings having attached units, utilizing zero lot line, cluster or patio techniques of typical designs. 3. Prior to deeming any further discretionary development entitlement complete for processing within the mixed use/commercial area, the following items shall be provided: A. Elevations of proposed structures for commercial and mixed use areas within the Final Development Plan area under review. B. Elevations of typical proposed structures for commercial and mixed use areas within the Final Development area under review. 4. Comply with the design guidelines as detailed in the "Dougherty Valley Community Design Handbook". 5. Developer shall make an offer of dedication to the County of any lands, under their control, necessary or appropriate for installation of a certain Master Improvements, at the time such improvement is deemed necessary by the County for implementation and pursuant to the standards of the Dougherty Valley Specific Plan. The Master Improvements are defined as follows: (1) All rights-of-way for all major arterial and arterial as indicated on Figure 8 of the Dougherty Valley Specific Plan. (2) Systems for sewer, potable water, and reclaimed water. 3 (3) Stormwater related hydrologic infrastructure (e.g. storm drain retention and detention basins). (4) Creek Improvements. (5) Community Park. (6) Trails/Open Space 6. Submit for review and approval of the County Planning Commission an infrastructure and services financing plan prior to or concurrently with the approval of each final development plan or tentative subdivision map for the area covered by the PDP. This plan shall be made up of. 1) a detailed plan for the area covered by the final development plan or tentative map; and 2) a conceptual plan for the entire Dougherty Valley. The conceptual plan must address the provision of infrastructure and services to the area covered by the final development plan or tentative map in a manner that will ensure: 1) consistency with the Dougherty Valley Specific Plan; 2) coordination of infrastructure for the tentative map/final development plan area with infrastructure for the remainder of the Dougherty Valley; and 3) preservation of reasonable options for providing infrastructure construction and operation and maintenance for the remainder of the Dougherty Valley.The County Planning Commission's decisions regarding infrastructure and services financing plans may be appealed to the Board of Supervisors. 7. No final subdivision map shall be approved for any portion of the area covered by the PDP without verification of adequate water supply for the area covered by such final subdivision map. 8. No final subdivision map shall be approved for any portion of the area covered by the PDP without verification of adequate wastewater treatment capacity for the area covered by such final subdivision map. DC/aa RZIX//2993.dc 10/26/92 11/16/92 -CPC/SR(d) 12/18/92 3/9/94 5/19/94 11/13/95 11/21/95 �a ti THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopts this Order on December 19, 1995, by the following vote: AYES: Supervisors Rogers, Smith, DeSaulnier, Torlakson NOES: Supervisor Bishop ABSTAIN: None ABSENT: None SUBJECT: In the Matter of Windemere ) RESOLUTION NO. 95/:640 Ranch Partners' Application for ) Rezoning and Approval of ) Preliminary Development Plan ) The Board of Supervisors of the County of Contra Costa County RESOLVES as follows: This Board adopted the Dougherty Valley General Plan Amendment and the Dougherty Valley Specific Plan on December 22, 1992, by Resolution Nos. 92/866 and 92/867. These approvals were the subject of an environmental impact report("EIR"). On December 22, 1992,by Resolution No. 92/864,which resolution is incorporated herein by reference, this Board certified the EIR and adopted CEQA Findings and Resolutions Related to Approval of the Dougherty Valley General Plan Amendment and Specific Plan, and on December 19, 1995,this Board considered the EIR and an Addendum to the EIR. Based upon its review and consideration of the EIR,the Addendum and other evidence in the record,the Board has determined that the EIR and the Addendum have been prepared in accordance with CEQA and, as more fully described in the Addendum, no subsequent or supplemental EIR would be appropriate for this Board's consideration of the Preliminary Development Plans, Rezonings and Development Agreements. we-3268 1 95/640 There is filed with the Community Development Department an application pertaining to approximately 2,000 acres within the planning area of the Dougherty Valley Specific Plan,seeking to rezone the site from Agricultural District(A-80)to Planned Unit District(P-1) and requesting the adoption of the Preliminary Development Plan. This application, together with the Dougherty Valley General Plan Amendment and Specific Plan, were the subject of duly noticed public hearings by the County Zoning Administrator,the County Planning Commission,the San Ramon Valley Regional Planning Commission and this Board. On December 1, 1992,the County Planning Commission adopted Resolution No. 71- 1992,recommending that this Board adopt the requested Rezoning and Preliminary Development Plans, with recommended conditions of approval. On December 15, 1992,this Board directed staff to incorporate certain minor modifications into the development to address issues raised by the County Planning Commission, staff reports of November 16, 1992,November 22, 1992, and December 1, 1992, and the San Ramon Valley Regional Planning Commission. This Board declined to take action on the Rezonings, Development Agreements and Preliminary Development Plans in 1992,pending the resolution of certain issues. Since that time,the County's efforts have focused on resolving those issues and on resolving litigation associated with the project. At this time, all issues have been resolved, and all litigation - associated with the project has been settled. Having considered the EIR, the Addendum, oral and written public testimony, and other evidence before the Board, and based on findings in Resolution 71-1992 by the Planning Commission, this Board is satisfied that: A. The development is a large-scale integrated development which provides a cohesive design in harmony with the surrounding area and demonstrates compliance with the Growth Management Element of the General Plan. The mitigation measures imposed as Conditions of Approval will ensure that the Project meets service performance standards established in the General Plan,the Dougherty Valley Specific Plan and County Code. B. The applicant has indicated that it intends to commence construction within two and one-half years of the effective date of the Rezoning and Preliminary Development Plan approval. C. The project is consistent with the County General Plan as amended by the 1992 Dougherty Valley General Plan Amendment and the Dougherty Valley Specific Plan,which designate this site for residential and commercial uses, substantial open space,retail, offices and community service uses. D. The project will constitute a residential environment of sustained desirability and stability, and will be in harmony with the character of the nearby community. The project we-3268 2 95/640 i density is in accord with the 1992 Dougherty Valley General Plan Amendment and Specific Plan for this area. E. The project is needed at the proposed location to provide adequate commercial facilities to support the residential development. Such facilities will not create an impact on roadway systems because of the implementation of mitigation measures as described in the Final Environmental Impact Report and the Addendum. The design of commercial facilities will be reviewed under Final Development Plan applications for said areas to ensure that traffic congestion will be obviated by presently projected improvements; and by demonstrable provisions in the Preliminary Development Plan for proper entrances and exits; and by internal provision for traffic and parking. Also, such review will ensure that the proposed commercial facilities will be an attractive and efficient center and fit harmoniously into and will have no adverse effects upon the adjacent or surrounding developments. F. Overall, the project represents a harmonious, integrated plan whose long-term buildout justifies exceptions from the normal applications of the County Code to allow for flexibility and the ability to respond to changing planning needs over time. G. The requested Rezoning and Preliminary Development Plan are consistent with those certain Agreements to Settle Litigation Relating to the Dougherty Valley General Plan Amendment, Specific Plan and Environmental Impact Report entered into by and between Contra Costa County, Windemere Ranch Partners and Shapell Industries of Northern California and(i) the City of Sari Ramon,the Town of Danville (dated May 11, 1994); (ii)the City of Pleasanton(dated June 20, 1995); (iii)the City of Walnut Creek(dated July 11, 1995); (iv)the East Bay Municipal Utility District(dated September 26, 1995); (v)the Alamo Improvement Association(dated October 12, 1995); (vi) several non-governmental organizations, viz., the Sierra Club, the Greenbelt Alliance, Preserve Area Ridgelands Committee, Save Our Hills, and the Mount Diablo Audubon Society(dated October.12, 1995). Being satisfied of the foregoing matters;this Board on this date has by Ordinance No. 95-56 amended the Zoning Map to rezone the project site from Agricultural District(A-80) to Planned Unit District(P-1). NOW,THEREFORE,BE IT RESOLVED that this Board hereby adopts the Preliminary Development Plan, subject to the conditions attached hereto as Exhibit A. Orig. Dept.: Director of Community Development cc: County Administrator r hereby certify that this Is a bus and correct COPY of Director of Growth Management and an action to an and entered on the minutes of the Economic Development Agency Board of sore on to date shown, AT?ESTED: JA County Counsel PHIL BATCHELOR,Cierk of the Board QSupervls6Aand Coun A trator By DeDuty we-3268 3 95/640 CONDITIONS OF APPROVAL FOR RZ922992 (Windemere.) 1. Rezoning 922992 as authorized under the following Conditions of Approval, is subject to provisions contained within the Agreement to Settle Litigation Relating to the Dougherty Valley General Plan Amendment, Specific Plan and Environmental Impact Report ("Settlement Agreement"), executed among Contra Costa County, the City of San Ramon, the Town of Danville and landowners on May 11,1994. Exhibits B and G of the Settlement Agreement summarize the performance standards that the project is required to meet. The Conditions of Approval are not intended to interpret or be a complete recital of all obligations of the parties under the Settlement Agreement nor do they constitute any modification of that Agreement. The project as proposed, is consistent with the Settlement Agreement. 2. The Preliminary Development Plan(PDP) application is approved for construction of up to 5,170 residential units and related facilities as detailed in the Dougherty Valley Specific Plan. Except as otherwise indicated below, no further discretionary development entitlements shall be accepted as complete until the conditions of approval for the PDP are satisfied. A. For each Final Development Plan,submit an economic feasibility report and analysis of all commercial and industrial uses, if any proposed to be located within the Final Development Plan area under review B. For each Final Development Plan,a feasibility analysis of all public and semi-public recreational and educational areas and facilities proposed to be located within the Final Development Plan area under review, stating anticipated financing, develop- ment and maintenance. C. A statement of the stages of development proposed for the entire development,which indicates the sequence of units and explaining why each unit standing by itself would constitute reasonable and orderly development in relation to the entire contemplated development. Where it is proposed to file final development plans by units for portions of the area to be covered by the preliminary development plan. This statement should address the phasing for the 25% affordable housing units, the roadway and drainage systems,the trail and park facilities,the commercial uses and the public services uses (fire, police, schools, library, etc.) D. Grading plan for the entire Windemere site. E. Grading plans for the area to be developed, along with such supplemental informa- tion as County may require in order to ensure a comprehensive and coordinated approach to grading and other infrastructure improvements for the Dougherty Valley. F. A colored cut and fill map,along with such supplemental information as County may require in order to ensure a comprehensive and coordinated approach to grading and other infrastructure improvements for the Dougherty Valley. 2 G. A creek alteration or restoration plan. H. A report on the interim and ultimate service standards for fire, sheriff and emergency services applicable to the entire Dougherty Valley as required by the Specific Plan. I. Phasing plan of public improvements as required by the Specific Plan. J. Circulation plan for all vehicular and pedestrian access. K. A land use density calculation map which superimposes the Preliminary Develop- ment Plan on a land use map,which separates land uses according to Figure 5 in the Specific Plan. Density calculation tables shall be provided for each land use district found in the Specific Plan. This map will be used to determine whether or not the density for each land use category found in Figure 5 of the Specific Plan has been met. L. Within the Final Development Plan area under review, submit schematic drawings indicating the architectural design of non-residential buildings and structures and all residential buildings having attached units, utilizing zero lot line, cluster or patio techniques of typical designs. 3. Prior to deeming any further discretionary development entitlement complete for processing within the mixed use/commercial area, the following items shall be provided: A. Elevations of proposed structures for commercial and mixed use areas within the Final Development Plan area under review. B. Elevations of typical proposed structures for commercial and mixed use areas within the Final Development area under review. 4. Comply with the design guidelines as detailed in the "Dougherty Valley Community Design Handbook". 5. Developer shall make an offer of dedication to the County of any lands, under their control, necessary or appropriate for installation of a certain Master Improvements, at the time such improvement is deemed necessary by the County for implementation and pursuant to the standards of the Dougherty Valley Specific Plan. The Master Improvements are defined as follows: (1) All rights-of-way for all major arterial and arterial as indicated on Figure 8 of the Dougherty Valley Specific Plan. (2) Systems for sewer,potable water, and reclaimed water. 3 (3) Stormwater related hydrologic infrastructure (e.g. storm drain retention and detention basins). (4) Creek Improvements. (5) Community Park. (6) Trails/Open Space 6. Submit for review and approval of the County Planning Commission an infrastructure and services financing plan prior to or concurrently with the approval of each final development plan or tentative subdivision map for the area covered by the PDP. This plan shall be made up o£ 1) a detailed plan for the area covered by the final development plan or tentative map; and 2) a conceptual plan for the entire Dougherty Valley. The conceptual plan must address the provision of infrastructure and services to the area covered by the final development plan or tentative map in a manner that will ensure: 1) consistency with the Dougherty Valley Specific Plan; 2) coordination of infrastructure for the tentative map/final development plan area with infrastructure for the remainder of the Dougherty Valley; and 3) preservation of reasonable options for providing infrastructure construction and operation and maintenance for the remainder of the Dougherty Valley.The County Planning Commission's decisions regarding infrastructure and services financing plans and may be appealed to the Board of Supervisors. 7. No final subdivision map shall be approved for any portion of the area covered by the PDP without verification of adequate water supply for the area covered by such final subdivision map. 8. No final subdivision map shall be approved for any portion of the area covered by the PDP without verification of adequate wastewater treatment capacity for the area covered by such final subdivision map. DC/aa RZXIX/2992C.DC 10/26/92 11/4/92-CPC/SR(a) 11/16/92-CPC/SR(d) 11/18/92 3/9/94 5/19/94 11/13/95 11/21/95 � R�7 A RESOLUTION 70-1992 RESOLUTION OF THE COUNTY PLANNING COMMISSION OF THE COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, REGARDING PROCESSING OF PRELIMINARY DEVELOP- MENT PLAN AND REZONING APPLICATION 2993-RZ (SHAPELL INDUSTRIES - APPLICANT AND OWNER) FOR A 5,830 UNIT RESIDENTIAL DEVELOPMENT PROPOSAL, INCLUDING RETAIL, OFFICE AND COMMUNITY SERVICE USES IN THE SAN RAMON AREA. WHEREAS, on July 24, 1992 an application was filed with the Community Development Department pertaining to approximately 2,700 acres within the Draft Dougherty Valley Specific Plan Area seeking to rezone the site from Agricultural District (A-80) to Planned Unit District (P-1) and Preliminary Development Plan; and WHEREAS, pursuant to County Ordinance Code Section 84-66.1006 the Director of Community Development, in a letter dated October 21 , 1992 to the applicant, waived certain requirements of County Ordinance Code Section 84-66.1006(4) and accepted the application as complete for processing; and WHEREAS, staff determined that the proposed rezoning and Preliminary Development Plan is consistent with the project description in the Dougherty Valley Specific Plan Final Environ- mental Impact Report, and adequately addressed impacts of the proposed rezoning and preliminary development plan; and WHEREAS; on November 6, 1992 the County Zoning Administrator recommended certification of the Final Environmental Impact Report, and the County Planning Commission reviewed and considered the Final Environmental Impact Report prior to their recommendation; and WHEREAS, after notice was lawfully given, on November 4, 1992 the County Planning Commission and the San Ramon Valley Regional Planning Commission, in a joint hearing, conducted a public hearing of County File 2993-RZ, whereat all persons interested might appear and be heard; and WHEREAS, the County Planning Commission and the San Ramon Valley Regional Planning Commission continued the matter to November 12, 1992 for a study session to consider traffic issues related to the rezoning and preliminary development plan, and subsequently continued the public hearing to November 17, 1992; and WHEREAS,the County Planning Commission on November 17, 1992 closed the public hearing and continued the matter to November 24, 1992 and subsequently to December 1 , 1992; and WHEREAS, the County Planing Commission having fully reviewed, considered and evaluated all the testimony and evidence submitted in this matter; and 2. NOW, THEREFORE, BE IT RESOLVED that the County Planning Commission recommends to the Board of Supervisors: ADOPT the requested rezoning of the site from A-80 to P-1 and preliminary development plan approval with modifications and additions from the recommended Conditions of Approval from the December 1 , 1992 staff report: 1 a. Submit for review and approval of County Planning Commission a Capital Improvement Program detailing the phasing and financing of the infrastructure improvements for Dougherty Valley. This CIP shall be done jointly with 2992- RZ 1 n. Within the Final Development Plan area under review, submit written demons- tration of the project's consistency with the County Growth Management Element of the General Plan. 10. Within the Final Development Plan area under review, submit written demon- stration of compliance with General Plan Policies 7-12 and 7-13. BE IT FURTHER RESOLVED that the County Planing Commission's reasons are as follows: The development is a large-scale integrated development which provides a cohesive design in harmony with the surrounding area and demonstrates compliance with the Growth Management Element of the General Plan. The applicant has indicated that it intends to commence construction within two and one-half years of the effective date of the rezoning and preliminary development plan approval. The project is consistent with the County General Plan as would be amended by the 1992 Draft Dougherty Valley General Plan Amendment and the Dougherty Valley Specific Plan which plan designate this site for residential and commercial uses, substantial open space, retail, offices and community service uses. The project will constitute a residential environment of sustained desirability, and will be in harmony with the character of the nearby community. The project density is in accord with the 1992 Draft Dougherty Valley General Plan Amendment for this area. The project will provide approximately 1 ,300 acres of open space and parks, approximately 26 acres of non-residential uses, and approximately 40 acres of public/semi-public uses. The project provides adequate commercial facilities to support the residential development. Such facilities will not create an impact on roadway systems because of the implementation of mitigation measures as detailed in the Final Environmental Impact Report. The design of commercial facilities will be reviewed under Final 3. Development Plan applications for said areas to ensure that traffic congestion will be obviated by the an facilities and that proposed facilities fit harmoniously into and will have no adverse effects upon the adjacent or surrounding developments. - The long-term.buildout of the project justifies exceptions from the normal applications of this code .to allow for flexibility and the ability to respond to changing planning needs over time. The.instruction by the County Planning Commission to prepare this resolution was given by motion of the Commission on Tuesday, December 1 ,.1992, by the following vote: AYES: Commissioners Clark, Accornero, Gaddis, Terrell. NOES: Commissioners - Frakes, Sakai. ABSENT: Commissioners - None. . ABSTAIN: Commissioners -Wallace D. Woo. ATTEST: y Harvey E. Bragdon, Secretary to the Planning Commission, Contra Costa County, State of California LTRI/2993-RZ.Res Resolution No. 71-1992 RESOLUTION OF THE PLANNING COMMISSION OF THE COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, REGARDING PROCESSING OF PRELIMINARY DEVELOPMENT PLAN AND REZONING APPLICATION 2992-RZ (WINDEMERE RANCH PARTNERS (APPLICANT & OWNER) , FOR A 5, 170 RESIDENTIAL UNIT DEVELOP- MENT, INCLUDING RETAIL, OFFICE AND COMMUNITY SERVICE USES PROPOSAL IN THE SAN RAMON AREA OF SAID COUNTY. WHEREAS, on July 29, 1992, an application was filed with the Community Development Department pertaining to .approximately 2,400 acres within the Draft Dougherty Valley Specific Plan Area seeking to rezone the site from Agricultural District (A-80) to Planned Unit District (P-1) and Preliminary Development Plan; and WHEREAS, pursuant to County Ordinance Code Section 84-66. 1006, the Director of Planning, in a letter dated October 24, 1992 to the applicant, waived certain requirements of County Ordinance Code Section 84-66. 1006 (4) and accepted the application as complete for processing; and . WHEREAS, staff determined that the proposed rezoning and Preliminary Development Plan is consistent with the project description in the Dougherty Valley Specific Plan Final Environmental Impact Report, and adequately addressed impacts of the proposed rezoning and preliminary development plan; and WHEREAS, on November 6, 1992, the County Zoning Administrator recommended certification of the Final Environmental Impact Report, and the County Planning Commission reviewed and considered the Final Environmental Impact Report prior to their recommendation; and WHEREAS, after notice was lawfully given, on November 4, 1992, the County Planning Commission and the San Ramon Valley Regional Planning Commission, in a joint hearing, conducted.a public hearing of County File #2992-RZ, whereat all persons interested might appear and be heard; and WHEREAS, the County Planning Commission and the San Ramon Valley Regional Planning Commission CONTINUED the matter to November 12, 1992, for a Study Session to consider traffic issues related to the rezoning and preliminary development plan and sub- sequently CONTINUED the public hearing to November 17, 1992; and WHEREAS, the County Planning Commission on November 17, 1992 CLOSED the public hearing and CONTINUED the matter to November 24, 1992 and subsequently_ to December 1, 1992; and WHEREAS, the County Planning Commission having fully reviewed, considered and evaluated all the testimony and evidence submitted in this matter; and NOW, THEREFORE, BE IT RESOLVED that the County Planning Commission -2- recommends to the Board of Supervisors: ADOPT the requested rezoning of the site from A-80 to P-1 and preliminary development plan approval with modifications and additions from the recommended Conditions of Approval from the December 1, 1992 Staff Report. la. Submit for review and approval to the County Planning Commission a Capital Improvement Program detailing the phasing and financing of the infrastructure improvements for Dougherty Valley. This CIP shall be done jointly with 2993-RZ. In. Within the Final Development Plan area under review, sub- mit written demonstration of the project's consistency with the County Growth Management Element of the General Plan. lo. Within the Final Development Plan area under review, submit written demonstration of compliance with General Plan Policies 7-12 and 7-13. BE IT FURTHER RESOLVED that the County Planning Commission's reasons are as follows: The development is a large-scale integrated development which provides a cohesive design in harmony with the surrounding area and demonstrates compliance with the Growth Management Element of the General Plan. The applicant has indicated that he intends to commence construction within two and one-half years of the effective date of the rezoning and preliminary development plan approval. The project is consistent with the County General Plan as would be amended by the 1992 Draft Dougherty Valley General Plan Amendment and the Dougherty Valley Specific Plan which plans designate this site for residential and commercial uses, substantial open space, retail, office and community service uses. The project will constitute a residential environment of sustained desirability and will be in harmony with the character of the nearby community. The project density is in accord with the 1992 Draft Dougherty Valley General Plan Amend- ment for this area. The project will provide approximately 1, 100 acres of open space and parks, approximately 22 acres of non-residential uses and approximately 100 acres of public/semi-public uses. -3- _ The project provides adequate commercial facilities to support the residential development. Such facilities will not create an impact on roadway systems because of the implementation of mitigation measures as detailed in the Final Environmental Impact Report. The design .of commercial. facilities will be reviewed under Final Development Plan applications for said areas to ensure that traffic congestion will be obviated by the proposed facilities and that proposed facilities fit harmoniously into and will have no adverse effects upon the adjacent or surrounding developments. The long=term buildout of the project justifies exceptions from the normal applications of this code to allow for flexibility and the ability to respond to changing. planning . needs overtime. The instruction by the County ,Planning Commission to prepare this resolution was given by, motion of the Commission on Tuesday, December- 1 , 1992, by the following. vote: AYES: Commissioners - Clark, Accornero, Gaddis, Terrell. NOES: . Commissioners - Frakes, Sakai. ABSENT: Commissioners None. ABSTAIN: Commissioners - Wallace D. Woo. Marvin J. Terrell Chairman of the Planning Commission, ., Contra Costa County, State of California. ATTEST: Aary y E. Bragdon, Secretary of the Planning Commission, Contra Costa 'County, - State of California. Findings _Map A-80 41 t t t .Rff _ _ .,...................................... . . Rezone From Ab To rVV -21 L �A� Area 1, 1 ' ► 1 T. sQ 1.�- Chair of the Contra Costa County Planning Commission, State of California, do hereby certify that this is a true and correct copy of a�.,ircy -lei , �t-710- -7-6 0-?.A . .•. "���►-,� -•1 G n '-1-4 cc'�c_til-r ,_s indicating thereon the decision of the Contra Cosh County Planning Commission in the matter of lQ A 9-my 1 aG L _ Z z Chair of the Contra Costa County Planning Commission,State of California - ATTES ry of(Ah ontra Costa County Pi — PI Comm' ion, State of Calif. ' 3A6r_ C fr <' Findings. _Map Ae0 + A80 + 0 _ A8 _ ............................................... r Rezone From To .,� �NLO t`1 —Area Chair of the Contra Costa County Planning Commission, State of California, do hereby certify that this is a true and correct copy of , ffi -%- -let ,q 7 n iJl) lei w+ , indicating thereon the decision of the Contra Costo County planning Commission in the matter of "12 A 9-Rjt. 'iTY V M-Asj - 'I Chair of the Contra Costa County Planning Commission,State of California ;ATTES ry of a ontra Costa County anning Comm ion, State of Coiif. 4 Findings Map + 4 r + , t d a G + 4 S F 9 O A-8 0 ....................._ Rezone FromTo 1 �M1�Ot.1 Area Chair of the Contra Costa County Planning Commission, State of California, do hereby certify that this is a true and correct copy of qC., S -lei 1912 .. ._ AA" indicating thereon the decision of the Contra Costa County P anning Commission in the matter of \V A 9_2AIL_'F,�,,, &4AI l aG- _ Zz Chair of the Contra Costa County Planning Commission,State of California ATTES ecr ry of t ntra Costa County Planning Commiss n, State of Calif. x' 1 d Findings Map a-s 0 A-8 0 t � a nA tS t; Area Rezone l=rom�' To — - Chair of the Contra Costa County Planning Commission, 5tate of California, do hereby certify that this is a true and correct copy of `?A aV-I 0 -tti ,Cirn- indicating thereon the decision of the Contra Costa County Planning Commission in the matter of �''V?AQ.t3.11L 'J - r Chair of the Contra Costa County Planning Commission,State of California ATTE ry of a ontra Costa County Planning Commi ion, State of Calif. ' f�G� 4 of 1 Findings Map TA $0 0 w s :a J O 0 t - - Rezone FromTo, -1 �p►r 1 {�A �,1 Area Chair of the Contra Costa County Planning Commission, State of Ca�lifornia, do hereby certify that this is a true and correct copy of �PA��S -lei - it --ZA tcrrz. �&hgjitt t AA indicating thereon the decision of the Contra Costa County Planning Commission in the matter of lIQAP-OvL ':V-r3aV-MAGI i7 aL s .. Chair of the Contra Costa County Planning Commission,State of California ATTES Sec a ry of 4he ontra Costa County In-c—nning Commi ion, State of Calif, Findings Map A- 0 t 0 Z !Q ti.v1 f� Rezone From.A: To1Area Chair of the Contra Costa CountY Planning Commission, State of California, do hereby certify that this is a true and correct copy of `p � �� -l� �t -7-2 ; N bL1 2. �CL Na nip '11'TZ- r6�e indicating thereon the decision of the Contra Costa County Planning Commission in the matter of �' AQtivL VMZV_AtA,t % 1:7, �- Chair of the Contra Costa CountY Planning Commission,State of California ATTEST- r a of th o tro to County Planning Commissio , State of Calif. Findings Map A-80 a } O - C O S m s a o - __ A•80 A-80 x 1' A•80 Rezone From :„0.6-ToeV71 -Area -f= I L Chair.of the Contra Costa County Planning Commission, State of California, do hereby certify that this is a true and correct copy of TAr-'V-S V -1tiT�( ' ru *1Ca M OT-- --r m--m- indicating thereon the decision of the Contra Costa County Planning Commission in the matter of �'' P►QR�t=MAIJ r.► ryr.� � �Z Chair of the Contra Costa County Planning Commission,State of California ATTE r tary o he ontra Costa County Plonning C m sion, State of Calif. �AG�- 7 aF SX t Findings Map • a: • a' A8 H as + a z' a A <> A.2 Area Rezone From.�-V_To t,.1 Trop L Chair of the Contra Costa County Planning Comm'sssion, S#atIIIIIe of California, do hereby certify that this is a true and correct copy of p [� �, lA} �Gv►1 7– .tom AA nv- — 1 ��- indicating thereon'the decision of the Contra Casta County P anning Commission in the matter of � 7AQO.vC. r"'c AAAjLi Chair of the Contra Costa County Planning Commission,State of California ATTEST- of the Co tra Costa County~� Planning Commissio , State of Calif. Findings Map `'�voN ao �o� ♦ C / I Rezone From A_S6U To=1 Ci� Nt Area I• MCL)it TI,g-e—L.t._ Chair of the Contra Costa County Pla ni di-ng Commission, State of California, do hereby certify that this is a true and correct copy of ��cS W- 17 r L4j_14 C6 V N-�'+�,'c 14-7-k 7_n jLj N G A&A:p indicating ereon the decision of the Contra Costa County Planning Commission in the matter of INnUr'.T-M S A-4 3 - 2:7, Chair of the Contra Costa County Planning Comm ission,State of California ATT S etary of Ith ontra Costa County Planning Commi ion, State of Calif. Findings Map i 1 MM _ (7 A-80 Rezone From A_SOTo Area 1, Q.Ulrk Chair of the Contra Costa County Pla ning Commission, State of California, do hereby certify that this is a true and correct copy of Qr.cS W. 17� f��-11K U -]a . l 1 -I& -,_�1=W X -t U 1- I G,M . ul -14 m. C6 LAQ-r+j'c 147 SA 7_n►%t K3 G M indicating thereon the decision of the Contra Costa County Planning Commission in the matter of 'S LWj9MLL_ (tinu�-rYH � 24A Chair of the Contra Costa County Planning Comm ission,State of California ATTE T- ry of he ntra Costa County PI nning Co i ion, State of Calif. ?A&Ic -2-0F (O Findings Map ny P4 Y C� 0 4 Rezone From A- To -1 C�( fVl Area I• Q,UTA` -TQQ��.t_. Chair of the Contra Costa County Pla ning Commission, State of California, do hereby certify that this is a true and correct copy`of '4-,6kC.ES W-J7 lAj It , U-11 11 -15L �l -IGS YC -14� r ul 1- 1 L M I u,l -lci IA4 A _-r�1� Go 1AK3:114'c 147k indicating thereon the decision of the Contra Costa County Planning Commission in the matter of �6-IAp��u. lN►-�utTfYiES Chair of the Contra Costa County Planning Comm ission,State of California ATTE T ry ofvthA Contra Costa County Planning Commission, State of Calif. ?A ls'E 3 o F !p Findings Map • e ♦ • a A-80 • • Rezone Fromk--W—To Area I. Q,U1 t=g(2R-r--L4 . Chair of the Contra Costa County Pia ping Commission, State of California, do hereby certify that this is a true and correct copy of `4A6,E W- 17 L4j_ I o , U -33 11 -i St , I-) — ICA x -I k 1, U l- 14,rrs , u -►4 •. Go LA K3-ti 'c 1474s 7_n►��r.) G p indicating Wiereon the decision of the Contra Costa County Planning Commission in the matter of 244 3 - '2:7-- Chair of the Contra CostaCounty Planning Comm ission,State of California ATTE retary of/thf Contra Costa County Planning Commission, State of Calif. ?A&E 4 of Findings Map Ai ti Rezone From A. To 2AM W _ Area I, nJ1gQ.U��� (j�-E�,t., Chair of the Contra Costa County PIa ning Commission, State of California, do hereby certify that this is a true and correct copy of Ar,,e W- 1'Wl�g L1_.l��U 'I$ 11=IQ4 Y--1 T U)- 11IM - JAI -IAu,. OF-niE. indicating thereon the decision of the Contra Costa County Planning Commission in the matter of P��.� I NI2US-rA;E< 24 +3 - 'ZZ Chair of the Contra Costa County Planning Commission,State of California ATTE T S r tary t Contra Costa County arming Com ission, State of Calif. ?A&is 5 0 F lv Findings Map A-80 A•80 Rezone From A-S6U To -1 Ci� Ntl Area I� =1 7R-r--w- Chair of the Contra Costa County Pla ni�i' ng Commission, State of California, do hereby certify that this is a true and correct copy of -QhC.cS W- 17 W-ig , U-t'1 �l IG,rw, 11,1 tele.. C6 Lln!-rLi 1475k 7_n -indicating Wiereon the decision of the Contra Costa County Planning Commission in the matter of 2A4 3 - V_Z Chair of the Contra Costa County ATT T Planning Comm ission,State of California Se6rdary of Veontra Costa County Planning Cc lion, State of Calif. 1?A&EE (p o F !o t" u RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: McCutchen Doyle, Brown & Enersen 1331 North California Boulevard Post Office Box V r" Walnut Creek, CA 94596 (Space Above This Line Reserved For Recorder's Use) DEVELOPMENT AGREEMENT BETWEEN COUNTY OF CONTRA COSTA AND SHAPELL INDUSTRIES,INC. RELATING TO THE DEVELOPMENT COMMONLY KNOWN AS THE GALE RANCH r a .Y L TABLE OF CONTENTS PAGE Recitals ................................................................................................................................1 Section 1. Effective Date and Term...................................................................................................5 1.1 Effective Date. .................................................................................................................5 1.2 Term..................................................................................................................................5 Section2. Definitions......................................................................................... ..............................5 Section 3. Obligations of Developer and County. ............................................................................7 3.1 Obligations of Developer Gernally..................................................................................7 3.2 Obligations of County Generally.....................................................................................7 3.3 Specific Obligations.........................................................................................................7 (a) Compliance with Settlement Agreements. .............................................................7 (b) Preliminary Development Plan...............................................................................7 (c) Affordable Housing. ...............................................................................................7 (d) Designation of Preferred Water Provider. ..............................................................8 (e) Design Program for Dougherty Valley Village Center. ............................:............8 (f) Coordination of On-Site Improvements. ................................................................8 (g) Danville/San Ramon/County Traffic Mitigation....................................................8 (h) Pleasanton Traffic Mitigation...............................................................................1 l (i) Dublin Traffic Mitigation. ....................................................................................12 0) Walnut Creek Traffic Mitigation..........................................................................12 (k) Dougherty Road Improvements............................................................................13 (1) Mitigation Monitoring..........................................................................................13 (m) Establishment of County Service Area.................................................................13 Section 4. Standards, Laws and Procedures Governing Gale Ranch..............................................14 4.1 Permitted Uses Etc.; Applicable Law. 14 (a) Permitted Uses, Etc., of the Gale Ranch Site. ......................................................14 (b) Applicable Law.....................................................................................................14 (c) No Conflicting Enactments...................................................................................15 (d) Exceptions.............................................................................................................16 (e) Moratoria and Restrictions and Limitations on the Rate or Timing of Development.........................................................................................................17 (f) Further CEQA Review..........................................................................................17 (g) Further Assurances................................................................................................17 (h) Life of Subdivision Maps, Development Plans, and Permits...............................17 4.2 State and Federal Law....................................................................................................18 4.3 Timing of Construction and Completion.......................................................................18 4.4 Developer Review of On-Site Infrastructure Improvements.........................................18 i TABLE OF CONTENTS (continued) PAGE Section 5. Amendment................................................ ...................18 ................................................. 5.1 Amendment of Planning Actions and Subsequent Approvals.......................................18 (a) Administrative Amendments................................................................................19 (b) Non-Administrative Amendments........................................................................19 5.2 Amendment of This Agreement.....................................................................................19 (a) Insubstantial Amendments....................................................................................19 (b) Amendments of Planning Actions, Subsequent Approvals or the Affordable Housing Program................................................................................20 (c) Parties Required to Amend...................................................................................20 (d) Non-Assuming Transferees. .................................................................................20 Section 6. Cooperation-Implementation.........................................................................................20 6.1 Processing. ................................................................................ .................::.20 6.2 Eminent Domain Powers. ..............................................................................................22 6.3 Other Governmental Permits. ........................................................................................22 Section 7. Cooperation in the Event of Legal Challenge.................. 7.1 Cooperation............................................................................... ......22 7.2 Cure; Reapproval. ..........................................................................................................22 Section 8. Dispute Resolution..................I.......................................................................................23 Section 9. Default; Termination; Annual Review...........................................................................24 9.1 General Provisions. ............................................................................. . .......................24 (a) Defaults.................................................................................................................24 (b) Termination...........................................................................................................24 9.2 Annual Review......................................................... ..................................................24 9.3 Default by County..........................................................................................................25 9.4 Enforced Delay; Extension of Time of Performance.....................................................25 Section 10. Defense and Indemnity. .................................................................................................25 (a) Developer's Actions..............................................................................................25 (b) County's Actions...................................................................................................26 (c) Subdivision Agreement and Defense....................................................................26 Section 11. No Agency, Joint Venture 1 or Partnership.. ................................................................26 Section 12. Miscellaneous.................................................................................................................26 12.1 Incorporation of Recitals and Introductory Paragraph.............................::....................26 12.2 Severability. ........................................ .......................................................................26 ii TABLE OF CONTENTS (continued) PAGE 12.3 Other Necessary Acts................:....................................................................................27 12.4 Construction...................................................................................................................27 12.5 Other Miscellaneous Terms...........................................................................................27 12.6 Covenants Running with the Land.................................................................................27 12.7 Dougherty Valley Development Strategy..........................:...........................................27 12.8 Mortgage Rights.............................................................................................................27 12.9 Approval by Mortgagees................................................................................................28 12.10 Notice of Proposed Amendment to Mortgagee..............................................................28 12.11 Remedies........................................................................................................................28 12.12 California Law. ....................:..........:..............................................................................29 12.13 Other Public Agencies. ..................................................................................................29 . 12.14 Attorneys' Fees.........................................................................................................:.....29 12.15 Annexation to San Ramon. ............................................................................................29 Section13. Notices............................................................................................................................29 Section 14. Assignment, Transfer and Notice...................................................................................31 14.1 Assignment of Interests, Rights and Obligations...........................................................31 14.2 Transfer Agreements..................................................:...................................................31 14.3 Non-Assuming Transferees............................................................................................32 Section 15. Notice of Compliance. ...................................................................................................32 . 15.1 Generally........................................................................................................................32 Section 16. Entire Agreement, Counterparts and Exhibits. ..............................................................32 Section 17. Recordation of Development Agreement. .....................................................................33 iii DEVELOPMENT AGREEMENT BETWEEN COUNTY OF CONTRA COSTA AND SHAPELL INDUSTRIES, INC. RELATING TO THE DEVELOPMENT COMMONLY KNOWN AS THE GALE RANCH r;iTHIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of this g01day of January 1996, by and between SHAPELL INDUSTRIES, INC., a Delaware corporation ("Developer" or "Shapell"), and the COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("County"), pursuant to Government Code section 65864 et seq. Developer and County are from time to time hereinafter referred to individually as a 'Party" and collectively as the "Parties." This Agreement supersedes and replaces in its entirety that certain development agreement entered into by and between Developer and County dated October 2, 1990, which is hereby terminated. RECITALS A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California enacted Government Code section 65864 et seq. (the "Development Agreement Statute"), which authorizes County to enter into an agreement with any person having a legal or equitable interest in real property, regarding the development of such property. B. Pursuant to Government Code section 65865, County has adopted rules and regulations establishing procedures and requirements for consideration of development agreements (Art. 26-2.12 of Contra Costa County Code and Board Resolution No. 85/412). This Development Agreement has been processed; considered and executed in accordance with those County rules and regulations, including without limitation, 26-2.1204 of the Contra Costa County Code. C. Developer has a legal interest in certain real property consisting of approximately two thousand seven hundred eight (2,708) acres located in the unincorporated portion of the County known as the Dougherty Valley,which property is commonly referred to as the Gale Ranch. The property which is the subject of this agreement is a portion of the Gale Ranch comprised of approximately two thousand and ninety (2,090) acres as described in Exhibit A attached hereto (the "Gale Ranch Site"). The property is adjacent to property owned by Windemere Ranch Partners ("Windemere") also located in the Dougherty Valley. D. Developer intends to develop the Gale Ranch Site as a residential planned community of 4,614 units (plus any units that may be transferred from the Country Club Site to central residential 1 f receiver sites, as permitted under the Specific Plan), along with retail and office uses, community facilities and other uses in accordance with the Dougherty Valley Specific Plan. E. County has determined that this Agreement is appropriate for the Gale Ranch and desires to enter into this Agreement. This Agreement establishes planning principles, standards, and procedures to: eliminate uncertainty in planning and guide the orderly development of the Gale Ranch consistent with the General Plan and the Dougherty Valley Specific Plan; mitigate significant environmental impacts; ensure installation of necessary on-site and off-site public improvements; provide for the preservation of substantial permanent open space; make provision for public trail facilities; provide funding for traffic improvements; provide for public services appropriate to the development of the Gale Ranch; provide affordable housing; ensure attainment of the maximum effective utilization of resources within the County at the least economic cost to its citizens; and otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted. Furthermore, development of the Gale Ranch pursuant to the Agreement would result in increased tax, fee and other revenues resulting in fiscal benefits to the County and an improved balance between jobs and housing within the County and the region. F. This Agreement requires,through the provisions that follow,that any future development of the Gale Ranch Site comply with the Growth Management Element of the General Plan. As a result, County is precluded from approving development of the Gale Ranch absent compliance with certain standards relating to water, sanitary facilities, fire, police, parks, flood control and traffic. G. In exchange for the benefits to County described in Recital E of this Agreement, together with the other public benefits that will result from the development of the Gale Ranch, Developer will receive by this Agreement assurance that it may proceed with the Gale Ranch in accordance with the "Applicable Law" (defined below), and therefore desires to enter into this Agreement. In the absence of this Agreement, Developer would have no present assurance that it could proceed with the Gale Ranch in accordance with the Applicable Law. H. County has taken various environmental review and planning actions relating to the development of the Gale Ranch. These actions include, without limitation, the following: 1. Dougherty Valley EIR. On December 22, 1992, pursuant to the California Environmental Quality Act, the "CEQA Guidelines" and County's local guidelines promulgated thereunder (hereinafter collectively referred to as "CEQA") and in accordance with the recommendation of the County's Zoning Administrator, the Board, by Resolution 92/864, certified a final environmental impact report regarding the Gale Ranch (the "Dougherty Valley EIR"). 2. General Plan Amendment. On December 22, 1992, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, and after duly noticed public hearing and certification of the Dougherty Valley EIR, the Board, by Resolution 92/866, approved an amendment to the County General Plan (the "General Plan Amendment"), addressing the Gale Ranch Site and certain, real property adjacent to the Gale Ranch Site including (i) approximately 618 acres, also owned by Shapell, known as Country Club at Gale Ranch 2 3 (the "Country Club Site"), (ii) approximately 2379 acres owned by Windemere Ranch Partners (the "Windemere Site"), and (iii) approximately 892 acres owned by the United States Department of the Army ("Camp Parks"). 3. Specific Plan. On December 22, 1992, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission and recommendation by the County Planning Commission, certification of the Dougherty Valley E1R, adoption of the General Plan Amendment, and duly noticed public hearing, the Board adopted, by Resolution 92/867; a single specific plan for the Gale Ranch Site, the Country Club Site, the Windemere Site, and Camp Parks (collectively, the "Dougherty Valley"), which specific plan is entitled the "Dougherty Valley Specific Plan" (the "Specific Plan"). 4. Country Club at Gale Ranch Approvals On December 20, 1994, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, the Board's consideration and certification of the Country Club at Gale Ranch FEIR; and duly noticed public hearing, the Board adopted Resolutions 94/640, 94/641 and 94/649, and adopted Ordinance No 94-77 and Ordinance No. 94-79, by which a General Plan Amendment, Rezoning, Preliminary Development Plan, Final Development Plan, Vesting Tentative Map and Development Agreement for development of the Country Club at Gale Ranch (adjacent to the Gale Ranch Site)were approved. 5. Settlement Agreements. County, together with Developer and Windemere, has entered into various agreements to settle litigation brought by certain parties against the County as respondent, and against Developer and Windemere as real parties in interest, relating to County's approval of the General Plan Amendment and Specific Plan and its certification of the Dougherty Valley EIR (collectively, the "Settlement Agreements"). The Settlement Agreements establish, among other things, certain procedures and standards that will be applied to County's consideration and approval of the "Project Approvals" (defined below). The Settlement Agreements consist of the following: (a) San Ramon and Danville: That certain agreement entered into by and among County, Developer, Windemere, the City of San Ramon ("San Ramon") and the Town of Danville ("Danville") on May 11, 1994 to settle certain claims brought by San Ramon and Danville as more fully described therein (the "San Ramon Settlement Agreement"). (c) Pleasanton: That certain agreement entered into by and between County, Developer, Windemere, and the City of Pleasanton ("Pleasanton") on June 20, 1995, to settle certain claims brought by Pleasanton as more fully described therein (the "Pleasanton Settlement Agreement"). (b) Walnut Creek: That certain agreement entered into by and among County, Developer, Windemere, and the City of Walnut Creek ("Walnut Creek") on July 11, 1995, to settle claims brought by Walnut Creek'as more fully described therein (the "Walnut Creek Settlement Agreement"). 3 1-' (d) East Bay Municipal Utility District: That certain agreement entered into by and among County, Developer, Windemere, and the East Bay Municipal Utility District ("EBMUD") on September 26, 1995 to settle claims brought by EBMUD as more fully described therein (the."EBMUD Settlement Agreement"). (e) Alamo Improvement Association: That certain agreement entered into by and among County, Developer, Windemere, and the Alamo Improvement Association ("AIA") on October 12, 1995, to settle claims brought by the AIA as more fully described therein (the "AIA Settlement Agreement"). (f) Non-Governmental Organizations: That certain agreement entered into by and among County, Developer, Windemere, and several non-governmental organizations viz., the Sierra Club, the Greenbelt Alliance, Preserve Area Ridgelands Committee, Save Our Hills and the Mount Diablo Audubon Society on October 12, 1995, to settle claims brought by such non-governmental organizations as more fully described therein (the "NGO Settlement Agreement"). 6. P-1 Zoning and Preliminary Development Plan. On December 19, 1995, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, the Board's consideration of an addendum to the Dougherty Valley EIR prepared in accordance with Section 15164 of the CEQA Guidelines (the "Dougherty Valley EIR Addendum") with the Dougherty Valley EIR, and duly noticed public hearing, the Board adopted County Ordinance No.-rezoning the Gale Ranch Site to County's "P-I" zoning district consistent with the Gen ral Plan and the Specific Plan (the "P-1 Zoning") and, pursuant to Resolution o1 (p3 , approved a Preliminary Development Plan for the Gale Ranch Site in accordance with its P-1 zoning (the "Preliminary Development Plan"). The General Plan Amendment, Specific Plan, P-1 Zoning, Preliminary Development Plan, and this Agreement are sometimes collectively referred to herein as the "Planning Actions." 1. The Parties acknowledge and agree that applications for specific land use approvals, entitlements, permits and agreements (collectively, the "Subsequent Approvals") must be made by Developer and reviewed (in compliance with CEQA) and approved, issued or entered into by County prior to any development on the Gale Ranch Site. The Subsequent Approvals may include, without limitation, the following: design review approvals, improvement agreements and other agreements relating to the Gale Ranch, use permits, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, subdivision maps (including tentative, vesting tentative, parcel, vesting parcel, and final subdivision maps), preliminary and final development plans, rezonings, development agreements, landscaping plans, encroachment permits, resubdivisions, and amendments to, or repealing of, the Planning Actions or the Subsequent Approvals. J. On December 19, 1995 (the "Approval Date"), after duly noticed public hearing, and considering the Dougherty Valley EIR Addendum, and the findings and recommendation of the 4 "County General Plan" or"General Plan" shall mean the General Plan of the County. "Deficiencies" shall have that meaning set forth in Section 7.2 of this Agreement. "Developer" shall have that meaning set forth in the preamble, and shall further include, unless otherwise provided, Developer's successors, heirs, assigns, and transferees. "Dougherty Valley EIR" shall have that meaning set forth in Recital H of this Agreement. "Dougherty Valley EIR Addendum" shall have that meaning set forth in Recital H of this Agreement. "Effective Date" shall have that meaning set forth in Section 1.1 of this Agreement. "Facilities Fee" shall have that meaning set forth in Section 3.3(m)(2) of this Agreement. "Gale Ranch" shall mean the Gale Ranch Site and all improvements to be constructed thereon by Developer as described in the Planning Actions and (as and when they are adopted or issued), the Subsequent Approvals, and all off-site improvements to be constructed in connection therewith. "Gale Ranch Site" or "Shapell Site" shall mean the approximately 2,090 acres owned by Shapell Industries, Inc., located in Dougherty Valley and excluding the Country Club Site. "General Plan Amendment" shall have that meaning set forth in Recital H of this Agreement. "Growth Management Element" shall mean the Growth Management Element of the General Plan as of the Approval Date. "Notice of Compliance" shall have that meaning set forth in Article 15 of this Agreement. "On-Site Traffic Improvements" shall have that meaning set forth in Section 3.3(g)(1) of this Agreement. "Off-Site Traffic Improvements" shall have that meaning set forth in Section 3.3(8)(1) of this Agreement. "P-1 Zoning" shall have that meaning set forth in Recital H of this Agreement. "Planning Actions" shall have that meaning set forth in Recital H of this Agreement. "Planning Commission" shall mean the County Planning Commission. "Preliminary Development Plan" shall have that meaning set forth in Recital H of this Agreement. "Settlement Agreements" shall have that meaning set forth in Recital H of this Agreement. 6 "Shapell Site" or "Gale Ranch Site" shall mean the approximately 2,090 acres owned by Shapell Industries, Inc., located in Dougherty Valley and excluding the Country Club Site. "Specific Plan" shall have that meaning set forth in Recital H of this Agreement. "Subsequent Approvals" shall have that meaning set forth in Recital I of this Agreement. "Traffic Impact Fee" shall have that meaning set forth in Section 3.3(g)(3) of this Agreement. "Windemere" shall have that meaning set forth in Recital C of this Agreement. "Windemere Site" shall have that meaning set forth in Recital H of this Agreement. Section 3. Obligations of Developer and County. 3.1 Obligations of Developer Generally. The Parties acknowledge and agree that County's agreement to perform and abide by the covenants and obligations of County set forth herein is material consideration for Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein. 3.2 Obligations of County Generally. The Parties acknowledge and agree that Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein is material consideration for County's agreement to perform and abide by the covenants and obligations of County set forth herein. 3.3 Specific Obligations. (a) Compliance with Settlement Agreements. The terms and provisions of this Agreement are intended to be consistent with, and shall not be deemed to modify, abrogate or limit compliance with or the implementation or enforcement of, the terms and provisions of any of the Settlement Agreements. In the event of any conflict between the terms and provisions of this Agreement and any Settlement Agreement, the terms and provisions of such Settlement Agreement shall prevail to the extent of such conflict. If and to the extent any obligation of any party under any of the Settlement Agreements is terminated for any reason, including without limitation any obligation under Section 3.30) (relating to the Interstate 680/Highway 24 Interchange, Section 3.3(h) (relating to the payment of traffic fees to the City of Pleasanton), and Section 3.3(e) (relating to the design program for the Village Center),then such obligation shall not be required to be satisfied hereunder. (b) Preliminary Development Plan. Except as otherwise specifically agreed by County, Developer shall comply with all conditions of approval to the Preliminary Development Plan. (c) Affordable Housing. Developer shall, in connection with its development of the Gale Ranch, implement the terms and provisions of the Affordable Housing Program adopted by the ' Board on March 22, 1994 pursuant to Board Order, (the "Affordable Housing Program"), which requires that a minimum of twenty-five percent (25%) of all dwelling units be developed as affordable to low, very low and moderate income households. 7 _.y (d) Designation of Preferred Water Provider. In consequence of the court-sanctioned EBMUD Settlement Agreement, Policy U-1 of the Specific Plan which identifies alternative water suppliers shall be interpreted and applied to the Gale Ranch development as follows: The Dublin San Ramon Services District ["DSRSD"] is the preferred water provider for the Gale Ranch Site (except for one or two school sites as provided in the EBMUD Settlement Agreement). EBMUD is an alternative water provider, but only pursuant to the terms and conditions set forth in the EBMUD Settlement Agreement. Staff will support and diligently process an amendment which will incorporate such language into the Specific Plan. (e) Design Program for Dougherty Valley Village Center. Paragraphs 2, 3(a) and 3(b) of the.NGO Settlement Agreement require certain actions to be taken with respect to the design of Gale Ranch, including participation in the development of a design program for the "Village Center" of the Dougherty Valley and provision of approximately forty (40) acres of additional open space (provided that such reconfiguration is physically feasible and permitted by law). Any obligation of Developer or County under such provisions of the NGO Settlement Agreement shall be satisfied in connection with any tentative map covering the area of the Gale Ranch Site affected by such obligation, which tentative map will be approved together with any necessary general plan amendment, specific plan amendment or rezoning. (f) Coordination of On-Site Improvements. County shall require that access or right-of-way for those certain roadway improvements described on Exhibit B, attached hereto and incorporated herein by reference, as roadway segments W-1 and W-2, offered for dedication as and at the times provided in the conditions to the PDP; provided, however, that if the Windemere project generates the need for access or right-of-way for roadway segments W-I and/or W-2, prior to the time such access or right-of-way is required for the Gale Ranch, then County shall ensure that the provision of such access or right-of-way is subject to the following: In order to accommodate Windemere's development schedule, Windemere may elect to assume responsibility for constructing, without reimbursement from Shapell, roadway segments W-1 and/or W-2 in which case Shapell shall dedicate or offer to dedicate, as required by County, the necessary access or right of way to County upon satisfaction of the following conditions: (a) Shapell will have reasonably reviewed and approved Bollinger Canyon Road's horizontal and vertical alignment, grading and improvement plans; (b) Windemere shall have provided to Shapell improvement agreements deemed acceptable by County and executed by all parties, together with completion and payment bonds so that the improvements shall be duly completed and no liens shall remain on Shapell's property; and (c) Windemere shall have procured a policy of Comprehensive General Liability Insurance in an amount and from an insurance company reasonably satisfactory to County naming Shapell as an additional insured. Shapell shall have the right but not the obligation reasonably to designate the source of cut/fill dirt (from the Gale Ranch Site) which shall be used to the extent needed for roadway segments W-1 and/or W-2. (g) Danville/San Ramon/County Traffic Mitigation (1) Certain traffic improvements within the County, San Ramon and Danville are or may be required to accommodate development under the Specific Plan (the "Project Traffic Improvements"). The Project Traffic Improvements include (i)the on-site traffic 8 improvements described in the Specific Plan as the "Internal Circulation System" (the "On-Site Traffic Improvements"), (ii)the off-site traffic improvements described on Exhibit C-1, attached hereto and incorporated herein by reference (the "Initial Project Traffic Improvements") and (iii) certain additional off-site traffic improvements described on Exhibit C-2, attached hereto and incorporated herein by reference (the "Additional Project Traffic Improvements"). The Initial Project Traffic Improvements and the Additional Project Traffic Improvements are sometimes referred to collectively below as the "Off-Site Traffic Improvements." (2) Subject to the provisions of 3.3(g), Developer shall be responsible for the construction of the On-Site Traffic Improvements made necessary by the Gale Ranch. (3) Developer shall pay to County a per-unit traffic impact fee (the "Traffic Impact Fee") in the amount necessary, but no more than the amount necessary, to fund Developer's fair share of the cost of construction of the Off-Site Traffic Improvements; provided, however, that Windemere shall have responsibility for constructing roadway segment W-3 and Shapell shall have responsibility for constructing roadway segments S-1 and S-2 as shown on Exhibit B to this Agreement. In calculating Developer's and Windemere's respective obligations for the construction and/or funding of the Off-Site Traffic Improvements, the costs of S-1, S-2, and W-3 shall be deducted from the aggregate total cost of the Off-Site Traffic Improvements and not considered in making such calculations. The amount of the Traffic Impact Fee shall be determined as set forth in subsection (4) below, and shall apply to residential units developed on the Gale Ranch Site. The Traffic Impact Fee applicable to a residential unit shall be paid when the building permit for such unit is issued. The County will retain responsibility for the issuance of building permits and collecting the fees notwithstanding the municipal annexation of any portion of the Gale Ranch. (4) The amount of the Traffic Impact Fee shall be determined within six (6) months following County's approval of this Agreement, but no later than the date upon which the County first approves a tentative subdivision map showing individual residential lots for any portion of the Dougherty Valley (other than for the Country Club Site), in the following manner: County, Developer, Windemere and, as required by the San Ramon Settlement Agreement, representatives of Danville and San Ramon, shall meet and confer in good faith to determine (i) the estimated reasonable cost of the Off-Site Traffic Improvements and (ii) the *respective proportions of such cost that fairly should be borne by Shapell and Windemere, (taking into account, among other things, development planned for the Country Club Site and the fees being paid by Shapell with respect thereto) and other projects or parties, if any, contribution to the need for such improvements and to whom the Traffic Impact Fee will apply. In making such determinations, and establishing the amount of the Traffic Impact Fee, it shall be recognized that (a) Developer's pro rata contribution to the traffic improvements described on Exhibit C-3, attached hereto and incorporated herein by reference, shall be no more than is specified in, and shall be paid as described in, Exhibit C- 3; and (b) Developer and Windemere shall, taken together, be responsible for the entire cost of the Initial Project Traffic Improvements as set forth in the San Ramon Settlement 9 Agreement (although each shall be responsible only for its fair share of the cost of such improvements). The costs and proportions so determined and agreed upon by County and Developer shall be reflected, as appropriate, in the Traffic Impact Fee. The amount of the Traffic Impact Fee shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. (5) County shall enter into such agreements with San Ramon and Danville as may be necessary or appropriate to establish a joint exercise of powers agreement ("JEPA"), or some other program or mechanism, to provide for (i) the collection of traffic impact fees from development projects in San Ramon, Danville and Contra Costa County and within the boundary of the JEPA or other program or mechanism that will contribute to the need for the Additional Project Traffic Improvements, which fees shall be in amounts consistent with the determinations made under Subsection (4) above, (ii) the establishment of an account or accounts (the "Local TIF Account") to hold Traffic Impact Fees collected from Developer and Windemere, and traffic impact fees collected from the developers of other projects that will contribute to the need for the Additional Project Traffic Improvements (collectively, the "Local TIF Funds"), and (iii) the transfer to San Ramon, Danville and County of Local TIF Funds attributable to the Off-Site Traffic Improvements to be developed within those jurisdictions (the "Local TIF Program"). (6) The timing of when an Off-Site Traffic Improvement is needed is determined by Measure C and by any conditions of approval for subsequent subdivision maps. If the Local TIF Program has not received sufficient developer fees to fund an improvement when it is needed, then Developer will fund the difference, or construct the improvement, to ensure the improvement is built on time. In such case, Developer shall enter into a reimbursement agreement with County to credit or reimburse Developer the eligible construction costs that were advanced to build the project. Any credit so provided shall be applied in full against the Traffic Impact Fee for each residential unit that receives a building permit following completion of the Off-Site Traffic Improvement by Developer (rather than pro rata against the Traffic Impact Fee for all remaining residential units in the Project) until such time as the full credit has been provided. (7) County shall establish and implement a mechanism to reimburse Developer, and shall reimburse Developer, that portion of the costs to be incurred by Developer in connection with the funding or construction of the On-Site Traffic Improvements and the Off-Site Traffic Improvements that represents the extent to which such traffic improvements will serve traffic generated by projects that are developed pursuant to general plan amendments approved on or after the Effective Date. (8) To the extent that any Project Traffic Improvement funded or constructed by Developer is included on a project list under any Measure C Action Plan or CMP Deficiency Plan, and provided such transportation improvement has sufficient priority under such Action Plan or Deficiency Plan, Developer shall receive a credit against, or reimbursement 10 from, any regional traffic fee imposed upon Developer under Sections 3.3(g)(11) and 3.30) of this Agreement. (9) Some portion of the Traffic Impact Fee may be allocated to and collected from commercial development (on a per-square-foot basis) to occur as a part of Gale Ranch, provided, however, that the total amount of Traffic Impact Fee to be collected from residential development to occur as a part of Gale Ranch (as determined above) shall be reduced by the amount of funds to be so collected from commercial development. (10) County shall make its final determination of compliance with the standards of the Growth Management Element of the General Plan relating to traffic in conjunction with the review and approval of tentative subdivision maps. (11) County shall not impose on Developer any fee or other obligation with respect to roads or traffic impacts other than as set forth in this Agreement, Section 4.4 of the San. Ramon Settlement Agreement (relating to assurance of compliance with traffic service objectives), Paragraph 1 of the Walnut Creek Settlement Agreement or Paragraph 1 of the Pleasanton Settlement Agreement (relating to Developer's payment of fees to Pleasanton). Notwithstanding the foregoing, nothing in this Agreement shall prevent the County from (i)applying to the Gale Ranch to any tentative maps any subregional traffic impact fee required by Measure C (1988) and adopted and applied consistently and on a uniform basis throughout the Tri-Valley subregion by each of the seven jurisdictions that are now signatories to the Tri-Valley Transportation Council joint powers authority which is adopted prior to the vesting date of any tentative map (provided, however, that County shall provide to Developer a credit against any such fee for traffic improvements constructed and/or funded by Developer under this Agreement or the Settlement Agreement) or(ii) imposing on the Gale Ranch reasonable requirements for the funding or construction of additional minor traffic improvements made necessary by Gale Ranch and identified through CEQA review of individual tentative map applications for Gale Ranch, or (iii) imposing on the Gale Ranch a subregional traffic fee developed by the JEPA identified in Section 3.3(g)(5) to satisfy Measure C requirements and for the sole purpose of funding a fair share contribution of the Alcosta`ramp realignment project at 1-680 and the auxiliary lanes project on 1-680 between Bollinger Canyon Road and Diablo Road. (h) Pleasanton Traffic Mitigation. Separate and apart from the Traffic Impact fee, Developer shall pay to County $150 for each residential unit developed on the Gale Ranch Site pursuant to the Project Approvals ("Pleasanton Traffic Fees"). The Pleasanton Traffic Fees will be collected by County upon its issuance of the building permit for each such unit and delivered to Pleasanton for the mitigation of traffic impacts on roadways located in .its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of the Gale Ranch), San Ramon shall J 11 collect and deliver the Pleasanton Traffic Fees as set forth above. As provided in Paragraph 5(b) of the Pleasanton Settlement Agreement, Developer's obligations pursuant to this Section 3.3(h) and Paragraph 1 of the Pleasanton Settlement Agreement shall cease in the event that Pleasanton files any legal action challenging any use or approval or any modification to any use or approval relating to Dougherty Valley. (i) Dublin Traffic Mitigation. County and Developer shall work with the City of Dublin to establish a mutually acceptable fee to account for the cost of mitigating the traffic-related impacts of the Project on roadways located in the City of Dublin net of the cost of mitigating the traffic-related impacts of development projected to occur within the City of Dublin (including, without limitation, the East Dublin project) on the On-Site and Off-Site Traffic Improvements, if any. if County, Developer and the City of Dublin are unable to arrive at a mutually acceptable fee within six (6) months following.the Effective Date, then County and Developer may themselves determine the amount of such fee, provided, however, that such six-month period shall be extended for a period of time equal to the period of any undue delay caused by Developer or County in establishing the amount of such fee. Any fee imposed on the Project pursuant to this Section 3.3(i) shall be approved by the Board of Supervisors and, except as otherwise agreed by County and Developer, remain fixed throughout the term of this Agreement; provided, however, that such fee may be subject to escalation in accordance with the "Construction Cost Index" published in Engineering New Record. Such fee, if any, shall be paid upon the issuance of the building permit for each residential unit in the Project and delivered to Dublin for the mitigation of traffic impacts on roadways in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of the Gale Ranch), San Ramon shall collect and deliver the fees to Dublin as set forth above. If any regional traffic fee is established and required to be paid by Developer under Section 3.3(g)(l l) of this agreement, and such regional traffic fee provides funding for those improvements in Dublin included in calculating the amount of the traffic fee to be paid to Dublin as set forth in this Section 3.3(i), then with respect to any residential unit upon which such regional traffic fee is imposed, Developer shall be relieved of its obligation to pay such portion of the fee described in this Section 3.3(i) that is attributable to those improvements in Dublin that are funded by such regional fee. 0) Walnut Creek Traffic Mitigation. Notwithstanding any other provision contained herein, all future tentative subdivision maps covering the Gale Ranch Site shall be subject to all standards and requirements adopted by the County pursuant to Measure C (1988), including but not limited to the Tri-Valley Action Plan or fees adopted thereunder, and all standards and requirements adopted pursuant to Title 7, Division 1, Chapter 2.5 of the Government Code (Section 65080 et seq.), including but not limited to all congestion management plans and deficiency plans adopted thereunder,provided that(a) such standards and requirements are designed to mitigate congestion on the Interstate 680/Highway 24 interchange or streets within Walnut Creek, (b)are applied to all other major residential projects within the member jurisdictions of SWAT, TRANSPAC, and TRANSPLAN, and (c) are imposed by the County or City only to the extent of the project's impacts, on the interchange or streets within Walnut Creek. Neither the foregoing provision nor any other provision of this Agreement (other than the subsection of this Agreement relating to Traffic-Based 12 reductions in permitted development[Section 4.1] shall limit the authority of the County to apply the standards and requirements described above adopted pursuant to Measure C (1988), including but not limited to any Action plan or fees. (k) Dougherty Road Improvements. County shall not require, as a condition to any Planning Action or Subsequent Approval or in any other manner, that Developer construct or cause to be constructed a realigned Dougherty Road, as shown in the Specific Plan and Preliminary Development Plan, prior to 10 years from the effective date of this Agreement. Prior to County imposing any requirement involving a realigned Dougherty Road, County may require, as a condition to a Subsequent Approval, that Developer improve existing Dougherty Road in a manner acceptable to County. (1) Mitigation Monitoring Developer shall fund development and operation of a system (the "Permit Tracking System") to monitor compliance with the requirements of the San Ramon Settlement Agreement regarding the provision of certain capital facilities, compliance with mitigation measures in the Dougherty Valley EIR, and compliance with project conditions, through the payment of a fee not to exceed $100 per residential unit developed on the Gale Ranch Site, payable at recordation of the final map encompassing such unit. Developer shall, at the time services are performed, pay the County staff costs of carrying out the County's Mitigation Monitoring Program, as adopted by the Board on the First Approval Date, and as it may be amended for the purposes of compliance with CEQA, which are attributable to development of the Gale Ranch Site, on a time and materials basis, and shall pay the reasonable costs of consultants as necessary to implement the Mitigation Monitoring Program. (m) Establishment of County Service Area. (1) County and Developer shall cooperate in (i)the formation, as soon as reasonably practicable but in any event prior to filing of the first final subdivision map in the Dougherty Valley, of a County Service Area or other financing entity to receive certain funds and provide certain services, including the operation and maintenance of facilities and infrastructure, as described in Section 3.3 of the San .Ramon Settlement Agreement and (ii)the establishment, as soon as reasonably practicable but in any event prior to filing of the first final subdivision map in the Dougherty Valley, of a mechanism and adequate to fund the provision 'of such services as described in Section 3.3 of the San Ramon Settlement Agreement. (2) As described in Section 3.4 of the San Ramon Settlement Agreement, to ensure that the Community Center, Senior Center, Library, Corporation Yard and Police Substation described in the Specific Plan will be constructed on a timely basis and made available to Dougherty Valley residents at the appropriate time, County shall (except to the extent some other method for the financing or provision of such facilities is requested or established by Developer or Windemere, as appropriate) assess against residential units to be developed in the Dougherty Valley a fee, special tax or assessment in an amount sufficient to fund Developer's and Windemere's obligation to contribute to the cost of such facilities (the 13 "Facilities Fee"). Funds so collected will be held in a separate account and made available to Developer and Windemere, as appropriate, for the construction of such facilities. The precise form, timing, and amount of such fee, tax, or assessment shall be in accordance with the terms and provisions of Exhibit D attached hereto. Section 4. Standards,Laws and Procedures Governing Gale Ranch. 4.1 Permitted Uses, Etc.; Applicable Law. (a) Permitted Uses, Etc., of the Gale Ranch Site. The permitted uses of the Gale Ranch Site; the density and intensity of use of the Gale Ranch Site; the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the location of public utilities; and other terms and conditions of development applicable to the Gale Ranch, shall be as set forth in the Planning Actions and, as and when they are adopted or issued, the Subsequent Approvals. Not in limitation of the foregoing, the permitted uses of the Gale Ranch Site combined with the Country Club Site shall include 5,830 residential units at the densities provided for in the Specific Plan and 450,800 square feet of commercial space, (exclusive of any community college uses) subject to the following limitations: (I) All development of the Gale Ranch Site shall be consistent with the General Plan, including the Growth Management Element thereof as it existed on the Approval Date. County may modify the permitted uses of the Gale Ranch Site to the extent necessary to attain such consistency, provided no other method of attaining such consistency is feasible. (2) Subject to Section 4.1(f) of this Agreement and the provisions of CEQA, County may modify the permitted uses of the Gale Ranch Site to the extent necessary to satisfy County's obligations under CEQA and (as provided in Section 4.2, below,) other State and federal laws, provided no other method of satisfying such obligations is feasible. (3) The Parties acknowledge and agree that the terms and provisions of the Settlement Agreements include certain conditions to and limitations on the development of the Gale Ranch. All development of the Gale Ranch Site shall be consistent with such conditions and limitations. County may modify the permitted uses of the Gale Ranch Site to the extent necessary to attain such consistency, provided no other method of attaining such consistency is feasible. (4) Except to the extent otherwise specifically required by state or federal law, no modification of the permitted uses of the Gale Ranch Site shall occur with respect to any portion of the Gale Ranch Site for which County has approved a tentative or vesting tentative subdivision map. (b) Applicable Law. The rules, regulations, official policies, standards and specifications applicable to the Gale Ranch (the "Applicable Law") shall be those in force and effect on the Approval Date, including without limitation, the Planning Actions. The Applicable Law shall also be the rules, regulations, official policies, standards and specifications set forth in the Subsequent Approvals as and when they are adopted or issued. 14 (c) No Conflicting Enactments. Except as otherwise specifically set forth herein, County, whether by action of the Board or otherwise, or by initiative, referendum, issuance of a subsequent approval or other means, and whether through the exercise of County's police power or its taxing power, shall not apply to the Gale Ranch any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each, individually, a "County Law") that is in conflict with Applicable Law, including this Agreement, or that reduces the rights provided by this Agreement unless agreed to in writing by Developer. Without limiting the generality of the foregoing, any County Law shall be deemed to conflict with Applicable Law, including this Agreement, or to reduce the rights provided by this Agreement, if it would accomplish any of the following results, either by specific reference to the Gale Ranch or as part of a general enactment that applies to or affects the Gale Ranch: (1) reduce the number of residential units permitted to be developed on the Gale Ranch Site to fewer than 4,614 (and any additional units that may be transferred from the Country Club Site to central residential receiver sites as permitted under the Specific Plan) or revise the densities permitted by the Specific Plan, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (2) reduce the square footage of commercial development permitted to be developed on the Gale Ranch Site to fewer than 450,800 square feet (exclusive of community college uses), except as otherwise specifically provided in Section 4.1(a)of this Agreement; (3) otherwise limit or reduce the density or intensity of the Gale Ranch, or any part thereof, or otherwise require any reduction in the square footage or number of proposed buildings or other improvements, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (4) otherwise change any land use designation or permitted use of the Gale Ranch Site, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (5) limit or control the location of buildings, structures, grading, or other improvements of the Gale Ranch in a manner that is inconsistent with or more restrictive than the limitations included in the Planning Actions and the Subsequent Approvals, except as otherwise specifically provided in Section 4.1(a) of this Agreement; (6) limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water connections, sewage capacity rights, sewer connections, etc.) for the-Gale Ranch, except as otherwise specifically provided in Section 4.1(a)of this Agreement; (7) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Gale Ranch as set forth in Section 4.1(e), below, or in any other manner; except as otherwise specifically provided in Section 4.1(a) of this Agreement; 15 (8) apply to the Gale Ranch any County Law otherwise allowed by this Agreement that is not uniformly applied on a County-wide basis to all substantially similar types of development projects and project sites; (9) require the issuance of additional permits or approvals by the County other than those required by Applicable Law; (10) establish, enact, or increase in any manner applicable to the Gale Ranch, or impose against the Gale Ranch, any fees, taxes (including, without limitation, general, special and excise taxes), assessments, liens or other financial obligations other than (i)those specifically permitted by this Agreement (including Traffic Impact Fees, Facilities Fees, Processing Fees, fees to fund the Mitigation Monitoring Program and financial obligations associated with the financing of the operation and maintenance of the facilities and infrastructure, and provision of the services, set forth in Section 3.3(m) above) and made necessary by the Gale Ranch; (ii) any County-wide taxes and assessments; (1 1) except as.provided in Section 4.1(c)(10) of this Agreement, establish, enact, or increase in any manner applicable to the Gale Ranch, or impose against the Gale Ranch, any rules, regulations, policies or standards that were not in effect on the Approval Date, or otherwise impose against the Gale Ranch any condition, dedication or other exaction not specifically authorized by Applicable Law and, except as authorized by the Settlement Agreements and required by the conditions to the PDP, not made necessary by the Gale Ranch; or (12) limit the processing of applications for, or the obtaining of, Subsequent Approvals. Notwithstanding the foregoing, none of the Settlement Agreements shall be considered a conflicting enactment for the purposes of this Agreement. ' (d) Exceptions. Notwithstanding the foregoing,the following provisions shall apply: (1) Uniform Codes. County may apply the then-current California Building Standard Code, referred to in Health & Safety Code § 18935 and other uniform construction codes to the Gale Ranch throughout the Term of this Agreement, provided that any such uniform code shall apply to the Gale Ranch only to the extent that the code is in effect on a County-wide basis. (2) Road and storm drainage design. County may apply throughout the terms of this Agreement its then-current design standards for construction of roads and storm drainage facilities, provided that any such standard shall apply to the Gale Ranch only to the extent that such standard has been adopted by County and is in effect on a County-wide basis. (3) Processing fees. Fees charged by County which solely represent the reasonable costs to County for County staff time and resources spent reviewing and processing Subsequent Approvals are referred to in this Agreement as "Processing Fees." Processing 16 Fees do not include the Mitigation Monitoring Program fee described in Section 3.3(1) of this Agreement. County may charge Developer the applicable Processing Fees that are operative and in force and effect on a Countywide basis at the time such fees are customarily required by County to be paid. (e) Moratoria and Restrictions and Limitations on the Rate or Timing of Development. In the event a County Law is enacted, whether by action of the Board, the County Zoning Administrator, any County planning commission, or County staff, or by initiative, referendum, issuance of a Subsequent Approval or any other means, which relates to the growth rate, timing, phasing or sequencing of new development or construction in County or, more particularly, development and construction of all or any part of the Gale Ranch, such County Law shall not apply to the Gale Ranch, or any portion thereof. County Laws made inoperative by this provision include, but are not limited to, those not in force and effect on the Approval Date that tie development or construction to the availability of public services and/or facilities (for example, the presence of a specified traffic level of service or water or sewer availability). (f) Further CEQA Review. County's environmental review of Subsequent Approvals pursuant to CEQA shall utilize the Dougherty Valley EIR and Dougherty Valley EIR Addendum to the fullest extent permitted by law. (g) Further Assurances. (1) County shall not support, adopt or enact any County Law, or take any other action which would violate the express or implied provisions, conditions, spirit or intent of the Planning Actions or the Subsequent Approvals. • (2) Developer reserves the right to challenge in court any County Law that would, in Developer's opinion, conflict with Applicable Law, including this Agreement, or reduce the rights regarding development provided by this Agreement. (3) County shall take any and all actions as may be necessary or appropriate to ensure that the rights provided by this Agreement can be enjoyed by Developer including, without limitation, any actions as may be necessary or appropriate to ensure the availability of public services and facilities to serve the Gale Ranch as development occurs. (4) Should any initiative, referendum, or other measure be enacted, and any County lack of application thereof to the Gale Ranch be legally challenged, Developer agrees to fully defend the County against such challenge, including providing all necessary legal services, bearing all costs therefor, and otherwise holding the County harmless from all costs and expenses of such legal challenge and litigation. (h) Life of Subdivision Maps, Development Plans, and Permits. The term of any subdivision map or other permit approved as a Subsequent Approval shall automatically be extended as provided under Government Code section 66452.6(a) or Government Code section 65863.9. Notwithstanding the foregoing, the vested,rights associated with any vesting tentative map (but not the teen of such tentative map) shall terminate upon the expiration of the Term of this Agreement. 17 4.2 State and Federal Law. As provided in Government Code section 65869.5, this Agreement shall not preclude the application to the Gale Ranch of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations ("Changes in the Law"). Not in limitation of the foregoing, nothing in this Agreement shall preclude County from imposing on Developer any fee specifically mandated and required by state or federal laws or regulations. In the event the Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with the Changes in the Law, and County and Developer shall take such action as may be required pursuant to this Agreement, including, without limitation, Section 6. (Cooperation- Implementation) and Section 9.4 (Enforced Delay; Extension of Time of Performance) of this Agreement. 4.3 Timing of Construction and Completion. (a) Notwithstanding Sections 84-66.1406(1) and 84-66.1602 of the County Code, there is no requirement that Developer initiate or complete development of the Gale Ranch or any particular phase of the Gale Ranch within any particular period of time, and County shall not impose such a requirement on any Subsequent Approval. (b) The Parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. In•light of the foregoing and except as set forth in subsection (c) below, the Parties agree that Developer shall be able to develop in accordance with Developer's own time schedule as such schedule may exist from time to time, and that Developer shall determine the order in which portions of the Gale Ranch shall be developed. Not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the Parties' desire to avoid that result by acknowledging that Developer shall have the right to develop the Gale Ranch in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. 4.4 Developer Review of On-Site Infrastructure Improvements. Developer shall have the right to review and comment on plans for any infrastructure improvement (including, without limitation, streets, roads, trails, and detention basins) to be constructed on the Gale Ranch Site by any private entity. Section 5. Amendment. 5.1 Amendment of Planning Actions and Subsequent Approvals. To the extent permitted by state and federal law, any Planning Action (other than this Agreement) or Subsequent Approval may, from time to time, be amended or modified in the following manner: 18 (a) Administrative Amendments. Upon the written request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Subsequent Approval, the Community Development Director or his/her designee shall determine: (i)whether the requested amendment or modification is minor when considered in light of the Gale Ranch as a whole; and (ii)whether the requested amendment or modification is consistent with Applicable Law, other than that portion of Applicable Law sought to be amended. If the Community Development Director or his/her designee finds that the proposed amendment or modification is both minor and consistent with Applicable Law (other than that portion of Applicable Law sought to be amended), the amendment shall be determined to be an "Administrative Amendment," and the Community Development Director or his designee may, except to the extent otherwise required by law, approve the Administrative Amendment without notice and public hearing. For the purposes of this Section 5 and without limiting the generality of the foregoing, lot line adjustments, changes in trail alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of lots or homesites that do not substantially alter the design concepts of the Gale Ranch, and variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Gale Ranch, shall be treated as Administrative Amendments. (b) Non-Administrative Amendments. Any request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Subsequent Approval which is determined not to bean Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to Applicable Law (other than subsection (1) above). Nothing in this section. 5.01 shall limit any obligations of the County under the San Ramon Settlement Agreement to submit any amendment or modification of a Planning Action or Project Approval to the "Dougherty Valley Oversight Committee," established under the San Ramon Settlement Agreement, for its review and comment or to submit or provide any documentation required by any Settlement Agreement in accordance with the terms of such Settlement Agreement.. 5.2 Amendment of This Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the Parties or their successors in interest, in accordance with this Agreement and the provisions of Government Code sections 65867, 65867.5, and 65868 as follows: (a) Insubstantial Amendments. Paragraph G of the County's "Procedures and Requirements for the Consideration of Development Agreements," adopted by Board Resolution No. 85/412, permits a development agreement to establish an alternative procedure for the • processing of "insubstantial amendments" to such an agreement. Notwithstanding the other provisions of this Section 5.2, and pursuant to said Paragraph G, any amendment to this Agreement which does not relate to (i)the Term of this Agreement; (ii)permitted uses of the Gale Ranch Site, (iii)provisions for reservation or dedication of land, (iv)conditions, terms, restrictions, or requirements for subsequent discretionary actions, (v)the density or intensity of use of the Gale Ranch Site, (vi) the maximum height or size of proposed buildings, or (vii) monetary contributions by Developer, shall not, except to the extent otherwise required by law, require notice or public hearing before the Parties may execute an amendment hereto. 19 (b) Amendments of Planning Actions, Subsequent Approvals or the Affordable Housing Program. No amendment of a Planning Action (other than this Agreement) or Subsequent Approval requested by Developer shall require an amendment to this Agreement. Instead, any such amendment automatically shall be deemed to be incorporated into the Gale Ranch and made subject to this Agreement. (c) Parties Required to Amend. Where a portion of Developer's rights or obligations have been transferred and a "Transfer Agreement" (as described in Section 13 below) has been executed in connection therewith, the signature of the person to whom such rights or obligations have been transferred shall not be required to amend this Agreement unless such amendment would materially alter the rights or obligations of such transferee hereunder; provided, however, that any such transferee shall be provided with thirty (30) days' prior written notice of any amendment to this Agreement. (d) Non-Assuming Transferees. In no. event shall the signature or consent of any "Non-Assuming Transferee" (described in Section 14.3 below) be required to amend this Agreement. Section 6. Cooperation-Implementation. 6.1 Processing. (a) In taking the Planning Actions, County has established basic planning principles, standards, and procedures to guide development of the Gale Ranch Site. The Subsequent Approvals shall be deemed to be tools to implement those principles, standards and procedures and must be consistent therewith. (b) Without limiting the generality of the foregoing, unless agreed to in writing by Developer County shall not, through any Subsequent Approval or the imposition of any condition of approval thereto, either: (i) except as specifically required pursuant to Section 4.1(a) of this Agreement, reduce the number of residential units permitted to be developed on the Gale Ranch Site to fewer than 4,614 (plus any additional units transferred from the Country Club Site to central residential receiver sites as permitted under the Specific Plan) or change the distribution of those units by density as provided in the Specific Plan or reduce the square footage of commercial development permitted to be developed on the Gale Ranch Site to fewer than 450,800 square feet (exclusive of community college uses); or (ii) otherwise enact or impose any ordinance, resolution, rule, regulation, standard, directive, condition or other measure that is in conflict with Applicable Law (including this Agreement) as it exists immediately prior to the adoption of such Subsequent Approval or that reduces the rights provided by this Agreement. (c) Upon submission by Developer of all appropriate applications and processing fees for any Subsequent Approval, County shall commence and complete (and shall use its best efforts to promptly and diligently commence and complete) all steps necessary to act on the Subsequent Approval application including, without limitation, (i)the notice and holding of all required public hearings, and (ii)the decision on the Subsequent Approval application as set forth below. 20 (d) County may deny an application for a Subsequent Approval by or requested by Developer only if(i) such application does not comply with Applicable Law, (ii) such application is inconsistent with the Planning Actions (provided, however, that inconsistency with a Planning Action shall not constitute grounds for denial of an application for a Subsequent Approval requested by Developer that is an amendment to that Planning Action), or (iii) County is unable to make all findings related to the Subsequent Approval required by state law. County may approve an application for such a Subsequent Approval subject to any conditions necessary to bring the Subsequent Approval into compliance with Applicable Law, make the Subsequent Approval consistent with the Planning Actions, or allow County to make the findings required by state law, so long as such conditions comply with Section 6.1(b) of this Agreement. If County denies any application for a Subsequent Approval, County must specify in making such denial the modifications required to obtain approval of such application. Any such specified modifications must be consistent with Applicable Law (including Section 6.1(b) of this Agreement), and County shall approve the application if subsequently resubmitted for County review if it complies with the specified modifications. (e) Developer shall, in a timely manner, provide County with all documents, applications, plans, and other information necessary for County to carry out its obligations hereunder and cause Developer's planners, engineers, and all other consultants to submit, in a timely manner, all required materials and documents therefor. It is the express intent of Developer and County to cooperate and diligently work to obtain any and all Subsequent Approvals. (f) Any reduction in the amount of permitted development in the Dougherty Valley resulting from either the application of Section 4.1(a) of this Agreement or the application of any comparable provision in any development agreement to which the Windemere Site is subject shall be subject to the following provisions: (1) If the reduction is the result of impacts of development in the Dougherty Valley that cannot feasibly be allocated between the Gale Ranch and Windemere projects, the reduction in permitted development shall be allocated between Shapell and Windemere such that the permitted development on the Gale Ranch Site and Country Club Site, combined, shall be 53 percent of the permitted development in the Dougherty Valley and the permitted development on the Windemere Site shall be 47 percent of the permitted development in the Dougherty Valley. Reductions based on traffic-related impacts shall be allocated 53% to Shapell and 47% to Windemere. No failure or delay by Windemere in constructing its first 3,995 residential units shall prevent or delay Shapell from or in developing any units beyond its first 4,505 residential units(in both the Country Club Site and the Gale Ranch Site). (2) If the reduction is the result of impacts of development in the Dougherty Valley that can be feasibly allocated to the Gale Ranch or Country Club project or to the Windemere project, such project shall bear such reduction. (g) Subject to the provisions of Section 6.1(f) of this Agreement, 4,505 (53 percent) of the first 8,500 units of development in the Dougherty Valley (including the Gale Ranch Site and the Country Club Site) shall be allocated to Shapell and 3,995 (47 percent) of the first 8,500 units to 21 Windemere. Fifty-three percent of any development permitted in the Dougherty Valley beyond 8,500 units shall be allocated to Shapell and 47 percent to Windemere. 6.2 Eminent Domain Powers. County shall cooperate with Developer in implementing the Planning Actions and Subsequent Approvals. To the extent permitted by law, such cooperation shall include, without limitation, the use by County of its eminent domain powers where necessary to implement the Planning Actions and any Subsequent Approvals. 6.3 Other Governmental Permits. Developer shall apply for such other permits and approvals as may be required by other governmental or quasi-governmental agencies in connection with the development of, or the provision of services to, the Gale Ranch. County shall cooperate with Developer in.its efforts to obtain such permits and approvals and shall, from time to time at the request of Developer, use its best efforts to enter into binding agreements with any such agency as may be necessary to ensure the availability of such permits and approvals. Section 7. Cooperation in the Event of Legal Challenge. 7.1 Cooperation. (a) In the event of any administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of any Planning Action, including this Agreement, or Subsequent Approval, the Parties shall cooperate in defending such action or proceeding to settlement or final judgment. Each Party shall select its own legal counsel and retain such counsel at its own expense, and in no event shall County be required to bear the fees and costs of Developer's attorneys. Developer shall save and hold harmless County from and against any and all claims and awards for third party attorneys' fees associated with such action or proceeding. (b) The Parties agree that this Section 7.1 shall constitute a separate agreement entered into concurrently with this Agreement, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification, or setting aside. 7.2 Cure; Reapproval. (a) If, as a result of any administrative, legal or equitable action or other proceeding as described in Section 7.1, all or any portion of the Planning Actions (including, but not limited to,this Agreement) or Subsequent Approvals are set aside or otherwise made ineffective by any judgment(a "Judgment") in such action or proceeding (based on procedural, substantive or other deficiencies, hereinafter"Deficiencies"),the Parties agree to use their respective best efforts to sustain and reenact or readopt those Planning Actions and/or Subsequent Approvals that the Deficiencies related to, as follows, unless the Parties mutually agree in writing to act otherwise. (1) If any Judgment requires reconsideration or consideration by County of any matter, then the County shall consider or reconsider that matter in a manner consistent with 22 the intent of this Agreement. If any such Judgment invalidates or otherwise makes ineffective all or any portion of any Planning Action or Subsequent Approval, then the Parties shall cooperate and shall cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of this Agreement. County shall then readopt or reenact the Planning Action or Subsequent Approval, or any portion thereof,to which the Deficiencies related. (2) Acting in a manner consistent with the intent of this Agreement includes, but is not limited to, recognizing that the Parties intend that, subject to the provisions of Section 4.1(a) of this Agreement, the permitted uses of the Gale Ranch Site shall include 4,614 residential units (plus any units that may be transferred from the Country Club Site to central residential receiver sites, as permitted under the Specific Plan) at the densities provided in the Specific Plan and 450,800 square feet of commercial uses (exclusive of community college uses), and adopting such ordinances, resolutions, and other enactments, including but not limited to, zoning ordinances, a specific plan and general plan amendments, as are necessary to readopt or reenact all or any portion of the Planning Actions and/or Subsequent Approvals without contravening the Judgment. (3) The provisions of subsections (a) and (b), above, are subject to the following limitations: Any additional, revised or modified environmental mitigation measures or alternatives that might be imposed as a result of a Judgment shall comply with Section 7.2(a)(2) of. this Agreement. County's discretion in reviewing any information regarding environmental impacts or alternatives shall be limited only by Section 7.2(a)(2) of this Agreement. (b) The Parties agree that this Section 7.2 shall constitute a separate agreement entered into concurrently with this Agreement, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification, or setting aside. Section 8. Dispute Resolution. With regard to any dispute involving development of the Dougherty Valley, the resolution of which is not provided for by Applicable Law, Developer shall, at County's request, meet with County and/or any party designated by County. The parties to any such meetings shall attempt in good faith to resolve any such disputes. However, nothing in this provision shall in any way be interpreted as requiring that Developer and County and/or County's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on County or Developer unless expressly agreed to by the Parties. 23 e Section 9. Default; Termination; Annual Review. 9.1 General Provisions. (a) Defaults. Any failure by either Party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other Party, unless such period is extended by written mutual consent, shall constitute a default under this Agreement. Any notice given pursuant to the.preceding sentence shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such 30-day period. Upon the occurrence of a default under this Agreement, the non-defaulting Party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default,terminate this Agreement. If the default is cured, then no default shall exist and the noticing Party shall take no further action. (b) Termination. If County elects to consider terminating this Agreement due to.a material default of Developer, then County shall give a notice of intent to terminate this Agreement and the matter shall be scheduled for consideration and review by the Board at a duly noticed and conducted public hearing. Developer shall have the right to offer written and oral evidence prior to or at the time of said public hearings. If the Board determines that a material default has occurred and is continuing and elects to terminate this Agreement, County shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter; provided, however, that Developer files an action to challenge County's termination of this Agreement within such sixty-day period, then this Agreement shall remain in full force and effect until a trial court has affirmed County's termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired). 9.2 Annual Review. (a) On or before October 15 of each year, the,Developer shall submit to the County Community Development Department a report demonstrating the good-faith compliance with the terms of this Agreement. (b) The Community Development Director shall, at a noticed public hearing, consider a staff report regarding Developer's compliance with the terms of this Agreement. After considering the evidence presented at such public hearing, the Community Development Director shall.adopt, adopt with modification or deny the staff report. (c) Prior to January 30 of each calendar year, and based on the staff report,the Community Development Director shall make a determination regarding compliance with the Agreement. If the Community Development Director finds and determines that Developer has not complied with the terms and conditions of this Agreement, and non-compliance may amount to a default if not cured, then the Community Development Director may deliver a Default Notice pursuant to Section 9.1(a) of this Agreement; in which case the provisions of Section 9.1(a) shall apply. If the Community 24 Development Director does not send such a Default Notice, then the Community Development Director and County shall take no further action. The County, including the Community Development Director, may exercise its right relating to any event of default only after complying with Section 9.1(a)of this Agreement. (d) County shall deliver to Developer a copy of all staff reports and documents to be used or relied upon in conducting the Annual Review and, to the extent practical, related exhibits concerning Developer's performance hereunder, at least ten (10) days prior to any, such Annual Review. Developer shall be permitted during the Annual Review to respond orally or by a written statement, or both,to County's evaluation of Developer's performance. The Annual Review shall be limited in scope to compliance with the terms of this Agreement. (e) In the event County fails to either: (i)conduct the Annual Review or (ii) notify Developer in writing (following the time during which the review is to be conducted) of County's determination as to compliance or noncompliance with the terms of this Agreement and such failure remains uncured as of 60 days following the anniversary of the Effective Date in any year during the term of this Agreement, such failure shall be deemed a determination by County of Developer's compliance with the terms of this Agreement for that Annual Review period. (f) With respect to any year for which an Annual Review is conducted and compliance is determined, or with respect to any year in which County is deemed to have determined that Developer complied with this Agreement pursuant to the preceding paragraph, County, upon request of Developer, shall provide Developer with a written "Notice of Compliance," pursuant to Section 15 of this Agreement. 9:3 Default by County. In the event County defaults under the terms of this Agreement, Developer shall have all rights and remedies provided herein. 9.4 Enforced Delay; Extension of Time of Performance. Notwithstanding anything to the contrary contained herein, neither Party shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities, enactment of conflicting state or federal laws or regulations, new or supplemental environmental regulations, or similar basis for excused performance which is not within the reasonable control of the Party to be excused. Upon the request of either Party hereto, an extension of time for such cause will be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon. Section 10. Defense and Indemnity. (a) Developer's Actions. Developer shall defend, hold harmless, and indemnify County and its elected and appointed officers, agents, employees, and representatives from claims, costs, and liabilities for any personal injury, death, or physical property damage (including inverse condemnation) which arises directly or indirectly, as a result of the construction of the Gale Ranch, or of operations performed under this Agreement, by Developer or by Developer's contractors, subcontractors, agents or employees, whether such operations were performed by Developer or any 25 of Developer's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for Developer or any of Developer's contractors or subcontractors. (b) County's Actions. Nothing in this section shall be construed to mean that Developer shall defend, indemnify, or hold County or its elected and appointed representatives, officers, agents and employees harmless from any claims of personal injury, death or property damage arising from, or alleged to arise from, the maintenance or repair by County of improvements that have been offered for dedication and accepted by County for maintenance. (c) Subdivision Agreement and Defense. County and Developer may from time to time enter into subdivision improvement agreements, as authorized by the Subdivision Map Act, Gov't Code § 66010 et sea., which agreements may include defense and indemnity provisions different from those contained in subsections (1) and (2) above. In the event of any conflict between such provisions in any such subdivision improvement agreement and subsections (1) and (2) above, the provisions of such subdivision improvement agreement shall prevail. Section 11. No Agency,Joint Venture or Partnership. It is specifically understood and agreed to by and between the Parties that: (1)the subject development is a private development; (2) County has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that County accepts the same pursuant to the provisions of this Agreement or in connection with the various Planning Actions or Subsequent Approvals; (3) Developer shall have full power over and exclusive control of the Gale Ranch herein described, subject only to the limitations and obligations of Developer under the Planning Actions and Subsequent Approvals, and (4) County and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between County and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between County and Developer. Section 12. Miscellaneous. 12.1 Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. 12.2 Severability. If any term or provision of this Agreement, or the application of any tern or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, Developer may, in Developer's sole and absolute discretion, terminate this Agreement by providing written notice of such termination to County. 26 12.3 Other Necessary Acts. Each Party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Planning Actions and Subsequent Approvals and to provide and secure to the other Party the full and complete enjoyment of its rights and privileges hereunder. 12.4 Construction. Each reference in this Agreement to any of the Planning Actions or . Subsequent Approvals shall be deemed to refer to the Planning Action or Subsequent Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both County and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. 12.5 Other Miscellaneous Terms. The singular shall include the plural; the masculine gender shall include the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement,the signer obligations are joint and several. 12.6 Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Gale Ranch, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to applicable laws including, without limitation, Civil Code section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Gale Ranch, as appropriate, runs with the Gale Ranch and is binding upon the owner of all or a portion of the Gale Ranch and each successive owner during its ownership of such property. 12.7 Dougherty Valley Development Strategy. The Dougherty Valley is the subject of a comprehensive and integrated planning effort. It has been designed to allow development by phases. The timing of phase development will reflect market conditions and business decisions of the developers of the Dougherty Valley, while requiring that each phase make provision for its needs for infrastructure, services and amenities. Recognizing this development strategy, it is the intent of the Parties that while development must occur in furtherance of the valley-wide Dougherty Valley planning effort and the County's Growth Management Element, developers of the Dougherty Valley should be able to pursue development in a manner commensurate with their own goals and resources. In imposing conditions of approval, County shall, to the extent reasonably feasible, allocate to Windemere and Shapell their separate and distinct obligations. The Parties recognize that this may require that, for example,with regard to the construction of facilities involving both Shapell and Windemere, County may need to allocate the separate obligations of each Developer. Nothing in this Section 12.7 shall in any way modify the provisions of Section 4.3.3 of the San Ramon Settlement Agreement. 12.8 Mortgage Rights. Any mortgagee that wishes to receive notices of default from the County pursuant to this Section 12.8 may provide written notice to the County requesting such notice. County shall notify any such mortgagee requesting notice of any event of default by Developer under this Agreement and provide to any such mortgagee the same opportunity to cure 27 such event of default as is provided to Developer under this Agreement. Failure to so notify any such mortgagee shall not give rise to any liability on the part of County, provided that this Agreement shall not be terminated by County as to any mortgagee (1)who has requested notice but the mortgagee is not given notice by the County or (2)to whom notice is given and to which either or the following is true: (1) the mortgagee cures any default involving the payment of money by Developer within sixty (60)days after notice of default; (2) as to defaults requiring title or possession of all or any portion of the Gale Ranch to effectuate a cure: (i)the mortgagee agrees in writing, within ninety (90) days after the written notice of default, to perform the proportionate share of Developer's obligations under this Agreement allocable to that part of the Gale Ranch Site in which the mortgagee has an interest conditioned upon the mortgagee's acquisition of that part by foreclosure (including a trustee sale) or by a deed in lieu of foreclosure; (ii)the mortgagee commences foreclosure proceedings to reacquire title to all or the applicable portion of the Gale Ranch Site within the ninety (90) days and thereafter diligently pursues the foreclosure to completion; and (iii) the mortgagee (or any purchaser of the Developer's interest at foreclosure, or trustee sale, or by deed in lieu of foreclosure promptly and diligently cures the default after obtaining title or possession. Subject to the foregoing, in the event any mortgagee records a notice of default as to its mortgage or deed of trust, Developer's rights and obligations under this Agreement may be transferred to the mortgagee or to any purchaser of the Developer's interest at a foreclosure or trustee sale and Developer shall remain liable for such obligations unless released by County or unless County has approved the transfer in accordance with Section 14.1, Section 14.2 and Section 14.3. 12.9 Approval by Mortgagees. County recognizes that the provisions of this Agreement may be a matter of concern to any mortgagee intending to make a loan secured by a mortgage or deed of trust encumbering the Gale Ranch Site, or a portion thereof. If such mortgagee should require, as a condition to such financing, any modification of this Agreement to protect its security interest in the Gale Ranch Site or portion thereof, County shall execute the appropriate amendments; provided, however, that County shall not be required (but is permitted) to make any modification that would (i) materially and adversely affect County's rights hereunder, (ii) increase County's obligations hereunder, (iii) reduce Developer's obligations hereunder or (iv) constitute an amendment other than an "Insubstantial Amendment" as described in Section 5.2 of this Agreement. 12.10 Notice of Proposed Amendment to Mortgagee. This Agreement may be amended without the approval or execution of any such amendment by any mortgagee. However, if County receives notice from a mortgagee requesting a notice of proposed amendment, County shall provide a copy of any proposed amendment to such mortgagee. 12.11 Remedies. Either Party may, in addition to any other rights or remedies, institute an equitable action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the foregoing and the 28 purpose of this Agreement. In no event shall either County or Developer be entitled to monetary damages for breach of contract by the other Party to this Agreement. 12.12 California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 12.13 Other Public Agencies. Nothing in this Agreement shall be construed to limit the County's discretion to determine when and if it will enter into any agreements with other public agencies concerning the subject-matter and provisions of this Agreement or require that the County take any legal action concerning such other public agencies and their provision of services or facilities. 12.14 Attorneys' Fees. In the event of any litigation or arbitration between the Parties regarding an alleged breach of this Agreement, neither Party shall be entitled to any award of attorneys' fees. 12.15 Annexation to San Ramon. The Settlement Agreement anticipates the potential annexation of the Gale Ranch Site to the City of San Ramon. To the extent any portion of the Gale Ranch Site is so annexed, this Agreement shall continue to apply to the Gale Ranch Project until the expiration of the Term (to the maximum extent permitted by law) and, to the extent such construction is reasonable, appropriate and consistent with the terms of the Settlement Agreement, any annexation agreement that may then exist between Developer and San Ramon and any property tax exchange agreement or other agreement that may then exist between San Ramon and County relating to the Gale Ranch Site, with respect to any portion of the Gale Ranch Site that has been annexed, (i)the term "County" as used herein shall mean "San Ramon" and (ii) San Ramon shall be deemed to be a successor in interest to County's rights and obligations under this Agreement. Section 13. Notices. Any notice or communication required hereunder between County or Developer must be in writing, and may be .given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i)actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or(ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any Party may at any time, by giving ten (10) days written notice to the other Party, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: 29 If to County,to: Director of Community Development Contra Costa County Administration Building 651 Pine Street Martinez, CA 94553 Telephone: (510) 646-2026 Facsimile: (510) 646-1309 With Copies to: County Counsel Contra Costa County Administration Building 651 Pine Street, 9th Floor Martinez, CA 94553 Telephone: (510) 646-2074 Facsimile: (510) 646-1078 Director of Public Works 255 Glacier Drive Martinez, CA 94553 Telephone: (510) 313-2000 Facsimile: (510) 313-2333 If to Developer, to: Shapell Industries, Inc. 100 North Milpitas Boulevard Milpitas, CA 95035 Attention: Daniel W. Hancock Thomas J. Koch Telephone: (408) 946-1550 Facsimile: (408) 946-9687 With Copies to: McCutchen, Doyle, Brown & Enersen P.O. Box V Walnut Creek, CA 94596-1270 Attention: Daniel J. Curtin, Jr. Maria P. Rivera Telephone: (510) 937-8000 Facsimile: (510) 975-5390 30 Section 14. Assignment, Transfer and Notice. 14.1 Assignment of Interests, Rights and Obligations. Developer shall have the right to assign or transfer all or any portion of its interests, rights or obligations under the Planning Actions (including this Agreement) and the Subsequent Approvals to third parties acquiring an interest or estate in the Gale Ranch or the Gale Ranch Site, or any portion thereof, including, without limitation, purchasers or long-term ground lessees of individual lots, parcels, or any lots, homes or facilities comprising a portion of the Gale Ranch. 14.2 Transfer Agreements. (a) In connection with the transfer or assignment by Developer of all or any portion of the Gale Ranch (other than a transfer or assignment by Developer to an affiliated party, a mortgagee or a "Non-Assuming Transferee" (as defined in Section 14.3 of this Agreement)), Developer and the transferee shall enter into a written agreement (a "Transfer Agreement") regarding the respective interests, rights and obligations of Developer and the transferee in and under the Planning Actions and the Subsequent Approvals. Such Transfer Agreement may (i) release Developer from obligations under the Planning Actions (including this Agreement) or the Subsequent Approvals that pertain to that portion of the Gale Ranch being transferred, as described in the Transfer Agreement, provided that the transferee expressly assumes such obligations, (ii)transfer to the transferee vested rights to improve that portion of the Gale Ranch being transferred and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. (b) Developer shall seek County's consent to any Transfer Agreement, which consent shall not be unreasonably withheld or delayed. Failure by County to respond within forty-five (45) days to any request made by Developer for such consent shall be deemed to be County's approval of the Transfer Agreement in question. County may refuse to give its consent only if, in light of the proposed transferee's business experience and financial resources, such transferee would not in County's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Such determination shall be made by the Community Development Director and is appealable by Developer to the Board. (c) Any Transfer Agreement shall be binding on Developer, County and the transferee. Upon recordation of any Transfer Agreement in the Official Records of Contra Costa County, Developer shall automatically be released from those obligations assumed by the transferee therein. (d) Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a transferee pursuant to a Transfer Agreement. No breach or default hereunder by any person succeeding to any portion of Developer's obligations under this Agreement shall be attributed to Developer, nor may Developer's rights hereunder be cancelled or diminished in any way by any breach or default by any such person. (e) No breach or default hereunder by Developer shall be attributed to any person succeeding to any portion of Developer's rights or obligations under this Agreement, nor shall such transferee's rights be cancelled or diminished in any way by any breach or default by Developer. 31 14.3 Non-Assuming Transferees. Except as otherwise required by Developer in Developer's sole discretion, the burdens, obligations, and duties of Developer under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor County's consent shall be required in connection with (i) any single residential parcel conveyed to a purchaser, (ii) any property transferred as fewer than fifty (50) lots to a single retail builder, or (iii)any property that has been established as one or more separate legal parcels for office, commercial, industrial, open space, park, school or other nonresidential uses. The transferee in such a transaction and its successors ("Non-Assuming Transferees") shall be deemed to have no obligations under this Agreement, but shall continue to benefit from the vested rights provided by this Agreement for the duration of the Tenn. Nothing in this section shall exempt any property transferred to a Non- Assuming Transferee from payment of applicable fees and assessments or compliance with applicable conditions of approval. Section 15. Notice of Compliance. 15.1 Generally. Within thirty (30)days following any written request which Developer may make from time to time, County shall execute and deliver to Developer a written "Notice of Compliance," in recordable form, duly executed and acknowledged by County, certifying that: (a) This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modification; (b) There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default; and (c) Any other reasonable information requested by Developer. The failure to deliver such a notice within such time shall constitute a conclusive presumption against County that this Agreement is in full force and effect without modification except as may be represented by the Developer and that there are no uncured defaults in the performance of the Developer, except as may be represented by the Developer. Developer shall have the right at Developer's sole discretion,to record the Notice of Compliance. Section 16. Entire Agreement, Counterparts and Exhibits. This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of thirty-four (34) pages, three(3) notary acknowledgment pages, and four (4) exhibits which constitute in full, the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of County and the Developer. The following exhibits are attached to this Agreement and incorporated herein for all purposes: 32 Exhibit A Legal Description of the Gale Ranch Site Exhibit B Responsibilities for Certain Traffic Improvements Exhibit C Cost Allocations For Certain Off-Site Traffic Improvements: Exhibit C-1 Initial Project Traffic Improvements Exhibit C-2 Additional Project Traffic Improvements Exhibit C-3 Cost Allocations for Certain Additional Project Traffic Improvements Exhibit D Establishment of Capital Facilities Fee Section 17. Recordation of Development Agreement. Pursuant to Government Code section 65868.5, no later than ten (10) days after County enters into this Agreement, the County Clerk shall record an executed.copy of this Agreement in the Official Records of the County of Contra Costa. IN WITNESS WHEREOF, this Agreement has.been entered into by and between Developer and County as of the day and year first above written. COUNTY: COUNTY OF CONTRA COSTA Harvey B gdon Com u Ity nt Director Z��JATTEST: COUNTY CLERK (Signatures continued on next page) 33 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of � L Z ry 1� / l0,S7r County of (� /�� On `7 f /� before me, Date vl ,�Name and Title of Officer(e.g.,"Jane Doe,Notary Public") personally appeared (���/ (i Z e&6_7>dYl r' Name(s)of Signer(s) [Vpersonally known to me-OR-❑proved to me on the basis of satisfactory evidence to be the person(sr whose name*is/tee subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in his/he#theilr authorized capacity(.ias , and that by his/heg4h-e_F�3ignature(s}-on the instrument the person(s�, LINDA HOOVER or the entity upon behalf of which the person(s)-acted, a = ': COMM.�R 988035 Z executed the instrument. Z '1F:. Notary Public-California Z .r CONTRA COSTA COUNTY �. Comm.&Fires MAP 14.1997 WITNESS,0_ hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document.." ocument." GC- Document Date: pi �o Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) JCIimed by Signer(s) Signer's Name: 16�-6 Signer's Name: ❑ Individual ❑ Individual EY� Corporate O r ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee _ ❑ Trustee _ ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: Top of thumb here ❑ Other: Top of thumb here Signer Is Representing: Signer Is Representing: 01994 National Notary Association•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free 1.800-876-6827 APPROVED AS TO FORM: Victor J. Westman County Counsel By Silvano Marchesi Assistant County Counsel DEVELOPER: By: By: Title: Title: L�X�G• �� � CA952950.004 12/21/95 34 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5193 'tate of CALIFORNIA �� OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER County of SANTA CLARA Though statute does not require the Notary to 12/22/95 before in the data below, doing so may prove PATRICE M. MARTIN " NO " invaluable to persons relying on the document. Onbefore me, DATE NAME,TITLE OF OFFICER•E.G.,'JANE DOE,NOTARY PUBLIC- C] INDIVIDUAL DANIEL W. HANCOCK AND ARTHUR P. LOMBARDI ❑CORPORATE OFFICER(S) personally appeared NAME(S)OF SIGNER(S) TITLE(S) , (personally known to me- OR - ❑ proved to me on the basis of satisfactory evidence ❑ PARTNER(S) ❑ LIMITED t0 be the person(s) whose name(s) +mare GENERAL subscribed to the within instrument and aC- ❑ATTORNEY IN-FACT PATRICE M.k10.17TIN knowledged to me that)61W4they executed ❑TRUSTEE(S) COMM.�10297011z L' 1 ��, , the same in �Itheir. authorized z ;- '::ff;� Notary. a,i —C.t::.or-1,a y ❑GUARDIAN/CONSERVATOR Z ` f. ' . SAN„aClf.,A0Xf`5Y capacity(ies), and that by ANW /their OTHER: ' Ul 15.1998 ❑ signature(s) on the instrument the person(s), h+/Curr.1.Ex, '�hcs Jor the entity upon behalf of which the person(s) acted, executed the instrument. SIGNER IS REPRESENTING: WITNESS.WITNESSTily hand and official seal. NAME OF PERSON(S)OR ENTITY(IES) t SIGNATURE OF NOTARY OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES DATE OF DOCUMENT Though the data requested here is not required by law, OTHER THAN NAMED ABOVE it could prevent fraudulent reattachment of this form. SIGNER(S) 01993 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 EXHIBIT A Legal Description of the Gale Ranch Site LEGAL DESCRIPTION FOR GALE RANCH (EXCLUDING COUNTRY CLUB @ GALE RANCH) THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,COUNTY OF CONTRA COSTA,UNINCORPORATED AREA,AND IS DESCRIBED AS FOLLOWS: A PORTION OF THE AMADOR GRANT OF THE RANCHO SAN RAMON,A PORTION OF SECTION 1, TOWNSHIP 2 SOUTH, RANGE 1 WEST AND A PORTION OF SECTION 6,TOWNSHIP 2 SOUTH,RANGE 1 EAST,BEING A PORTION OF LOTS 35,36 AND 67 AND ALL OF LOTS 39,40,41,42,43,44,45,46,47,48, 49,50,51,52,53,54,AND 55,AS SHOWN ON THE MAP ENTITLED,"MAP OF SUBDIVISION OF PLOT A OF THE DOUGHERTY RANCH,ALAMEDA AND CONTRA COSTA COUNTIES,CALIFORNIA",FILED ON MAY 2, 1894, IN THE OFFICE OF THE COUNTY RECORDER OF SAID CONTRA COSTA COUNTY IN BOOK B OF MAPS,AT PAGE 45, DESCRIBED AS FOLLOWS: BEGINNING ON THE EASTERN LINE OF THE 7918.73 ACRE PARCEL OF LAND SET APART TO CHARLES M. DOUGHERTY BY THAT CERTAIN DECREE IN PARTITION,RENDERED FEBRUARY 26, 1891,BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,IN AND FOR THE COUNTY OF ALAMEDA, IN THAT CERTAIN ACTION HAD THEREIN,ENTITLED CHARLES M.DOUGHERTY, PLAINTIFF VS. ADA M. DOUGHERTY, ET AL. DEFENDANTS,CASE NO.6479,A CERTIFIED COPY OF WHICH DECREE WAS RECORDED MARCH 3, 1891,IN BOOK 59 OF DEEDS AT PAGE 525,AT THE NORTHERN LINE OF THE 3636.1222 ACRE PARCEL OF LAND DESCRIBED IN THE FINAL JUDGMENT RENDERED JULY 21, 1947,BY THE DISTRICT COURT OF THE UNITED STATES,IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA,SOUTHERN DIVISION, IN THAT CERTAIN ACTION HAD THEREIN, ENTITLED UNITED STATES OF AMERICA, PLAINTIFF VS.3396 ACRES OF LAND, ALAMEDA AND CONTRA COSTA COUNTIES,CALIFORNIA,ADA CLEMENT,ET AL.DEFENDANTS, CASE NO.22352, A CERTIFIED COPY OF WHICH FINAL JUDGMENT WAS RECORDED AUGUST 2, 1947, IN BOOK 1 104 OF OFFICIAL RECORDS AT PAGE 377;THENCE FROM SAID POINT OF BEGINNING NORTHERLY AND WESTERLY ALONG THE EXTERIOR LINE OF SAID 7918.73 ACRE PARCEL(59 D 525)AS FOLLOWS: NORTH.38°WEST,331 FEET,MORE OR LESS TO ANGLE POINT,NORTH 65'30' WEST 613.80 FEET;NORTH 38°WEST 759 FEET;NORTH 36°30'WEST 2112 FEET;NORTH 4°30'EAST 264 FEET;NORTH 86°EAST 561 FEET;NORTH 21°EAST 1314.72 FEET;NORTH 1° 15'WEST 396 FEET; NORTH 140 15'EAST 429 FEET;NORTH 19°45'WEST 462 FEET;NORTH 30° 15'EAST 594 FEET;NORTH 270 30' WEST 660 FEET;NORTH 12°'YEAST 326.70 FEET;NORTH 320 15'EAST 279.50 FEET;NORTH 15° 45'EAST 564.30 FEET;NORTH 45° 15'EAST,315.80 FEET;NORTH 340 15'EAST 809.82 FEET;NORTH 37° 45' EAST 798.60 FEET;NORTH 14°EAST 710.16 FEET;NORTH 31°EAST 372.24 FEET;NORTH 21° 15' EAST 825 FEET;NORTH 27° 15'EAST 396 FEET;NORTH 520 30'EAST 330 FEET;NORTH 450 45'EAST 594 FEET;NORTH 20°EAST 481.80 FEET TO THE NORTHERN LINE OF SAID SAN RAMON RANCHO; ALONG SAID NORTHERN LINE NORTH 890 45'WEST 597.30 FEET;LEAVING SAID NORTHERN LINE NORTH 00 15'EAST 2653.20 FEET;NORTH 89° 15'WEST 2105.40 FEET;NORTH 890 45'WEST 1907.40 FEET;SOUTH 85°45'WEST 2686.20 FEET;NORTH 0° 15'EAST 1518 FEET;SOUTH 890 45'WEST 2613.60 FEET;SOUTH 0°30'WEST 3927 FEET;NORTH 89°45'WEST 2630.10 FEET;TO STATION S.R. 8 OF SAID RANCHO SAN RAMON,SAID STATION S.R. 8 BEING THE SOUTHEAST CORNER OF THE PARCEL OF LAND DESCRIBED IN THE DEED FROM TASSAJARA LAND COMPANY TO HENRY F.WIEDEMANN,ET UX,RECORDED SEPTEMBER 28, 1922,IN BOOK 428 OF DEEDS AT PAGE 52;THENCE LEAVING THE EXTERIOR LINE OF SAID 7,918.73 ACRE PARCEL(59 D 525)ALONG THE SOUTHERN LINE OF SAID WIEDEMANN PARCEL NORTH 890 45'WEST 726 FEET AND SOUTH 710 20'WEST 1042.50 FEET TO THE WESTERN LINE OF SAID RANCHO SAN RAMON,BEING A PORTION OF THE EXTERIOR LINE OF SAID 7,918.73 ACRE PARCEL(59 D 525);THENCE ALONG SAID EXTERIOR LINE SOUTH 271 EAST 11,554.28 (continued) Page 1 of 2 FEET TO STATION S.R. 12 OF SAID RANCHO SAN RAMON,AND SOUTH 27- 15,EAST 2220.90 FEET TO THE NORTHERN LINE OF SAID PARCEL OF LAND DESCRIBED AS PARCEL ONE IN THE DEED FROM EILENE MOHR KAMP TO AMERICAN TRUST COMPANY,AS TRUSTEE,RECORDED JULY 2, 1935,IN BOOK 392 OF OFFICIAL RECORDS,AT PAGE 35;THENCE LEAVING SAID EXTERIOR LINE ALONG SAID NORTHERN LINE(392 OR 35)NORTH 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.GALE,ET AL TO CONTRA COSTA COUNTY, RECORDED FEBRUARY 6, 1936,IN BOOK 408 OF OFFICIAL RECORDS AT PAGE 128;SAID CENTER LINE BEING THE WESTERN LINE OF SAID UNITED STATES OF AMERICA 3636.1222 ACRE PARCEL (1104 OR'77);THENCE ALONG SAID WESTERN LINE BEING ALSO ALONG SAID CENTER LINE AS FOLLOWS: NORTHERLY ALONG THE ARC OF A CURVE TO THE LEFT,WITH A RADIUS OF 1000 FEET AN ARC DISTANCE OF 100 FEET,MORE OR LESS;NORTH 5° 17'40"WEST TANGENT TO LAST MENTIONED ARC 423.44 FEET,AND NORTHERLY ALONG THE ARC OF A CURVE TO THE RIGHT WITH A RADIUS OF 1500 FEET,TANGENT TO LAST MENTIONED COURSE,AN ARC DISTANCE OF 218.44 FEET TO THE NORTHWESTERN CORNER OF THE SAID.UNITED STATES OF AMERICA 3636.1222,ACRE PARCEL;THENCE LEAVING SAID WESTERN LINE ALONG THE NORTHERN LINE OF SAID 3636.1222 ACRE PARCEL EAST 3000 FEET MORE OR LESS TO THE POINT OF BEGINNING. EXCEPTING THEREFROM: 1. THE INTEREST CONVEYED TO CONTRA COSTA COUNTY BY DEED RECORDED FEBRUARY 6, 1936, BOOK 408,OFFICIAL RECORDS,PAGE 128,"FOR USE AS A PUBLIC HIGHWAY." 2. THE INTEREST CONVEYED TO CONTRA COSTA COUNTY BY DEED RECORDED APRIL 21, 1944, BOOK 775,OFFICIAL RECORDS, PAGE 378, "FOR USE AS A PUBLIC HIGHWAY." 3. THE PARCEL OF LAND DESCRIBED AS PARCEL ONE IN THE DEED TO EAST BAY MUNICIPAL UTILITY DISTRICT,RECORDED DECEMBER 16, 1968, BOOK 5771,OFFICIAL RECORDS,PAGE 288. 4. THE PARCEL OF LAND DESCRIBED IN THE DEED TO EAST BAY MUNICIPAL UTILITY DISTRICT, RECORDED MAY 19, 1978,BOOK 8845,OFFICIAL RECORDS,PAGE 149. 5. THE INTEREST CONVEYED TO CONTRA COSTA COUNTY BY DEED RECORDED JUNE 27, 1985, BOOK 12381,OFFICIAL RECORDS, PAGE 751. 6. ALL OF SUBDIVISION 7010,AS SHOWN ON THE MAP FILED SEPTEMBER 6, 1989, IN MAP BOOK 336, PAGE 46,CONTRA COSTA COUNTY RECORDS. 7. ALL THOSE PORTIONS OF LAND DESCRIBED IN RESOLUTION NO.22477 "DECLARING AMADOR VALLEY UNINCORPORATED TERRITORY ANNEXED TO THE EAST BAY MUNICIPAL UTILITY DISTRICT" "APPROXIMATELY 618 ACRES" Page 2 of 2 EXHIBIT B Responsibilities for Certain Traffic Improvements ,f Vol- 10 • t 41 1 A f .dSZ; ,•. 40 T� woo" Ut OR • 1^ QZ Y T � 1 Ita64 + sO itl � s r e-WXo 8 EXHIBIT C Cost Allocations for Certain Off-Site Traffic Improvements C-1 Initial Project Traffic Improvements C-2 Additional Project Traffic Improvements C-3 Cost Allocations EXHIBIT C-1 Initial Project Traffic Improvements Camino Tassajara/Crow Canyon Rd./Blackhawk Rd. intersection improvements. Within existing curb-to-curb pavement section, reconfigure NB approach (Crow Canyon Rd.) to provide two left-tum lanes, one exclusive through lane, one shared through/right-turn lane, and one exclusive right-turn lane. On Tassajara Ranch Drive, remove median and add bike lanes. B-1.2. Sycamore Valley Rd./I-680 NB on-ramp/Camino Ramon intersection improvements. Reconfigure WB approach (Sycamore Valley Rd.) to provide one exclusive left-turn lane, one exclusive through lane, one shared through/right-turn lane, and one exclusive right-turn lane. B-1.3. Crow Canyon Rd./Dougherty Rd. intersection improvements. Reconfigure EB approach (Crow Canyon Rd.) to provide three exclusive through lanes, and one "free" right-turn lane to SB Dougherty Rd. Reconstruct SB Dougherty Rd., south of Crow Canyon Rd., to provide dedicated curb lane to accept right-turns from EB Crow Canyon Rd. 19-1.4. Bollinger Canyon Rd./Camino Ramon intersection improvements. If needed, reconfigure SB approach (Camino Ramon) to provide two exclusive left-turn lanes, one shared through/right-turn lane, and one exclusive right-turn lane. B-1.5. Bollinger Canyon Rd./Alcosta Blvd. intersection improvements. Reconfigure EB approach (Bollinger Canyon Rd.) to provide one exclusive left-turn lane, three exclusive through lanes, and one exclusive right-turn lane. Reconfigure WB approach (Bollinger Canyon Rd.) to provide one exclusive left-turn lane, three exclusive through lanes and one exclusive right-turn lane. Reconfigure SB approach (Alcosta Blvd.) to provide one exclusive left-turn lane, two exclusive through lanes, and one exclusive right-turn lane. Widen Bollinger Canyon Rd., east of Alcosta Blvd., to provide three through lanes, plus turn lanes as needed, in EB and WB directions from Alcosta Blvd. to project limits. Construct traffic signal at Canyon Lakes Drive. B-1.6. Dougherty Road, re-alignment and construction of a six lane facility between the northerly project limits and Crow Canyon Road. 1 B-1.7. Windemere Parkway, construction of a new four lane, divided arterial facility between the project limits and Camino Tassajara Road. Intersection improvements at the Windemere Parkway/Camino Tassajara intersection which include a traffic signal, left-turn channelization, and transition tapers from six to four lanes on Camino Tassajara north of the intersection. B-1.8. Windemere Parkway/Camino Tassajara Road intersection improvements, provide left turn channelization, a four phase traffic signal, and tapers on Camino Tassajara to transition from six to four lanes north of the intersection. B-1.9. Crow Canyon Road, widen to six lanes between Dougherty Road and Tassajara Ranch Road. B-1.10. Crow Canyon Road, widen from 4 to 6 lanes from Alcosta Blvd. to Dougherty Road. B-1.11. Dougherty Road, widen to 6 lanes from southerly limits of development to Old Ranch Road. Intersection improvements at the Dougherty Road/Old Ranch Road intersection are included and consist of a traffic signal, left-turn pockets, and right-turn pockets. B-1.12. Dougherty Road, widen to 6 lanes from Old Ranch Road to the County line. B-1.13. Dougherty Road/Old Ranch Road, intersection improvements to accommodate four lanes on Old Ranch Road and six lanes on Dougherty Road, with left turn and right turn channelization. Install a traffic signal. B-1.14. Alcosta Blvd./Old Ranch Road intersection improvements (Currently, controlled by a three- way stop sign). Install a traffic signal. 2 EXHIBIT C-2 Additional Project Traffic.Improvements B-2.1. Bollinger Canyon Road, construct eight lanes from I-680 to Alcosta. B-2.2. Camino Tassajara Road, widen from two to six lanes between Windemere Parkway and the County line. B-2.3. Camino Tassajara/Sycamore Valley Road intersection improvements, widen/restripe SB leg for 1 LT/RT lane and 1 LT lane. B-2.4. Crow Canyon Road, widen from 6 to 8 lanes from I-680 to Alcosta. B-2.5. I-680 northbound off ramp/Bollinger Canyon Road intersection improvements. On NB leg, widen right turn radius, construct raised island to convert curb right turn lane to a free right turn lane, restripe 2nd right turn lane to stay under signal control, and modify signal control. B-2.6. Alcosta/Crow Canyon Road intersection improvements. Add exclusive right turn EB. B-2.7. Alcosta/Crow Canyon Road intersection improvements. Add one NB exclusive RT lane. B-2.8. Camino Ramon/Crow Canyon Road intersection improvements. Widen/restripe SB approach to one RT, one through lane, and 1 LT lane; add an EB exclusive RT lane. B-2.9. Crow Canyon Road/I-680 NB off-ramp intersection improvements. Intersection will be congested due to queues from adjacent intersections. Add another RT lane on NB off-ramp. B-2.10. I-680 SB ramps/Crow Canyon Road. Restripe to revise existing right tum lane to provide shared right/left lane. B-2.11. Bollinger Canyon Rd./Sunset Dr. intersection improvements. If needed, reconfigure SB approach (Sunset Dr.) to provide one exclusive left-turn lane, one exclusive through lane, and one "free" right-turn lane to WB Bollinger Canyon Rd. Widen Bollinger Canyon Rd., west of 1 r Sunset Dr., to provide dedicated curb lane to accept right-turns from SB Sunset Dr. B-2.12. Crow Canyon Road Noise Attenuation. As appropriate, construct soundwalls along Crow Canyon Rd. between Dougherty Rd. and Alcosta Blvd. B-2.13. Crow Canyon Road, Camino Tassajara and Sycamore Valley Road. Provide for pavement overlays of these roads between the Dougherty Valley project and I-680. 2 EXHIBIT C-3 Cost Allocations for Certain Additional Project Traffic Improvements Not in limitation of any obligation of the Developer to provide a pro rata contribution to any of the improvements described on Exhibit C-2 other than the improvements listed below, the following improvements shall be funded by a fee, to be paid at building permit for each residential unit in the Project, not to exceed $200 per unit. Reference to Improvement Exhibit.0-2 C-3.1 Camino Tassajara Overlay C-2.13 C-3.2 Crow Canyon Road Overlay C-2.13 C-3.3 Sycamore Valley Road Overlay C-2.13 C-3.4 Crow Canyon Soundwall C-2.12 C-3.5 Camino Tassajara/ C-2.3 Sycamore Intersection The per-unit fee described above shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. Any obligation to pay a fee to fund any of the improvements described in this Exhibit C-3 shall be conditioned upon construction of the identified improvements. Failure to construct an identified improvement shall result in a corresponding refund to the Developer. 507731[rem2l EXHIBIT D Establishment of Capital Facilities Fee Dougherty Valley Community Facilities Fee 1. Form of Agreement - This agreement regarding Community Facilities Fees, shall be incorporated into all existing and future development agreements regarding the ShapeIl and Windemere portions of the Dougherty Valley. This agreement will be executed by the developers and Contra Costa County, and will be agreed as to form, by the City of San Ramon. 2.4 Definition of Community Facilities - "Community Facilities" include the Library, the Community Center,the Senior Center,a Corporation Yard and the Police Substation. The square footage requirements and timing for design and construction are as defined, and are subject to revision as specified in the Agreement to Settle Litigation dated May 11th, 1994. 3. Timing for Establishment of Fee - Prior to the filing of the first final map in the Dougherty Valley, a "Community Facility Fee" shall be established for the entire 11,000 unit Dougherty Valley project. 4. Community Facilities Cost Components - As illustrated in Attachment A, the total cost bf each community facility required in the Dougherty Valley shall include the cost of the facility design, the cost of construction, the cost of furnishings, and the cost of site development. The amount illustrated in Attachment A is not inclusive of land costs. 5. Land Dedication-Land required for the facilities shall be dedicated by the developers. Approximately six acres are required for the five subject facilities. In the event one developer is required to dedicate more than three acres, the other developer shall reimburse, at the time of construction, the dedicating developer for the cost of the land as determined by appraisal at that time. 6. Fee Amount - Fees shall be collected by the County at the issuance of the building permit. As illustrated in Attachment A, the total fee per unit equates to $1,410. The designated expenditure allocation is as follows: Library $ 326 (pro-rata cost for 11,000 units) Community Center $ 520 (pro-rata cost for 11,000 units) Police Substation $ 61 (pro-rata cost for 11,000 units) Corporation Yard $ 269 (pro-rata cost for 11,000 units) Senior Center 234 (pro-rata cost for 8,500 units) Total Fee $1,410 The portion of the fee attributable to the Library, Community Center, Police Substation and Corporation Yard, shall be paid by all 11,000 units in the Dougherty Valley,except as is indicated below. The portion of the fee attributable to the Senior Center, shall be paid by the first 8,500 units in the Dougherty Valley. 7. Cost of Living Adjustments-The Community Facilities fee shall be adjusted according to the Engineering News Record Construction Cost Index each year. 8. Escrow Accounts - Upon collection by the County, Fees shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commences. 9. Obligation to Fund Shortfall - When funds are required for the construction of any community facility, the pro-rata obligation for funding each community facility shall be divided 53% to Shapell and 47% to Windemere. This percentage allocation shall apply regardless of the ultimate, or then-current, number of units constructed on either developer's property. Each developer is individually responsible for providing their pro-rata share of costs (53% Shapell /47% Windemere) when the funds for a specific community facility is required. Each developer may use the fees generated by prior units, and may finance the balance of the funds in any manner available to them. If a developer provides a source of funding other than that which has accumulated in the Community Facilities Escrow Accounts, the parties to this agreement shall re- evaluate the fee amount at that time, with the intention of offsetting future fees by an amount commensurate with the developer's other funding method. 10. Ability to Cure Developer Default - As specified in Section 4.3.3.2 of the May 11, 1994 Agreement to Settle Litigation,if one developer defaults in the obligation to fund the pro-rata share of a community facility, the other developer may cure the default and not be penalized by a cessation of building permits. However, the developer in default may again obtain building permits,by funding with interest,their original pro- rata cost obligation (53% Shapell / 47% Windemere). 11. Satisfaction of a Developer Obligation by a Third Party - If a developer's obligation to provide a specific community facility is satisfied by an alternate contribution acceptable to the County and the City of San Ramon, the Fee paid by subsequent units in the Dougherty Valley shall be re-evaluated with the intention of offsetting future fees by an amount commensurate with the alternate satisfaction of the obligation. 12. County Service Area Chane - A County Service Area (CSA) is required by Section 3.3.1 of the May 11, 1994 Agreement to Settle Litigation, to be in place prior to annexation of any portion of the Dougherty Valley. As part of the formation of the CSA, an assessment equal to the estimated total future operation and maintenance cost, may be applied to units for construction of the community facilities. This capital charge will be reduced, dollar for dollar, as the operation and maintenance charges for those facilities are incurred. Page Two Upon collection by the County, CSA charges attributable to the capital facilities;shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commences. Funds accumulated under this CSA charge, shall be considered a "source of other financing" as is identified in #9 above. 13. Coun!X Approval/City Review - Plans for the design and construction of the community facilities shall be approved by Contra Costa County and reviewed by the City of San Ramon. The County agrees to give good faith consideration to all comments received from the City. If a dispute arises, the County and City agree to participate in the Dispute Resolution process outlined in Article V of the Agreement to Settle Litigation dated May 11, 1994. 14. Facili1y Design and Construction - The Developers shall be allowed, based on the design and construction specifications from the appropriate agency and with the approval of the County and the review of the City of San Ramon, to design and construct each of the community facilities. 15. Design Changes Resulting in ExceedingFacili Budget - The developers will not be required to fund facility construction costs greater than that described in Attachment A unless the increased cost is a result of cost of living adjustments (see paragraph 7) or changes in federal or state law. 16. Annual Reports - An annual report summarizing the Community Facilities Fee Escrow Account balances, and the CSA Escrow Account balances shall be provided with the annual mitigation monitoring program. Page three Dougherty Valley Attachment A Community Facilities Fees Report Date: 9/20/95 Library(11.600 Square Feet) Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Type Quantity Price Total Cost Units Site Development 1 AC 1.00 $108,900 $108,900 $10 Hard Construction Costs SF 11,600 $155.00 $1,798,000 $163 Soft Construction Costs 2 LS 1 $343,242 $343,242 $31 Furnishings SF 11,600 $15.00 $174,000 $16 Subtotal $2,424,142 $220 Educational Materials 3 Book 58,000 $20.00 51,160,000 S105 Total $3,584,142 S326 Footnotes: 1. Assumes cost of$2.50 per square foot. 2. Assumes 18%of both hard construction costs and site development. 3. Assumes 2 books per capita for approximately 29,000 people. Community Center(24.000 Square FeeQ Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Type Quantity Price Total Cost Units Site Development 1 AC 2.00 $108,900 $217,800 $20 Hard Construction Costs SF 24,000 $185.00 $4,440,000 $404 Soft Construction Costs 2 US 1 $698,670 $698,670 $64 Furnishings SF 24,000 $15.00 $360,000 $33 Total $5.716,470 520 Footnotes: 1. Assumes site development cost of approximately$2.50 per square foot. 2. Assumes 15%of both hard construction costs and site development. Dougherty Valley Attachment A Community Facilities Fees Report Date: 9/20/95 Senior Center 0 0.000 Square Feet) Cost per Unit Unit Unit Estimated 8,500 Cost Component Note Type Quantity Price Total Cost Units Site Development 1 AC 1.00 $108,900 $108,900 S13 Hard Construction Costs SF 10,000 S150.00 S1,500,000 $176 Soft Construction Costs 2 US 1.00 5241,335 $241,335 $28 Furnishings SF 10,000 $14.00 $140,000 $16. Total $1,990,235 234 Footnotes: 1. Assumes site development cost of approximately$2.50 per square foot 2. Assumes 15%of both hard construction costs and site development. Police Substation (Approximately 4.500 Square Feet) Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Type_ Quantity Price Total Cost Units Site Development 1 . AC 0.34 $367,647 $125,000 $11 Hard Construction Costs SF 4,500 580.00 $360,000 $33 Soft Construction Costs 2 US 1 $72,750 $72,750 $7 Furnishings SF 4,500 S25.00 S112,500 $10 Total $670,250 $61 Footnotes: 1. Assumes site development cost of approximately$8.45 per square foot(rounding) 2. Assumes 15%of both hard construction costs and site development. Dougherty Valley Attachment A ,. Community Facilities Fees Report Date:9/20/95 CoToration Yard Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Tie Quantity Price Total Cost Units Site Development Costs 1 AC 1.70 $108,900 $185,130 $17 Hard Constr&Furnishings 2 US 1 $2,500,000 $2,500,000 $227 Soft Costs 3 US 1 $268,513 5268,513 $24 Total $2,953,643 269 Footnotes: 1. Assumes site development cost of approximately$2.5 per square foot 2. Total cost estimated at$2.5 million;includes parking,landscaping,hunishings,4480 square feet for shop space,800 square feet for offices and 1,680 square feet for locker areas. 3. Assumes 10%of both hard construction costs&furnishings and site development RECOR-19ROFirst American Title Guaranty Company here6y. IG RFIRJE.3 ED BY certifies that the wi hin instrument is a true RECOEW"W&"` - YttD BY ft and correct colpy of the original instrument AND WHEN RECORDED MAIL TO: recorded in the office of the recorder of the t)1,5wi County of Con';ra Costa, State of California, 11 Morrison& Foerster on............................... P.O. Box 8130 101 Ygnacio Valley Road, Suite 4 5 0 Recorder's Serial No.._q. .4-�Awle 66- Walnut Creek, California 94596-3570 FIRTAMERICAN TITLE/PARANTY COMPANY Attention: R. Clark Morrison I I V Al AVA /7 By.. (Space Above This Line Reserve For Recorder's Use) DEVELOPMENT AGREEMENT BY AND BETWEEN THE COUNTY OF CONTRA COSTA AND WINDEMERE RANCH PARTNERS 2581 v8 0 TABLE OF CONTENTS Recitals............................................................................................... 1 Agreement .......................................................................................... 4 Article 1. Effective Date and Term ............................................... 4 Section 1.01. Effective Date ................................................... 4 Section 1.02. Term................................................................. 4 Article 2. Definitions .................................................................... 4 Article 3. Obligations of Developer and County............................. 7 Section 3.01. Obligations of Developer Generally ................... 7 Section 3.02. Obligations of County Generally........................ 8 Section 3.03. Compliance with Settlement Agreements........... 8 Section 3.04. Preliminary Development Plan........................... 8 Section 3.05. Affordable Housing........................................... 8 Section 3.06. Designation of Preferred Water Provider........... 8 Section 3.07. Design Issues..................................................... 8 Section 3.08. Coordination of On-Site Improvements ............. 9 Section 3.09. Danville/San Ramon/County Traffic Mitigation.. . 9 Section 3.10. Pleasanton Traffic Mitigation............................. 12 Section 3.11. Dublin Traffic Mitigation................................... 12 Section 3.12. Walnut Creek Traffic Mitigation........................ 13 Section 3.13. Processing Fees................................................. 13 Section 3.14. Mitigation Monitoring Program......................... 13 Section 3.15. Other Financing Requirements........................... 14 Article 4. Standards, Laws and Procedures Governing Windemere Ranch.......................................................... 14 Section 4.01. Permitted Uses.................................................. 14 Section 4.02. Applicable Law ................................................. 15 Section 4.03. No Conflicting Enactments................................ 15 Section 4.04. Uniform Codes.................................................. 16 Section 4.05. CEQA............................................................... 17 Section 4.06. Moratoria and Restrictions and Limitations on the Rate or Timing of Development............... 17 Section 4.07. Further Assurances............................................ 17 Section 4.08. Life of Subdivision Maps, Development Approvals, and Permits ...................................... 17 Section 4.09. State and Federal Law....................................... 18 Section 4.10. Timing of.Project Construction and Completion 18 Section 4.11. Developer Review of Infrastructure Plans.......... 18 2881 v8 i ` • 1 t r Article 5. Amendment................................................................... 19 Section 5.01. Amendment of Planning Actions and Project Approvals .......................................................... 19 Section 5.02. Amendment Of This Agreement......................... 19 Article 6. Cooperation-Implementation......................................... 20 Section 6.01. Processing......................................................... 20 Section 6.02. Eminent Domain Powers ................................... 22 Section 6.03. Other Government Permits................................ 22 Article 7. Cooperation In the Event Of Legal Challenge................ 22 Section 7.01. Cooperation ...................................................... 22 Section 7.02. Cure; Reapproval .............................................. 22 Article 8. Default; Remedies; Termination .................................... 23 Section 8.01. General Provisions............................................. 23 Section 8.02. Annual Review.................................................. 24 Section 8.03. Excusable Delays; Extension of Time of ' Performance....................................................... 25 Section 8.04. Legal Action....................................................... 25 Section 8.05. California Law................................................... 25 Section 8.06. Resolution of Disputes....................................... 25 Article 9. Defense and Indemnity.................................................. 26 Article 10. No Agency, Joint Venture or Partnership .................... 26 Article 11. Miscellaneous.............................................................. 26 Section l 1.01. Incorporation of Recitals and Introductory Paragraph........................................................ 26 Section 11.02. Severability...................................................... 26 Section 11.03. Other Necessary Acts...................................... 27 Section 11.04. Construction.................................................... 27 Section 11.05. Covenants Running with the Land ................... 27 Section 11.06. Annexation to San Ramon............................... 27 Section 11.07. Dougherty Valley Development Strategy......... 27 Section 11.08. Other Public Agencies ..................................... 28 Section 11.09. Attorneys' Fees ............................................... 28 Article.12. Notices ....................................................................... 28 Article 13. Assignment, Transfer and Notice................................. 29 Section 13.01. Assignment of Interests, Rights and Obligations...................................................... 29 Section 13.02. Transfer Agreements ....... ............................... 29 2881 v8 ii i 1 0 Section 13.03. Non-Assuming Transferees.............................. 30 Article 14. Mortgagee Protections................................................ 31 Section 14.01. Mortgagee Protection...................................... 31 Section 14.02. Notice of Default to Mortgagee....................... 31 Section 14.03. Mortgagee Opportunity to Cure ...................... 31 Section 14.04. Approval by Mortgagees ................................. 32 Section 14.05. Notice of Proposed Amendment to Mortgagee ...................................................... 32 Article 15. Notice of Compliance.................................................. 32 Article 16. Entire Agreement, Counterparts and Exhibits.............. 33 Article 17. Recordation of Development Agreement..................... 34 Exhibit A Legal Description Exhibit B Responsibilities For Certain Traffic Improvements Exhibit C-1 Initial Project Traffic Improvements Exhibit C-2 Additional Project Traffic Improvements Exhibit C-3 Cost Allocations for Certain Additional Project Traffic Improvements 2881 v8 iii j 0 t t._ DEVELOPMENT AGREEMENT BY AND BETWEEN THE COUNTY OF CONTRA COSTA AND WINDEMERE RANCH PARTNERS THIS DEVELOPMENT AGREEMENT (the "Agreement") is entered into as of January 18, 1996 by and between WINDEMERE RANCH PARTNERS, a California limited partnership ("Developer" or "Windemere"), and the COUNTY OF CONTRA COSTA, a political subdivision of the State of California("County"), pursuant to California Government Code § 65864 et seq. This Agreement supersedes and replaces in its entirety that certain development agreement entered into by and between Developer and County, dated October 2, 1990, which is hereby terminated. RECITALS A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California enacted California Government Code § 65864 et seq. (the "Development Agreement Statute"), which authorizes County to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. B. Pursuant to California Government Code § 65865, County has adopted procedures and requirements for the consideration of development agreements (County Resolution No. 85/412 and Ordinance No. 92-73). This Development Agreement has been processed, considered and executed in accordance with such procedures and requirements. C. Developer has a legal interest in certain real property consisting of approximately 2379 acres located in the unincorporated portion of the County, as more particularly described in Exhibit A attached hereto (the "Windemere Site"). The Windemere Site may be expanded pursuant to a land exchange with the United States Department of the Army, in which case the Windemere Site may include up to approximately 2439 acres of land. D. Developer intends to develop the Windemere Site as a residential planned community of 5,170 dwelling units, together with certain retail, office, community services and other uses (defined more fully in Article 2 below as "Windemere Ranch"). E. County has taken several actions to review and plan for the future development of Windemere Ranch. These include, without limitation, the following: (1) EIR. On December 22, 1992 (the "First Approval Date"), pursuant to the California Environmental Quality Act, the "CEQA Guidelines" and County's local guidelines promulgated thereunder(hereinafter collectively referred to as "CEQA") and in accordance with the recommendation of County's Zoning Administrator, the Board, by Resolution No. 92/864, certified an environmental impact report regarding Windemere Ranch (the "EIR"). 1 2881 v8 Y y Y t (2) Urban Limit Line Modification. On the First Approval Date, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, and after duly noticed public hearing and certification of the EK the Board, by Resolution 92/865 (which was approved by a 4/5 vote), approved a minor modification to County's Urban Limit Line to locate certain lands (belonging to the United States Department of the Army and located in the Dougherty Valley) inside the Urban Limit Line(the "Urban Limit Line Modification"). (3) General Plan Amendment. On the First Approval Date, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, and after duly noticed public hearing, certification of the EIR and adoption of the Urban Limit Line Modification, the Board, by Resolution 92/866, approved an amendment to the County General Plan (which, together with the Urban Limit Line Modification, is referred to below collectively as the "General Plan Amendment") addressing the Windemere Site and certain real property adjacent to the Windemere Site including (i) approximately 2,708 acres owned by Shapell Industries, Inc. and (ii) approximately 892 acres owned by the United States Department of the Army("Camp Parks"). (4) Specific Plan. On the First Approval Date, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, certification of the EK adoption of the General Plan Amendment, and duly noticed public hearing; the Board, by Resolution 92/867, approved a single specific plan for the Windemere Site, the Shapell Site, and Camp Parks (collectively, the "Dougherty Valley"), which specific plan is entitled the "Dougherty Valley Specific Plan" (the "Specific Plan"). (5) Settlement Agreements. County, together with Developer and Shapell, has entered into various agreements to settle litigation brought by certain parties against the County as respondent, and against Developer and Shapell as real parties in interest, relating to County's approval of the General Plan Amendment and Specific Plan and its certification of the EIR (collectively,the "Settlement Agreements"). The Settlement Agreements establish, among other things, certain procedures and standards that will be applied to County's consideration and approval of the "Project Approvals" (defined below). The Settlement Agreements consist of the following: (a) San Ramon and Danville. That certain agreement entered into by and among County, Developer, Shapell, the City of San Ramon ("San Ramon") and the Town of Danville ("Danville") on May 11, 1994 to settle certain claims brought by San Ramon and Danville as more fully described therein (the "San Ramon Settlement Agreement"). (b) Pleasanton. That certain agreement entered into by and among County, Developer, Shapell and the City of Pleasanton ("Pleasanton") on June 20, 1995 to settle certain claims brought by Pleasanton as more fully described therein (the "Pleasanton Settlement Agreement"). 2 2881 v8 (c) Walnut Creek. That certain agreement entered into by and among County, Developer, Shapell and the City of Walnut Creek ("Walnut Creek")"on July 11, 1995 to settle certain claims brought by Walnut Creek as more fully described therein (the "Walnut Creek Settlement Agreement"). (d) East Bay Municipal Utility District. That certain agreement entered into by and among County, Developer, Shapell and East Bay Municipal Utility District ("EBMUD") on September 26, 1995 to settle certain claims brought by EBMUD as more fully described therein (the "EBMUD Settlement Agreement"). (e) Alamo Improvement Association. That certain agreement entered into by and among County, Developer, Shapell and the Alamo Improvement Association ("AIA") on October 12, 1995 to settle certain claims brought by AIA as more fully described therein (the "AIA Settlement Agreement"). (f) Non-Governmental Organizations. That certain agreement entered into on October 12, 1995 by and among County, Developer, Shapell and several non- governmental organizations other than AIA, viz., the Sierra Club, the Greenbelt Alliance, Preserve Area Ridgelands Committee, Save Our Hills and the Mount Diablo Audubon Society to settle certain claims brought by such non-governmental organizations as more fully described therein(the "NGO Settlement Agreement"). (6) P-1 Zoning and Preliminary Development Plan. On December 19, 1995 (the "Second Approval Date"), following the preparation of an addendum to the EIR in accordance with Section 15164 of the CEQA Guidelines (the "Addendum"), the Board's consideration of the Addendum together with the EIR, and a duly noticed public hearing, the Board adopted County Ordinance No. 95-56, rezoning the Windemere Site to County's "P-1" zoning district consistent with the General Plan and the Specific Plan(the "Zoning") and approving a Preliminary Development Plan for the Windemere Site consistent with the Zoning (the "Preliminary Development Plan"). The General Plan Amendment, Specific Plan, Zoning, Preliminary Development Plan and this Agreement are sometimes collectively referred to herein as the "Planning Actions." F. On the Second Approval Date, after a duly noticed public hearing and considering the Dougherty Valley EIR Addendum, and the findings and recommendation of the Zoning Administrator, the Board took the following actions: (1) made findings required by Board Resolution No. 85/412, that the provisions of this Agreement are consistent with the General Plan and the Specific Plan; (2) made the findings required by CEQA; and (3) adopted Ordinance No. 95-64, approving and authorizing the execution of this Agreement. G. The parties acknowledge and agree that applications for specific land use approvals, entitlements, permits and agreements (collectively, the "Project Approvals") must be made by Developer and reviewed (in compliance with CEQA) and approved, issued or entered into by County prior to development of the Windemere Site. The Project Approvals may include, without limitation, the following: design review approvals, improvement agreements and similar 2881 v8 agreements relating to Windemere Ranch, use permits, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, subdivision'maps (including tentative, vesting tentative, parcel, vesting parcel, and final subdivision maps), final development plans, rezonings, development agreements, landscaping plans, encroachment permits, resubdivisions, and amendments to the Planning Actions or the Project Approvals. H. Each party acknowledges that it is entering into this Agreement voluntarily. NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth herein, the receipt and adequacy of which consideration is hereby acknowledged, the parties agree as follows: AGREEMENT ARTICLE 1. EFFECTIVE DATE AND TERM Section 1.01. Effective Date. This Agreement shall become effective upon the date the ordinance approving this Agreement becomes effective, or the date upon which this Agreement is executed by Developer and County, whichever is later (the "Effective Date"). Section 1.02. Term. The term of this Agreement (the "Term") shall commence upon the .Effective Date and continue for a period of twenty-five(25) years. ARTICLE 2. DEFINITIONS "Addendum" shall have that meaning set forth in Recital E(6) of this Agreement. "Administrative Amendment" shall have that meaning set forth in Section 5.01(1) of this Agreement. "Affordable Housing Program" shall have that meaning set forth in Section 3.05 of this Agreement. "Agreement" shall mean this Development Agreement and any amendments hereto. "AIA Settlement Agreement" shall have that meaning set forth in Recital E(5)(e) of this Agreement. "Annual Review" shall have that meaning set forth in Section 8.02 of this Agreement. "Applicable Law" shall have that meaning set forth in Section 4.02 of this Agreement. "Board" shall mean the Board of Supervisors of the County of Contra Costa. "Camp Parks" shall have that meaning set forth in Recital E(3) of this Agreement. 4 2881 v8 "CEQA" shall have that meaning set forth in Recital E(1) of this Agreement. "Changes in the Law" shall have that meaning set forth in Section 4.09 of this Agreement. "Community Development Director" shall mean the Director of the County's Department of Community Development, or his or her designee. "Country Club Site" shall mean the approximately 618 acres owned by Shapell and located within the Dougherty Valley for which the County approved a general plan amendment, rezoning, preliminary development plan, final development plan, subdivision map and development agreement on December 20, 1994. "County" shall mean the County of Contra Costa, and shall include, unless otherwise provided, any of the County's agencies, departments, officials, employees or consultants. "County General Plan" or "General Plan" shall mean the General Plan of the County of Contra Costa. "County Law" shall have that meaning set forth in Section 4.03 of this Agreement. "Danville Settlement Agreement" shall have that meaning set forth in Recital E(5)(a) of this Agreement. "Default Notice" shall have that meaning set forth in Section 8.01 of this Agreement. "Deficiencies" shall have that meaning set forth in Section 7.02 of this Agreement. "Developer" shall have that meaning set forth in the preamble, and shall further include, unless otherwise provided, Developer's successors, heirs, assigns, and transferees. "Development Agreement Statute" shall have that meaning set forth in Recital A of this Agreement. "Dougherty Valley" shall have that meaning set forth in Recital E(4) of this Agreement. "EBMUD Settlement Agreement" shall have that meaning set forth in Recital E(5)(d) of this Agreement. "Effective Date" shall have that meaning set forth in Section 1.01 of this Agreement. "EIR" shall have that meaning set forth in Recital E(1) of this Agreement. "Entire Gale Ranch Site" shall have that meaning set forth in Section 6.01 of this Agreement. "First Approval Date" shall have that meaning set forth in Recital E(l) of this Agreement. "Foreclosure" shall have that meaning set forth in Section 14.01 of this Agreement. 5 2881 v8 "Gale Ranch Site" or "Shapell Site" shall mean the approximately 2,090 acres owned by Shapell Industries, Inc., located in the Dougherty Valley, excluding the Country Club Site. "General Plan Amendment" shall have that meaning set forth in Recital E(3) of this Agreement. "Growth Management Element" shall mean the Growth Management Element of the General Plan as of the Second Approval Date. "JEPA" shall have that meaning set forth in Section 3.09 of this Agreement. "Judgment" shall have that meaning set forth in Section 7.02 of this Agreement. "Local TIF Account" shall have that meaning set forth in Section 3.09 of this Agreement. "Local TIF Funds" shall have that meaning set forth in Section 3.09 of this Agreement. "Local TIF Program" shall have that meaning set forth in Section 3.09 of this Agreement. "Mitigation Monitoring Program" shall have that meaning set forth in Section 3.14 of this Agreement. "Mortgage" and "Mortgagee" shall have the meanings assigned to those terms in Section 14.01 of this Agreement. "NGO Settlement Agreement" shall have that meaning set forth in Recital E(5)(f) of this Agreement. "Non-Assuming Transferee" shall have that meaning set forth in Section 13.03 of this Agreement. "Notice of Compliance" shall have that meaning set forth in Article 15 of this Agreement. "Off-Site Traffic Improvements" shall have that meaning set forth in Article 3 of this Agreement. "On-Site Traffic Improvements" shall have that meaning set forth in Article 3 of this Agreement. "Permit Tracking System" shall have that meaning set forth in Section 3.14 of this Agreement. "Planning Actions" shall have that meaning set forth in Recital E(6) of this Agreement. "Planning Commission" shall mean the County's Planning Commission. "Pleasanton Settlement Agreement" shall have that meaning set forth in Recital E(5)(b) of this Agreement. 6 2881 v8 "Preliminary Development Plan" shall have that meaning set forth in Recital E(6) of this Agreement. "Processing Fees" shall have that meaning set forth in Section 3.13 of this Agreement. "Project Approvals" shall have that meaning set forth in Recital G of this Agreement. "Project Traffic Improvements" shall have that meaning set forth in Section 3.09 of this Agreement. "San Ramon Settlement Agreement" shall have that meaning set forth in Recital E(5)(a) of this Agreement. "Second Approval Date" shall have that meaning set forth in Recital E(6) of this Agreement. "Settlement Agreements". shall have that meaning set forth in Recital E(5) of this Agreement. "Shapell Site" or "Gale Ranch Site" shall mean the approximately 2,090 acres owned by Shapell Industries, Inc., located in the Dougherty Valley excluding the Country Club Site. "Specific Plan" shall have that meaning set forth in Recital E(4) of this Agreement. "Term" shall have that meaning set forth in Section 1.02 of this Agreement. "Traffic Impact Fee" shall have that meaning set forth in Section 3.09 of this Agreement. "Urban Limit Line Modification" shall have that meaning set forth in Recital E(2) of this Agreement. "Walnut Creek Settlement Agreement" shall have that meaning set forth in Recital E(5)(c) of this Agreement, "Windemere Ranch" shall mean the Windemere Site and all improvements to be constructed thereon as described in the Planning Actions and (as and when they are adopted or issued)the Project Approvals, and all off-site improvements to be constructed in connection therewith. "Windemere Site" shall have that meaning set forth in Recital C of this Agreement. "Zoning" shall have that meaning set forth in Recital E(6) of this Agreement. ARTICLE 3. OBLIGATIONS OF DEVELOPER AND COUNTY Section 3.01. Obligations of Developer Generally. The parties acknowledge and agree that County's agreement to perform and abide by the covenants and obligations of County set 7 2881 v8 i forth herein is material consideration for Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein. Section 3.02. Obligations of County Generally. The parties acknowledge and agree that Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein is material consideration for County's agreement to perform and abide by the covenants and obligations of County set forth herein. Section 3.03. Com liance with Settlement Agreements. The terms and provisions of this Agreement are intended to be consistent with and not to modify, and shall not be deemed to abrogate or limit compliance with or the implementation or enforcement of, the terms and provisions of any of the Settlement Agreements. In the event of any conflict between the terms and provisions of this Agreement and any Settlement Agreement, the terms and provisions of such Settlement Agreement shall prevail to the extent of such conflict. If and to the extent any obligation of any party under any of the Settlement Agreements is terminated for any reason, including, without limitation, any obligation under Section 3.12 (relating to the Interstate 680/Highway 24 Interchange), Section 3.07 (relating to Design Issues), Section 3.10 (relating to the payment of traffic fees to the City of Pleasanton), then such obligation shall not be-required to be satisfied hereunder. Section 3.04. Preliminary Development Plan. Except as otherwise specifically agreed by County, Developer shall comply with all conditions of approval to the Preliminary Development Plan. Section 3.05. Affordable Housing. Developer shall, in connection with its development of Windemere Ranch; implement the terms and provisions of the Affordable Housing Program as adopted by the Board of Supervisors on March 22, 1994 pursuant to board order(the "Affordable Housing Program"), which requires that a minimum of twenty-five percent (25%) of all dwelling units be developed as affordable to low, very low and moderate income households. Section 3.06. Designation of Preferred Water Provider. In consequence of the court- sanctioned EBMUD Settlement Agreement, Policy U-1 of the Specific Plan which identifies alternative water suppliers shall be interpreted and applied to Windemere Ranch as follows: Dublin San Ramon Services District is the preferred water provider for the Windemere Site. EBMUD is an alternative water provider, but only pursuant to the terms and conditions set forth in the EBMUD Settlement Agreement. County staff will support and diligently process an amendment which will incorporate such language into the Specific Plan. Section 3.07. Design Issues. Paragraphs 2, 3(a) and 3(b) of the NGO Settlement Agreement require certain actions to be taken with respect to the design of Windemere Ranch, including participation in the development of a design program for the "Village Center" of the Dougherty Valley; provision of approximately eighty (80) acres of additional open space (provided that such reconfiguration is physically feasible and permitted by law); and relocation of the high school site proposed for the Dougherty Valley. Any obligation of Developer or County under such provisions of the NGO Settlement Agreement shall be satisfied in connection with any tentative map covering the area of the Windemere Site affected by such obligation, which 8 2881 v8 tentative map will be approved together with any necessary general plan amendment, specific plan amendment or rezoning. Section 3.08. Coordination of On-Site Improvements. County shall require that access or right-of-way for those certain road improvements described on Exhibit B, attached hereto and incorporated herein by reference, as roadway segments W-1 and W-2, be offered for dedication as and at the times provided in the conditions of approval of Shapell's preliminary development plan for the Gale Ranch Site (as approved by the .Board on the Second Approval Date pursuant to Ord. 95-62) and the conditions of approval for the preliminary development plan for the Country Club Site (as approved by the Board on December 20, 1994 pursuant to Ord. 94-649.); provided, however, that if Developer's project generates the need for access or right-of-way for roadway segments W-1 and/or W-2 over the Shapell Site prior to the time such access or right-of-way is required for Shapell's project, then County shall ensure that the provision of such access or right-of-way is subject to the following: In order to accommodate Developer's development schedule, Developer may elect to assume responsibility for constructing, without reimbursement from Shapell, roadway segments W-1 and/or W-2 in which case Shapell shall dedicate or offer to dedicate, as required by County, the necessary right-of-way to County upon satisfaction of the following conditions: (i) Shapell will have reasonably reviewed and approved Bollinger Canyon Road's horizontal and vertical alignment, grading and improvement plans; (ii) Developer shall have provided to Shapell improvement agreements deemed acceptable by County and executed by all parties, together with completion and payments bonds so that the improvements shall be duly completed and no liens shall remain on Shapell's property; and (iii) Developer shall have procured a policy of Comprehensive General Liability Insurance in an amount and from an insurance company reasonably satisfactory to County naming Shapell as an additional insured. Shapell shall have the right but not the obligation reasonably to designate the source of cut/fill dirt from the Gale Ranch Site which shall be used to the extent needed for roadway segments W-1 and/or W-2. Section 3.09. Danville/San Ramon/County Traffic Mitigation. (1) Certain traffic improvements within the County, San Ramon and Danville are or may be required to accommodate development under the Specific Plan(the "Project Traffic Improvements"). The Project Traffic Improvements include (i) the on-site traffic improvements described in the Specific Plan as the "Internal Circulation System" (the "On-Site Traffic Improvements"), (ii) the off-site traffic improvements described on Exhibit C-1, attached hereto and incorporated herein by reference (the "Initial Project Traffic Improvements") and (iii) certain additional off-site traffic improvements described on Exhibit C-2, attached hereto and incorporated herein by reference (the "Additional Project Traffic Improvements"). The Initial Project Traffic.Improvements and the Additional Project Traffic Improvements are sometimes referred to collectively below as the "Off-Site Traffic Improvements." (2) Subject to the provisions of Section 3.08 above,.Developer shall be responsible for the construction of those On-Site Traffic Improvements made necessary by Windemere Ranch. 9 2881 v8 0 (3) Developer shall pay to County a per-unit traffic impact fee (the "Traffic Impact Fee") in the amount necessary, but no more than the amount necessary, to fund Developer's fair share of the cost of construction of the Off-Site Traffic Improvements; provided, however, that Developer shall have responsibility for constructing roadway segment W-3 as shown on attached Exhibit B and Shapell shall have responsibility for constructing roadway segments S-1 and S-2 as shown on attached Exhibit B. In calculating Developer's and Shapell's respective obligations for the construction and/or funding.of the Off-Site Traffic Improvements, the costs of roadway segments S-1, S-2 and W-3 shall be deducted from the aggregate total cost of the Off-Site Traffic Improvements and not considered in making such calculations. The amount of the Traffic Impact Fee shall be determined as set forth in subsection (4) below, and shall apply to residential units developed on the Windemere Site. The Traffic Impact Fee applicable to a residential unit shall be paid when the building permit for such unit is issued. (4) The amount of the Traffic Impact Fee shall be determined within six (6) months following County's approval of this Agreement, but no later than the date upon which the County first approves a tentative subdivision map showing individual residential lots for any portion of the Dougherty Valley (other than for the Country Club Site), in the following manner: County, Developer, Shapell and, as required by the San Ramon Settlement Agreement, representatives of Danville and San Ramon, shall meet and confer in good faith to determine (i) the estimated reasonable cost.'of the Off-Site Traffic Improvements and(ii)the respective proportions of such cost that fairly should be borne by Windemere and Shapell (taking into account, among other things, development planned for the Country Club Site and the fees being paid by Shapell with respect thereto) and other projects or parties, if any, contributing to the need for such improvements and to whom the Traffic Impact Fee will apply. In making such determinations and establishing the amount of the Traffic Impact Fee, it shall be recognized that (a) Developer'srho rata contribution to the traffic improvements described on Exhibit C-3, attached hereto and incorporated herein by reference, shall be no more than is specified in, and shall be paid as described in, Exhibit C-3; and (b) Developer and Shapell shall, taken together, be responsible for the entire cost of the Initial Project Traffic Improvements as set forth in the San Ramon Settlement Agreement (although each shall be responsible only for its fair share of the cost of such improvements). The costs and proportions so determined and agreed-upon by County and Developer shall be reflected, as appropriate, in the Traffic Impact Fee. The amount of the Traffic Impact Fee shall be adjusted annually in accordance with the construction cost index published in the Engineering;News Record. (5) County shall enter into such agreements with San Ramon and Danville as may be necessary or appropriate to establish a joint exercise of powers agreement (the"JEPA') or some other program or mechanism to provide for (i) the collection of traffic impact fees from development projects in San Ramon, Danville and Contra Costa County and within the boundary of the TEPA or other program or mechanism that will contribute to the need for the Additional Project Traffic Improvements, which fees shall be in amounts consistent with the determinations made under Subsection (4) above, (ii) the establishment of an account or accounts (the "Local TIF Account") to hold Traffic Impact Fees collected from Developer and Shapell, and traffic impact fees collected from the developers of other projects that will contribute to the need for the Additional Project Traffic Improvements (collectively, the "Local TIF Funds"); and (iii) the 10 2881 v8 transfer to San Ramon, Danville and County of Local TIF Funds attributable to the Off-Site Traffic Improvements to be developed within those jurisdictions (the "Local TIF Program"). (6) The timing of when an Off-Site Traffic Improvement is needed will be determined by Measure C (1988) and any conditions of approval for subdivision maps. If the Local TIF Program has not received sufficient developer fees to fund such an improvement when it is needed, then Developer may be required to fund the difference, or construct the improvement, to ensure the improvement is built on time. In such case, Developer shall enter into a reimbursement agreement with County to credit or reimburse Developer the eligible construction costs that were advanced to build the project. Any credit so provided shall be applied in full against the Traffic Impact Fee for each residential unit that receives a building permit following completion of the Off-Site Traffic Improvement by Developer(rather than pro rata against the Traffic Impact Fee for all remaining residential units in the Project) until such time as the full credit has been provided. (7) County shall establish and implement a mechanism to reimburse Developer, and shall reimburse Developer, that portion of the costs to be incurred by Developer in connection with the funding or construction of the On-Site Traffic Improvements and the Off-Site,Traffic Improvements that represents the extent to which such traffic improvements will serve traffic generated by projects that are developed pursuant to general plan amendments approved on or after the Effective Date. (8) To the extent that any Project Traffic Improvement funded or constructed by Developer is included on a project list under any Measure C Action Plan or CMP Deficiency Plan, and provided such transportation improvement has sufficient priority under such Action Plan or Deficiency Plan, Developer shall receive a credit against, or reimbursement from, any traffic fee imposed upon Developer under Section 3.09(11) or Section 3.12 of this Agreement. (9) Some portion of the Traffic Impact Fee may be allocated to and collected from commercial development (on a per-square-foot basis) to occur as a part of Windemere Ranch; provided, however, that the total amount of Traffic Impact Fee to be collected from residential development to occur as a part of Windemere Ranch (as determined above) shall be reduced by the amount of funds to be so collected from commercial development. (10) County shall make its final determination of compliance with the standards of the Growth Management Element of the General Plan relating to traffic in conjunction with the review and approval of tentative subdivision maps. (11) County shall not impose on Developer any fee or other obligation with respect to roads or traffic impacts other than as specifically set forth in this Agreement, Section 4.4 of the San Ramon Settlement Agreement (relating to assurance of compliance with traffic service objectives), Paragraph 1 of the Walnut Creek Settlement Agreement or Paragraph 1 of the Pleasanton Settlement Agreement (relating to Developer's payment of fees to Pleasanton). Notwithstanding the foregoing, nothing in this Agreement shall prevent the County from (i) applying to Windemere Ranch any subregional traffic impact fee required by Measure C (1988) and adopted and applied consistently and on a uniform basis throughout the Tri-Valley subregion 11 2881 v8 r ' by each of the seven jurisdictions that are now signatories to the Tri-Valley Transportation Council joint powers agreement which is adopted prior to the vesting date of any tentative map (provided, however, that County shall provide to Developer a credit against any such fee for traffic improvements constructed and/or funded by Developer under this Agreement or the San Ramon Settlement Agreement), (ii) imposing on Windemere Ranch reasonable requirements for the funding or construction of additional minor traffic improvements made necessary by Windemere Ranch and identified through CEQA review of individual tentative map applications for Windemere Ranch, or (iii) imposing on the Windemere Ranch a subregional traffic fee developed by the JEPA identified in Section 3.09(5) to satisfy Measure C requirements and for the sole purpose of funding a fair share contribution of the Afcosta ramp realignment project at I-680 and the auxiliary lanes project on I-680 between Bollinger Canyon Road and Diablo Road. Section 3.10. Pleasanton Traffic Mitigation. Separate and apart from the Traffic Impact Fee, Developer shall pay to County $150 for each residential unit developed pursuant to the Project Approvals ("Pleasanton Traffic Fees"). The Pleasanton Traffic Fees will be collected by County upon its issuance of the building permit for each such unit and delivered to Pleasanton for the mitigation of traffic impacts on roadways located in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of Windemere Ranch), San Ramon shall collect and deliver the Pleasanton Traffic Fees as set forth above. As provided in Paragraph 5(b) of the Pleasanton Settlement Agreement, Developer's obligations pursuant to this Section 3.10 and Paragraph 1 of the Pleasanton Settlement Agreement shall cease in the event that Pleasanton files any legal action challenging any use or approval or any modification to any use or approval relating to the Dougherty Valley. Section 3.11. Dublin Traffic Miti%ation. County and Developer shall work with the City of Dublin to establish a mutually acceptable fee to account for the cost of mitigating the traffic- related impacts of the Project on roadways located in the City of Dublin net of the cost of mitigating the traffic-related impacts of development projected to occur within the City of Dublin (including, without limitation, the East Dublin project) on the On-Site and Off-Site Traffic Improvements, if any. Such fee, if any, will be collected by County upon its issuance of the building permit for each residential unit in the Project and delivered to Dublin for the mitigation of traffic impacts on roadways in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of Windemere Ranch), San Ramon shall collect and deliver the such traffic fees as set forth above.. If County, Developer and the City Dublin are unable to arrive at a mutually acceptable fee within six (6) months following the Effective Date, then County and Developer may themselves determine the amount of such fee; provided, however, that such six- month period shall be extended for a period of time equal to the period of any undue delay caused by Developer or County in establishing the amount of such fee. Any fee imposed on the Project pursuant to this Section 3.11 shall be approved by the Board of Supervisors and, except as otherwise agreed by County and Developer, remain fixed throughout the term of this Agreement; provided, however, that such fee may be subject to escalation in accordance with the 12 2881 v8 "Construction Cost Index" published in Engineering News Record. If any regional traffic fee is established and required to be paid by Developer under Section 3.09(11) of this Agreement, and such regional traffic fee provides funding for those improvements in Dublin included in calculating the amount of the traffic fee to be paid to Dublin as set forth above then, with respect to any residential unit upon which such regional traffic fee is imposed, Developer shall be relieved of its obligation to pay such portion of the fee described in this Section 3.11 that is attributable to those improvements in Dublin that are funded by such regional fee. Section 3.12. Walnut Creek Traffic Mitigation. Notwithstanding any other provision contained herein, all future tentative subdivision maps covering the Windemere Site shall be subject to all standards and requirements adopted by the County pursuant to Measure C (1988), including but not limited to the Tri-Valley Action Plan or fees adopted thereunder, and all standards and requirements adopted pursuant to Title 7, Division 1, Chapter 2.5 of the Government Code (Section 65080 et seq.), including but not limited to all congestion management plans and deficiency plans adopted thereunder, provided that such standards and requirements are designed to mitigate congestion on the Interstate 680/11ighway 24 interchange or streets within Walnut Creek, are applied to all other major residential projects within the member jurisdictions of SWAT, TRANSPAC and TRANSPLAN, and are imposed by'the County or City only to the extent of the project's impacts on the interchange or streets within Walnut Creek. Neither the foregoing provision nor any other provision of this Agreement (other than the section of this Agreement relating to traffic-based reductions in permitted development (Section 4.01)) shall limit the authority of the County to apply the standards and requirements described above adopted pursuant to Measure C (1988), including, but not limited to, any Action Plan or fees. Section 3.13. Processing Fees. Fees charged by County which solely represent the reasonable costs to County for County staff time and resources spent reviewing and processing Project Approvals are referred to in this Agreement as "Processing Fees." County may charge Developer any applicable Processing Fee that is operative and in force and effect on a Countywide basis at the time such Processing Fee ordinarily is collected. Section 3.14. Mitigation Monitoring Program. Developer shall fund development and operation of a system (the"Permit Tracking System") to monitor compliance with the requirements of the San Ramon Settlement Agreement regarding the provision of certain capital facilities, compliance with mitigation measures and compliance with project conditions, through the payment of a fee not to exceed $100 per residential unit developed on the Windemere Site, payable at recordation of the final map encompassing such unit. Developer shall, at the time services are performed, pay the County staff costs of carrying out the County's Mitigation Monitoring Program, as adopted by the Board on the First Approval Date, and as it may be amended for the purposes of compliance with CEQA(the "Mitigation Monitoring Program"), which are attributable to development of the Windemere Site, on a time and materials basis, and shall pay the reasonable costs of consultants as necessary to implement the Mitigation Monitoring Program. 13 2881 v8 Section 3.15. Other Financing Requirements. (1) County and Developer shall cooperate in (i) the formation, as soon as reasonably practicable but in any event prior to the filing of the first final subdivision map for any portion of the Dougherty Valley, of a County Service Area or other financing entity to receive certain funds and provide certain services, including the operation and maintenance of facilities and infrastructure, as described in Section 3.3 of the San Ramon Settlement Agreement and (ii) the establishment, as soon as reasonably practicable but in any event prior to the filing of the first final subdivision map for any portion of the Dougherty Valley, of a mechanism adequate to fund the provision of such services as described in Section 3.3 of the San Ramon Settlement Agreement. (2) As described in Section 3.4 of the San Ramon Settlement Agreement, to ensure that the Community Center, Senior Center, Library, and Police Substation described in the Specific Plan will be constructed on a timely basis and made available to Dougherty Valley residents at the appropriate time, County shall (except to the extent some other method for the financing or provision of such facilities is requested or established by Developer or Shapell, as appropriate) assess against residential units to be developed in the Dougherty Valley a-fee, special tax or assessment in an amount sufficient to fund Developer's and Shapell's obligation to contribute to the cost of such facilities. Funds so collected will be held in a separate account and made available to Developer or Shapell, as appropriate, for the construction of such facilities. The precise form,.timing and amount of such fee, tax or assessment shall be in accordance with the terms and provisions of Exhibit D. attached hereto. ARTICLE 4. STANDARDS, LAWS AND PROCEDURES GOVERNING WINDEMERE RANCH Section 4.01. Permitted Uses. (1) In General. The permitted uses of the Windemere Site; the density and intensity of use of the Windemere Site; the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the location of public utilities; and other terms and conditions of development applicable to Windemere Ranch, shall be as set forth in the Planning Actions and, as and when they are adopted or issued, the Project Approvals. (2) Exceptions. Not in limitation of the foregoing, the permitted uses, density and intensity of use of the Windemere Site shall include 5,170 residential units at the densities provided for in the Specific Plan and 369,200 square feet of commercial space (exclusive of any community college uses), subject to the following limitations: a. All development of the Windemere Site shall be consistent with the General Plan, including the Growth Management Element thereof, as it existed on the Second Approval Date. County may modify the permitted uses of the Windemere Site to the extent necessary to attain such consistency, provided no other method of attaining such consistency is feasible. 14 2881 v8 b. The parties acknowledge and agree that the terms and provisions of the Settlement Agreements include certain conditions to and limitations on the development of Windemere Ranch. All development of Windemere Ranch shall be consistent with such conditions and limitations. County may limit the development of the Windemere Site to attain consistency with such conditions and limitations if no other method of attaining such consistency is feasible. C. Subject to Section 4.05 of this Agreement, County may modify the permitted uses of the Windemere Site to the extent necessary to satisfy County's obligations under CEQA and (as provided in Section 4.09 below) other State and federal laws, provided no other method of satisfying such obligations is feasible. d. Except to the extent otherwise specifically required by state or federal law, no modification of the permitted uses of the Windemere Site shall occur with respect to any portion of the Windemere Site with respect to which County has approved a tentative or vesting tentative subdivision map. Section 4.02. Applicable Law. The rules, regulations, official policies, standards and specifications applicable to Windemere Ranch (the "Applicable Law") shall be those in force and effect on the Second Approval Date including, without limitation, the Planning Actions. Applicable Law shall also include the Project Approvals as and when they are adopted or issued from time to time. Section 4.03. No Conflicting Enactments. Except as otherwise specifically set forth herein or agreed to by Developer, County shall not apply to Windemere Ranch any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each individually, a "County Law") that is in conflict with Applicable Law (including this Agreement) or that reduces the development rights provided by this Agreement. Without limiting the generality of the foregoing, any County Law shall be deemed to conflict with Applicable Law(including this Agreement) or reduce the development rights provided hereby if it would accomplish any of the following results, either by specific reference to Windemere Ranch or as part of a general enactment which applies to or affects Windemere Ranch: a. except as otherwise specifically provided in Section 4.01(2) above, reduce the number of residential units permitted to be developed on the Windemere Site to fewer than 5,170 units, or revise the densities permitted by the Specific Plan; b. except as otherwise specifically provided in Section 4.01(2) above, reduce the square footage of commercial development permitted to be developed on the Windemere Site to fewer than 369,200 square feet (exclusive of community college uses); C. except as otherwise specifically provided in Section 4.01(2) above, limit or reduce the density or intensity of Windemere Ranch, or any part thereof, otherwise require any reduction in the square footage or number of proposed buildings or other improvements or revise the densities permitted by the Specific Plan; 15 2881 v8 d. except as otherwise specifically provided in Section 4.01(2) above, change any land use designation or permitted use of the Windemere Site; e. except as otherwise specifically provided in Section 4.01(2) above, limit or control the location of buildings, structures, grading, or other improvements of Windemere Ranch in a manner that is inconsistent with or more restrictive than the limitations included in the Planning Actions or (as and when they are issued) the Project Approvals; f. except as otherwise specifically provided in Section 4.01(2) above, limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water connections or sewage capacity rights, sewer connections, etc.) for Windemere Ranch; g. except as otherwise specifically provided in Section 4.01(2) above, limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of Windemere Ranch; h. apply to Windemere Ranch any County Law otherwise allowed by this Agreement that is not uniformly applied on a County-wide basis to all substantially similar types of development projects and project sites; i. require the issuance of additional permits or approvals by County other than those required by Applicable Law; j. establish, enact, increase, or impose against Windemere Ranch any fees, taxes (including without limitation general, special and excise taxes), assessments, liens or other monetary obligations other than (i) those specifically permitted by this Agreement (including Traffic Impact Fees, Processing Fees, fees to fund the Mitigation Monitoring Program and financial obligations associated with the financing of the construction, operation and maintenance of facilities and infrastructure, and the provision of services, as set forth in Article 3 above) and made necessary by Windemere Ranch and (ii) any County-wide taxes and assessments; k. establish, enact, increase or impose against Windemere Ranch any rules, regulations, policies or standards that were not in effect on the Second Approval Date, or otherwise impose against Windemere Ranch any condition, dedication or other exaction not specifically authorized by Applicable Law and (except as authorized by the Settlement Agreements or required by the conditions to the Preliminary Development Plan) not made necessary by Windemere Ranch; or 1. limit the processing or issuance of Project Approvals or applications for Project Approvals. None of the Settlement Agreements shall be considered a conflicting enactment for the purposes of this Agreement. Section 4.04. Uniform Codes. Notwithstanding anything to the contrary contained in this Agreement, County may apply to Windemere Ranch, at any time during the Term, then-current 16 2881 v8 Uniform Building Code and other uniform construction codes, and County's then-current design and construction standards for road and storm drainage facilities, provided that any such uniform code or standard shall apply to Windemere Ranch only to the extent that such code or standard has been adopted by County and is in effect on a County-wide basis. Section 4.05. CE A. County's environmental review of Project Approvals pursuant to CEQA shall utilize the EIR and the Addendum to the fullest extent permitted by law. Section 4.06. Moratoria and Restrictions and Limitations on the Rate or Timing of Development. In the event a County Law is enacted (whether by action of the Board or otherwise, or by initiative, referendum, issuance of a Project Approval or other means) which relates to the growth rate, timing, phasing or sequencing of new development or construction in County or, more particularly, development and construction of all or any part of Windemere Ranch, such County Law shall not apply to Windemere Ranch, or any portion thereof. County Laws made inoperative by this provision include, but are not limited to, those that were not in force and effect on the Second Approval Date and that tie development or construction to the availability of public services and/or facilities (for example, the presence of a specified traffic level of service or water or sewer availability). Section 4.07. Further Assurances. a. County shall not support, adopt or enact any County Law, or take any other action which would violate the express or implied provisions, conditions, spirit or intent of any of the Planning Actions or the Project Approvals. b. Developer reserves the right to challenge in court any County Law that would, in Developer's opinion, conflict with Applicable Law(including this Agreement) or reduce the development rights provided by this Agreement. C. County shall take any and all actions as may be necessary or appropriate to ensure that the vested rights provided by this Agreement can be enjoyed by Developer including, without limitation, any actions as may be necessary or appropriate to ensure the availability of public services and facilities to serve Windemere Ranch as development occurs. d. Should any initiative, referendum, or other measure be enacted, and any failure of to apply such measure by County to the Windemere Ranch be legally challenged, Developer agrees to fully defend the County against such challenge, including providing all necessary legal services, bearing all costs therefor, and otherwise holding the County harmless from all costs and expenses of such legal challenge and litigation. Section 4.08. Life of Subdivision Maps, Development Approvals, and Permits. The term of any subdivision map or and other permit approved as a Project Approval shall automatically be extended as provided under California Government Code § 66452.6(a) or California Government Code § 65863.9. Notwithstanding the foregoing, the vested rights associated with any vesting tentative map (but not the term of such tentative map) shall terminate upon the expiration of the Term of this Agreement. 17 2881 v8 Section 4.09. State and Federal Law. As provided in California Government Code § 65869.5, this Agreement shall not preclude the application to Windemere Ranch of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations ("Changes in the Law"). In the event Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law, and County and Developer shall take such action as may be required pursuant to this Agreement including, without limitation, Article 6 (Cooperation-Implementation) and Section 8.03 (Excusable Delays; Extension of Time of Performance). Not in limitation of the foregoing, nothing in this Agreement shall preclude County from imposing on Developer any fee specifically mandated and required by state or federal laws and regulations. Section 4.10. Timingof Project Construction and Completion. a. Notwithstanding Sections 84-66.1406(1) and 84-66.1602 of the County Code, there is no requirement that Developer initiate or complete development of Windemere Ranch or any particular phase of Windemere Ranch within any particular period of time, and County shall not impose such a requirement on any Project Approval. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. b. In light of the foregoing and except as set forth in subsection (c) below, the parties agree that Developer shall be able to develop in accordance with Developer's own time schedule as such schedule may exist from time to time, and Developer shall determine which part of the Windemere Site to develop first, and at Developer's chosen schedule. In particular, and not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later- adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' desire to avoid that result by acknowledging that Developer shall have the right to develop Windemere Ranch in such order and at such rate and at such times as Developer deems. appropriate within the exercise of its subjective business judgment. C. Nothing in this Agreement shall exempt Developer from completing work required by a subdivision agreement, road improvement agreement or similar agreement in accordance with the terms thereof. Section 4.11. Developer Review of Infrastructure Plans. Developer shall have the right to review and comment on plans for any infrastructure improvement (including, without limitation, streets, roads, trails and detention basins) to be constructed on the Windemere Site by any private party. 18 2881 v8 � N ARTICLE 5. AMENDMENT Section 5.01. Amendment of Planning Actions and Project Approvals. To the extent permitted by state and federal law, any Planning Action (other than this Agreement) or Project Approval may, from time to time, be amended or modified in the following manner: (1) Administrative Amendments. Upon the written request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Project Approval, the Community Development Director or his/her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of Windemere Ranch as a whole; and (ii) whether the requested amendment or modification is consistent with Applicable Law (other than that portion of Applicable Law sought to be amended). If the Community Development Director or his/her designee finds that the proposed amendment or modification is both minor and consistent with Applicable Law (other than that portion-of Applicable Law sought to be amended), the amendment shall be determined to be an "Administrative Amendment" and the Community Development Director or his designee may, except to the extent otherwise required by law, approve the Administrative Amendment without notice and public hearing. For the purpose of this Article 5, lot line adjustments, changes in trail alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of lots or homesites that do not substantially alter the design concepts of Windemere Ranch, and variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of Windemere Ranch, shall be treated as Administrative Amendments. (2) Non-Administrative Amendments. Any request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Project Approval which is determined not to be an Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to Applicable Law (other than subsection (1) above). Nothing in this section 5.01 shall limit any obligations of the County under the San Ramon Settlement Agreement to submit any amendment or modification of a Planning Action or Project Approval to the "Dougherty Valley Oversight Committee," established under the San Ramon Settlement Agreement, for its review and comment or to submit or provide any documentation required by any Settlement Agreement in accordance with the terms of such Settlement Agreement. Section 5.02. Amendment Of This Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the parties hereto or their successors in interest, as follows: (1) Insubstantial Amendments. Paragraph G of County's "Procedures and Requirements for the Consideration of Development Agreements" (adopted by Board Resolution No. 85/412) permits a development agreement to establish an alternative procedure for the processing of"insubstantial amendments" to such an agreement. Pursuant to said Paragraph G, any amendment to this Agreement which does not relate to (i) the Term of this Agreement, (ii) permitted uses of the Windemere Site, (iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions, (v) the 19 2881 v8 density or intensity of use of the Windemere Site or the maximum height or size of proposed buildings or(vi) monetary contributions by Developer, shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto; provided, however, that nothing in this Section 5.02 shall limit any obligations of the County under the San Ramon Settlement Agreement to submit any amendment to their Agreement to the Dougherty Valley Oversight Committee for review and comment. (2) Amendment Exemptions. No amendment of a Planning Action (other than this Agreement) or a Project Approval requested by Developer shall require an amendment to this Agreement. Instead, any such amendment automatically shall be deemed to be incorporated into Windemere Ranch and vested under this Agreement. (3) Parties Required to Amend. Where a portion of Developer's rights or obligations have been transferred and a "Transfer Agreement" (as described in Article 13 below) has been executed in connection therewith, the signature of the person to whom such rights or obligations have been transferred shall not be required to amend this Agreement unless such amendment would materially alter the rights or obligations of such transferee hereunder; provided, however, that any such transferee shall be provided with thirty (3 0) days' prior written-notice of any amendment to this Agreement. (4) Non-Assuming_Transferees. In no event shall the signature or consent of any "Non-Assuming Transferee" (described in Section 13.03 below) be required to amend this Agreement. ARTICLE b. COOPERATION-IMPLEMENTATION Section 6.01. Processing. (1) In taking the Planning Actions, County has established standards and procedures to guide the future development of Windemere Ranch. The Project Approvals shall be deemed to be tools to implement those standards and procedures and must be consistent therewith. (2) Without limiting the generality of the foregoing, except as otherwise agreed to by Developer, County shall not through any Project Approval or the imposition of any condition of approval thereto, (i) except as specifically required pursuant to Section 4.01 of this Agreement, reduce the number of residential units permitted to be developed on the Windemere Site to fewer than 5,170 or change the distribution of those 5,170 units by density as provided in the Specific Plan or reduce the square footage of commercial development permitted to be developed on the Windemere Site to fewer than 369,200 square feet (exclusive of community college uses); or(ii) otherwise enact or impose against Windemere Ranch any ordinance, resolution, rule, regulation, standard, directive, condition or other measure that is in conflict with Applicable Law(including this Agreement) as it exists immediately prior to the issuance of such Project Approval, or that reduces the development rights provided by this Agreement. 20 2881 v8 (3) Upon submission by Developer of all appropriate applications and processing fees for any Project Approval, County shall commence and complete (and shall use its best efforts to promptly and diligently commence and complete) all steps necessary to act on the Project Approval application including, without limitation, (i) the notice and holding of public hearings and (ii) the decision whether to approve the Project Approval application as set forth below. (4) An application by Developer for a Project Approval may be denied by County only if such application does not comply with Applicable Law, is inconsistent with the Planning Actions (provided, however, that inconsistency with a Planning Action shall not constitute grounds for denial of a Project Approval requested by Developer that is an amendment to that Planning Action) or County is unable to make all findings required by state law in connection with such Project Approval. County may approve an application for such a Project Approval subject to any conditions necessary to bring the Project Approval into compliance with Applicable Law, make the Project Approval consistent with the Planning Actions or allow County to make the findings required by state law, so long as such conditions comply with subsection (2) of this Section 6.01. If County denies any application for a Project Approval, County must specify in making such denial modifications which are required to obtain approval of such application. Any such specified modifications must be consistent with this Agreement (including subsection (2) of this Section 6.01) and Applicable Law, and County shall approve the application if subsequently resubmitted for County review if it complies with the specified modifications. (5) Developer shall, in a timely manner, provide County with all documents, applications, plans, and other information necessary for County to carry out its obligations hereunder and cause Developer's planners, engineers, and all other consultants to submit, in a timely manner, all required materials and documents therefor. (6) Any reduction in the amount of permitted development in the Dougherty Valley resulting from either the application of Section 4.01(2) of this Agreement or the application of any comparable provision in any development agreement to which the Gale Ranch Site or the Country Club Site (collectively, the "Entire Gale Ranch Site") is subject shall be allocated as follows: If the reduction is the result of impacts of development in the Dougherty Valley that cannot feasibly be allocated between development of the Entire Gale Ranch Site and Windemere Ranch, the reduction in permitted development shall be allocated between Shapell and Developer such that the permitted development on the Entire Gale Ranch Site shall be 53 percent of the permitted development in the Dougherty Valley and the permitted development on the Windemere Site shall be 47 percent of the permitted development in the Dougherty Valley. If the reduction is the result of impacts of development in the Dougherty Valley that can be feasibly allocated to either the development of the Entire Gale Ranch Site or Windemere Ranch, such project shall bear such reduction. Reductions based on traffic-related impacts shall be allocated 53% to Shapell and 47% to Windemere. Subject to the foregoing, 3,995 residential units of the first 8,500 units in the Dougherty Valley shall be allocated to Developer, and forty-seven percent of any development beyond 8,500 units in the Dougherty Valley will be allocated to Developer. No failure or delay by Shapell in 21 2881 v8 w constructing its first 4,505 residential units on any portion of the Entire Gale Ranch Site shall prevent or delay Developer from or in developing any units beyond its first 3,995 residential units. Section 6.02. Eminent Domain Powers. County shall cooperate with Developer in implementing the Planning Actions and Project Approvals. To the extent permitted by law and subject to the terms and provisions of the San Ramon Settlement Agreement, such cooperation shall include, without limitation, the use by County of its eminent domain powers where necessary to implement the Planning Actions and any Project Approvals. Section 6.03. Other Government Permits. Developer shall apply for such other permits and approvals as may be required by other governmental or quasi-governmental agencies in connection with the development of, or the provision of services to, Windemere Ranch. County shall cooperate with Developer in its efforts to obtain such permits and approvals and shall, from time to time at the request of Developer, use its best efforts to enter into binding agreements with any such agency as may be necessary to ensure the availability of such permits and approvals. ARTICLE 7. COOPERATION IN THE EVENT OF LEGAL CHALLENGE Section 7.01. Cooperation. (1) In the event of any administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of any Planning Action or Project Approval, the parties shall cooperate in defending such action or proceeding, or proceeding to settlement or final judgment. Each party shall select its own legal counsel and retain such counsel at its own expense, and in no event shall County be required to bear the fees or costs of Developer's attorneys. Developer shall save and hold harmless County from and against any and all claims and awards for third-party attorneys' fees associated with such action or proceeding. (2) The parties agree that this Section 7.01 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside. Section 7.02. Cure, Reapproval. (1) If, as a result of any administrative, legal or equitable action or other proceeding as described in Section 7.01, all or any portion of the Planning Actions (including, but not limited to, this Agreement) or Project Approvals are set aside or otherwise made ineffective by any judgment (a "Judgment") in such action or proceeding(based on procedural, substantive or other deficiencies, hereinafter "Deficiencies"), the parties agree to use their respective best efforts to sustain and reenact or readopt those Planning Actions and/or Project Approvals that the Deficiencies related to, as follows, unless the Parties mutually agree in writing to act otherwise: 22 2881 v8 a. If any Judgment requires reconsideration or consideration by County of a Planning Action or Project Approval, then the County shall consider or reconsider that matter in a manner consistent with the intent of this Agreement. If any such Judgment invalidates or otherwise makes ineffective all or any portion of any Planning Action or Project Approval, then the Parties shall cooperate and shall cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of this Agreement. County shall then readopt or reenact the Planning Action or Project Approval, or any portion thereof, to which the Deficiencies related. b. Acting in a manner consistent with the intent of this Agreement includes, but is not limited to, recognizing that the Parties intend that, subject to the provisions Section 4.01(2) above, Developer may develop 5,170 residential units at the densities provided in the Specific Plan and 369,200 square feet of commercial uses (exclusive of community college uses), and adopting such ordinances, resolutions, and other enactments, including but not limited to zoning ordinances, a specific plan and general plan amendments, as are necessary to readopt or reenact all or any portion of the Planning Actions and/or Project Approvals without contravening the Judgment. (2) The parties agree that this Section 7.02 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside. ARTICLE 8. DEFAULT; REMEDIES; TERMINATION Section 8.01. General Provisions. (1) Defaults. Any failure by either party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other party (unless such period is extended by mutual written consent), shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence ("Default Notice") shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such 30-day period. Upon the occurrence of a default under this Agreement, the non-defaulting party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, then no default shall exist and the noticing party shall take no further action. (2) Termination. If County elects to consider terminating this Agreement due to a material default of Developer, then County shall give a notice of intent to terminate this Agreement and the matter shall be scheduled for consideration and review by the Board at a duly noticed and conducted public hearing. Developer shall have the right to offer written and oral 23 2881 v8 y evidence prior to or at the time of said public hearings. If the Board determines that a material default has occurred and is continuing, and elects to terminate this Agreement, County shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter; provided, however, that if Developer files an action to challenge County's termination of this Agreement within such sixty-day period, then this Agreement shall remain in full force and effect until a trial court has affirmed County's termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired). (3) Nothing in this Section 8.01 is intended to limit the effect of the dispute resolution process described in Article VI of the San Ramon Settlement Agreement to the extent such process applies to a dispute arising under this Section 8.01. Section 8.02. Annual Review. (1) On or before October 15 of each year, the Developer shall submit to the County Community Development Department a report demonstrating Developer's good-faith compliance with the terms of the Agreement (the "Annual Review"). This review shall be limited in scope to compliance with the terms of this Agreement. (2) The Community Development Director shall, at a noticed public hearing, consider a staff report regarding Developer's compliance with the terms and provisions of this Agreement. After considering the evidence presented at such public hearing, the Community Development Director shall adopt, adopt with modifications or deny the staff report. (3) Prior to January 30 of each calendar year, and based on the staff report, the Community Development Director shall make a determination regarding compliance with the Agreement. If the Community Development Director finds and determines that Developer has not complied with such terms and conditions, and non-compliance may amount to a default if not cured, then the Community Development Director may deliver a Default Notice pursuant to Section 8.01 of this Agreement, in which case the provisions of Section 8.01 shall apply. If the Community Development Director does not send such a Default Notice, then the Community Development Director and County shall take no further action. The County, including the Community Development Director, may exercise its right relating to any such event of default only after complying with Section 8.01 of this Agreement. (4) County shall deliver to developer a copy of all staff reports and documents to be used or relied upon in conducting the Annual Review and, to the extent practical, related exhibits concerning Developer's performance hereunder, at least ten (10) days prior to any such Annual Review. Developer shall be permitted during the Annual Review to respond orally or by a written statement, or both, to County's evaluation of Developer's performance. (5) In the event County fails to either: (i) conduct the Annual Review or (ii) notify Developer in writing (following the time during which the review is to be conducted) of County's determination as to compliance or noncompliance with the terms of this Agreement and such failure remains uncured as of 60 days following the anniversary of the Effective Date in any 24 2881 v8 year during the term of this Agreement, such failure shall be deemed an approval by County of Developer's compliance with the terms of this Agreement for that Annual Review period. (6) With respect to any year for which an Annual Review is conducted and compliance is approved, or with respect to any year in which County is deemed to approve of Developer's compliance with this Agreement pursuant to the preceding paragraph, County, upon request of Developer, shall provide Developer with a written "Notice of Compliance," pursuant to Article 15 of this Agreement. (7) Nothing in this Section 8.02, which describes a process solely related to County's review of Developer's good faith compliance with the terms and provisions of this Agreement, shall limit obligation of the County under the San Ramon Settlement Agreement to participate in the preparation, consideration and adoption of"Annual Compliance Reports" as and at the times described in the San Ramon Settlement Agreement. Section 8.03. Excusable Delays; Extension of Time of Performance. Notwithstanding anything to the contrary contained herein, neither party shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations), enactment of conflicting state or federal laws or regulations or similar basis for excused performance which is not within the reasonable control of the party to be excused. Upon the request of either party hereto, an extension of time for theperformance of any obligation whose performance has been so prevented or delayed will be memorialized in writing. The term of any such extension shall be equal to the period of the excusable delay, or longer, as may be mutually agreed upon. Section 8.04. Legal Action. Either party may, in addition to any other rights or remedies, institute an equitable action to cure, correct, or remedy any default, enforce any covenant or agreement herein,.enjoin any threatened or attempted violation thereof or enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the foregoing. In no event shall either County or Developer be entitled to monetary damages for breach of contract by the other party to this Agreement. Section 8.05. California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Section 8.06. Resolution of Disputes. With regard to any dispute involving development of the specific plan area, the resolution of which is not provided for by this Agreement or Applicable Law, Developer shall, at County's request, meet with County and/or any party designated by County. The parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 8.06 shall in any way be interpreted as requiring that Developer and County and/or County's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on County or Developer unless expressly agreed to by the parties to such meetings. 25 2881 v8 ARTICLE 9. DEFENSE AND INDEMNITY (1) Developer's Actions. Developer shall defend and indemnify County and its elected and appointed officers, agents, employees, and representatives from claims, costs, and liabilities for any personal injury, death, or physical property damage (including inverse condemnation) to any third party which arises, directly or indirectly, as a result of the construction of Windemere Ranch, or of operations performed under this Agreement, by Developer or by Developer's contractors, subcontractors, agents or employees, whether such operations were performed by Developer or any of Developer's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for Developer or any of Developer's contractors or subcontractors. (2) County's Actions. Nothing in Subsection 1 above shall be construed to mean that Developer shall defend or indemnify County or its elected or appointed officers, agents, employees and representatives from any claims of personal injury, death or property damage arising from, or alleged to arise from the maintenance or repair by County of improvements that have been offered for dedication and accepted by County for maintenance. (3) Further Agreements. County and Developer may from time to time enter into subdivision improvement agreements, as authorized by the Subdivision Map Act, Cal. Gov't Code § 66000 et seq., which agreements may include defense and indemnity provisions different from those contained in subsections (1) and (2) above. In the event of any conflict between such provisions in any such subdivision improvement agreement and subsections (1) and (2) above, the provisions of such subdivision improvement agreement shall prevail. ARTICLE 10. NO AGENCY, JOINT VENTURE OR PARTNERSHIP It is specifically understood and agreed to by and between the parties hereto that: (i) the subject development is a private development; (ii) County has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that County accepts the same pursuant to the provisions of this Agreement or in connection with the various Planning Actions or Project Approvals; exclusive control of Windemere Ranch herein described, subject only to the limitations and obligations of Developer under Planning Actions, the Project Approvals and Applicable Law; and (iv) County and Developer hereby renounce the existence of any form of agency relationship,joint venture or partnership between County and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between County and Developer. ARTICLE 11. MISCELLANEOUS Section 11.01. Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. Section 11.02. Severabilitv. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of 26 2881 v8 competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, Developer may (in Developer's sole and absolute discretion) terminate this Agreement by providing written notice of such termination to County. Section 11.03. Other Necessary Acts. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out Planning Actions and Project Approvals and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. . Section 11.04. Construction. Each reference in this Agreement to any of the Planning Actions or Project Approvals shall be deemed to refer to the Planning Action or Project Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both County and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. Section 11.05. Covenants Running with the Land. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including, without limitation, Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Windemere Site, as appropriate, runs with the Windemere Site and is binding upon the owner of all or a portion of the Windemere Site and each successive owner during its ownership of such property. Section 11.06. Annexation to San Ramon. The San Ramon Settlement Agreement anticipates the potential annexation of the Windemere Site to San Ramon. To the extent any portion of the Windemere Site is so annexed, this Agreement shall continue to apply to the Windemere Project until the expiration of the Term (to the maximum extent permitted by law) and, to the extent such construction is reasonable, appropriate and consistent with the terms of the San Ramon Settlement Agreement, any annexation agreement that may then exist between Developer and San Ramon and any property tax exchange agreement or other agreement that may then exist between San Ramon and County relating to Windemere Ranch, with respect to any portion of the Windemere Site that has been annexed, (i) the term "County" as used herein shall mean "San Ramon" and (ii) San Ramon shall be deemed to be a successor in interest to County's rights and obligations under this Agreement. Section 11.07. Dougherty Valley Development Strategy. The Dougherty Valley is the subject of a comprehensive and integrated planning effort. It has been designed to allow development by phases. The timing of phase development will reflect market conditions and business decisions of the developers of the Dougherty Valley, while requiring that each phase make provision for its needs for infrastructure, services and amenities. Recognizing this development strategy, it is the intent of the Parties that while development must occur in furtherance of the valley-wide Dougherty Valley planning effort and the County's Growth 27 2881 v8 • i ' Management Element, developers of the Dougherty Valley should be able to pursue development in a manner commensurate with their own goals and resources. In imposing conditions of approval, County shall to the extent reasonably feasible allocate to Developer and Shapell their respective separate and distinct obligations relating to development under the Specific Plan. The parties recognize that this may require that, for example, with regard to the construction of facilities involving both Shapell and Windemere, County may need to allocate the separate obligations of each Developer. Nothing in this Section 11.07 shall in any way modify the provisions of Section 4.3.3 of the San Ramon Settlement Agreement. Section 11.08. Other Public Agencies. Nothing in this Agreement shall be construed to limit the County's discretion to determine when and if it will enter into any agreements with other public agencies concerning the subject-matter and provisions of this Agreement or require that the County take any legal action concerning such other public agencies and their provision of services or facilities. Section 11.09. Attorneys' Fees. In the event of any litigation or arbitration between the parties to this Agreement relating to an alleged breach of this Agreement, neither party shall be entitled to an award of attorneys' fees. ARTICLE 12. NOTICES Any notice or communication required hereunder between County or Developer must be in writing, and may be given either personally or by registered or certified mail (return receipt requested). certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of(i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party 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: (510) 646-2026 Facsimile: (510) 646-1309 28 2881 v8 4 With Copies to: County Counsel Contra Costa County Administration Building 651 Pine Street, Ninth Floor Martinez, CA 94553 Telephone: (510) 646-2074 Facsimile: (510) 646-1078 Director of Public Works 255 Glacier Drive Martinez, CA 94553 Telephone: (510) 313-2000 Facsimile: (510) 313-2333 If to Developer, to: Windemere Ranch Partners 1350 Treat Boulevard, Suite 560 Walnut Creek, California 94596 Telephone: (510) 933-1405 Facsimile: (510) 933-1404 With Copies to: Morrison& Foerster P.O. Box 8130 101 Ygnacio Valley Road, Suite 450 Walnut Creek, California 94596 Attention: R. Clark Morrison Telephone: (510) 295-3300 Facsimile: (510) 946-9912 ARTICLE 13. ASSIGNMENT, TRANSFER AND NOTICE Section 13.01. Assignment of Interests, Rights and Obligations. Developer may transfer or assign all or any portion of its interests, rights or obligations under the Planning Actions (including this Agreement) or the Project Approvals to third parties acquiring an interest or estate in Windemere Ranch or any portion thereof including, without limitation, purchasers or ground lessees of lots, parcels or facilities. Section 13.02. Transfer Agreements. a. In connection with the transfer or assignment by Developer of all or any portion of Windemere Ranch (other than a transfer or assignment by Developer to an affiliated party, a "Mortgagee" (as defined in Section 14.01 below) or a "Non-Assuming Transferee" (as 29 2881 v8 defined in Section 13.03 below)), Developer and the transferee shall enter into a written agreement (a "Transfer Agreement") regarding the respective interests, rights and obligations of Developer and the transferee in and under the Planning Actions and the Project Approvals. Such Transfer Agreement may(i) release Developer from obligations under the Planning Actions (including this Agreement) or the Project Approvals that pertain to that portion of Windemere Ranch being transferred, as described in the Transfer Agreement, provided that the transferee expressly assumes such obligations, (ii) transfer to the transferee vested rights to improve that portion of.Windemere Ranch being transferred and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. b. Developer shall seek County's prior written consent to any Transfer Agreement, which consent shall not be unreasonably withheld or delayed. Failure by County to respond within forty-five (45) days to any request made by Developer for such consent shall be deemed to be County's approval of the Transfer Agreement in,question. County may refuse to give its consent only if, in light of the proposed transferee's reputation and financial resources, such transferee would not in County's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Such determination shall be made by the Community Development Director, and is appealable by Developer to the Board. C. Any Transfer Agreement shall be binding on Developer, County and the transferee. Upon recordation of any Transfer Agreement in the Official Records of Contra Costa County, Developer shall automatically be released from those obligations assumed by the transferee therein. d. Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a transferee pursuant to a Transfer Agreement. No breach or default hereunder by any person succeeding to any portion of Developer's obligations under this Agreement shall be attributed to Developer, nor may Developer's rights hereunder be canceled or diminished in any way by any breach or default by any such person. Section 13.03. Non-Assuming_Transferees. Except as otherwise required by Developer in Developer's sole discretion, the burdens, obligations and duties of Developer under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor County's consent shall be required in connection with (i) any single residential parcel conveyed to a purchaser, (ii) any property transferred as fewer than fifty (50) lots to a single retail builder or (iii) any property that has been established as one or more separate legal parcels for office, commercial, industrial, open space, park, school or other nonresidential uses. The transferee in such a transaction and its successors ("Non-Assuming Transferees") shall be deemed to have no obligations under this Agreement, but shall continue to benefit from the vested rights provided by this Agreement for the duration of the Term. Nothing in this section shall exempt any property transferred to a Non-Assuming Transferee from payment of applicable fees and assessments or compliance with applicable conditions of approval. 30 2881 v8 ARTICLE 14. MORTGAGEE PROTECTIONS Section 14.01. Mortgagee Protection. Notwithstanding any other provision of this Agreement, neither this Agreement nor any provision, amendment or breach of this Agreement shall operate to defeat or render invalid the rights of any present or future "Mortgagee" (defined below) under a "Mortgage" (defined below) encumbering the Windemere Site or any part thereof, or any interest therein, made for value; provided, however, that after the "Foreclosure" (defined below) of any such interest therein, that had been encumbered by such Mortgage shall remain subject to and entitled to the benefits of this Agreement. As used in this Agreement, (i)the term "Foreclosure" shall mean judicial foreclosure, sale under a power of sale, or deed in lieu of either of the foregoing or a private or public foreclosure sale under the California Uniform Commercial Code, (ii) the term "Mortgage" shall mean a mortgage, deed of trust, or other security instrument and (iii) the term "Mortgagee" shall mean a mortgagee, a beneficiary of a deed of trust or the secured party under any other security instrument. Section 14.02. Notice of Default to Mortgagee. If County receives notice from a Mortgagee requesting a copy of any notice of default given to Developer hereunder and specifying the address for service of such copy, then County shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer under Section 8.01 above. Each Mortgagee shall have the right, but not the obligation, at its option, to cure or remedy any such default under this Agreement by the Developer in accordance with Section 14.03 below. Section 14.03. Mortgagee Opportunity to Cure. This Agreement shall not be terminated by County as to any Mortgagee (i) who has requested notices of default, as set forth above, but is not given notice by the County or(ii) to whom such notice is given and as to which either of the following is true: (1) as to any default involving the payment of money to County by Developer, such Mortgagee has cured such default within sixty(60) days after receipt of notice of default; (2) as to any default not involving the payment of money by Developer to County: a. such Mortgagee has cured, or caused to be cured, the default within ninety (90) days after receipt or notice thereof; or b. such Mortgagee, within ninety(90) days after the receipt of notice of default, commences foreclosure proceedings to acquire title to the applicable portion of Windemere Ranch and thereafter diligently pursues the Foreclosure to completion. Subject to the foregoing, if any Mortgagee records a notice of default as to its Mortgage, Developer's rights and obligations under this Agreement may be transferred to the Mortgagee or to any purchaser of the Developer's interest in a Foreclosure. 31 2881 v8 .Section 14.04. Approval by Mortgagees. County recognizes that the provisions of this Agreement may be a matter of concern to any Mortgagee intending to make a loan secured by a Mortgage encumbering the Windemere Site, or a portion thereof. If such Mortgagee should require, as a condition to such financing, any modification of this Agreement to protect its security interest in the Windemere Site or portion thereof, County shall execute the appropriate amendments; provided, however, that County shall not be required (but is permitted)to make any modification that would (i) materially and adversely affect County's rights hereunder, (ii) increase County's obligations hereunder, (iii) reduce Developer's obligations hereunder or (iv) constitute an amendment other than an "Insubstantial Amendment" as described in Section 5.02 above. Section 14.05. Notice of Proposed Amendment to Mortgagee. This Agreement may be amended without the approval or execution of any such amendment by any Mortgagee. However, if County receives notice from a Mortgagee requesting notices of proposed amendments, County shall provide a copy of any proposed amendment to such Mortgagee. ARTICLE 15. NOTICE OF COMPLIANCE Within thirty(30) days following any written request which Developer may make from time to time, County shall execute and deliver to Developer (or to any party requested by Developer) a written "Notice of Compliance," in recordable form, duly executedand acknowledged by County, that certifies: (1) 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 modifications; (2) There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default; (3) Any other information reasonably requested by Developer. The failure to deliver such a statement within such time shall constitute a conclusive presumption against County that this Agreement is in full force and effect without modification except as may be represented by the Developer and that there are no uncured defaults in the performance of the Developer, except as may be represented by the Developer. Developer shall have the right at Developer's sole discretion, to record the Notice of Compliance. 32 2881 v8 • ARTICLE 16. ENTIRE AGREEMENT, COUNTERPARTS AND EXHIBITS This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of thirty-five (35) pages and six (6) exhibits which constitute in full, the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of County and the Developer. The following exhibits are attached to this Agreement and incorporated herein for all purposes: (i) Exhibit A - Legal Description (ii) Exhibit B - Responsibilities for Certain Traffic Improvements (iii) Exhibit C-1 - Initial Project Traffic Improvements (iv) Exhibit C-2 - Additional Project Traffic Improvements (v) Exhibit C-3 - Cost Allocations for Certain Additional Project Traffic Improvements (vi) Exhibit D - Establishment of Capital Facilities Fee 33 2881 v8 ARTICLE 17. RECORDATION OF DEVELOPMENT AGREEMENT Pursuant to California Government Code § 65868.5, no later than ten (10) days after County enters into this Agreement, the County Clerk shall record an executed copy of this Agreement in the Official Records of the County of Contra Costa. IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and County as of the day and year first above written. WINDEMERE RANCH PARTNERS, a California limited partnership By: SOMERSET HOMES, a California corporation Its: General Partner By: VIA F. Allan 91apman 61 President By: WINDEMERE GENERAL PARTNERS, a California general partnership Its: Managing General Partner By: CWL WINDEMERE ASSOCIATES, L.P., a California limited partnership Its: General Partner- By: CWL WINDEMERE GROUP, a California limited partnership Its: General Partner By: � V. Allan Cha man General Partner 34 2881 v8 • COUNTY OF CONTRA COSTA By:A6 arvey Bragdon Its: Director of Community Development APPROVED AS TO FORM: VICTOR J. WESTMAN County Counsel County of Contra Costa By: hLan3Ck Silvan B. Marchesi Assistant County Counsel 35 2881 v8 CALIFORNIA ALL-PURPOSOACKNOWLEDGMENT State of f Gi County of �, c XT On before me, D e and Title of Officer(e.g.,"Jane Doe,Notary Public") personally appeared 64 04 , Names)of ner(s) ❑personally known to me-OR proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), XMSAAD or the entity upon behalf of which the person(s) acted, COW#105714 � executed the instrument. •''� NotaY Pubic-C001=46 CONTRA COSM COt1MY MYCoImm.ExpiMAYS 1994 WITNESSmy h nd and official seal. Signature of Notary Pu is OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description.of Attached Document Title or Type of Document: - / &nZe-eezA: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual.. ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee _ ❑ Guardian or Conservator - ❑ Guardian or Conservator ❑ Other: Top of thumb here ❑ Other: Top of thumb here Signer Is Representing: Signer 1s Representing: 0 1994 National Notary Association•8236 Remmet Ave.,P.O.Box 7184-Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.9193 t State of �a.�-�"�-^� OPTIONAL SECTION r n CAPACITY CLAIMED BY SIGNER r County of �i'K- �iGe�.�O Though statute does not require the Notary to � fill in the data below, doing so may prove 199 G invaluable to persons relying on the document. On before me, y g v DATE NAME,TITLE OF OFFICER-E.G.,"'JANE DOE,NQ_TARY PUBLIC- INDIVIDUAL n. []CORPORATE OFFICER(S) personally appeared :y_,_ `""'�-' , NAMIZI(S)OF SIGNER(S) TITLE(S) ®personally known to me-OR -❑ proved to me on the basis of satisfactory evidence to PARTNER(S) LIMITED to be the person(s) whose name(s) is/are ® GENERAL subscribed to the within instrument and ac- ❑ATTORNEY-IN-FACT knowledged to me that he/she/they executed 0 TRUSTEE(S) the same in his/her/their authorized GUARDIAN/CONSERVATOR capacity(ies), and that by his/her/their LILIBETH V ABAD C]OTHER: signature(s) on the instrument the person(s), r " Comm.it 972666 or the entity upon behalf of which the rvoraay Ouauc cauFcsNlA person(s) acted, executed the instrument. Contra Costa County IJ SIGNER IS REPRESENTING: <<-o r MY Came.Expires SeDt.3,1996 NAME OF PERSON(S)OR ENTITY(IES) t WITNESS my hand and official seal. , G SIGNATURE OF NOTARY { OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT THE DOCUMENT DESCRIBED AT RIGHT: . NUMBER OF PAGES DATE OF DOCUMENT r Though the data requested here is not required by law, OTHER THAN NAMED ABOVE it could prevent fraudulent reattachment of this form. SIGNER(S) ©1993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 EX.MIT A Legal Description 2881 v8 EXHIBIT A REAL PROPERTY in an unincorporated area,County of Contra Costa, State of California,described as follows: PARCEL ONE: A parcel of land situated in the Rancho San Ramon, Contra Costa County, Califomia, being all of Lots 22, 23, 24 and 25 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Commencing at the 1 1/2' iron pipe with tag marked LS 4477 at the southwest comer of said Lot 24 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20. Official Records of Contra Costa County; thence North 220 0T 54• East along the westerly fine of Lot 24 as shown on said Record of Survey, 236.36 feet to the point of beginning; thence along the westerly and northerly fines of Lot 24 as shown on said Record of Survey the following courses and distances: North 220 07' 54' East 588.46 feet; North 280 07' 54' East 396.08 feet; North 530 06' 17' East 330.63 feet; North 46° 36' 57' East 594.88 feet; North 200 52' 53' East 481.65 feet; South 88° 52' 59' East 3490.31 feet; Thence leaving said northerly line of Lot 24 and along the following courses and distances: South 190 38' 15' West 1896.78 feet; South 060 41' 36' East 809.15 feet; North 720 40' 16' West 2217.96 feet; North 880 44' 58' West 2106.57 feet; To the point of beginning. A.P.No.: 206-050-006 PARCEL TWO: A parcel of land situated in the Rancho San Ramon, Contra Costa County, Califomia, being all of Lots 21, 22. 23, 24, 25 and 26 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Commencing at the 1 1/2' iron pipe with tag marked LS 4477 at the southwest comer of said Lot 25 as shown on the Record of Survey recorded in Book 68 of land Survey Maps at Page 20, Official Records First American Title EXHIBIT A of Contra Costa County, thence North 38° 37 32' East along the westerly line of Lot 25 as shown on said Record of Survey, 535.10 feet to the point of beginning; thence continuing along said westerly line the following courses and distances: North 14° 52' 42' East 709.65 feet; North 310 52' 49' East 372.42 feet; North 220 07 54' East 236.36 feet; Thence leaving said westerly line and along the following courses and distances: South 880 44' 58' East 2106.57 feet; South 72° 40' 164 East 2217.98 feet; South 06° 41' 36* East 708.77 feet; South 24° 13' 46' West 884.33 feet; North 760 38' 14' West 3651.87 feet; North 790 57' 30' West 871.37 feet To the point of beginning. A.P.No.: 206-050-007 PARCEL THREE: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all- ot Lots 21, 22, 25, 26 and 27 of the Map of the Estate of Elizabeth A Dougherty as said Map Is recorded in Book C of Maps at Page 63 lying within the following described boundary. Commencing at the 1 112' iron pipe at the southwest comer of said Lot 26 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County thence North 160 43' 49' East along the westerly line of Lot 26 as shown on said Record of Survey, 278.22 feet to the point of beginning; thence continuing along said westerly line of Lot 26 and the westerly line of said Lot 25 as shown on said Record of Survey the following courses and distances: North 160 43' 490 East 286.61 feet; North 46° 11' 32* East 317.30 feet; North 35' O7 42' East 810.38 feet; North 380 37 32' East 535.10 feet; Thence leaving the westerly line of Lot 25 and along the following courses and distances: South 790 57 30' East 871.37 feet; South 760 38' 14' East 3651.87 feet; South 24° 13' 46' West 1256.89 feet; North 830 32' 15' West 5039.04 feet; To the point of beginning. A.P.No.: 206-050-008 First American 7"111e EXHIBIT A PARCEL FOUR: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 21, 26, 27, 28, 37 and 38 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded In Book C of Maps at Page 63 lying within the following described boundary: Commencing at the 1 1/2' iron pipe with tag marked LS 4477 at the southwest comer of said Lot 27 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 00' 15'29'West along the westerly line of Lot 27 as shown on said Record of Survey, 396.17 feet to the point of beginning; thence continuing along said westerty fine of Lot 27 and along the westerly line of said Lot 26 as shown on said Record of Survey, the following courses and distances: North 150 13' 54' East 429.38 feet; North 180 45' 20' West 461.93 feet; North 310 12' 50' East 594.77 feet; North 26' 30' 28' West 659.73 feet; North 130 28' 59' East 326.98 feet; , North 330 12' 41' East 280.88 feet; North 160 43' 49' East 278.22 feet; Thence leaving the westerty fine of Lot 26 and along the following courses and distances: South 83° 32' 15' West 5039.04 feet; South 24° 13' 46' West 1793.85 feet; South 86° 40' 37' West 1863.13 feet; South 610 53' 31' West 1511.24 feet; North 79' 30' 52' West 1389.27 feet; To the point of beginning. A.P.No.: 206-050-009 PARCEL FIVE: A parcel of land situated in the Rancho San Ramon, Contra Costa County, Califomia, being all of Lots 2 i. 27, 28, 30, 37 and 38 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded In Book C of Maps at Page 63, lying within the following described boundary. Commencing at the 1 1/2' iron pipe with tag marked LS 4477 at the southwest comer of said Lot 27 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 000 15' 29' West along the westerly line of Lot 27 as shown on said Record of Survey, 396.17 feet; thence South 79° 30' 52' East, 1389.27 feet to the point of beginning; thence along the following courses and distances: North 610 53' 31' East 1511.24 feet; North 86' 40' 37' East 1863.13 feet; South 100 27' 08' West 2017.48 feet; South 85° 37' 28' West 1900.54 feet; North 350 27' 02' West 1606.89 feet First American 7 tle EXHIBIT A To the point of beginning. A.P.No.: 206-090-004 PARCEL SIX: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 27, 30, 37 and 38 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Beginning at the 1 1/2' iron pipe with tag marked LS 4477 at the northwest comer of said Lot 37 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 000 15' 29' West along the westerly tine of Lot 27 as shown on said Record of Survey, 396.17 feet; thence leaving said westerly line and along the following courses and distances: South 79° 30' 52' East 1389.27 feet; South 35° 27' 02' East 1606.89 feel; , South 550 56' 11' West 3036.06 feet; To the westerly line of said Lot 37 as shown on said Record of Survey, thence along said westerly line the following courses and distances: North 350 30' 46' West 1744.38 feel: North 420 26' 53' East 264.40 feet; North 860 52' 12' East 562.01 feet; North 210 58' 30' East 1316.13 feet To the point of beginning. A.P.No.: 206-090-005 PARCEL SEVEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 28, 29, 30, 37 and 38 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, tying within the following described boundary. Beginning at the 1 1/2' iron pipe at the westerly comer of said Lot 30 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 350 30' 46' West along the westerly line of said Lot 30 as shown on said Record of Survey, 366.18 feet; thence leaving said westerly line and along the following courses and distances: North 550 56' 11' East 3036.06 feet; North 850 37' 28' East 1900.54 feet; South 00' 58' 50' West 1753.26 feet, South 27° 02' 31' West 1874.24 feet; North 89° 17' 29' West 2015.55 feet First American Tule EXHIBIT A To said westerly line of Lot 30; thence along said westerly line the following courses and distances: North 36' 59' 49' West 481.74 feet; North 64' 32' 38' West 612.93 feet; North 37' 00' 49' West 758.45 feet To the point of beginning. A.P.No.: 206-090-006 PARCEL EIGHT: A parcel .of land situated in the Rancho San Ramon, Contra Costa County, California, being all of lots 18, 19, 28, 29 and 30 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Commencing at the hub and tack at the southerly comer of that parcel of land shown on the Record of Survey recorded In Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 47'38'45'West along the southerly boundary thereof, 1165.71 feet to the point of beginning; thence leaving said southerly line and along the following courses and distances: North 14' 00' 310 East 2881.61 feet; North 76' 47' 58' West 1495.21 feet; South 27' 02' 31* West 1874.24 feet To a 6' by 6' concrete monument with nail at an angle point in said southerly line; thence South 47' 38' 45' East along said southerly fine, 2178.99 feet to the point of beginning. A.P.No.: 206-090-007 PARCEL NINE: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 17, 18, 19, 28 and 29 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, tying within the following described boundary: Beginning at the 2' iron pipe with tag marked LS 3400 at the southeast comer of that parcel of land shown on the Record of Survey recorded in Book 68 of land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 76' 27' 22' West along the southerly line thereof, 526.21 feet to a 1 1/2' iron pipe with tag marked LS 4477; thence continuing along said southerly line the following courses and distances: South 62' 17' 26" West 886.61 feet; South 76' 21' 49' West 202.39 feet; North 47' 38' 45' West 1165.71 feet; Thence leaving said southerly line and along the following courses and distances: North 14' 00' 31' East 2881.61 feet; South 76' 47' 58' East 1876.12 feet First American 7"rtle 0 EXHIBIT A To the easterly line of said Parcel; thence along said easterly line the following courses and distances: South 01* 52' 24' West 146.47 feet; South 01' 48' 08' West 404.58 feet; South 040 11' 52' East 1156.35 feet; South 120 00' 35' West 1136.95 feet To the point of beginning. A.P.No.: 206-090-008 PARCEL TEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 18, 19, 20, 21, 27, 28, 29, 30 and 38 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Commencing at the 1 112' iron pipe with tag marked LS 4477 at the northeasterty comer of said Lot 21 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 18' 41'02* East along the easterly fine of Lot 22 of said Map of the Estate of Elizabeth A. Dougherty as shown on said Record of Survey, 219.30 feet; thence leaving said easterly line and along the following courses and distances: North 87° 54' 08' West 2647.98 feet; South 24° 13' 466 West 3050.74 feet; To the point of beginning; thence along the following courses and distances: South 61' 04' 56' East 1056.76 feet; South 370 27" 21' East 1271.07 feet; South 14° 00' 31' West 2636.87 feet; North 76' 4T 58' West 1495.21 feet; North 000 58' 50' East 1753.26 feet; North 10' 27" 08' East 2017.48 feet To the point of beginning. A.P.No.: 206-090-010 PARCEL ELEVEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 18, 19, 20, 28 and 29 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. First American Tule EXHIBIT A Commencing at the 2' iron pipe with tag marked LS 3400 at the southeast comer of that parcel of land shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 12' 00' 35* East along the easterly line of said Parcel, 1136.95 feet to a 2' iron pipe; thence continuing along the easterly line of said Parcel the following courses and distances: North 040 11' 52' West 1156.35 feet; North 01' 48' 08' East 404.58 feet; North 01' 52' 24' East 146.47 feet; To the point of beginning; thence continuing along said easterly line the following courses and distances: North 01' 52' 24' East 999.43 feet; North 41' 25"00' East 555.81 feet; North 24' 50' 12' East 1412.60 feet; North 47' 32' 09' West 593.54 feet; Thence leaving said easterly line and along the following courses and distances: South 86' 20' 31' West 1747.64 feet; South 14' 00' 31' West 2636.87 feet; South 76" 47' 58' East 1876.12 feet To the point of beginning. A.P.No.: 206-090-009 PARCEL TWELVE: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 19, 20, 21 and 28 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Commencing at the 1 1/2' iron pipe with tag marked LS 4477 at the northeast comer of said Lot 21 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence along the easterly Gne of said Lot 21 as shown on said Record of Survey the following courses and distances: South 48' 43' 31• East 330.00 feet; South 02' 37' 48' West 438.24 feet; South 38' 29' 47' West 808.50 feet; To a 1 1/2' iron pipe with tag marked LS 4477 and the point of beginning; thence continuing along said easterfy line the following courses and distances: South 12' 23' 49' West 151.33 feet; South 01' 32' 04' West 94.62 feet; South 06' 29' 47' West 653.74 feet; South 00' 03' 04' West 1705.65 feet To a 1 1/2' iron pipe with tag marked LS 4477; thence leaving said easterly line and along the following courses and distances: First American 7-Idle EXHIBIT A South 86" 20' 31' West 1747.64 feet; North 370 27' 21' West 1271.07 feet; North 490 29' 42' East 2778.99 feet; South 780 28' 34' East 525.18 feet To the point of beginning. A.P.No.: 206-090-011 PARCEL THIRTEEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California. being all of Lots 20, 21, 22, 25, 26, 27, 28 and 38 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary: Beginning at the 1 112' iron pipe with tag marked LS 4477 at the northeast comer of said Lot 21 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence along the easterly line of said Lot 21 as shown on said Record of Survey the following courses and distances: South 480 43' 31' East 330.00 fees; South 02. 37' 48' West 438.24 feet; South 38° 29' 47' West 808.50 feet; To a 1 1/2' iron pipe with tag marked LS 4477; thence leaving said easterly line and along the following courses and distances: North 780 28' 34' West 525.18 feet~ South 49° 29' 42' West 2778.99 feet; North 610 04' 56' West 1056.76 feet; North 24' 13' 46' East 3050.74 feet South 87° 54' OS' East 2647.98 feet To the easterly line of said Lot 22 as shown on said Record of Survey, thence South 18° 41' 02' West along said easterly line, 219.30 feet to the point of beginning. A.P.No.: 206-050-010 PARCEL FOURTEEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 22, 23, 24, 25, and 26 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary: Commencing at the 1 112' iron pipe with tag marked LS 4477 at the northeast comer of said Lot 23 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence along the easterly line of said Lot 23 as shown on said Record of Survey the following courses and distances: South 05° 47' 38' West 1186.86 feet; South 250 36' 43' East 971.76 feet; First American Title EXHIBIT A To a 1 1/2' iron pipe with tag marked LS 4477 and the point of beginning; thence continuing along saiu easterly line of said Lot 23 and along the easterly line of said Lot 22 as shown on said Record of Survey the following courses and distances: South 02° 53' 42' West 874.71 feet; South 46' 43' 40' West 508.29 feet; South 540 42' 12' West 228.41 feet; South 18° 41' 02' West 757.50 feet; Thence leaving said easterly line of said Lot 22 and along the following courses and distances: North 87' 54' 08' West 2647.98 feet; North 24' 13' 46' East 884.33 feet; North 06° 41' 36' West 708.77 feet; North 790 12' 02' East 2779.99 feet; South 830 15' 06' East 481.83 feet To the point of beginning. , A.P.No.: 206-050-011 PARCEL FlFTEEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, Califomia, being all of Lots 22, 23, 24, and 25 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63, tying within the following described boundary. Beginning at the 1 1/2' Iron pipe with tag marked LS 4477 at the northeast comer of said Lot 23 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence along the easterly fine thereof the following courses and distances: South 05' 47' 38' West 1186.86 feet; South 250 36' 43' East 971.76 feet; To a 1 1/2' iron pipe with tag marked LS 4477; thence leaving said easterly line and along the following courses and distances: North 83' 15' 06' West 481.83 feet; South 79° 12' 02' West 2779.99 feet; North 06° 41' 36' West 809.15 feet; North 190 38' 15' East 1896.78 feet; FirstAmerican7"-Itle EXHIBIT A To the northerly line of said Lot 24 as shown on said Record of Survey, thence South 880 52' 59' East along said northerly line, 104.88 feet to a 1 1/2' iron pipe with tag marked LS 4477 at the northwest comer of said Lot 23 as shown on said Record of Survey, thence South 880 18' 36' East along the northerly line of said Lot 23, 2261.97 feet to the point of beginning. A.P.No.: 206-050-012 EXCEPTING FROM PARCELS ONE THROUGH FlFTEEN: The rights reserved in the Deed from Emil Gumpert, et al to Edcel, N.V., a Netherlands Antilles corporation, recorded March 28, 1980, as Instrument No. 80-39830, as follows: 'But only as to the area ting more than five hundred (500) feet below the land surface of the real property, an undivided one-half (1/2) interest in and to all rights to, and one-half (1/2) of all oil, gas, minerals, petrochemicals and other hydrocarbon substances in, under or produced and saved from, the real property. First American Tale EXHIBIT B Responsibilities For Certain Traffic Improvements 2881 v8 EXHIBIT B oa w • f 07 �� �;�•� .. , � Lbw •%/,r• � � off. www \ • •r 1 •'w (� `�v fi ,, }..a 1 � t t • _ W � w oz to o °fo �o0 ` o � I z �oo z °E °� z a 'o • EXHIBIT C-1, C-2 and C-3 Traffic Improvements 2881 v8 EXHIBIT C-1 Initial Project Traffic Improvements C-1.1. Camino Tassajara/Crow Canyon Rd.Blackhawk Rd. intersection improvements. Within existing curb-to-curb pavement section, reconfigure NB approach (Crow Canyon Rd.) to provide two left-turn lanes, one exclusive through lane, one shared through/fight-turn lane, and one exclusive right-turn lane. On Tassajara Ranch Drive, remove median and add bike lanes. C-1.2. Sycamore Valley Rd.11-680 NB on-ramp/Camino Ramon intersection improvements. Reconfigure WB approach (Sycamore Valley Rd.) to provide one exclusive left- turn lane, one exclusive through lane, one shared through/right-turn lane, and one exclusive fight- turn lane. C-1.3. Crow Canyon Rd./Dougherty Rd. intersection improvements. Reconfigure EB approach (Crow Canyon Rd.) to provide three exclusive through lanes, and one "free"'right-turn lane to SB Dougherty Rd. Reconstruct SB Dougherty Rd., south of Crow Canyon Rd., to provide dedicated curb lane to accept fight-turns from EB Crow Canyon Rd. C-1.4. Bollinger Canyon Rd./Camino Ramon intersection improvements. If needed; reconfigure SB approach(Camino Ramon) to provide two exclusive left-turn lanes, one shared through/right-turn lane, and one exclusive right-turn lane. C-1.5. Bollinger Canyon,Rd./Alcosta Blvd. intersection improvements. Reconfigure EB approach (Bollinger Canyon Rd.) to provide one exclusive left-turn lane, three exclusive through lanes, and one exclusive fight-turn lane. Reconfigure WB approach(Bollinger Canyon Rd.) to provide one exclusive left-turn lane, three exclusive through lanes and one exclusive right-turn lane. Reconfigure SB approach(Alcosta Blvd.) to provide one exclusive left-turn lane, two exclusive through lanes, and one exclusive right-turn lane. Widen Bollinger Canyon Rd., east of Alcosta Blvd., to provide three through lanes, plus turn lanes as needed, in EB and WB directions from Alcosta Blvd. to project limits. Construct traffic signal at Canyon Lakes Drive. C-1.6. Dougherty Road, re-alignment and construction of a six lane facility between the northerly project limits and Crow Canyon Road. C-1.7. Windemere Parkway, construction of a new four lane, divided arterial facility between the project limits and Camino Tassajara Road. Intersection improvements at the Windemere Parkway/Camino Tassajara intersection which include a traffic signal, left-turn channelization, and transition tapers from six to four lanes on Camino Tassajara north of the intersection.. C-1.8. Windemere Parkway/Camino Tassajara Road intersection improvements, provide left turn channelization, a four phase traffic signal, and tapers on Camino Tassajara to transition from six to four lanes north of the intersection. 2881 v8 C-1.9. Crow Canyon Road, widen to six lanes between Dougherty Road and Tassajara Ranch Road. C-1.10. Crow Canyon Road, widen from 4 to 6 lanes from Alcosta Blvd. to Dougherty Road. C-1.11. Dougherty Road, widen to 6 lanes from southerly limits of development to Old Ranch Road. Intersection improvements at the Dougherty Road/Old Ranch Road intersection are included and consist of a traffic signal, left-turn pockets, and right-turn pockets. C-1.12. Dougherty Road, widen to 6 lanes from Old Ranch Road to the County line. C-1.13. Dougherty Road/Old Ranch Road, intersection improvements to accommodate four lanes on Old Ranch Road and six lanes on Dougherty Road, with left turn and right turn channelization. Install a traffic signal. C-1.14. Alcosta Blvd./Old Ranch Road intersection improvements (Currently, controlled by a three- way stop sign). Install a traffic signal. 2881 v8 EXHIBIT C-2 Additional Project Traffic Improvements C-2.1. Bollinger Canyon Road, construct eight lanes from I-680 to Alcosta. C-2.2. Camino Tassajara Road, widen from two to six lanes between Windemere Parkway and the County line. C-2.3. Camino Tassajara/Sycamore Valley Road intersection improvements, widen/restripe SB leg for 1 LT/RT lane and 1 LT lane. C-2.4. Crow Canyon Road, widen from 6 to 8 lanes from I-680 to Alcosta. C-2.5. I-680 northbound off ramp/Bollinger Canyon Road intersection improvements. On NB leg, widen right turn radius, construct raised island to convert curb right turn lane to a free right turn lane, restripe 2nd right turn lane to stay under signal control, and modify signal control. C-2.6. Alcosta/Crow Canyon Road intersection improvements. Add exclusive right turn EB. C=2.7. Alcosta/Crow Canyon Road intersection improvements. Add one NB exclusive RT lane. C-2.8. Camino Ramon/Crow Canyon Road intersection improvements. Widen/restripe SB approach to one RT, one through lane, and 1 LT lane; add an EB exclusive RT lane. C-2.9. Crow Canyon Road/I-680 NB off-ramp intersection improvements. Intersection will be congested due to queues from adjacent intersections. Add another RT lane on NB off- ramp. C-2.10. I-680 SB ramps/Crow Canyon Road. Restripe to revise existing right turn lane to provide shared right/left lane. C-2.11. Bollinger Canyon Rd./Sunset Dr. intersection improvements. If needed, reconfigure SB approach (Sunset Dr.) to provide one exclusive left-turn lane, one exclusive through lane, and one "free" right-turn lane to WB Bollinger Canyon Rd. Widen Bollinger Canyon Rd., west of Sunset Dr., to provide dedicated curb lane to accept right-turns from SB Sunset Dr. C-2.12. Crow Canyon Road Noise Attenuation. As appropriate, construct soundwalls along Crow Canyon Rd. between Dougherty Rd. and Alcosta Blvd. C-2.13. Crow Canyon Road, Camino Tassajara and Sycamore Valley Road. Provide for pavement overlays of these roads between the Dougherty Valley project and I-680. 288 1A EXHIBIT C-3 Cost Allocations for Certain Additional Project Traffic Improvements Not in limitation of any obligation of the Developer to provide a pro rata contribution to any of the improvements described on Exhibit C-2 other than the improvements listed below, the following improvements shall be funded by a fee, to be paid at building permit for each residential unit in the Project, not to exceed $200 per unit. Reference to Improvement Exhibit C-2 C-3.1 Camino Tassajara Overlay C-2.13 C-3.2 Crow Canyon Road Overlay C-2.13 C-3.3 Sycamore Valley Road Overlay C-2.13 C-3.4 Crow Canyon Soundwall C-2.12 C-3.5 Camino Tassajara/ C-2.3 Sycamore Intersection The per-unit fee described above shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. Any obligation to pay a fee to fund any of the improvements described in this Exhibit C-3 shall be conditioned upon construction of the identified improvements. Failure to construct an identified improvement shall result in a corresponding refund to the Developer. 2881 v8 EXHIBIT D Community Facilities Fee 2881 v8 EXHIBIT D Dougherty Valley Community Facilities Fee 1. FojM of Aneement - This agreement regarding Community Facilities Fees, shall be incorporated into all existing and future development agreements regarding the Shaped and Windemere portions of the Dougherty Valley. This agreement will be executed by the developers and Contra Costa County, and will be agreed as to form, by the City of San Ramon. 2. Definition of Community Facilities- "Community Facilities" include the Library, the Community Center,the Senior Center,a Corporation Yard and the Police Substation. The square footage requirements and timing for design and construction are as defined, and are subject to revision as specified in the Agreement to Settle Litigation dated May 11th, 1994. 3. Timing for Establishment of Fee - Prior to the filing of the first final map in the Dougherty Valley, a "Community Facility Fee" shall be established for the entire 11,000 unit Dougherty Valley project. 4. Community_Facilities Cost Components - As illustrated in Attachment A, the total cost of each community facility required in the Dougherty Valley shall include the cost of the facility design, the cost of construction, the cost of furnishings, and the cost of site development. The amount illustrated in Attachment A is not inclusive of land costs,. 5. Land Dedication-Land required for the facilities shall be dedicated by the developers. Appra=ately sic acres are required for the five subject facilities In the event one developer is required to dedicate more than three acres, the other developer shall reimburse, at the time of construction, the dedicating developer for the cost of the land as determined by appraisal at that time. 6. Fee Amount - Fees shall be collected by the County at the issuance of the building permit. As illustrated in Attachment A, the total fee per unit equates to $1,410. The designated expenditure allocation is as follows: Lbrary S 326 (pro-rata cost for 11,000 units) Community Center S 520 (pro-rata cost for 11,000 units) Police Substation S 61 (pro-rata. cost for 11,000 units). Corporation Yard $ 269 (pro-rata cost for 11,000 units) Senior Center S 234 (Pro-rata cost for 8,500 units) Total Fee $1,410 The portion of the fee attributable to the Library, Community Center, Police Substation and Corporation Yard, shall be paid by all 11,000 units in the Dougherty Valley,except as is indicated below. The portion of the fee attributable to the Senior Center, shall be paid by the first 8400 units in the Dougherty Valley. 7. Cost of Living Adjustments-The Community Facilities fee sh ffbea:kusud according to the Engineering News Record Construction Cost Index each year. SXSI-BIT D 8. Escrow AcgaM.- Upon collection by the Count, Oes shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commences. 9. Obligation to Fund Shortfall - When funds are required for the construction of any community facility, the pro-rata obligation for funding each community facility shall be divided 53% to Shapell and 47% to Windemere. This percentage allocation shall apply regardless of the ultimate, or then-current, number of units constructed on either developer's property. Each developer is individually responsible for providing their pro-ram share of costs (53% Shapell/47% Windemere)when the funds for a specific community facility is required. Each developer may use the fees generated by prior units, and may finance the balance of the funds in any manner available to them. If a developer provides a sourc of funding other than that which has accumulated in. the Community Facilities Escrow Accounts, the parties to this agreement shall re- evaluate the fee amount at that time,with the intention of offsetting future fees by an amount commensurate with the developer's other funding method 10. AbilitK to Cure Developgr Default - As specified in Section 4.33.2 of the May 11, 1994 Agreement to Settle Litigation,if one developer defaults in the obligation to fund the pro-rata share of a community facility, the other developer may cure the default. and not be penalized by a cessation of building permits. However, the developer in default may again obtain building permits,by funding with interest,their original pro- rata cost obligation (53% Shapell/ 47% Wmdemere). 11. Satisfaction of a DeveloR r Obligation by a Third Party- If a developer's obligation to provide a specific community facility is satisfied by an alternate contribution acceptable to the County and the City of San Ramon, the Fee paid by subsequent units in the Dougherty Valley shall be re-evaluated with the intention of offsetting future fees by an amount commensurate with the alternate satisfaction of the obligation. 12. Q= Service Area Charge - A County Service Area (CSA) is required by Section 33.1 of the May 11, 1994 Agreement to Settle Litigation, to be in place prior to annexation of any portion of the Dougherty Valley. As part of the formation of the CSA, an assessment equal to the estimated total future operation and maintenance I ost, may be applied to units for construction of the community facilities. This capital charge will be reduced, dollar for dollar, as the operationand maintenance charges for those facilities are incurred. Page Two EXHIBIT D Upon collectic a the County, CSA charges attnbL_ Wo the capital facilities,shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commence. Funds accumulated under this CSA charge, shall be considered a "source of other financing" as is identified in #9 above. 13. CounIX Apgroval/Ci Review - Plans for the design and construction of the community facilities shall be approved by Contra Costa County and reviewed by the City of San Ramon. The County agrees to give good faith consideration to all comments received from the City. If a dispute arises, the County and City agree to participate in the Dispute Resolution process outlined in Article V of the Agreement to Settle Litigation dated May 11, 1994. 14. FaciliIX Design and Construction - The Developers shall be allowed, based on the design and construction specifications from the appropriate agency and with the approval of the County and the review of the City of San Ramon, to design and d construct each of the community facilities. IS. Design Changgl Resulting in Exceeding Facility Budget-The developers will not be required to fund facility construction costs greater than that described in Attachment A unless the increased cost is a result of cost of living adjustments(see paragraph 7 or changes in federal or state law. 16. Annual Ret is - An annual report summarizing the Community Facilities Fee Escrow Account balances, and the CSA Escrow Account balances shall be provided with the annual mitigation monitoring program- Page three Dougherty Valley 1UBIT D - Attachment A Community Facilities Fees Report Date: 9/20/95 Library(11.600 Square Feet) Costper Unit Unit Unit Estimated 11,000 Cost Component Note Tie Quantity Price Total Cost Units Site Development 1 AC 1.00 $108,900 S108,900 $10 Hard Construction Costs SF 11,600 $155.00 S1,798,000 $163 Soft Construction Costs 2 LS 1 $343,242 5343,242 $31 Furnishings SF 11,600 $15.00 $174,000 $16 Subtotal $2,424,142 $220 Educational Materials 3 Book 58,000 $20.00 $1,160,000 $105 Total $3,584,142 326 Footnotes: 1. Assumes cost of$2.50 per square foot. 2. Assumes 18%of both hard construction costs and site development 3. Assumes 2 books per capita for approximately 29,000 people. Community Center(24.000 Square Feet) Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Tie Quantity Price Total Cost Units SiteDevelopment 1 AC 2.00 $108,900 $217,800 $20 Hard Construction Costs SF 24,000 $185.00 $4,440,000 $404 Soft Construction Costs 2 US 1 $698,670 $698,670 $64 Furnishings SF 24,000 $15.00 $360,000 $33 Total $5,716,470 520 Footnotes: 1. Assumes site development cost of approximately$2.50 per square foot 2. Assumes 15%of both hard construction costs and site development. Y Dougherty Valley EXHIBIT D - Attachment A Community Facilities Fees Report Date: 9/20/95 Senior Center(10.000 Square Feet) Cost per Unit Unit Unit Estimated 8,500 Cost Component Note Type Quantity Price Total Cost Units Site Development 1 AC 1.00 $108,900 $108,900 $13 Hard Construction Costs SF 10,000 $150.00 $1,500,000 $176 Soft Construction Costs 2 LS 1.00 $241,335 $241,335 $28 Furnishings SF 10,000 $14.00 $140,000 $16 Total S1,990,235 234 Footnotes: 1. Assumes site development cost of approximately$2.50 per square foot. 2. Assumes 15%of both hard construction costs and site development. Police Substation (Approximately 4.500 Square Feet) Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Type _. Quantity Price Total Cost Units Site Development I AC 0.34 $367,647 $125,000 $11 Hard Construction Costs SF 4,500 580.00 $360,000 $33 Soft Construction Costs 2 LS 1 572,750 572,750 57 Furnishings SF 4,500 $25.00 $112,500 $10 Total675 0.250 61 Footnotes: 1. Assumes site development cost of approximately$8.45 per square foot(rounding) 2. Assumes 15%of both hard construction costs and site development. Dougherty Valley EMU= D - Attachment A Community Facilities Fees Report Date: 9/20/95 Corporation Yard Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Tye _ tit Price Total Cost Units Site Development Costs 1 AC 1.70 S108,9.00 S185,130 $17 Bard Constr&Furnishings 2 IIS 1 $2,500,000 $2,500,000 $227 Soft Costs 3 LS 1 $268,513 $268,513 $24 Total $2,953,643 269 Footnotes: 1. Assumes site development cost of approximately$2.5 per square foot 2. Total cost estimated at S2.5 million;includes parking,landscaping,furnishings,4480 square feet for sh6p space,800 square feet for offices and 1,680 square feet for locker areas. 3. Assumes 10%of both hard construction costs&furnishings and site development. _t ORDINANCE NO. 95-56 (Re-Zoning Land in the San Ramon Area) The Contra Costa County Board of Supervisors ordains as follows: V-19,V-20,W-20,X-18, SECTION I: Page s W-19m,Z-19m of the County's 1978 Zoning Map(Ord.No.78-93)is amended by re- zoning the land in the above area shown shaded on the map(s)attached hereto and incorporated herein (see also Community Development Department File No. RZ 92 2992 ) FROM: Land Use District A-80 ( Exclusive Agricultural TO: Land Use District P-1 ( Planned Unit Development 1 and the Community Development Director shall change the Zoning Map accordingly, pursuant to Ordinance Code Sec.84.2.003. SECTION II. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days of passage shall be published once with the names of supervisors voting for and against it in the CONTRA COSTA TIMES ,a newspaper published in this County. PASSED on D e c e mb e li 19 . 1 9 9 5by the following vote: Supervisor Aye NQ Absent Absta 1. J.Rogers (X) O O ( ) 2. J.Smith N ( ) ( ) ( ) 3. G.Bishop ( ) (x) ( ) ( ) 4. M.DeSaulnier (x) ( ) ( ) ( ) 5. T.Torlakson (x) ( ) ( ) ( ) ATTEST: Phil Batchelor,County Administrator and Clerk of th Board of ervisors Chairman of the BPard By Dep. (SEAL) ORDINANCE.NO. 95-56 RZ 92 2992 Page 1 of 5 V 4' + A ao / A + ( ( At80 80 , + b� + + €c» is f A$C?+ Page V-19 of the County's 1978 Zoning Map 2992-RZ XX �4 Page W-19m of the County's 1978 Zoning Map 2992-RZ 2992-RZ Foreman Page Two of Five A•40 A-2 A•80 RUC P A•80 A•40 + + A- JOH!BTd RD' + A.80 + + + ° + + A•80 A-2 + + + + + + + r A 80 A 20 A 80 A•2 Page V-20 of the County's 1978 Zoning Map 2992-RZ A2 �h + + Q + A I i9p Q + A•80 yy V + + + A•80 + + + A•80 A.2 Page W-20 of the County's 1978 Zoning Map 2992-RZ 2992-RZ Foreman Page Three of Five A•80 - A•80 1 A-80 s A•80 a + s 4 A-80 Page X-18 of the County's 1978 Zoning Map 2992-RZ 1 { . f A•80 i Page Z-19m of the County's 1978 Zoning Map 2992-RZ Page Four of Five 2992-RZ Foreman QQ F. Page Z-19m of the County's 1978 Zoning Map 2992-RZ 2992-RZ Foreman Page Five of Five ORDINANCE NO. 95- 6 4 Windemere Ranch Partners Development Agreement Page 1 of 2 WHEN RECORDED RETURN TO CLERK, BOARD OF SUPERVISORS 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 by and between the County of Contra Costa and Windemere Ranch Partners relating to the development project known as The Dougherty Valley General Plan Amendment, Specific Plan and Related Projects (the "Development Agreement"), which is attached as Exhibit A and hereby incorporated into this Ordinance for all purposes by this reference, has been found by the County Zoning Administrator to be adequate for approval, and (as established by the terms of the Development Agreement,the recommendations of the County Community Development Department,the County Zoning Administrator, and such other information in the record provided to the Board) is consistent with(1) the County's General Plan and the Dougherty Valley Specific Plan and (2)those certain Agreements to Settle Litigation Relating to the Dougherty Valley General Plan Amendment, Specific Plan and Environmental Impact Report entered into by and between Contra Costa County, Windemere Ranch Partners and Shapell Industries of Northern California; and (i) the City of San Ramon and the Town of Danville (dated May 11, 1994); (ii)the City of Pleasanton(dated June 20, 1995); (iii)the City of Walnut Creek (dated July 11, 1995); (iv) the East Bay Municipal Utility District(dated September 26, 1995); (v) the Alamo Improvement Association(dated October 12, 1995); and(vi) several non-governmental organizations, viz., the Sierra Club,the Greenbelt Alliance, Preserve Area Ridgelands Committee, Save Our Hills, and the Mount Diablo Audubon Society (dated October 12, 1995). The Board hereby further finds that the underlying development project.to which the Development Agreement relates was'subject to full and proper environmental review under CEQA, resulting in the certification of an EIR(December 22, 1992), preparation of an Addendum to the EIR, and consideration of the EIR and the Addendum(December 12, 1995),. which review encompassed the Development Agreement. Section Il. Approval. Pursuant to the authorization provided in sections 65864 et seq. of the Government Code of the State of California, the Board hereby approves the Development Agreement. The Board hereby authorizes the Director of Community Development to execute the Development Agreement on behalf of the County and to post a notice of determination pursuant to Section 21152 of the California Public Resources Code regarding this approval. Section III. Repeal. The Board hereby repeals Ordinance No. 90-88 (Windemere Ranch Development Agreement) and rescinds in its entirety that certain development agreement entered we-3265 1 into between the County and Windemere Ranch Partners dated October 2, 1990 relative to the property known as Windemere Ranch. Section IV. 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 V. Statute of Limitations. No action or proceeding ("Action") may be brought by a person, public agency, or public or private corporation, partnership, association, organization or other business or non-business entity other than the parties to the Development Agreement or their successors (collectively referred to as "Third Party")to attack, review, interpret, set aside, void, or annul all or any part of the Development Agreement or the decision of the County of Contra Costa to approve and execute the Development Agreement, unless the Action is commenced and service made on the County of Contra Costa within 90 days from the County's adoption of this Ordinance. Section VI. Effective Date. This Ordinance shall become 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 of general circulation published in this County. PASSED and ADOPTED on December 19, 1995 by the following vote: AYES: Supervisors Rogers, Smith, DeSaulhier. and Torlakson NOES: Supervisor Bishop ABSENT: None ABSTAIN: None ATTEST: PHIL BATCHELOR, Clerk of the Board of Supervisors and County Administrator. By: . De uty Boarg Chair Date: December 19 , 1995 we-3265 2 95-64 t Y RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Morrison & Foerster P.O. Box 8130 101 Ygnacio Valley Road, Suite 450 Walnut Creek, California 9459673570 Attention: R. Clark Morrison (Space Above This Line Reserve For Recorder's Use) DEVELOPMENT AGREEMENT BY AND BETWEEN THE COUNTY OF CONTRA COSTA AND WINDEMERE RANCH PARTNERS 2881 v8 ! t TABLE OF CONTENTS Recitals........................................................................:...................... 1 Agreement ...........................................:.............................................. 4 Article 1. Effective Date and Term ............................................... 4 Section 1.01. Effective Date ................................................... 4 Section 1.02. Term................................................................. 4 Article 2. Definitions .................................................................... 4 r Article 3. Obligations of Developer and County............................ 7 Section 3.01. Obligations of Developer Generally ................... 7 Section 3.02. Obligations of County Generally........................ 8 Section 3.03. Compliance with Settlement Agreements........... 8 Section 3.04. Preliminary Development Plan........................... 8 Section 3.05. Affordable Housing........................................... 8 Section 3.06. Designation of Preferred Water Provider........... 8 Section 3.07. Design Issues..................................................... 8 Section 3.08. Coordination of On-Site Improvements ............. 9 Section 3.09. Danville/San Ramon/County Traffic Mitigation.. 9. Section 3.10. Pleasanton Traffic Mitigation............................. 12 Section 3.11. Dublin Traffic Mitigation................................... 12 Section 3.12. Walnut Creek Traffic Mitigation........................ 13 Section 3.13. Processing Fees................................................. 13 Section 3.14. Mitigation Monitoring Program......................... 13 Section 3.15. Other Financing Requirements........................... 14 Article 4. Standards, Laws and Procedures Governing Windemere Ranch.................:........................................ 14 Section 4.01. Permitted.Uses.................................................. 14 Section 4.02. Applicable Law ................................................. 15 Section 4.03. No Conflicting Enactments................................ 15 Section 4.04. Uniform Codes.................................................. 16 Section 4.05. CEQA............................................................... 17 Section 4.06. Moratoria and Restrictions and Limitations on the Rate or Timing of Development............... 17 Section 4.07. Further Assurances............................................. 17 Section 4.08. Life of Subdivision Maps, Development Approvals, and Permits ...................................... 17 Section 4.09. State and Federal Law....................................... 18 Section 4.10. Timing of Project Construction and Completion 18 Section 4.11. Developer Review of Infrastructure Plans.......... 18 2881 v8 i t � Article 5. Amendment.................:................................................. 19 Section 5.01. Amendment of Planning Actions and Project Approvals .......................................................... 19 Section 5.02. Amendment Of This Agreement......................... 19 Article 6. Cooperation-Implementation......................................... 20 Section 6.01. Processing......................................................... 20 Section 6.02. Eminent Domain Powers .................................... 22 Section 6.03. Other Government Permits................................ 22 Article 7. Cooperation In the Event Of Legal Challenge................ 22 Section 7.01. Cooperation ....................................................... 22 Section 7.02. Cure; Reapproval ...........................................I... 22 Article 8. Default; Remedies; Termination .................................... 23 Section 8.01. General Provisions............................................. 23 Section 8.02. Annual Review.................................................. 24 Section 8:03. Excusable Delays; Extension of Time of Performance....................................................... 25 Section 8.04. Legal Action...................................................... 25 Section 8.05. California Law................................................... 25 Section 8.06. Resolution of Disputes....................................... 25 Article 9. Defense and Indemnity.................................................. 26 Article 10. No Agency, Joint Venture or Partnership .................... 26 Article 11. Miscellaneous.............................................................. 26 Section 11.01. Incorporation of Recitals and Introductory Paragraph........................................................ 26 Section 11.02. Severability...................................................... 26 Section 11.03. Other Necessary Acts...................................... 27 Section 11.04. Construction........:.................:.... Section 11.05. Covenants Running with the Land ................... 27 Section 11.06. Annexation to San Ramon............................... 27 Section 11.07. Dougherty Valley Development Strategy......... 27 Section 11.08. Other Public Agencies ...................................... .................................... 28 Section 11.09. Attorneys' Fees ............................................... 28 Article 12. Notices ....................................................................... 28 Article 13. Assignment, Transfer and Notice................................. 29 Section 13.01. Assignment of Interests, Rights and Obligations...................................................... 29 Section 13.02. Transfer Agreements ....................................... 29 2881 v8 ii t t Section 13.03. Non-Assuming Transferees.............................. 30 Article 14. Mortgagee Protections................................................ 31 Section 14.01. Mortgagee Protection...................................... 31 Section 14.02. Notice of Default to Mortgagee....................... 31 Section 14.03. Mortgagee Opportunity to Cure ...................... 31 Section 14.04. Approval by Mortgagees ................................. 32 r Section 14.05. Notice of Proposed Amendment to Mortgagee ...................................................... 32 Article 15. Notice of Compliance.................................................. 32 Article 16. Entire Agreement, Counterparts and Exhibits.............. 33 Article 17. Recordation of Development Agreement..................... 34 Exhibit A Legal Description Exhibit B Responsibilities For Certain Traffic Improvements Exhibit C-I Initial Project Traffic Improvements Exhibit C-2 Additional Project Traffic Improvements Exhibit C-3 Cost Allocations for Certain Additional Project Traffic Improvements 2881 v8 iii DEVELOPMENT AGREEMENT BY AND BETWEEN. THE COUNTY OF CONTRA COSTA AND WINDEMERE RANCH PARTNERS THIS DEVELOPMENT AGREEMENT (the "Agreement") is entered into as of January 18, 1996 by and between WINDEMERE RANCH PARTNERS, a California limited partnership ("Developer" or "Windemere"), and the COUNTY OF CONTRA COSTA, a political subdivision of the State of California("County"), pursuant to California Government Code § 65864 et seq. This Agreement supersedes and replaces in its entirety that certain development agreement entered into by and between Developer and County, dated October 2, 1990, which is hereby terminated. RECITALS A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California enacted California Government Code § 65864 et sed. (the "Development Agreement Statute"), which authorizes County to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. B. Pursuant to California Government Code § 65865, County has adopted procedures and requirements for the consideration of development agreements (County Resolution No. 85/412 and Ordinance No. 92-73). This Development Agreement has been processed, considered and executed in accordance with such procedures and requirements. C. Developer has a legal interest in certain real property consisting of approximately 2379 acres located in the unincorporated portion of the County, as more particularly described in Exhibit A attached hereto (the "Windemere Site"). The Windemere Site may be expanded pursuant to a land exchange with the United States Department of the Army, in. which case the Windemere Site may include up to approximately 2439 acres of land. D. Developer intends to develop the Windemere Site as a residential planned community of 5,170 dwelling units, together with certain retail, office, community services and other uses (defined more fully in Article 2 below as "Windemere Ranch"). E. County has taken several actions to review and plan for the future development of Windemere Ranch. These include, without limitation, the following: (1) EIR. On December 22, 1992 (the "First Approval Date"), pursuant to the California Environmental Quality Act, the "CEQA Guidelines" and County's local guidelines promulgated thereunder (hereinafter collectively referred to as "CEQA") and in accordance with the recommendation of County's Zoning Administrator, the Board, by Resolution No. 92/864, certified an environmental impact report regarding Windemere Ranch (the "EIR"). 1 2881 v8 / t (2). Urban Limit Line Modification. On the First Approval Date, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, and after duly noticed public hearing and certification of the EIR, the Board, by Resolution 92/865 (which was approved by a 4/5 vote), approved a minor modification to County's Urban Limit Line to locate certain lands (belonging to the United States Department of the Army and located in the Dougherty Valley) inside the Urban Limit Line(the "Urban Limit Line Modification"). (3) General Plan Amendment. On the First Approval bate, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, and after duly noticed public hearing, certification of the EIR and adoption of the Urban Limit Line Modification, the Board, by Resolution 92/866, approved an amendment to the County General Plan (which, together with the Urban Limit Line Modification, is referred to below collectively.as the "General Plan Amendment") addressing the Windemere Site and certain real property adjacent to the Windemere Site including (i) approximately 2,708 acres owned by Shapell Industries, Inc. and (ii) approximately 892 acres owned by the United States Department of the Army ("Camp Parks"). (4) Specific Plan. On the First Approval Date, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, certification of the EIR, adoption of the General Plan Amendment, and duly noticed public hearing, the Board, by Resolution 92/867, approved a single specific plan for the Windemere Site, the Shapell Site, and Camp Parks (collectively, the "Dougherty Valley"), which specific plan is entitled the "Dougherty Valley Specific Plan (the "Specific Plan"). (5) Settlement Agreements. County, together with Developer and Shapell, has entered into various agreements to settle litigation brought by certain parties against the County as respondent, and against Developer and Shapell as real parties in interest, relating to County's approval of the General Plan Amendment and Specific Plan and its certification of the EIR(collectively, the "Settlement Agreements"). The Settlement Agreements establish, among other things, certain procedures and standards that will be applied to County's consideration and approval of the "Project Approvals" (defined below). The Settlement Agreements consist of the following: (a) San Ramon and Danville. That certain agreement entered into by and among County, Developer, Shapell, the City of San Ramon ("San Ramon") and the Town of Danville ("Danville") on May 11, 1994 to settle certain claims brought by San Ramon and Danville as more fully described therein (the "San Ramon Settlement Agreement"). (b) Pleasanton. That certain agreement entered into by and among County, Developer, Shapell and the City of Pleasanton ("Pleasanton") on June 20, 1995 to settle certain claims brought by Pleasanton as more fully described therein (the "Pleasanton Settlement Agreement"). 2 2881 v8 i 1 (c) Walnut Creek. That certain agreement entered into by and among County, Developer, Shapell and the City of Walnut Creek ("Walnut Creek") on July 11, 1995 to settle certain claims brought by Walnut Creek as more fully described therein (the "Walnut Creek Settlement Agreement"). (d) East Bay Municipal Utility District. That certain agreement entered into by and among County, Developer, Shapell and East Bay Municipal Utility District ("EBMUD") on September 26, 1995 to settle certain claims brought by EBMUD as more fully described therein (the "EBMUD Settlement Agreement"). (e) Alamo Improvement Association. That certain agreement entered into by and among County, Developer, Shapell and the Alamo Improvement Association ("AIA") on October 12, 1995 to settle certain claims brought by AIA as more fully described therein (the "AIA Settlement Agreement"). (f) Non-Governmental Organizations. That certain agreement entered into on October 12, 1995 by and among County, Developer, Shapell and several non- governmental organizations other than AIA, viz., the Sierra Club, the Greenbelt Alliance, Preserve Area Ridgelands Committee, Save Our Hills and the Mount Diablo Audubon Society to settle certain claims brought by such non-governmental organizations as more fully.described therein (the "NGO Settlement Agreement"). (6) P-1 Zoning and Preliminary Development Plan. On December 19, 1995 (the "Second Approval Date"), following the preparation of an addendum to the EIR in accordance with Section 15164 of the CEQA Guidelines (the "Addendum"), the Board's. consideration of the Addendum together with the EIR, and a duly noticed public hearing, the Board adopted (i) County Ordinance No. , rezoning the Windemere Site to County's "P-1" zoning district, consistent with the General Plan and the Specific Plan (the "Zoning") and (ii) pursuant to Resolution 95/___, approved a Preliminary Development Plan for the Windemere Site consistent with the Zoning (the "Preliminary Development Plan"). The General Plan Amendment, Specific Plan, Zoning, Preliminary Development Plan and this Agreement are sometimes collectively referred to herein as the "Planning Actions. F. On the Second Approval Date, after a duly noticed public hearing and considering the Dougherty Valley EIR Addendum, and the findings and recommendation of the Zoning Administrator, the Board took the following actions: (1) made findings required by Board Resolution No. 85/412, that the provisions of this Agreement are consistent with the General Plan and the Specific Plan; (2) by Board Resolution No. , made the findings required by CEQA; and (3) adopted Ordinance No. , approving and authorizing the execution of this Agreement. G. The parties acknowledge and agree that applications for specific land use approvals, entitlements, permits and agreements (collectively, the "Project Approvals") must be made by Developer and reviewed (in compliance with CEQA) and approved, issued or entered into by County prior to development of the Windemere Site. The Project Approvals may include, without limitation, the following: design review approvals, improvement agreements and similar 3 2881 v8 agreements relating to Windemere Ranch, use permits, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, subdivision maps (including tentative, vesting tentative, parcel, vesting parcel, and final subdivision maps), final development plans, rezonings, development agreements, landscaping plans, encroachment permits, resubdivisions, and amendments to the Planning Actions or the Project Approvals. H. Each party acknowledges that it is entering into this Agreement voluntarily. NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth herein, the receipt and adequacy of which consideration is hereby acknowledged, the parties agree as follows: AGREEMENT ARTICLE 1. EFFECTIVE DATE AND TERM Section 1.01. Effective Date. This Agreement shall become effective upon the date the ordinance approving this. Agreement becomes effective, or the date upon which this Agreement is executed by Developer and County, whichever is later (the "Effective Date"). Section 1.02. Term. The term of this Agreement (the "Term") shall commence upon the Effective Date and continue for a period of twenty-five (25) years. ARTICLE 2. DEFINITIONS "Addendum" shall have that meaning set forth in Recital E(6) of this Agreement. "Administrative Amendment" shall have that meaning set forth in Section 5.01(1) of this Agreement. "Affordable Housing Program" shall have that meaning set forth in Section 3.05 of this Agreement. "Agreement" shall mean this Development Agreement and any amendments hereto. "AIA Settlement Agreement" shall have that meaning set forth in Recital E(5)(e) of this Agreement. "Annual Review" shall have that meaning set forth in Section 8.02 of this Agreement. "Applicable Law" shall have that meaning set forth in Section 4.02 of this Agreement. ' 'Board" shall mean the Board of Supervisors of the County of Contra Costa. "Camp Parks" shall have that meaning set forth in Recital E(3) of this Agreement. 4 2881.v8 "CEQA" shall have that meaning set forth in Recital E(l) of this Agreement. "Changes in the Law" shall have that.meaning set forth in Section 4.09 of this Agreement. "Community Development Director shall mean the Director of the County's Department of Community Development, or his or her designee. "Country Club Site" shall mean the approximately 618 acres owned by Shapell and located within the Dougherty Valley for which the County approved a general plan amendment, rezoning, preliminary development plan, final development plan, subdivision map and development agreement on December 20, 1994. "County" shall mean the County of Contra Costa, and shall include, unless otherwise provided, any of the County's agencies, departments, officials, employees or consultants. "County General Plan" or "General Plan" shall mean the General Plan of the County of Contra Costa. "County Law" shall have that meaning set forth in Section 4.03 of this Agreement. "Danville Settlement Agreement" shall have that meaning set forth in Recital E(5)(a) of this Agreement. "Default Notice" shall have that meaning set forth in Section 8.01 of this Agreement. "Deficiencies" shall have that meaning set forth in Section 7.02 of this Agreement. "Developer" shall have that meaning set forth in the preamble, and shall further include, unless otherwise provided, Developer's successors, heirs, assigns, and transferees. "Development Agreement Statute" shall have that meaning set forth in Recital A of this Agreement. "Dougherty Valley" shall have that meaning set forth in Recital E(4) of this Agreement. "EBMUD Settlement Agreement" shall have that meaning.set forth in Recital E(5)(d) of this Agreement. "Effective Date" shall have that meaning set forth in Section 1.01 of this Agreement. "EIR" shall have that meaning set forth in Recital E(1) of this Agreement. "Entire Gale Ranch Site" shall have that meaning set forth in Section 6.01 of this Agreement. "First Approval Date" shall have that meaning set forth in Recital E(1) of this Agreement. "Foreclosure" shall have that meaning set forth in Section 14.01 of this Agreement. 5 2881 v8 t "Gale Ranch Site" or"Shapell Site" shall mean the approximately 2,090 acres owned by Shapell Industries, Inc., located in the Dougherty Valley, excluding the Country Club Site. "General Plan Amendment" shall have that meaning set forth in Recital E(3) of this Agreement. "Growth Management Element" shall mean the Growth Management Element of the General Plan as of the Second Approval Date. "JEPA" shall have that meaning set forth in Section 3.09 of this Agreement. "Judgment" shall have that meaning set forth in Section 7.02 of this Agreement. "Local TIF Account" shall have that meaning set forth in Section 3.09 of this Agreement. "Local TIF Funds" shall have that meaning set forth in Section 3.09 of this Agreement. "Local TIF Program" shall have that meaning set forth in Section 3.09 of this Agreement. "Mitigation Monitoring Program" shall have that meaning set forth in Section 3.14 of this Agreement. "Mortgage" and "Mortgagee" shall have the meanings assigned to those terms in Section 14.01 of this Agreement. "NGO Settlement Agreement" shall have that meaning set forth in Recital E(5)(f) of this Agreement. "Non-Assuming Transferee" shall have that meaning set forth in Section 13.03 of this Agreement. "Notice of Compliance" shall have that meaning set forth in Article 15 of this Agreement. "Off-Site Traffic Improvements" shall have that meaning set forth in Article 3 of this Agreement. "On-Site Traffic Improvements" shall have that meaning set forth in Article 3 of this Agreement. "Permit Tracking System" shall have that meaning set forth in Section 3.14 of this Agreement. "Planning Actions" shall have that meaning set forth in Recital E(6) of this Agreement. "Planning Commission" shall mean the County's Planning Commission. "Pleasanton Settlement.Agreement" shall have that meaning set forth in Recital E(5)(b) of this Agreement. 6 2881 v8 "Preliminary Development Plan" shall have that meaning set forth in Recital E(6) of this Agreement. "Processing Fees" shall have that meaning set forth in Section 3.13 of this Agreement. "Project Approvals" shall have that meaning set forth in Recital G of this Agreement. "Project Traffic Improvements" shall have that meaning set forth in Section 3.09 of this Agreement. "San Ramon Settlement Agreement" shall have that meaning set forth in Recital E(5)(a) of this Agreement. "Second Approval Date" shall have that meaning set forth in Recital E(6) of this Agreement. "Settlement Agreements" shall have that meaning set forth in Recital E(5) of this Agreement. "Shapell Site" or "Gale Ranch Site" shall mean the approximately 2,090 acres owned by . Shapell Industries, Inc., located in the Dougherty Valley excluding the Country Club Site. "Specific Plan" shall have that meaning set forth in Recital E(4) of this Agreement. "Term" shall have that meaning set forth in Section 1.02 of this Agreement. "Traffic Impact Fee" shall have that meaning set forth in Section 3.09 of this Agreement. "Urban Limit Line Modification" shall have that meaning set forth in Recital E(2) of this Agreement. "Walnut Creek Settlement Agreement" shall have that meaning set forth in Recital E(5)(c) of this Agreement. "Windemere Ranch" shall mean the Windemere Site and all improvements to be constructed thereon as described in the Planning Actions and (as and when they are adopted or issued) the Project Approvals, and all off-site improvements to be constructed in connection therewith. "Windemere Site" shall have that meaning set forth in Recital C of this Agreement. "Zoning" shall have that meaning set forth in Recital E(6) of this Agreement. ARTICLE 3. OBLIGATIONS OF DEVELOPER AND COUNTY Section 3.01. Oblations of Developer Generally. The parties acknowledge and agree that County's agreement to perform and abide by the covenants and obligations of County set 7 2881 v8 r forth herein is material consideration for Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein. Section 3.02. Obligations of County Generally. The parties acknowledge and agree that Developer's agreement to perform and abide by the covenants and obligations,of Developer set forth herein is material consideration for County's agreement to perform and abide by the covenants and obligations of County set forth herein. Section 3.03. Compliance with Settlement Agreements. The terms and provisions of this Agreement are intended to be consistent with and not to modify, and shall not be deemed to abrogate or limit compliance with or the implementation or enforcement of, the terms and provisions of any of the Settlement Agreements. In the event of any conflict between the terms and provisions of this Agreement and any Settlement Agreement, the terms and provisions of such Settlement Agreement shall prevail to the extent of such conflict. If and to the extent any obligation of any party under any of the Settlement Agreements is terminated for any reason, including, without limitation, any obligation under Section 3.12 (relating to the Interstate 680/Highway 24 Interchange), Section 3.07 (relating to Design Issues), Section 3.10 (relating to the payment of traffic fees to the City of Pleasanton), then such obligation shall not be required to be satisfied hereunder. Section 3.04. Preliminary Development Plan. Except as otherwise specifically agreed by County, Developer shall comply with all conditions of approval to the Preliminary Development Plan. Section 3.05. Affordable Housing. Developer shall, in connection with its development of Windemere Ranch, implement the terms and provisions of the Affordable Housing Program as adopted by the Board of Supervisors on March 22, 1994 pursuant to board order (the "Affordable Housing Program"), which requires that a minimum of twenty-five percent (25%) of all dwelling units be developed as affordable to low, very low and moderate income households. Section 3.06. Designation of Preferred Water Provider. In consequence of the court-- sanctioned EBMUD Settlement Agreement, Policy U-1 of the Specific Plan which identifies alternative water suppliers shall be interpreted and applied to Windemere Ranch as follows: Dublin San Ramon Services District is the preferred water provider for the Windemere Site. EBMUD is an alternative water provider, but only pursuant to the terms and conditions set forth in the EBMUD Settlement Agreement. County staff will support and diligently process an amendment which will incorporate such language into the Specific Plan. Section 3.07. Design Issues. Paragraphs 2, 3(a) and 3(b) of the NGO Settlement Agreement require certain actions to be taken with respect to the design of Windemere Ranch, including participation in the development of a design program for the "Village Center" of the Dougherty Valley; provision of approximately eighty (80) acres of additional open space (provided that such reconfiguration is physically feasible and permitted by law); and relocation of the high school site proposed for the Dougherty Valley. Any obligation of Developer or County under such provisions of the NGO Settlement Agreement shall be satisfied in connection with any tentative map covering the area of the Windemere Site affected by such obligation, which 8 2881_v8 tentative map will be approved together with any necessary general plan amendment, specific plan amendment or rezoning. Section 3.08. Coordination of On-Site Improvements. County shall require that access or right-of-way for those certain road improvements described on Exhibit B, attached hereto and incorporated herein by reference, as roadway segments W-1 and W-2, be offered for dedication as and at the times provided in the conditions of approval of Shapell's preliminary development plan for the Gale Ranch Site (as approved by the Board on the Second Approval Date pursuant to Res. ___) and the conditions of approval for the preliminary_development plan for the Country Club Site (as approved by the Board on December 20, 1994 pursuant to Res. 94-649.); provided, however, that if Developer's project generates the need for access or right-of-way for roadway segments W-1 and/or W-2 over the. Shapell Site prior to the time such access or right-of-way is required for Shapell's project, then County shall ensure that the provision of such access or right-of-way is subject to the following: In order to accommodate Developer's development schedule, Developer may elect to assume responsibility for constructing, without reimbursement from Shapell, roadway segments W-1 and/or W-2 in which case Shapell shall dedicate or offer to dedicate, as required by County, the necessary right-of--way to County upon satisfaction of the following conditions: (i) Shapell will have reasonably reviewed,and approved Bollinger Canyon Road's horizontal and vertical alignment, grading and improvement plans; (ii) Developer shall have provided to Shapell improvement agreements.deemed acceptable by County and executed by all parties, together with completion and payments bonds so that the improvements shall be duly completed and no liens shall remain on Shapell's property; and (iii) Developer shall have procured a policy of Comprehensive General Liability Insurance in an amount and from an insurance company reasonably satisfactory to County naming Shapell as an additional insured. Shapell shall have the right but not the obligation reasonably to designate the source of cut/fill dirt from the Gale Ranch Site which shall be used to the extent needed for roadway segments W-1 and/or W-2. Section 3.09. Danville/San Ramon/County Traffic Mitigation. (1) Certain traffic improvements within the County, San Ramon and Danville are or may be required to accommodate development under the Specific Plan (the "Project Traffic Improvements"). The Project Traffic Improvements include (i) the on-site traffic improvements described in the Specific Plan as the"Internal Circulation System" (the "On-Site Traffic Improvements"), (ii) the off-site traffic improvements described on Exhibit C-1, attached hereto and incorporated herein by reference (the "Initial Project Traffic Improvements") and (iii) certain additional off-site traffic improvements described on Exhibit C-2, attached hereto and incorporated herein by reference (the "Additional Project Traffic Improvements"). The Initial Project Traffic Improvements and the Additional Project Traffic Improvements are sometimes referred to collectively below as the "Off-Site Traffic Improvements." (2) Subject to the provisions of Section 3.08 above, Developer shall be responsible for the construction of those On-Site Traffic Improvements made necessary by Windemere Ranch. 9 2881 v8 (3) Developer shall pay to County a per-unit traffic impact fee (the "Traffic Impact Fee") in the amount necessary, but no more than the amount necessary, to fund Developer's fair share of the cost of construction of the Off-Site Traffic Improvements; provided, however, that Developer shall have responsibility for constructing roadway segment W-3 as shown on attached Exhibit B and Shapell shall have responsibility for constructing roadway segments S-1 and S-2 as shown on attached Exhibit B. In calculating Developer's and Shapell's respective obligations for the construction and/or funding of the Off-Site Traffic Improvements, the costs of roadway segments S-1, S-2 and W-3 shall be deducted from the aggregate total cost of the Off-Site Traffic Improvements and not considered in making such calculations. The amount of the Traffic Impact Fee shall be determined as set forth in subsection (4) below, and shall apply to residential units developed on the Windemere Site. The Traffic Impact Fee applicable to a residential unit shall be paid when the building permit for such unit is issued. (4) The amount of the Traffic Impact Fee shall be determined within six (6) months following County's approval of this Agreement, but no later than the date upon which the County first approves a tentative subdivision map showing individual residential lots for any portion of the Dougherty Valley (other than for the Country Club Site), in the following manner: County, Developer, Shapell and, as required by the San Ramon Settlement Agreement, representatives of Danville and San Ramon, shall meet and confer in good faith to determine (i) the estimated reasonable cost of the Off-Site Traffic Improvements and (ii) the respective proportions of such cost that fairly should be borne by Windemere and Shapell (taking into account, among other things, development planned for the Country Club Site and the fees being paid by Shapell with respect thereto) and other projects or parties, if any, contributing to the need for such improvements and to whom the Traffic Impact Fee will apply. In making such determinations and establishing the amount of the Traffic Impact Fee, it shall be recognized that (a) Developer's pro rata contribution to the traffic improvements described on Exhibit C-3, attached hereto and incorporated herein by reference, shall be no more than is specified in, and shall be paid as described in, Exhibit C-3; and (b) Developer and Shapell shall, taken together, be responsible for the entire cost of the Initial Project Traffic Improvements as set forth in the San Ramon Settlement Agreement (although each shall be responsible only for its fair share of the cost of such improvements). The costs and proportions so determined and agreed-upon by County and Developer shall be reflected, as appropriate, in the Traffic Impact Fee. The amount of the Traffic Impact Fee`shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. (5) County shall enter into such agreements with San Ramon and Danville as may be necessary or appropriate to establish a joint exercise of powers agreement (the "JEPA") or some other program or mechanism to provide for (i) the collection of traffic impact fees from development projects in San Ramon, Danville and Contra Costa County and within the boundary of the JEPA or other program or mechanism that will contribute to the need for the Additional Project Traffic Improvements, which fees shall be in amounts consistent with the determinations made under Subsection (4) above, (ii) the establishment of an account or accounts (the"Local TIF Account") to hold Traffic Impact Fees collected from Developer and Shapell, and traffic impact fees collected from the developers of other projects that will contribute to the need for the Additional Project Traffic Improvements (collectively, the "Local TIF Funds"); and (iii) the 10 2881 v8 transfer to San Ramon, Danville and County of Local TIF Funds attributable to the Off-Site Traffic Improvements to be developed within those jurisdictions (the"Local TIF Program"). (6) : The timing of when an Off-Site Traffic Improvement is needed will be determined by Measure C (1988) and any conditions of approval for subdivision maps. If the Local TIF Program has not received sufficient developer fees to fund such an improvement when it is needed, then Developer may be required to fund the difference, or construct the improvement, to ensure the improvement is built on time. In such case, Developer shall enter into a reimbursement agreement with County to credit or reimburse Developer the eligible construction costs that were advanced to build the project. Any credit so provided shall be applied in full against the Traffic, Impact Fee for each residential unit that receives a building permit following completion of the Off-Site Traffic Improvement by Developer (rather than pro rata against the Traffic Impact Fee for all remaining residential units in the Project) until such time. as the full credit has been provided. (7) County shall establish and implement a mechanism to reimburse Developer, and shall reimburse Developer, that portion of the costs to be incurred by Developer in connection with the funding or construction of the On-Site Traffic Improvements and the Off-Site Traffic Improvements that.represents the extent to which such traffic improvements will serve traffic generated by projects that are developed pursuant to general plan amendments approved on or after the Effective Date. (8) To the extent that any Project Traffic Improvement funded or constructed by Developer is included on a project list under any Measure C Action Plan or CMP Deficiency Plan, and provided such transportation improvement has sufficient priority under such Action Plan or Deficiency Plan, Developer shall receive a credit against, or reimbursement from, any traffic fee imposed upon Developer under Section 3.09(11) or Section 3.12 of this Agreement. (9) Some portion of the Traffic Impact Fee may be allocated to and collected from commercial development (on a per-square-foot basis) to occur as a part of Windemere Ranch; provided, however, that the total amount of Traffic Impact Fee to be collected from residential development to occur as a part of Windemere Ranch (as determined above) shall be reduced by the amount of funds to be so collected from commercial development. (10) County shall make its final determination,of compliance with the standards of the Growth Management Element of the General Plan relating to traffic in conjunction with the review and approval of tentative subdivision maps. (11) County shall not impose on Developer any fee or other obligation with respect to roads or traffic impacts other than as specifically set forth in this Agreement, Section 4.4 of the San Ramon Settlement Agreement (relating to assurance of compliance with traffic service objectives), Paragraph 1 of the Walnut Creek Settlement Agreement or Paragraph 1 of the Pleasanton Settlement Agreement (relating to Developer's payment of fees to Pleasanton). Notwithstanding the foregoing, nothing in this Agreement shall prevent the County from (i) applying to Windemere Ranch any subregional traffic impact fee required by Measure C (1988) and adopted and applied consistently and on a uniform basis throughout the Tri-Valley subregion 11 2881 v8 by each of the seven jurisdictions that are now signatories to the Tri-Valley Transportation Council joint powers agreement which is adopted prior to the vesting date of any tentative map (provided, however, that County shall provide to Developer a credit against any such fee for traffic improvements constructed and/or funded by Developer under this Agreement or the San Ramon Settlement Agreement), (ii) imposing on Windemere Ranch reasonable requirements for the funding or construction of additional minor traffic improvements made necessary by Windemere Ranch and identified through CEQA review of individual tentative map applications for Windemere Ranch, or(iii) imposing on the Windemere Ranch a subregional traffic fee developed by the JEPA identified in Section 3.09(5) to satisfy Measure C requirements and for the sole purpose of funding a fair share contribution of the Alcosta ramp realignment project at I-680 and the auxiliary lanes project on I-680 between Bollinger Canyon Road and Diablo Road. Section 3.10. Pleasanton Traffic Mitigation. Separate and apart from the Traffic Impact Fee, Developer shall pay to County $150 for each residential unit developed pursuant to the Project Approvals ("Pleasanton Traffic Fees"). The Pleasanton Traffic Fees will be collected by County upon its issuance of the building permit for each such unit and delivered to Pleasanton for the mitigation of traffic impacts on roadways located in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of Windemere Ranch), San Ramon shall collect and deliver the Pleasanton Traffic Fees as set forth above. As provided in Paragraph 5(b) of the Pleasanton Settlement Agreement, Developer's obligations pursuant to this Section 3.10 and Paragraph 1 of the Pleasanton Settlement Agreement shall cease in the event that Pleasanton files any legal action challenging any use or approval or any modification to any use or approval relating to the Dougherty Valley. Section 3.11. Dublin Traffic Mitigation. County and Developer shall work with the City of Dublin to establish a mutually acceptable fee to account for the cost of mitigating the traffic- -related impacts of the Project on roadways located in the City of Dublin net of the cost of mitigating the traffic-related impacts of development projected to occur within the City of Dublin (including, without limitation, the East Dublin project) on the On-Site and Off-Site Traffic Improvements, if any. Such fee, if any, will be collected by County"upon its issuance of the building permit for each residential unit in the Project and delivered to Dublin for the mitigation of traffic impacts on roadways in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties.anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of Windemere Ranch), San Ramon shall collect and deliver the such traffic fees as set forth above. If County, Developer and the City Dublin are unable to arrive.at a mutually acceptable fee within six (6) months following the Effective Date, then County and Developer may themselves determine the amount of such fee; provided, however, that such six- month period shall be extended for a period of time equal to the period of any undue delay caused by Developer or County in establishing the amount of such fee. Any fee imposed on the Project pursuant to this Section 3.11 shall be approved by the Board of Supervisors and, except as otherwise agreed by County and Developer, remain fixed throughout the term of this Agreement; provided, however, that such fee may be subject to escalation in accordance with the 12 2881 v8 "Construction Cost Index" published in Engineering News Record. If any regional traffic fee is established and required to be paid by Developer under Section 3.09(11) of this Agreement, and such regional traffic fee provides funding for those improvements in Dublin included in calculating the amount of the traffic fee to be paid to Dublin as set forth above then, with respect to any. residential unit upon which such regional traffic fee is imposed, Developer shall be relieved of its obligation to pay such portion of the fee described in this Section 3.11 that is attributable to those improvements in Dublin that are funded by such regional fee. Section 3.12. Walnut Creek Traffic Mitigation. Notwithstanding any other provision contained herein, all future tentative subdivision maps covering the Windemere Site shall be subject to all standards and requirements adopted by the County pursuant to Measure C (1988), including but not limited to the Tri-Valley Action Plan or fees adopted thereunder, and all standards and requirements adopted pursuant to Title 7, Division 1, Chapter 2.5 of the Government Code (Section 65080 et seq.), including but not limited to all congestion management plans and deficiency plans adopted thereunder, provided that such standards and requirements are designed to mitigate congestion on the Interstate 680/Highway 24 interchange or streets within Walnut Creek, are applied to all other major residential projects within the member jurisdictions of SWAT, TRANSPAC and TRANSPLAN, and are imposed by the County or City only to the extent of the project's impacts on the interchange or streets within Walnut Creek. Neither,the foregoing provision nor any other provision of this Agreement (other than the section of this Agreement relating to traffic-based reductions in permitted development (Section 4.01)) shall limit the authority of the County to apply the standards and requirements described above adopted pursuant to Measure C (1988), including, but not.limited to, any Action Plan or fees. Section 3.13. Processing Fees. Fees charged by County which solely represent the reasonable costs to County for County staff time and resources spent reviewing and processing Project Approvals are referred to in this Agreement as "Processing Fees." County may charge Developer any applicable Processing Fee that is operative and in force and effect on a Countywide basis at the time such Processing Fee ordinarily is collected. Section 3.14. Mitigation Monitoring Program. Developer shall fund development and operation of a system (the "Permit Tracking System") to monitor compliance with the requirements of the San Ramon Settlement Agreement regarding the provision of certain capital facilities, compliance with mitigation measures and compliance with project conditions,through the payment of a fee not to exceed $100 per residential unit developed on the Windemere Site, payable at recordation of the final map encompassing such unit. Developer shall, at the time services are performed, pay the County staff costs of carrying out the County's Mitigation Monitoring Program, as adopted by the Board on the First Approval Date, and as it may be amended for the purposes of compliance with CEQA (the"Mitigation Monitoring Program"), which are attributable to development of the Windemere Site, on a time and materials basis, and shall pay the reasonable costs of consultants as necessary to implement the Mitigation Monitoring Program. 13 2881 v8 Section 3.15. Other Financing Requirements. (1) County and Developer shall cooperate in (i) the formation, as soon as reasonably practicable but in any event prior to the filing of the first final subdivision map for any portion of the Dougherty Valley, of a County Service Area or other financing entity to receive certain funds and provide certain services, including the operation and maintenance of facilities and infrastructure, as described in Section 3.3 of the San Ramon Settlement Agreement and (ii) the establishment, as soon as reasonably practicable but in any event prior to the filing of the first final subdivision map for any portion of the Dougherty Valley, of a mechanism adequate to fund the provision of such services as described in Section 3.3 of the San Ramon Settlement Agreement. (2) As described in Section 3.4 of the San Ramon Settlement Agreement, to ensure that the Community Center, Senior Center, Library, and Police Substation described in the Specific Plan will be constructed on a timely basis and made available to Dougherty Valley residents at the appropriate time, County shall (except to the extent some other method for the financing or provision of such facilities is requested or established by Developer or Shapell, as appropriate) assess against residential units to be developed in the Dougherty Valley a fee, special tax or assessment in an amount sufficient to fund Developer's and Shapell's obligation to contribute to the cost of such facilities. Funds so collected will be held in a separate account and made available to Developer or Shapell, as appropriate, for the construction of such facilities. The precise form, timing and amount of such fee, tax or assessment shall be in accordance with the terms and provisions of Exhibit D, attached hereto. ARTICLE 4. STANDARDS, LAWS AND PROCEDURES GOVERNING WINDEMERE RANCH Section 4.01. Permitted Uses. (1) In General. The permitted uses of the Windemere Site; the density and intensity of use of the Windemere Site; the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements, the location of public utilities; and other terms and conditions of development applicable to Windemere Ranch; shall be as set forth in the Planning Actions and, as and when they are adopted or issued, the Project Approvals. (2) Exceptions. Not in limitation of the foregoing, the permitted uses, density and intensity of use of the Windemere Site shall include 5,170 residential units at the densities provided for in the Specific Plan and 369,200 square feet of commercial space (exclusive of any community college uses), subject to the following limitations: a. All development of the Windemere Site shall be consistent with the General Plan, including the Growth Management Element thereof, as it existed on the Second Approval Date. County may modify the permitted uses of the Windemere Site to the extent necessary to attain such consistency, provided no other method of attaining such consistency is feasible. 14 2881 v8 b. The parties acknowledge and agree that the terms and provisions of the Settlement Agreements include certain conditions to and limitations on the development of Windemere Ranch. All development of Windemere Ranch shall be consistent with such conditions and limitations. County may limit the development of the Windemere Site to attain consistency with such conditions and limitations if no other method of attaining such consistency is feasible. C. Subject to Section 4.05 of this Agreement, County may modify the permitted uses of the Windemere Site to the extent necessary to satisfy County's obligations under CEQA and (as provided in Section 4.09 below) other State and federal laws, provided no other method of satisfying such obligations is feasible. d. Except to the extent otherwise specifically required by state or federal law, no modification of the permitted uses of the Windemere Site shall occur with respect to any portion of the Windemere Site with respect to which County has approved a tentative or. vesting tentative subdivision map. Section 4.02. Applicable Law. The rules, regulations, official policies, standards and specifications applicable to Windemere Ranch (the "Applicable Law") shall be.those in force and effect on the Second Approval Date including, without limitation,-the Planning Actions. Applicable Law shall also include the,Project Approvals as and when they are adopted or issued from time to time. Section 4.03. No Conflicting Enactments. Except as otherwise specifically set forth herein or agreed to by Developer, County shall not apply to Windemere Ranch any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each individually, a "County Law") that is in conflict with Applicable Law (including this Agreement) or that reduces the development rights provided by this Agreement. Without limiting the generality of the foregoing, any County Law shall be deemed to conflict with Applicable Law (including this Agreement) or reduce the development rights provided hereby if it would accomplish any of the. following results, either by specific reference to Windemere Ranch or as part of a general enactment which applies to or affects Windemere Ranch: a. except as otherwise specifically provided in Section 4.01(2) above, reduce the number of residential units permitted to be developed on the Windemere Site to fewer than 5,170 units, or revise the densities permitted by the Specific Plan; b. except as otherwise specifically provided in Section 4.01(2) above, reduce the square footage of commercial development permitted to be developed on the Windemere Site to fewer than 369,200 square feet(exclusive of community college uses); c. except as otherwise specifically provided in Section 4.01(2) above, limit or reduce the density or intensity of Windemere Ranch, or any part thereof, otherwise require any reduction in the square footage or number of proposed buildings or other improvements or revise the densities permitted by the Specific Plan; 15 2881 v8 d. except as otherwise specifically provided in Section 4.01(2) above, change any land use designation or permitted use of the Windemere Site; e. except as otherwise specifically provided in Section 4.01(2) above, limit or control the location of buildings, structures, grading, or other improvements of Windemere Ranch in a manner that is inconsistent with or more restrictive than the limitations included in the Planning Actions or(as and when they are issued) the Project Approvals, f. except as otherwise specifically provided in Section 4.01(2) above, limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water connections or sewage capacity rights, sewer connections, etc.) for Windemere Ranch; g. except as otherwise specifically provided in Section 4.01(2) above, limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of Windemere Ranch; h. apply to Windemere Ranch any County Law otherwise allowed by this Agreement that is not uniformly applied on a County-wide basis to all substantially similar types of development projects and project sites; i. require the issuance of additional permits or approvals by County other than those required by Applicable Law; j. establish, enact, increase, or impose against Windemere Ranch any fees, taxes (including without limitation general, special and excise taxes), assessments, liens or other monetary obligations other than (i) those specifically permittedby this Agreement (including Traffic Impact Fees, Processing Fees, fees to fund the Mitigation Monitoring Program and financial obligations associated with the financing of the construction, operation and maintenance of facilities and infrastructure, and the provision of services, as set forth in Article 3 above) and made necessary by Windemere Ranch and (ii) any County-wide taxes and assessments; k. establish, enact, increase or impose against Windemere Ranch any rules, regulations, policies or standards that were not in effect on the Second Approval Date, or otherwise impose against Windemere Ranch any condition, dedication or other exaction not specifically authorized by Applicable Law and (except as authorized by the Settlement Agreements or required by the conditions to the Preliminary Development Plan) not made necessary by Windemere Ranch; or 1. limit the processing or issuance of Project Approvals or applications for Project Approvals. None of the Settlement Agreements shall be considered a conflicting enactment for the purposes of this Agreement. Section 4.04. Uniform Codes. Notwithstanding anything to the contrary contained in this Agreement, County may apply to Windemere Ranch, at any time during the Term, then-current 16 2881 v8 Uniform Building Code and other uniform construction codes, and County's then-current design and construction standards for road and storm drainage facilities, provided that any such'uniform code or standard shall apply to Windemere Ranch only to the extent that such code or standard has been adopted by County and is in effect on a County-wide basis. Section 4.05. CEQA. County's environmental review of Project Approvals pursuant to CEQA shall utilize the EIR and the Addendum to the fullest extent permitted by law. Section 4.06. Moratoria and Restrictions and Limitations on the Rate or Timing of Development. In the event a County Law is enacted (whether by action of the Board or otherwise,or by initiative, referendum, issuance of a Project Approval or other means) which relates to the growth rate, timing, phasing or sequencing of new development or construction in County or, more particularly, development and construction of all or any part of Windemere Ranch, such County Law shall not apply to Windemere Ranch, or any portion thereof. County Laws made inoperative by this provision include, but are not limited to, those that were not in force and effect on the Second Approval Date and that tie development or construction to the availability of public services and/or facilities (for example, the presence of a specified traffic level of service or water or, sewer availability). Section 4.07. Further Assurances. a. County shall not support, adopt or enact any County Law, or take any other action which would violate the express or implied provisions, conditions, spirit or intent of any of the Planning Actions or the Project Approvals. b. Developer reserves the right to challenge in court any County Law that would, in Developer's opinion, conflict with Applicable Law (including this Agreement) or reduce the development rights provided by this Agreement. C. County shall take any and all actions as may be necessary or appropriate to ensure that the vested rights provided by this Agreement can be enjoyed by Developer including, without limitation, any actions as may be necessary or appropriate to ensure the availability of public services and facilities to serve Windemere Ranch as development occurs. d. Should any initiative, referendum, or other measure be enacted, and any failure of to apply such,measure by County to the Windemere Ranch be legally challenged, Developer agrees to fully defend the County against such challenge, including providing all necessary legal services, bearing all costs therefor, and otherwise holding the County harmless from all costs and expenses of such legal challenge and litigation. Section 4.08. Life of Subdivision Maps, Development Approvals, and Permits. The term of any subdivision map or and other permit approved as a Project Approval shall automatically be extended as provided under California Government Code § 66452.6(a) or California Government Code § 65863.9. Notwithstanding the foregoing, the vested rights associated with any vesting tentative map (but not the term of such tentative map) shall terminate upon the expiration of the Term of this Agreement. 17 2881 v8 Section 4.09. State and Federal Law. As provided in California Government Code § 65869.5, this Agreement shall not preclude the application to Windemere Ranch of changes in laws, regulations, plans^or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations ("Changes in the Law"). In the event Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law, and County and Developer shall take such action as may be required pursuant to this Agreement including, without limitation, Article 6 (Cooperation-Implementation) and Section 8.03 (Excusable Delays; Extension of Time of Performance). Not in limitation of the foregoing, nothing in this Agreement shall preclude County from imposing on Developer any fee specifically mandated and required by state or federal laws and regulations. Section 4.10. Timingof f Project Construction and Completion. a. Notwithstanding Sections 84-66.1406(1) and 84-66.1602 of the County Code, there is no requirement that Developer initiate or complete development of Windemere Ranch or any particular phase of Windemere Ranch within any particular period of time, and County shall not impose such a requirement on any Project Approval. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. b. In light of the foregoing and except as set forth in subsection (c), below, the parties agree that Developer shall be able to develop in accordance with Developer's own time schedule as such schedule may exist from time to time, and Developer shall determine which part of the Windemere Site to develop first, and at Developer's chosen schedule. In particular, and not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later- adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' desire to avoid that result by acknowledging that Developer shall have the right to develop Windemere Ranch in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. C. Nothing in this Agreement shall exempt Developer from completing work required by a subdivision agreement, road improvement agreement or similar agreement in accordance with the terms thereof. Section 4.11. Developer Review of Infrastructure Plans. Developer shall have the right to review and comment on plans for any infrastructure improvement (including, without limitation, streets, roads, trails and detention basins) to be constructed on the Windemere Site by any private party. 18 2881 v8 i ARTICLE 5. AMENDMENT Section 5.01. Amendment of Planning Actions and Project Approvals. To the extent permitted by state and federal law, any Planning Action (other than this Agreement) or Project Approval may, from time to time, be amended or modified in the following manner: (1) Administrative Amendments. Upon the written request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Project Approval, the Community Development Director or his/her designee shall determine: (i) whether the requested amendment-or modification is minor when considered in light of Windemere Ranch as a whole; and (ii) whether the requested amendment or modification is consistent with Applicable Law (other than that portion of Applicable Law sought to be amended). If the Community Development Director or his/her designee finds that the proposed amendment or modification is both minor and consistent with Applicable Law (other than that portion of Applicable Law sought to be amended),the amendment shall be determined to be an "Administrative Amendment" and the Community Development Director or his designee may, except to the extent otherwise required by law, approve the Administrative Amendment without notice and public hearing. For the purpose of this Article 5, lot line adjustments, changes in trail alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of lots or homesites that do not substantially alter the design concepts of Windemere Ranch, and variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of Windemere Ranch, shall be treated as Administrative Amendments. X2) Non-Administrative Amendments. Any request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Project Approval Which is determined not to be an Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to Applicable Law (other than subsection (1) above). Nothing in this section 5.01 shall limit any obligations of the County under the San Ramon Settlement Agreement to submit any amendment or modification of a Planning Action or Project Approval to the '.'Dougherty Valley Oversight Committee," established under the San Ramon Settlement Agreement, for its review and comment or to submit or provide any documentation required by any Settlement Agreement in accordance with the terms of such Settlement Agreement. Section 5.02. Amendment Of This Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the parties hereto or their successors in interest, as follows: (1) Insubstantial Amendments. Paragraph G of County's "Procedures and Requirements for the Consideration of Development Agreements" (adopted by Board Resolution No. 85/412) permits a development agreement to establish an alternative procedure for the processing of"insubstantial amendments" to such an agreement. Pursuant to said Paragraph G, any amendment to.this Agreement which does not relate to (i) the Term of this Agreement, (ii) permitted uses of the Windemere Site, (iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions, (v) the 19 2881 v8 density or intensity of use of the Windemere Site or the maximum height or size of proposed buildings or(vi) monetary contributions by Developer, shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may.execute an amendment hereto; provided, however, that nothing in this Section 5.02 shall limit any obligations of the County under the San Ramon Settlement Agreement to submit any amendment to their Agreement to the Dougherty Valley Oversight Committee for review and comment. (2) Amendment Exemptions. No amendment of a Planning Action (other than this Agreement) or a Project Approval requested by Developer shall require an amendment to this Agreement. Instead, any such amendment automatically shall be deemed to be incorporated into Windemere Ranch and vested under this Agreement. (3) Parties Required to Amend. Where a portion of Developer's rights or obligations have been transferred and a "Transfer Agreement" (as described in Article 13 below) has been executed in connection therewith, the signature of the person to whom such rights or obligations have been transferred shall not be required to amend this Agreement unless such amendment would materially alter the rights or obligations of such transferee hereunder; provided, however, that any such transferee shall be provided with thirty (3 0) days' prior written notice of any amendment to this Agreement. (4) Non-Assuming Transferees. In no event shall the signature or consent of any "Non-Assuming Transferee" (described in Section 13.03 below) be required to amend this Agreement. ARTICLE 6. COOPERATION-IMPLEMENTATION Section 6.01. Processing. (1) In taking the Planning Actions, County has established standards and procedures to guide the future development of Windemere Ranch. The Project Approvals shall be deemed to be tools to implement those standards and procedures and must be consistent therewith. (2) Without limiting the generality of the foregoing, except as otherwise agreed to by Developer, County shall not through any Project Approval or the imposition of any condition of approval thereto, (i) except as specifically required.pursuant to Section 4.01 of this Agreement, reduce the number of residential units permitted to be developed on the Windemere Site to fewer than 5,170 or change the distribution of those 5,170 units by density as provided in the Specific Plan or reduce the square footage of commercial development permitted to be developed on the Windemere,Site to fewer than 369,200 square feet (exclusive of community college uses); or (ii) otherwise enact or impose against Windemere Ranch any ordinance, resolution, rule, regulation, standard, directive, condition or other measure that is in conflict with Applicable Law (including this Agreement) as it exists immediately prior to the issuance of such Project Approval, or that reduces the development rights provided by this Agreement. 20 2881 v8 e (3) Upon submission by Developer of all appropriate applications and processing fees for any Project Approval, County shall commence and complete (and shall use its best efforts to promptly and diligently commence and complete) all steps necessary to act on the Project Approval application including, without limitation, (i) the notice and holding of public hearings and (ii) the decision whether to approve the Project Approval application as set forth below. (4) An application by Developer for a Project Approval may be denied by . County only if such application does not comply with Applicable Law, is inconsistent with the Planning Actions (provided, however, that inconsistency with a Planning Action shall not constitute grounds for denial of a Project Approval requested by Developer that is an amendment to that Planning Action) or County is unable to make all findings required by state law in connection with such Project Approval. County may approve an application for such a Project Approval subject to any conditions necessary to bring the Project Approval into compliance with Applicable Law, make the Project Approval consistent with the Planning Actions or allow County to make the findings required by state law, so long as such conditions comply with subsection (2) of this Section 6.01. If County denies any application for a Project Approval, County must specify in making such denial modifications which are required to obtain approval of such application. Any such specified modifications must be consistent with this Agreement (including subsection (2) of this Section 6.01) and Applicable Law, and County shall approve the application if subsequently resubmitted for County review if it complies with the specified modifications. (5) Developer shall, in a timely manner, provide County with all documents, applications, plans, and other information necessary for County to carry out its obligations hereunder and cause Developer's planners, engineers, and all other consultants to submit, in a timely manner, all required materials and documents therefor. (6) Any reduction in the amount of permitted development in the Dougherty Valley resulting from either the application of Section 4.01(2) of this Agreement or the application of any comparable provision in any development agreement to which the Gale Ranch Site or the Country Club Site (collectively, the "Entire Gale Ranch Site") is subject shall be allocated as follows: If the reduction is the result of impacts of development in the Dougherty Valley that cannot feasibly be allocated between development of the Entire Gale Ranch Site and Windemere Ranch, the reduction in permitted development shall be allocated between Shapell and Developer such that the permitted development on the Entire Gale Ranch Site shall be 53 percent of the permitted development in the Dougherty Valley and the permitted development on the Windemere Site shall be 47 percent of the permitted development in the Dougherty Valley. If the reduction is the result of impacts of development in the Dougherty Valley that can be feasibly allocated to either the development of the Entire Gale Ranch Site or Windemere Ranch, such project shall bear such reduction. Reductions based on traffic-related impacts shall be allocated 53% to Shapell and 47% to Windemere. Subject to the foregoing, 3,995 residential units of the first 8,500 units in the Dougherty Valley shall be allocated to Developer, and forty-seven percent of any development beyond 8,500 units in the Dougherty Valley will be allocated to Developer. No failure or delay by Shapell in 21 2881 v8 constructing its first 4,505 residential units on any portion of the Entire Gale Ranch Site shall prevent or delay Developer from or in developing any units beyond its first 3,995 residential units. Section 6.02. Eminent Domain Powers. County shall cooperate with Developer in implementing the Planning Actions and Project Approvals. To the extent permitted by law and subject to the terms and provisions of the San Ramon Settlement Agreement, such cooperation shall include, without limitation, the use by County of its eminent domain powers where necessary to implement the Planning Actions and any Project Approvals. Section 6.03. Other Government Permits. Developer shall apply for such other permits and approvals as may be required by other governmental or quasi-governmental agencies in connection with the development of, or the provision of services to, Windemere Ranch. County shall cooperate with Developer in its efforts to obtain such permits and approvals and shall,.from time to time at the request of Developer, use its best efforts to enter into binding agreements with any such agency as may be necessary to ensure the availability of such permits and approvals. ARTICLE 7. COOPERATION IN THE EVENT OF LEGAL CHALLENGE Section 7.01. Cooperation. (1) In the event of any administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of any Planning Action or Project Approval, the parties shall cooperate in defending such action or proceeding, or proceeding to settlement or final judgment. Each party shall select its own legal counsel and retain such counsel at its own expense, and in no event shall County be required to bear the fees or costs of Developer's attorneys. Developer shall save and hold harmless County from and against any and all claims and awards for third-party attorneys' fees associated with such action or proceeding. (2) The parties agree that this Section 7.01 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside. Section 7.02. Cure; Reapproval. (1) If, as a result of any administrative, legal or equitable action or other proceeding as described in Section 7.01, all or any portion of the Planning Actions (including, but not limited to, this Agreement) or Project Approvals are set aside or otherwise made ineffective by any judgment (a "Judgment") in such action or proceeding (based on procedural, substantive or other deficiencies, hereinafter "Deficiencies"), the parties agree to use their respective best efforts to sustain and reenact or readopt those Planning Actions and/or Project Approvals that the Deficiencies related to, as follows, unless the Parties mutually agree in writing to act otherwise: 22 2881 v8 a. If any Judgment requires reconsideration or consideration by County of a Planning Action or Project Approval, then the County shall consider or reconsider that matter in a manner consistent with the intent of this Agreement. If any such Judgment invalidates or otherwise makes ineffective all or any portion of any Planning Action or Project Approval, then the Parties shall cooperate and shall cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of this Agreement. County shall then readopt or reenact the Planning Action or Project Approval, or any portion thereof, to which the Deficiencies related. b. Acting in a manner consistent with the intent of this Agreement includes, but is not limited to, recognizing that the Parties intend that, subject to the provisions Section 4.01(2) above, Developer may develop 5,170 residential units at the densities provided in the Specific Plan and 369,200 square feet of commercial uses (exclusive of community college uses), and adopting such ordinances, resolutions, and other enactments, including but not limited to zoning ordinances, a specific plan and general plan amendments, as are necessary to readopt or reenact all or any portion of the Planning Actions and/or Project Approvals without contravening the Judgment. (2) The parties agree that this Section 7.62 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside. v ARTICLE 8. DEFAULT; REMEDIES; TERMINATION Section 8.01. General Provisions. (1) Defaults. Any failure by either party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other party (unless such period is extended by mutual written consent), shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence ('Default Notice") shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of . the cure thereafter, shall.be deemed to be a cure within such 30-day period. Upon the occurrence of a default under this Agreement, the non-defaulting party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, then no default shall exist and the noticing party shall take no further action. (2) Termination. If County elects to consider terminating this Agreement due to a material default of Developer, then County shall give a notice of intent to terminate this Agreement and the matter shall be scheduled for consideration and review by the Board at a duly noticed and conducted public hearing. Developer shall have the right to offer written and oral 23 2881 v8 evidence prior to or at the time of said public hearings. If the Board determines that a material default has occurred and is continuing, and elects to terminate this Agreement, County shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter; provided, however, that if Developer files an action to challenge County's termination of this Agreement within such sixty-day period, then this Agreement shall remain in full force and effect until a.trial court has affirmed County's termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired). (3)Nothing in this Section 8.01 is intended to limit the effect of the dispute resolution process described in Article VI of the San Ramon Settlement Agreement to the extent such process applies to a dispute arising under this Section 8.01. Section 8.02. Annual Review. (1) On or before October 15 of each year, the Developer shall submit to the County Community Development Department a report demonstrating Developer's good-faith compliance with the terms of the Agreement (the "Annual Review"). This review shall be limited in scope to compliance with the terms of this Agreement. (2) The Community Development Director shall, at a noticed public hearing, consider a staff report regarding Developer's compliance with the terms and provisions of this Agreement. After considering the evidence presented at such public hearing, the Community Development Director shall adopt, adopt with modifications or deny the staff report. (3) Prior to January 30 of each calendar year, and based on the staff report, the Community Development Director shall make a determination regarding compliance with the Agreement. If the Community Development Director finds and determines that Developer has not complied with such terms and.conditions, and non-compliance may amount to a default if not cured, then the Community Development Director may deliver a Default Notice pursuant to Section 8.01 of this Agreement, in which case the provisions of Section 8.01 shall apply. If the Community Development Director does not send such a Default Notice, then the Community Development Director and County shall take no further action. The County, including the Community Development Director, may exercise its right relating to any such event of default only after complying with Section 8.01 of this Agreement. (4) County shall deliver to developer a copy of all staff reports and documents to be used or relied upon in conducting the Annual Review and, to the extent practical, related exhibits concerning Developer's performance hereunder, at least ten (10) days prior to any such Annual Review. Developer shall be permitted during the Annual Review to respond orally or by a written statement, or both, to County's evaluation of Developer's performance. (5) In the event County fails to either: (i) conduct the Annual Review or (ii) notify Developer in writing (following the time during which the review is to be conducted) of County's determination as to compliance or noncompliance with the terms of this Agreement and such failure remains uncured as of 60 days following the anniversary of the Effective Date in any 24 2881 v8 year during the term of this Agreement, such failure shall be deemed an approval by County of Developer's compliance with the terms of this Agreement for that Annual Review period. (6) With respect to any year for which an Annual Review is conducted and compliance is approved, or with.respect.to any year in which County is deemed to approve of Developer's compliance with this Agreement pursuant to the preceding'paragraph, County, upon request of Developer, shall provide Developer with a written "Notice of Compliance," pursuant to Article 15 of this Agreement. (7) Nothing in this Section 8.02, which describes a process solely related to County's review of Developer's good faith compliance with the terms and provisions of this Agreement, shall limit obligation of the County under the San Ramon Settlement Agreement to participate in the preparation, consideration and adoption of"Annual Compliance Reports" as and at the times described in the San Ramon Settlement Agreement. Section 8.03. Excusable Delays; Extension of Time of Performance. Notwithstanding anything to the contrary contained herein, neither party shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations), enactment of conflicting state or federal laws or regulations or similar basis for excused performance which is not within the reasonable control of the party to be excused. Upon the request of either party hereto, an extension of time for the performance of any obligation whose performance has been so prevented or delayed will be memorialized in writing. The term of any such extension shall be equal to the period of the excusable delay, or longer, as may be mutually agreed upon. Section 8.04. Legal Action. Either party may, in addition to any other rights or remedies, institute an equitable action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof or enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the foregoing. In no event shall either County or Developer be entitled to monetary damages for breach of contract by the other party to this Agreement. Section 8.05. California Law. This Agreement shall be construed'and enforced in accordance with the laws of the State of California. Section 8.06. Resolution of Disputes. With regard to any dispute involving development of the specific plan area, the resolution of which is not provided for by this Agreement or Applicable Law, Developer shall, at County's request, meet with County and/or any party designated by County. The parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 8.06 shall in any way be interpreted as requiring that Developer and County and/or County's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on County or Developer unless expressly agreed to by the parties to such meetings. 25 2881 v8 ARTICLE 9. DEFENSE AND INDEMNITY. (1) Developer's Actions. Developer shall defend and indemnify County and its elected and appointed officers, agents, employees, and representatives from claims, costs, and liabilities for any personal injury, death, or physical property damage (including inverse condemnation) to any third party which arises, directly or indirectly, as a result of the construction of Windemere Ranch, or of operations performed under this Agreement, by Developer or by Developer's contractors, subcontractors, agents or employees, whether such operations were. performed by Developer or any of Developer's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for Developer or any of Developer's contractors or subcontractors. (2) County's Actions. Nothing in Subsection 1 above shall be construed to mean that Developer shall.defend or indemnify County or its elected or appointed officers, agents, employees and representatives from any claims of personal injury, death or property damage arising from, or alleged to arise from the maintenance or repair by County of improvements that have been offered for dedication and accepted by County for maintenance. (3) Further Agreements. County and Developer may from time to time enter into subdivision improvement agreements, as authorized by the Subdivision Map Act, Cal. Gov't Code § 66000 et se ., which agreements may include defense and indemnity provisions different from those contained in subsections (1) and (2) above. In the event of any conflict between such provisions in any such subdivision improvement agreement and subsections (1) and (2) above, the provisions of such subdivision improvement agreement shall prevail. ARTICLE 10...NO AGENCY, JOINT VENTURE OR PARTNERSHIP It is specifically understood and agreed to by and between the parties hereto that: (i) the subject development is a private development; (ii) County has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that County accepts the same pursuant to the provisions of this Agreement or in connection with the various Planning Actions or Project Approvals; exclusive control of Windemere Ranch herein described, subject only to the limitations and obligations of Developer under Planning Actions, the Project Approvals and Applicable Law; and (iv) County and Developer hereby renounce the existence of any form of agency relationship,joint venture or partnership between County and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between County and Developer. ARTICLE 11. MISCELLANEOUS Section 11.01. Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. Section 11.02. Severability. If any term or provision of this Agreement, or.the application of any term or provision of this Agreement to a particular situation, is held by a court of 26 2881 v8 competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, Developer may (in Developer's sole and absolute discretion) terminate this Agreement by providing written notice of such termination to County. Section 11.03. Other Necessary Acts. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out Planning Actions and Project Approvals and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. Section 11.04. Construction. Each reference in this Agreement to any of the Planning Actions or Project Approvals shall be deemed to refer to the Planning Action or Project Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both County and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. Section 11.05. Covenants Running with the Land. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including, without limitation, Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Windemere Site, as appropriate, runs with the Windemere Site and is binding upon the owner of all or a portion of the Windemere Site and each successive owner during its ownership of such property. Section 11.06. Annexation to San Ramon. The San Ramon Settlement Agreement anticipates the potential annexation of the Windemere Site to San Ramon. To the extent any portion of the Windemere Site is so annexed, this Agreement shall continue to apply to the Windemere Project until the expiration of the Term (to the maximum extent permitted by law) and, to the extent such construction is reasonable, appropriate and consistent with the terms of the San Ramon Settlement Agreement, any annexation agreement that may then exist between Developer and San Ramon and any property tax exchange agreement or other agreement that may then exist between San Ramon and County relating to Windemere Ranch, with respect to any portion of the Windemere Site that has been annexed, (i) the term "County" as used herein shall mean "San Ramon" and (ii) San Ramon shall be deemed to be a successor in interest to County's rights and obligations under this Agreement. Section 11.07. Dougherty Valley Development Strategy. The Dougherty Valley is the subject of a comprehensive and integrated planning effort. It has been designed to allow development by phases. The timing of phase development will reflect market conditions and business decisions of the developers of the Dougherty Valley, while requiring that each phase make provision for its needs for infrastructure, services and amenities. Recognizing this development strategy, it is the intent of the Parties that while development must occur in furtherance of the valley-wide Dougherty Valley planning effort and the County's Growth 27 2881 v8 Management Element, developers of the Dougherty Valley should be able to pursue development in a manner commensurate with their own goals and resources. In imposing conditions of approval, County shall to the extent reasonably feasible allocate to Developer and Shapell their respective separate and distinct obligations relating to development under the Specific Plan. The parties recognize that this may require that, for example, with regard to the construction of facilities involving both Shapell and Windemere, County may need to allocate the separate obligations of each Developer. Nothing in this'Section 11.07 shall in any way modify the provisions of Section 4.3.3 of the San Ramon Settlement Agreement. Section 11.08. Other Public Agencies. Nothing in this Agreement shall be construed to limit the County's discretion to determine when and if it will enter into any agreements with other public agencies concerning the subject-matter and provisions of this Agreement or require that the County take any legal action concerning such other public agencies and their provision of services or facilities. Section 11.09. Attorneys' Fees. In the event of any litigation or arbitration between the parties to this Agreement relating to an alleged breach of this Agreement, neither party shall be entitled to an award of attorneys' fees. ARTICLE 12. NOTICES Any notice or communication required hereunder between County or Developer must be in writing, and may be given either personally or by registered or certified mail (return receipt requested). certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of(i) actual receipt by any of the addressees designated below as the . party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party 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: (510) 646-2026 Facsimile: (510) 646-1309 28 2881 v8 With Copies to: County Counsel Contra Costa County Administration Building 651 Pine Street, Ninth Floor Martinez, CA 94553 Telephone: (510) 646-2074 Facsimile: (510) 646-1078 Director of Public Works 255 Glacier Drive Martinez, CA 94553 Telephone: (510) 313,-2000 Facsimile: (510) 313-2333 If to Developer, to: Windemere Ranch Partners 1350 Treat Boulevard, Suite 560 Walnut Creek, California 94596 Telephone:. (510) 933-1405 Facsimile: (510) 933-1404 With Copies to: Morrison & Foerster . P.O. Box 8130 101 Ygnacio Valley Road, Suite 450 Walnut Creek, California 94596 Attention: R. Clark Morrison Telephone: (510) 295-3300 Facsimile: (510) 946-9912 ARTICLE 13. ASSIGNMENT, TRANSFER AND NOTICE Section 13.01. Assignment of Interests Rights and Obli atg ions. Developer may transfer or assign all or any portion of its interests, rights or obligations under the Planning Actions (including this Agreement) or the Project Approvals to third parties acquiring an interest or estate in Windemere Ranch or any portion thereof including, without limitation, purchasers or ground lessees of lots, parcels or facilities. Section 13.02., Transfer Agreements. a. In connection with the transfer or assignment by Developer of all or any portion of Windemere Ranch (other than a transfer or assignment by Developer to an affiliated party, a "Mortgagee" (as defined in Section 14.01 below) or a "Non-Assuming Transferee" (as 29 2881 v8 defined in Section 13.03 below)), Developer and the transferee shall enter into a written agreement (a "Transfer Agreement") regarding the respective interests, rights and obligations of Developer and the transferee in and under the Planning Actions and the Project Approvals. Such Transfer Agreement may (i) release Developer from obligations under the Planning Actions (including this Agreement) or the Project Approvals that pertain to that portion of Windemere Ranch being transferred, as described in the Transfer Agreement, provided that the transferee expressly assumes such obligations, (ii) transfer to the transferee vested rights to improve that portion of Windemere Ranch being transferred and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. b. Developer shall seek County's prior written consent to any Transfer Agreement, which consent shall not be unreasonably withheld or delayed. Failure by County to respond within forty-five (45) days to any request made by Developer for such consent shall be deemed to be County's approval of the Transfer Agreement in question. County may refuse to give its consent only if, in light of the proposed transferee's reputation and financial resources, such transferee would not in County's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Such determination shall be made by the Community Development Director, and is appealable by Developer to the Board. C. Any Transfer Agreement shall be binding on Developer, County and the transferee. Upon recordation of any Transfer Agreement in the Official Records of Contra Costa County, Developer shall automatically be released from those obligations assumed by the transferee therein. d. Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a transferee pursuant to a Transfer Agreement. No breach or default hereunder by any person succeeding to any portion of Developer's obligations under this Agreement shall be attributed to Developer, nor may Developer's rights hereunder be canceled or diminished in any way by any breach or default by any such person. Section 13.03. Non-Assuming Transferees. Except as otherwise required by Developer in Developer's sole discretion, the burdens, obligations and duties of Developer under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor County's consent shall be required in connection with (i) any single residential parcel conveyed to a purchaser, (ii) any property transferred as fewer than fifty (50) lots to a single retail builder or (iii) any property that has been established as one or more separate legal parcels for office, commercial, industrial, open space, park, school or other nonresidential uses. The transferee in such a transaction and its successors ("Non-Assuming Transferees") shall be deemed to have no obligations under this Agreement, but shall continue to benefit from the vested rights provided by this Agreement for the duration of the Term. Nothing in this section shall exempt any property transferred to a Non-Assuming Transferee from payment of applicable fees and assessments or compliance with applicable conditions of approval. 30 288f v8 ARTICLE 14. MORTGAGEE PROTECTIONS Section 14.01. Mortgagee Protection. Notwithstanding any other provision of this Agreement, neither this Agreement nor any provision, amendment or breach of this Agreement shall operate to defeat or render invalid the rights of any present or future "Mortgagee" (defined below) under a "Mortgage" (defined below) encumbering the Windemere Site or any part thereof, or any interest therein, made for value; provided, however, that after the "Foreclosure" (defined below) of any such interest therein, that had been encumbered by such Mortgage shall remain subject to and entitled to the benefits of this Agreement. As used in this Agreement, (i) the term "Foreclosure" shall mean judicial foreclosure, sale under a power of sale, or deed in lieu of either of the foregoing or a private or public foreclosure sale under the California Uniform Commercial Code, (ii) the term "Mortgage" shall mean a mortgage, deed of trust, or other security instrument and (iii) the term "Mortgagee" shall mean a mortgagee, a beneficiary of a deed of trust or the secured party under-any other security instrument. Section 14.02. Notice of Default to Mortgagee. If County receives notice from a Mortgagee requesting a copy of any notice of default given to Developer hereunder and specifying the address for service of such copy, then County shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer under Section 8.01 above. Each Mortgagee shall have the right, but not the obligation, at its option, to cure or remedy any such default under this Agreement by the Developer in accordance with Section 14.03 below. Section 14.03. Mortgagee Opportunity to Cure. This Agreement shall not be terminated by County as to any Mortgagee (i) who has requested notices of default, as set forth above, but is not given notice by the County or (ii) to whom such notice is given and as to.which either of the following is true: (1) as to any default involving the payment of money to County by Developer, such Mortgagee has cured such default within sixty (60) days after receipt of notice of default; (2) as to any default not involving the payment of money by Developer to County: a. such Mortgagee has cured, or caused to be cured, the default within ninety (90) days after receipt or notice thereof, or b. such Mortgagee, within ninety (90) days after the receipt of notice of default, commences foreclosure proceedings to acquire title to the applicable portion of Windemere Ranch and thereafter diligently pursues the Foreclosure to completion. Subject to the foregoing, if any Mortgagee records a notice of default as to its Mortgage, Developer's rights and obligations under this Agreement may be transferred to the Mortgagee or to any purchaser of the Developer's interest in a Foreclosure. 31 2881 v8 Section 14.04. Approval by Mortgagees. County recognizes that the provisions of this Agreement may be a matter of concern to any Mortgagee.intending to make a loan secured by a Mortgage encumbering the Windemere.Site, or a portion thereof. If such Mortgagee should require, as a condition to such financing, any modification of this Agreement to protect its security interest in the Windemere Site or portion thereof, County shall execute the appropriate amendments; provided, however, that County shall not be required (but is permitted) to make any modification that would (i) materially and adversely affect County's rights hereunder, (ii) increase County's obligations hereunder, (iii) reduce Developer's obligations hereunder or (iv) constitute an amendment other than an "Insubstantial Amendment" as described in Section 5.02 above. Section 14.05. Notice of Proposed Amendment to Mortgagee. This Agreement may be amended without the approval or execution of any such amendment by any Mortgagee. However, if County receives notice from a Mortgagee requesting notices of proposed amendments, County shall provide a copy of any proposed amendment to such Mortgagee. ARTICLE 15. NOTICE OF COMPLIANCE Within thirty (30) days following any written request which Developer may make from time to time, County shall execute and deliver to Developer (or to any party requested by Developer) a written "Notice of Compliance," in recordable form, duly executed and acknowledged by County, that certifies: (1) 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 modifications; (2) There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default; (3) Any other information reasonably requested by Developer. The failure to deliver such a statement within such time shall constitute a conclusive presumption against County that this Agreement is in full force and effect without modification except as may be represented by the Developer and that there are no uncured defaults in the performance of the Developer, except as may be represented by the Developer. Developer shall have the right at Developer's sole discretion, to record the Notice of Compliance. 32 2881 v8 ARTICLE 16. ENTIRE AGREEMENT, COUNTERPARTS AND EXHIBITS This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of thirty-five (35) pages and six (6) exhibits which constitute in full, the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of County and the Developer. The following exhibits are attached to this Agreement and incorporated herein for all purposes: (i) Exhibit A - Legal Description (ii) Exhibit B - Responsibilities for Certain Traffic Improvements (iii) Exhibit C-1 - Initial Project Traffic Improvements (iv) Exhibit C-2 - Additional Project Traffic Improvements (v) Exhibit C-3 - Cost Allocations for Certain Additional Project Traffic Improvements (vi) Exhibit D - Establishment of Capital Facilities Fee 33 2881 v8 ARTICLE 17. RECORDATION OF DEVELOPMENT AGREEMENT Pursuant to California Government Code § 65868.5, no later than ten (10) days after County enters into this Agreement, the County Clerk shall record an executed copy of this Agreement in the Official Records of the County of Contra Costa. IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and County as of the day and year first above written. WINDEMERE RANCH PARTNERS, a California limited partnership By: SOMERSET HOMES, a California corporation Its: General Partner By: F. Allan Chapman President By: WINDEMERE GENERAL PARTNERS, a California general partnership Its: Managing General Partner By: CWL WINDEMERE ASSOCIATES, L.P., a California limited partnership Its: General Partner By: CWL WINDEMERE GROUP, a California limited partnership Its: General Partner By: F. Allan Chapman General Partner, 34 2881 v8 COUNTY OF CONTRA COSTA By: Harvey Bragdon Its: Director of Community Development APPROVED AS TO FORM: VICTOR J. WESTMAN County Counsel County of Contra Costa By: Silvano B..Marchesi Assistant County Counsel 35 2881 v8 EXHIBIT A Legal Description . 2881 v8 ,Xass.yZP V r �r n �+$ � 'ri M► /� • �� i F � i i � .• g .�► Nit . Plo C440 pow s o IC41tt% °°r uw04�1=11 Raw PRo+acT"Ta PROPERTY DESCRIPTION •< _ A PORTION C>F LATS 4.6.16.17 AND IIS AND ALL OF L CUTS 19.70.21.26 23.24,23, 26.27.2/.29.70 AND 71.PORTION OF LOT 32 AND ALL OF LATS U.34.37 AND u 36,MAP OF THE PROPERTY OF THE ESTATR OF ELIZABETH A.DOUGIERTY, 4 DECEASED,IN ALAMEDA AND CONTRA COSTA COUNTIES WHICH MAP RAyoR WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF CONTRA 3w °4D RAROA AOAo 0•• COSTA.STATE OP CALOORNIAL 014 MAY 4.1691.IN HOOK C OF MAPS,PAGE •w ry r�c 43,AND FILED IN THE OFFICE OF THE RECORDSIR OF THE COUNTY OF Ar%d ALAMEDA.STATE OF CALIFORNIA,ON MAY It,U91.IN BOOR 6 OF MAPS rrr .t`art PAGE 74.DESCRIBED AS TOLL Olft ' BEGWNING AT THE INTERSECiION OF THE LINE BETWEEN LOTS IS AND 19, WiTH THE MOST WESTERLY L241 OF LOT I.AS DESIGNATED ON THE MAP ABOVE REFERRED TO THENCE FROM SAID POINT OF BEGINNING ALONG THE LINE BETWEEN LOT III AND LATS 4 AND 9,SOUTH Ot•WEST.&t3 A'S CHAINS CIO,%SOUTH OY EAST,17JO CHAINS 014 AND SOUTH 11.17 WISP, °d a :- 17.16 CHAINS 024 TO THE CORNER COMMON TO LOTS 9.10.17 AND IB.SAID CORNER BEING AN ANGLA POINT IN THE 1XTERIOR LIVE OF THE PARCEL OF * '� ouaCAt1 LAND DESCRIBED IN THE DEED 10 PRANK FINE,BT AL.RBCORDED MA67CE 19,1"%BOOK t79.DEWS.FAGS IBL T1H@FO ALONG BARD EMMOR L&M AS FOLIO" R4TOOTATa ISN NORTH"-W WEST,7.18 CHAINS(1J:SOUTH 61.07 WEST,13.42 CHAINS MI. AND SOUTH 79 WEST.24 CHAINS TO TFE LOM 687WEFN LATS 17 AND 31. THENCE ALONG SAID LINE SOUTH OS WESr,1t CHAINS AND SOUTH ICW VICINITY MAP WE".9 CHAINS TO TH8 NORTHWEST CORNER CSP LAT 14;THENCE ALONG THE LINE BETWEEN LOTS 16 AND 3L SOUTH 2Y WEST,293 CHAIM THENCE N.T.S. LEAVING SAID LINE SOUTH 16'17 WEST,11.79 CHAINS TO A POINT ON SAID LINE BETWEEN LOTS 16 AND 32:THENL7 ALONG SAID LINE SOUTH W WEST,tbl CHAINS TO THE NORTHWEST CORNER OF THE 135.60 ACRE TRACT OF LAND DESCRIBED IN THE DEED TO M.S.DUARTS.RECORDED NOV EMBER 16, 1911, BOOK 190.DEEDS,PACE 162,ALAMEDA COUNTY SOUTH SP WEST,3J CHAINS 074:SOUTH 1!WRIT,141 CHAINS a"SOUTH RECORM THENCE SOUTH 22•WWr 217 CHAINS;THENCE SOUTH 66'30' SO.4S EAST,S CHAINS 094 AND SOUTH 0170'WEST,C"CHAINS(404 TO A WEST.7.13 CHAINS[THENCE SOUTH WIT WEST, t234 CHAINS TO THE WHITE OAX TREE AT THE NORTHWEST CORNER OP THE 254.97 ACRE SOUTH 1.24E OF LOT 3%THENCE ALONG THE SOUTH LINE OF LOTS 3L 33 PARCEL OF LAND DESCMW IN THE DEED TO ANTON&PERRY SILVA,ET Al. AND 34, NORTH 4N4T WEST. SX67 CHAINS TO THIS MOST WESTERLY RECORDED RINE 23.1923.BOOR 433 DEEM PAGE 4117;THENCE ALONG THE CORNER OF LOT 34,THENCE ALAFX'THE WEST LINE!OF LATS It AND 34. WEST LINE OF SAID SILVA PAECM AS MJOWSt NORTH WIT EAST.71.9 CHAINS TO THE SOUTHWEST LIVE OF SAT 30; SOUTH 3770 WEST.122!CHAINS(-n,%SOUTH IT WEST,22 CHAINS 421, M FEE ALONG 3rITHE LINT BETWEEN LOUT,A 3o AND NORTH MTNORW 36.I FEETEST. SOUTH la CHAINS OM SOUTH 0370'WEST.990 CHAINS(44J:SOUTH W-4s TO THE FORTH TCO AOINWESO LO FEET.ANO36; 67'4:II ALO R FEET E�XM CHAINS(6 3 AND SOUTH MW BAST,9AS CHAINS(4 0 TO THE TO THE CARNES COMMON 0 LOT!30.0 AND 3k WEST.4 ALONG THE FORTHWdT COMM OF THE 14&46 ACRE PAKn OF LAND D15OCBED IN [INE BETWEEN SAID TATS 30 AND 36.NORTH COMMGraEST 4 FEET(6J THE D®TO THEOOORE NiSSI N,RECORDED OCIOBIS 24,1904 BOOR 140 AND NORTH,TH WEST,74!FEET E NI THE ORNDLISCOMMON TO D V. DEEDS.PAGE Q CONTRA COSTA COUNTY RBCORO I,THEVQ ALONG THE 70,>s AND 37:TFHEJNC7 ALONG THE LINE BBTWET(F4'SAID 1013 3f AND V. MOST WEETMY LJNR OF SAD FARM OF LAND.SOUTH 23'417'WEST, NORTH 36.41 WEST,2112 FEET(93 10 THE!CORNER COWRAO410&014 3L V. HIM PERT N7J AND SOUTH W3933WEST,SK24 FEET(48.)TO THE 39,AND A THEMCTL ALONG THE LINK BETWEEN SAID 1013 37 AND 79, SpHlHRH1ypT OF SAID PASCEL BBINU:ALSO THE NORTHWEST NORTH 46.11 BAST,264 FEET(10.3.NORTH lr4T EAST.361 PER(11J AND SOUTHWEST OF THE COMMM Oi SAID DANA DBI MNG AL THE O[NO TO W S NORTH AT HAST,ISA LO FEET E IN THE CORNER COMMON TO ND 2, WHOM RBCORDED APM b 1101,BOO[110 DEEDS.PAGE 407.CONTRA N AND ORM 1 WW. FEET THE LINE BETWEEN SAD TATS n AND 3!,a"NORTH COSTA COUNTY RBOORM THD40 ALONG THE W15T LINE OF SAD PAECIEL 19'31'WEST.N2 FEETU I�TNORTH 3VM EALST,594 FEET((M).NORM 1442 BAST.420 F�AND NORTH SAH W41'3r WRIT.114&69 FERT(MJ TO THE POINT OF 1119GO01ING. 27'41 WEST,660 FEET 07J TO THE CORNER COMMON TO LOTS 17.39 AND 401 STI NG 116 THENCE ALONG THE LOM BETWEEN SAID LATS 27 AND 48,NORTH U"? FAST.326.70 FEET(16.)AND NORTH 3Y0!BAST,210.5 FEET(19J TO THECORNTHE ESTATE AWARDED 70 IIFITiim STAfE3 OF AMERICA IN TRO FiNAL BETWEEN COMMON TO LOTS 26.27 AND 40; BAST 3 .30 FEE 0 LII D l�)a[�DATED JULY 21.1947,UNDER ACTION NO. ZUS2-S IN THE NORTH 4ra EAST,SAID SOTS 2f AND 40.NORTH 1"FEET ati To THE COMM COMMOld To BAST.364JO PERT OT$AND 3L 0 DISTRICT COURT OF THE UNITED STATICS.IN AND FOR THE NORTHERN AND 1 THENCE SALONG THE LINK BETWEEN SAD LOTS 36 AND 41.NORM D67R1CT Of CAU ORNIA,SOUiFERN DIVISION.A C>ITIFTED COPY OF 34.OT EAST,60!12 FEET=310 THE CORNER COMMON TO LOiS 29.26 AND WHICH WAS RBODRABD AUGUST 2.190.BOOR 1106 OFFICIAL KBCORM 41:THENCE ARANO THE INR 09TVIM SAD LATS IS ANA 4t.4011141 309? PAGE377. EAST.SNA FEET t23J.NORTH 110 BAST,710.16 FEET 00 AND NORTH 310 ALSO E7ICIFTING THEREFROM: THE RIGHTS RESERVED IN THE D®FRO6,t EAST.PL24 FEET WJ TO THE CORNER C06OAM TO LOTS 24.21.41 AND Q EM0. GUMPERT, BY At. TO KOC:lf. N.B., A NETHERLANDS ANITLLES THENCE ALAFX'TFO 1.24E BETWEEN RAST SAD EA13 J,AND 4;NORTH 21"1ill CORPORATION,RBCORDED 1"IC H 21.ISM AS D57RUM M NQ 11"904 EAS[62!FEET MJ NORTH 27'OT EAST,3!6 FEET D74.NORTH!1.0Z BAST,330 FEET MI.NORTH WART EAST.994 PER 09.1 AND NORTH 41!0 EAST,400 FEET 004 TO THE NORTH LINE OF SAD LAT 2L 1HIIN0 ALONG SAID NORTH -BHT ONLY AS TO THE AREA LYiNG MORE TNAN FIVE HUNDRED 000)FEET LINE OF IAT N AND ALONG THE NORTH LINK OF LOT 21.SOUTH 6145 BAST. BELOW THE LAND SURFACE OF TRE REAL PSOPERIY.AN IINOIVmm ONE. ALONG STET 01.AND 321 TO LO NORTHWEST CORNER O OF LOT l:TH CHAINS HALF(1/D INTEREST IN AND TD ALL RIGHTS 10,AND ON54tAU O/2)OF (PORT THE INIK Bfi71VBPN NETS 1 AND 2L SOUTH 4S•WEST;10 C S LAW ALL OS.GAS.MINERALS,PRBOCHEMICAIS AND OTHER HYDROCARBON (PORTION T 334 t0 THE CORNER OD►OASN 101 OTS 1 AND s ON THIS EAST SUMANCBS IN,UNDER OR PRODUCED AND SAVED FRCK THE RRAL LINK ES IAT 23:THENCE!ALONG TIO LAST LINK OF iAST D AND 2L SOUTH PROPERTY wHETt®1 OR NOT OF 1800617. 03•WIT.6 CiAIVS(Rl]dAIVOKR OF 331 SOtlRRi 76•EAST,It.eO GREENS o4J AND SOUTH 01.47 WEST,t3 CHAINS CO3 AND SOU TR 4T WEST.7.70 CHAINS l ) CORRE4ONDiVG COLIILSK BM6INCIS AND 176TANCF3 St90wN ON (IS)TO THE BEINGCORNER(:060404 woT c H PAR 2 AND t ON THK EAST LM D THE BOUNDARY DATA SCHEDULE!HEREON(RFP:RECORD OF SURVEY DE LOT 2L N THE TRE F70 10 MANUEL CORNER OF THE PA1 NO Of LAND RECORDEDIN BOOK 66OP MAAM AT PAGE 2R OFFi IAL.6ECDLmS OF 1923,9 019 4 THE DEED AGE 114UKE.R II AEONATIM THIR WEST S ID CONTRA COKTA COUNTY 197J,BOOR 433.DEEDS.PAGE ib T}ONC7 ALONG TIO WEST 1.24E OF SAID - MATEOS FAR=AS FOLLOW& WINDEMERE PROPERTY EXHIBIT MACKAY&SOMPS CY4 ao6lBwto.1,AIO raAMtM o.1,wo SLRYETIMO 1 I ( I M:E�' CIJAM CORPORATION 206-030-003 A 8 C © ;® PROP,;•tTlc J •IC ® A. WALCH - M170-M 206-060-OIL 1. CULF WESTERN L04ITED 206-170.009 � ® G GURTOVOT 206.170-010 ND. Plf76Q 20F170011 RANCH ® ZN"I" all 206-060-Ole o� f CORRIE 1euNOAtr n" • 206-060-005 ® ® 007 I. H 76'2717!W 52621 V. H 20'0734' a716.0/ 3.L N 62'17126't 116.61 2L N WWI?* a 33043 N 76'21'4!a 20239 29. N 46.36'Sr a 5H40 �! 4. N 47'30Vr W 33M.70 30. H 20'Si33' a 46145 1 G. N 369f4r W 46111.7744 3L N 10'Ir36' W 22619! ll,lUUSTRJE-3 t A) a N`7`7 0471 W I'M 30L N 22M4r4r W '9711117`6 206-070-006 9. N 339046'W 2110.% A N 0TST4r a 074.1 11`1�.-. 1® 10. N42'26'9'9 266.40 3L N 46.474r a 5" ® \ 11. N 169Ttr a 562.01 37. N sN411r a 27141 IL N 21'5030'a 131&13 A N I714110r t ff649 '© Ii N 00'13171 W 39L17 39. N 4ra31' W 330.00 1 0 14. N Is•Irs4•a 429 40. N 02 37 4r t 43024 ( RA Pr I N 371471271 W 461.93 41. N 3717l4r t 15133 1& N 7192'!71 a 991.37 4L N 12`23'471 a 1613 206-cro-013 17. N 26'3021 W 656.73 4& N 01'3706' a "Al 014 It N I3Z8'!P a 326. 4& N 06'2f4r a 65174 ®` It N 3`1741'a 260.:!0 4s. N 00'0704' a 1=AS 20.. N 16.45471 a 564.0 4L N 4713!071 W 5034 2I. N 4691'3!9317.30 47. N 2490'12' a 141240 © 2L N 3`W4r a 610.30 4L H 41'2!'071 a 53311 (all23. N 307rIr a 636.10 0. N 019`24' a INS." /01-411'Or 4" r'` ® 2s. N 31926!'t 377.42 51 N 04*11*= W 115620 r�1JJAJARA ;L N 2rww a 8412 SL N 11003.7a I1,11696 a ASSOC. .m 206-070-Oil CO17RSi.7 AND DOTAW=FWM M=W Of SUBvaY RB XWW IN 0008 M OF MAA AT FAQ 24 OFFI MAL RBMFMS OF CONTRA COSTA COUNIT ®4 206-110-OCs 007 STATES"f�D 160-002 UNITED 1 EJ Jr Al d_rr?r-A O I 206-100-003 \ ®/ 004 6 BOUNDARY MAP 7 ,600 2010 EXHIBIT B Responsibilities For Certain Traffic Improvements r l 2881 v8 EXHIBIT C-1. C-2 and C-3 Traffic Improvements 2881 v8 EXHIBIT C-1 Initial Project Traffic Improvements C-1.1. Camino Tassajara/Crow Canyon Rd.Blackhawk Rd. intersection improvements. Within existing curb-to-curb pavement section, reconfigure NB approach (Crow Canyon Rd.) to provide two left-turn lanes, one exclusive through lane, one shared through/right-turn lane, and one exclusive right-turn lane. On Tassajara Ranch Drive, remove median and add bike lanes. C-1.2. Sycamore Valley Rd./1-680 NB on-ramp/Camino Ramon intersection improvements. Reconfigure WB approach (Sycamore Valley Rd.) to provide one exclusive left- turn lane, one exclusive through lane, one shared through/right-turn lane, and one exclusive right- turn lane. C-1.3. Crow Canyon Rd./Dougherty Rd. intersection improvements. Reconfigure EB approach (Crow Canyon Rd.) to provide three exclusive through lanes, and one "free" right-turn lane to SB Dougherty Rd, Reconstruct SB Dougherty Rd., south of Crow.Canyon Rd., to provide dedicated curb lane to accept right-turns from EB Crow Canyon Rd. C-1.4. Bollinger Canyon Rd./Camino Ramon intersection improvements. If needed, reconfigure SB approach (Camino Ramon) to provide two exclusive left-turn lanes, one shared through/right-turn lane, and one exclusive right-turn lane. C-1.5. Bollinger Canyon Rd./Alcosta Blvd. intersection improvements. Reconfigure EB approach (Bollinger Canyon Rd.) to provide one.exclusive left-turn lane, three exclusive through lanes, and one exclusive right-turn lane. Reconfigure WB approach (Bollinger Canyon Rd.) to provide one exclusive left-turn lane, three exclusive through lanes and one exclusive right-turn lane. Reconfigure SB approach (Alcosta Blvd.) to provide one exclusive left-turn lane, two exclusive through lanes, and one exclusive right-turn lane. Widen Bollinger Canyon Rd., east of Alcosta Blvd., to provide three through lanes, plus turn lanes as needed, in EB and WB directions from Alcosta Blvd. to project limits. Construct traffic signal at Canyon Lakes Drive. C-1.6. Dougherty Road, re-alignment and construction of a six lane facility between the northerly project limits and Crow Canyon Road. C-1.7. Windemere Parkway, construction of a new four lane, divided arterial facility between the project limits and Camino Tassajara Road. Intersection improvements at the Windemere Parkway/Camino Tassajara intersection which include a traffic signal, left-turn channelization, and transition tapers from six to four lanes on Camino Tassajara north of the intersection. C-1.8. Windemere Parkway/Camino Tassajara Road intersection improvements, provide left turn channelization, a four phase traffic signal, and tapers on Camino Tassajara to transition from six to four lanes north of the intersection. 2881 v8 C-1.9. Crow Canyon Road, widen to six lanes between Dougherty Road and Tassajara Ranch Road. C-1.10. Crow Canyon Road, widen from 4 to 6 lanes from Alcosta Blvd. to Dougherty Road. C-1.11. Dougherty Road, widen to 6 lanes from southerly limits of development to Old Ranch Road. Intersection improvements at the Dougherty Road/Old Ranch Road intersection are included and consist of a traffic signal, left-turn pockets, and right-turn pockets. C-1.12. Dougherty Road, widen to 6 lanes from Old Ranch Road to the County line. C-1.13. Dougherty Road/Old Ranch Road, intersection improvements to accommodate four lanes on Old Ranch Road and six lanes on Dougherty Road, with left turn and right turn channelization. Install a traffic signal. C-1.14. Alcosta Blvd./Old Ranch Road intersection improvements (Currently, controlled by a three- way stop sign). Install a traffic signal. 2881 v8 EXHIBIT C-2 Additional Project Traffic Improvements C-2.1. Bollinger Canyon Road, construct eight lanes from I-680 to Alcosta. C-2.2. Camino Tassajara Road, widen from two to six lanes between Windemere Parkway and the County line. C-2.3. Camino Tassajara/Sycamore Valley Road intersection improvements, widen/restripe SB leg for I LT/RT lane and I LT lane. C-2.4. Crow Canyon Road, widen from 6 to 8 lanes from I-680 to Alcosta. C-2.5. I-680 northbound off ramp/Bollinger Canyon Road intersection improvements. On NB leg, widen right turn radius, construct raised island to convert curb right turn lane to a free right turn lane, restripe 2nd right turn lane to stay under signal control, and modify signal control. C-2.6. Alcosta/Crow Canyon Road intersection improvements. Add exclusive right turn EB. C-2.7. Alcosta/Crow Canyon Road intersection improvements. Add one NB exclusive RT lane. C-2.8. Camino Ramon/Crow Canyon Road intersection improvements. Widen/restripe SB approach to one RT, one through lane, and I LT lane; add an EB exclusive RT lane. C-2.9. Crow Canyon Road/1-680 NB off-ramp intersection improvements. Intersection will be congested due to queues from adjacent intersections. Add another RT lane on NB off- ramp. C-2.10. I-680 SB ramps/Crow Canyon Road. Restripe to revise existing right turn lane to provide shared right/left lane. C-2.11. Bollinger Canyon Rd./Sunset Dr. intersection improvements. If needed, reconfigure SB approach (Sunset Dr.)to provide one exclusive left-turn lane, one exclusive through lane, and one "free" right-turn lane to WB Bollinger Canyon Rd. Widen Bollinger Canyon Rd., west of Sunset Dr., to provide dedicated curb lane to accept right-turns from SB Sunset Dr. C-2.12. Crow Canyon Road Noise Attenuation. As appropriate, construct soundwalls along Crow Canyon Rd. between Dougherty Rd. and Alcosta Blvd. C-2.13. Crow Canyon Road, Camino Tassajara and Sycamore Valley Road. Provide for pavement overlays of these roads between the Dougherty Valley project and I-680. 2884 v8 EXIMIT C-3 Cost Allocations for Certain Additional Project Traffic Improvements Not in limitation of any obligation of the Developer to provide a pro rata contribution to any of the improvements described on Exhibit C-2 other than the improvements listed below, the following improvements shall be funded by a fee, to be paid at building permit for each residential unit.in the Project, not to exceed $200 per unit. Reference to Improvement Exhibit C-2 C-3.1 Camino Tassajara Overlay C-2.13 C-3.2 Crow Canyon Road Overlay C-2.13 C-3.3 Sycamore Valley Road Overlay C-2.13 C-3.4 Crow Canyon Soundwall C-2.12 C-3.5 Camino Tassajara/ C-2.3 Sycamore Intersection The per-unit fee described above shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. Any obligation to pay a fee to fund any of the improvements described in this Exhibit C-3 shall be conditioned upon construction of the identified improvements. Failure to construct an identified improvement shall result in a corresponding refund to the Developer. 2881 v8 EXHIBIT D Community Facilities Fee 2881 v8 EXHIBIT D Dougherty Valley Community Facilities Fee 1, Form of Agreement - This agreement regarding Community Facilities Fees, shall be incorporated into all existing and future development agreements regarding the Shapell and Windemere portions of the Dougherty Valley. This agreement will be executed by the developers and Contra Costa County, and will be agreed as to form, by the City of San Ramon. 2. Definition of Community Facilities - "Community Facilities" include the Library, the Community Center,the Senior Center,a Corporation Yard and the Police Substation. The square footage requirements and timing for design and construction are as defined, and are subject to revision as specified in the Agreement to Settle Litigation dated May.11th, 1994. 3, Timing for Establishment of Fee - Prior to the filing of the first final map in the Dougherty Valley, a "Community Facility Fee" shall be established for the entire 11,000 unit Dougherty Valley project. 4, Community Facilities Cost Components - As illustrated in Attachment A, the total cost of each community facility required in the Dougherty Valley shall include the cost of the facility design, the cost of construction, the cost of furnishings, and the cost of site development. The amount illustrated in Attachment A is not inclusive of land costs. 5. Land Dedication-Land required for the facilities shall be dedicated by the developers. Approximately six acres are required for the five subject facilities. In the event one developer is required to dedicate more than three acres, the other developer shall reimburse, at the time of construction, the dedicating developer for the cost of the land as determined by appraisal at that time. 6, Fee Amount - Fees shall be collected by the County at the issuance of the building permit. As illustrated in Attachment A, the total fee per unit equates to $1,410. The designated expenditure allocation is as follows: Library $ 326 (pro-rata cost for 11,000 units) Community Center $ 520 (pro-rata cost for 11,000 units) Police Substation $ 61 (pro-rata cost for 11,000 units) Corporation Yard $ 269 (pro-rata cost for 11,000 units) Senior Center 234 (pro-rata cost for 8,500 units) Total Fee $1,410 The portion of the fee attributable to the Library, Community Center, Police Substation and Corporation Yard, shall be paid by all 11,000 units in the Dougherty Valley,except as is indicated below. The portion of the fee attributable to the Senior Center, shall be paid by the first 8,500 units in the Dougherty Valley. 7. Cost of Living Adjustments-The Community Facilities fee sha usted according to the Engineering News Record Construction Cost Index each year. EXHIBIT D 8. Escrow Accounts - Upon collection by the County, Fees shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commences. 9. Obligation to Fund Shortfall - When funds are required for the construction of any community facility, the pro-rata obligation for funding each community facility shall be divided 53% to Shapell and 47% to Windemere. This percentage allocation shall apply regardless of the ultimate, or then-current, number of units constructed on either developer's property. Each developer is individually responsible for providing their pro-rata share of costs (53% Shapell / 47% Windemere)when the funds for a specific community facility is required. Each developer may use the fees generated by prior units, and may finance the balance of the funds in any manner available to them. If a developer provides a source of funding other than that which has accumulated in the Community Facilities Escrow Accounts, the parties to this agreement shall re- evaluate the fee amount at that time,with the intention of offsetting future fees by an amount commensurate with the developer's other funding method. 10. Ability+ to Cure Developer Default - As specified in Section 4.3.3.2 of the May 11, 1994 Agreement to Settle Litigation,if one developer defaults in the obligation to fund the pro-rata share of a community facility, the other developer may cure the default and not be penalized by a cessation of building permits. However, the developer in default may again obtain building permits,by funding with interest,their original pro- rata cost obligation (53% Shapell / 47% Windemere). 11. Satisfaction of a Developer Obligation by a Third Party - If a developer's obligation to provide a specific community facility is satisfied by an alternate contribution acceptable to the County and the City of San Ramon, the Fee paid by subsequent units in the Dougherty Valley shall be re-evaluated with the intention of offsetting future fees by an amount commensurate with the alternate satisfaction of the obligation. 12. County Service Area Charge - A County Service Area (CSA) is required by Section 3.3.1 of the May 11, 1994 Agreement to Settle Litigation, to be in place prior to annexation of any portion of the Dougherty Valley. As part of the formation of the CSA, an assessment equal to the estimated total future operation and maintenance cost, may be applied to units for construction of the community facilities. This capital charge will be reduced, dollar for dollar, as the operation and maintenance charges for those facilities are incurred Page Two EXHIBIT. D Upon collection by the County, CSA charges attributable to the capital facilities,shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commences. Funds accumulated under this CSA charge, shall be considered a "source of other financing" as is identified in #9 above. 13. County Approval/City Review - Plans for the design and construction of the community facilities shall be approved by Contra Costa County and reviewed by the City .of San Ramon. The County agrees to give good faith consideration to all comments received from the City. If a dispute arises, the County and City agree to participate in the Dispute Resolution process outlined in Article V of the Agreement to Settle Litigation dated May 11, 1994. 14. Facility Design and Construction - The Developers shall be allowed, based on the design and construction specifications from the appropriate agency and with the approval of the County and the review of the City of San Ramon, to design and construct each of the community facilities. 15. Design Changes Resulting,in Exceeding Facility Budget - The developers will not be required to fund facility construction costs greater than that described in Attachment A unless the increased cost is a result of cost of living adjustments (see paragraph 7) or changes in federal or state law. 16. Annual Reports - An annual report summarizing the Community Facilities Fee Escrow Account balances, and the CSA Escrow Account balances shall be provided with the annual mitigation monitoring program. Page three EXHIBIT D Dougherty Valley Attachment A Community Facilities Fees Report Date: 9/20/95 Library(11.600 Square Feet) Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Type Quantity Price Total Cost Units Site Development 1 AC 1.00 $108,900 $108,900 $10 Hard Construction Costs SF 11,600 $155.00 $1,798,000 $163 Soft Construction Costs 2 LS 1 $343,242 $343,242 $31 Furnishings SF 11,600 $15.00 $174,000 $16 Subtotal $2,424,142 $220 Educational Materials 3 Book 58,000 $20.00 S1,160,000 $105 Total $3,594,142 S326 Footnotes: 1. Assumes cost of$2.50 per square foot. 2. Assumes 18%of both hard construction costs and site development. 3. Assumes 2 books per capita for approximately 29,000 people. Community Center(24.000 Square Feet) Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Tye_ Quantity Price Total Cost Units Site Development 1 AC 2.00 $108,900 $217,800 $20 Hard Construction Costs SF 24,000 $185.00 $4,440,000 $404 Soft Construction Costs 2 LJS 1 $698,670 $698,670 $64 Furnishings SF 24,000 $15.00 5360,000 $33 Total $5,716,470 $5520 Footnotes: 1. Assumes site development cost of approximately$2.50 per square foot. 2. Assumes 15%of both hard construction costs and site development. EXHIBIT D Dougherty Valley Attachment A Community..Facilities Fees Report Date: 9/20/95 Senior Center(10.000 Square Feet) Cost per Unit Unit Unit Estimated 8,500 Cost Component Note Type Quantity Price Total Cost Units Site Development 1 AC 1.00 $108,900 $108,900 $13 Hard Construction Costs SF 10,000 $150.00 $1,500,000 S176 Soft Construction Costs 2 US 1.00 S241,335 $241,335 S28 Furnishings SF 10,000 $14.00 S140,000 S16 Total S1,990,235 234 Footnotes: 1. Assumes site.development cost of approximately$2.50 per square foot 2. Assumes 15%of both hard construction costs and site development Police Substation(Anoroximate 4.500 Square Feet Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Type Quantity Price Total Cost Units Site Development 1 AC 0.34 $367,647 S125,000 $11 Hard Construction Costs SF 4,500 $80.00 $360,000 S33 Soft Construction Costs 2 LS 1 $72,750 $72,750 $7 Furnishings SF 4,500 $25.00 $112,500 $10 Total $670,250 X61 Footnotes: 1. Assumes site development cost of approximately$8.45 per square foot(rounding) 2. Assumes 15%of both hard construction costs and site development. EXHIBIT D Dougherty Valley Attachment A Community Facilities Fees Report Date:9/20/95 Corporation Yard Cost per Unit Unit Unit Estimated 11,000 Cost Component Note T`yrpe _ Quantity Price Total Cost Units Site Development Costs 1 AC 1.70 $108,900 5185,130 $17 Hard Constr 8t Furnishings 2 US 1 52,500,000 $2,500,000 $227 Soft Costs 3 US 1 $268,513 $268,513 $24 Total $2,953,643 269 Footnotes: 1. Assumes site development cost of approximately$2.5 per square foot 2. Total cost estimated at$2.5 million;includes parking,landscaping,furnishings,4480 squara feet for shop space,800 square feet for offices and 1,680 square feet for locker areas. 3. Assumes 10%of both Maid construction costs dt furniskungs and site development. RECORDING REj First American Title Guaranty Company hereby. tE-31F ,ED BY RECOOR1� certifies that the wi hin instrument is a true C "10 TED BY and correct copy of the ori.3inal instrument AND WHEN RECORDED MAIL TO: recorded in the office of the recorder of the 11,50L41 County of Confra Costa, State of California, Morrison & Foerster on.................................... --------- P.O. Box 8130 1.01 Ygnacio Valley Road, Suite 450 Recorder's Serial No..-ql�_:Awy-46— Walnut Creek, California 94596-3570 FIR T ERICAN TITLEARANTY COMPANY. Attention: R. Clark Morrison By.. (Space Above This Line Reserve For Recorder's Use) DEVELOPMENT AGREEMENT BY AND BETWEEN THE COUNTY OF CONTRA COSTA AND WINDEMERE RANCH PARTNERS 2581 v8 0 TABLE OF CONTENTS Recitals............................................................................................... 1 Agreement .......................................................................................... 4 Article 1, Effective Date and Term ............................................... 4 Section 1.01. Effective Date ................................................... 4 Section1.02. Term................................................................. 4 Article 2. Definitions .................................................................... 4 Article 3. Obligations of Developer and County............................ 7 Section 3.01. Obligations of Developer Generally ................... 7 Section 3.02. Obligations of County Generally........................ 8 Section 3.03. Compliance with Settlement Agreements........... 8 Section 3.04. Preliminary Development Plan........................... 8 Section 3.05. Affordable Housing........................................... 8 Section 3.06. Designation of Preferred Water Provider........... 8 Section 3.07. Design Issues..................................................... 8 Section 3.08. Coordination of On-Site Improvements ............. 9 Section 3.09. Danville/San Ramon/County Traffic Mitigation.. . 9 Section 3.10. Pleasanton Traffic Mitigation............................. 12 Section 3.11. Dublin Traffic Mitigation................................... 12 Section 3.12. Walnut Creek Traffic Mitigation........................ 13 Section 3.13. Processing Fees................................................. 13 Section 3.14. Mitigation Monitoring Program......................... 13 Section 3.15. Other Financing Requirements........................... 14 Article 4. Standards, Laws and Procedures Governing Windemere Ranch.......................................................... 14 Section 4.01. Permitted Uses.................................................. 14 Section 4.02. Applicable Law ................................................. 15 Section 4.03. No Conflicting Enactments................................ 15 Section 4.04. Uniform Codes.................................................. 16 Section4.05. CEQA............................................................... 17 Section 4.06. Moratoria and Restrictions and Limitations on the Rate or Timing of Development............... 17 Section 4.07. Further Assurances............................................ 17 Section 4.08. Life of Subdivision Maps, Development Approvals,and Permits ...................................... 17 Section 4.09. State and Federal Law....................................... 18 Section 4.10. Timing of,Project Construction and Completion 18 Section 4.11. Developer Review of Infrastructure Plans.......... 18 2881 v8 i . • Article 5. Amendment................................................................... 19 Section 5.01. Amendment of Planning Actions and Project Approvals.......................................................... 19 Section 5.02. Amendment Of This Agreement......................... 19 Article 6. Cooperation-Implementation......................................... 20 Section 6.01. Processing......................................................... 20 Section 6.02. Eminent Domain Powers ................................... 22 Section 6.03. Other Government Permits................................ 22 Article 7. Cooperation In the Event Of Legal Challenge................ 22 Section 7.01. Cooperation ...................................................... 22 Section 7.02. Cure; Reapproval .............................................. 22 Article S. Default; Remedies; Termination .................................... 23 Section 8.01. General Provisions............................................. 23 Section 8.02. Annual Review.................................................. 24 Section 8.03. Excusable Delays; Extension of Time of ' Performance....................................................... 25 Section 8.04. Legal Action....................................................... 25 Section 8.05. California Law................................................... 25 Section 8.06. Resolution of Disputes....................................... 25 Article 9. Defense and Indemnity.................................................. 26 Article 10. No Agency, Joint Venture or Partnership .................... 26 Article 11. Miscellaneous.............................................................. 26 Section 11.01. Incorporation of Recitals and Introductory Paragraph........................................................ 26 Section 11.02. Severability...................................................... 26 Section 11.03. Other Necessary Acts...................................... 27 Section 11.04. Construction.................................................... 27 Section 11.05. Covenants Running with the Land ................... 27 Section 11.06. Annexation to San Ramon............................... 27 Section 11.07. Dougherty Valley Development Strategy......... 27 Section 11.08. Other Public Agencies ..................................... 28 Section 11.09. Attorneys' Fees ............................................... 28 Article12. Notices ....................................................................... 28 Article B). Assignment, Transfer and Notice................................. 29 Section 13.01. Assignment of Interests, Rights and Obligations...................................................... 29 Section 13.02. Transfer Agreements ....................................... 29 2881 v8 H j Section 13.03. Non-Assuming Transferees.............................. 30 Article 14. Mortgagee Protections................................................ 31 Section 14.01. Mortgagee Protection...................................... 31 Section 14.02. Notice of Default to Mortgagee....................... 31 Section 14.03. Mortgagee Opportunity to Cure ...................... 31 Section 14.04. Approval by Mortgagees ................................. 32 Section 14.05. Notice of Proposed Amendment to Mortgagee ...................................................... 32 Article 15. Notice of Compliance.................................................. 32 Article 16. Entire Agreement, Counterparts and Exhibits.............. 33 Article 17. Recordation of Development Agreement..................... 34 Exhibit A Legal Description Exhibit B Responsibilities For Certain Traffic Improvements Exhibit C-1 Initial Project Traffic Improvements Exhibit C-2 Additional Project Traffic Improvements Exhibit C-3 Cost Allocations for Certain Additional Project Traffic Improvements 2881 v8 iii j T , r- DEVELOPMENT AGREEMENT BY AND BETWEEN THE COUNTY OF CONTRA COSTA AND WINDEMERE RANCH PARTNERS THIS DEVELOPMENT AGREEMENT (the "Agreement") is entered into as of January 18, 1996 by and between WINDEMERE RANCH PARTNERS, a California limited partnership ("Developer" or "Windemere"), and the COUNTY OF CONTRA COSTA, a political subdivision of the State of California("County"), pursuant to California Government Code § 65864 et seq. This Agreement supersedes and replaces in its entirety that certain development agreement entered into by and between Developer and County, dated October 2, 1990, which is hereby terminated. RECITALS A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California enacted California Government Code § 65864 et s-. (the "Development Agreement Statute"), which authorizes County to enter into an agreement with any person having a legal or equitable interest in real property regarding the development of such property. B. Pursuant to California Government Code § 65865, County has adopted procedures and requirements for the consideration of development agreements (County Resolution No. 85/412 and Ordinance No. 92-73). This Development Agreement has been processed, considered and executed in accordance with such procedures and requirements. C. Developer has a legal interest in certain real property consisting of approximately 2379 acres located in the unincorporated portion of the County, as more particularly described in Exhibit A attached hereto (the "Windemere Site"). The Windemere Site may be expanded pursuant to a land exchange with the United States Department of the Army, in which case the Windemere Site may include up to approximately 2439 acres of land. D. Developer intends to develop the Windemere Site as a residential planned community of 5,170 dwelling units, together with certain retail, office, community services and other uses (defined more fully in Article 2 below as "Windemere Ranch"). E. County has taken several actions to review and plan for the future development of Windemere Ranch. These include, without limitation, the following: (1) EIR. On December 22, 1992 (the "First Approval Date"), pursuant to the California Environmental Quality Act, the "CEQA Guidelines" and County's local guidelines promulgated thereunder (hereinafter collectively referred to as "CEQA") and in accordance with the recommendation of County's Zoning Administrator, the Board, by Resolution No. 92/864, certified an environmental impact report regarding Windemere Ranch (the "EIR"). 1 2881 v8 Y r a (2) Urban Limit Line Modification. On the First Approval Date, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, and after duly noticed public hearing and certification of the EM, the Board, by Resolution 92/865 (which was approved by a 4/5 vote), approved a minor modification to County's Urban Limit Line to locate certain lands (belonging to the United States Department of the Army and located in the Dougherty Valley) inside the Urban Limit Line(the "Urban Limit Line Modification"). (3) General Plan Amendment. On the First Approval Date, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, and after duly noticed public hearing, certification of the EIR and adoption of the Urban Limit Line Modification, the Board, by Resolution 92/866, approved an amendment to the County General Plan (which, together with the Urban Limit Line Modification, is referred to below collectively as the "General Plan Amendment") addressing the Windemere Site and certain real property adjacent to the Windemere Site including (i) approximately 2,708 acres owned by Shapell Industries, Inc. and (ii) approximately 892 acres owned by the United States Department of the Army("Camp Parks"). (4) Specific Plan. On the First Approval Date, following review by the San Ramon Valley Regional Planning Commission and the County Planning Commission, and recommendation by the County Planning Commission, certification of the EIR, adoption of the General Plan Amendment, and duly noticed public hearing, the Board, by Resolution 92/867, approved a single specific plan for the Windemere Site, the Shapell Site, and Camp Parks (collectively, the "Dougherty Valley"), which specific plan is entitled the "Dougherty Valley Specific Plan" (the "Specific Plan"). (5) Settlement Agreements. County, together with Developer and Shapell, has entered into various agreements to settle litigation brought by certain parties against the County as respondent, and against Developer and Shapell as real parties in interest, relating to County's approval of the General Plan Amendment and Specific Plan and its certification of the EIR(collectively, the "Settlement Agreements"). The Settlement Agreements establish, among other things, certain procedures and standards that will be applied to County's consideration and approval of the "Project Approvals" (defined below). The Settlement Agreements consist of the following: (a) San Ramon and Danville. That certain agreement entered into by and among County, Developer, Shapell, the City of San Ramon("San Ramon") and the Town of Danville ("Danville") on May 11, 1994 to settle certain claims brought by San Ramon and Danville as more fully described therein (the "San Ramon Settlement Agreement"). (b) Pleasanton. That certain agreement entered into by and among County, Developer, Shapell and the City of Pleasanton ("Pleasanton") on June 20, 1995 to settle certain claims brought by Pleasanton as more fully described therein (the "Pleasanton Settlement Agreement"). 2 2881 v8 (c) Walnut Creek. That certain agreement entered into by and among County, Developer, Shapell and the City of Walnut Creek ("Walnut Creek") on July 11, 1995 to settle certain claims brought by Walnut Creek as more fully described therein (the "Walnut Creek Settlement Agreement"). (d) East Bay Municipal Utility District. That certain agreement entered into by and among County, Developer, Shapell and East Bay Municipal Utility District ("EBMUD") on September 26, 1995 to settle certain claims brought by EBMUD as more fully described therein (the "EBMUD Settlement Agreement"). (e) Alamo Improvement Association. That certain agreement entered into by and among County, Developer, Shapell and the Alamo Improvement Association ("AIA") on October 12, 1995 to settle certain claims brought by AIA as more fully described therein (the "AIA Settlement Agreement"). (f) Non-Governmental Organizations. That certain agreement entered into on October 12, 1995 by and among County, Developer, Shapell and several non- governmental organizations other than AIA, viz., the Sierra Club, the Greenbelt Alliance, Preserve Area Ridgelands Committee, Save Our Hills and the Mount Diablo Audubon Society to settle certain claims brought by such non-governmental organizations as more fully described therein(the "NGO Settlement Agreement"). (6) P-1 Zoning and Preliminary Development Plan. On December 19, 1995 (the "Second Approval Date"), following the preparation of an addendum to the EIR in accordance with Section 15164 of the CEQA Guidelines (the "Addendum"), the Board's consideration of the Addendum together with the EIR, and a duly noticed public hearing, the Board adopted County Ordinance No. 95-56, rezoning the Windemere Site to County's "P-1" zoning district consistent with the General Plan and the Specific Plan (the "Zoning") and approving a Preliminary Development Plan for the Windemere Site consistent with the Zoning (the "Preliminary Development Plan"). The General Plan Amendment, Specific Plan, Zoning, Preliminary Development Plan and this Agreement are sometimes collectively referred to herein as the "Planning Actions." F. On the Second Approval Date, after a duly noticed public hearing and considering the Dougherty Valley EIR Addendum, and the findings and recommendation of the Zoning Administrator, the Board took the following actions: (1) made findings required by Board Resolution No. 85/412, that the provisions of this Agreement are consistent with the General Plan and the Specific Plan; (2) made the findings required by CEQA; and (3) adopted Ordinance No. 95-64, approving and authorizing the execution of this Agreement. G. The parties acknowledge and agree that applications for specific land use approvals, entitlements, permits and agreements (collectively, the "Project Approvals") must be made by Developer and reviewed (in compliance with CEQA) and approved, issued or entered into by County prior to development of the Windemere Site. The Project Approvals may include, without limitation, the following: design review approvals, improvement agreements and similar 2881 v8 agreements relating to Windemere Ranch, use permits, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, subdivision maps (including tentative, vesting tentative, parcel, vesting parcel, and final subdivision maps), final development plans, rezonings, development agreements, landscaping plans, encroachment permits, resubdivisions, and amendments to the Planning Actions or the Project Approvals. H. Each party acknowledges that it is entering into this Agreement voluntarily. NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth herein, the receipt and adequacy of which consideration is hereby acknowledged, the parties agree as follows: AGREEMENT ARTICLE 1. EFFECTIVE DATE AND TERM Section 1.01. Effective Date. This Agreement shall become effective upon the date the ordinance approving this Agreement becomes effective, or the date upon which this Agreement is executed by Developer and County, whichever is later(the "Effective Date"). Section 1.02. Term. The term of this Agreement (the "Term") shall commence upon the Effective Date and continue for a period of twenty-five(25) years. ARTICLE 2. DEFINITIONS "Addendum" shall have that meaning set forth in Recital E(b) of this Agreement. "Administrative Amendment" shall have that meaning set forth in Section 5.01(1) of this Agreement. "Affordable Housing Program" shall have that meaning set forth in Section 3.05 of this Agreement. "Agreement" shall mean this Development Agreement and any amendments hereto. "AIA Settlement Agreement" shall have that meaning set forth in Recital E(5)(e) of this Agreement. "Annual Review" shall have that meaning set forth in Section 8.02 of this Agreement. "Applicable Law" shall have that meaning set forth in Section 4.02 of this Agreement. "Board" shall mean the Board of Supervisors of the County of Contra Costa. "Camp Parks" shall have that meaning set forth in Recital E(3) of this Agreement. 4 2881 v8 1 t" t "CEQA" shall have that meaning set forth in Recital E(1) of this Agreement. "Changes in the Law" shall have that meaning set forth in Section 4.09 of this Agreement. "Community Development Director" shall mean the Director of the County's Department of Community Development, or his or her designee. "Country Club Site" shall mean the approximately 618 acres owned by Shapell and located within the Dougherty Valley for which the County approved a general plan amendment, rezoning, preliminary development plan, final development plan, subdivision map and development agreement on December 20, 1994. "County" shall mean the County of Contra Costa, and shall include, unless otherwise provided, any of the County's agencies, departments, officials, employees or consultants. "County General Plan" or "General Plan" shall mean the General Plan of the County of Contra Costa. "County Law" shall have that meaning set forth in Section 4.03 of this Agreement. "Danville Settlement Agreement" shall have that meaning set forth in Recital E(5)(a) of this Agreement. "Default Notice" shall have that meaning set forth in Section 8.01 of this Agreement. "Deficiencies" shall have that meaning set forth in Section 7.02 of this Agreement. "Developer" shall have that meaning set forth in the preamble, and shall further include, unless otherwise provided, Developer's successors, heirs, assigns, and transferees. "Development Agreement Statute" shall have that meaning set forth in Recital A of this Agreement. "Dougherty Valley" shall have that meaning set forth in Recital E(4) of this Agreement. "EBMUD Settlement Agreement" shall have that meaning set forth in Recital E(5)(d) of this Agreement. "Effective Date" shall have that meaning set forth in Section 1.01 of this Agreement. "EIR" shall have that meaning set forth in Recital E(l) of this Agreement. "Entire Gale Ranch Site" shall have that meaning set forth in Section 6.01 of this Agreement. "First Approval Date" shall have that meaning set forth in Recital E(1) of this Agreement. "Foreclosure" shall have that meaning set forth in Section 14.01 of this Agreement. 5 2881 v8 i 1 f` "Gale Ranch Site" or "Shapell Site" shall mean the approximately 2,090 acres owned by Shapell Industries, Inc., located in the Dougherty Valley, excluding the Country Club Site. "General Plan Amendment" shall have that meaning set forth in Recital E(3) of this Agreement. "Growth Management Element" shall mean the Growth Management Element of the General Plan as of the Second Approval Date. "JEPA" shall have that meaning set forth in Section 3.09 of this Agreement. "Judgment" shall have that meaning set forth in Section 7.02 of this Agreement. "Local TIF Account" shall have that meaning set forth in Section 3.09 of this Agreement. "Local TIF Funds" shall have that meaning set forth in Section 3.09 of this Agreement. "Local TIF Program" shall have that meaning set forth in Section 3.09 of this Agreement. "Mitigation Monitoring Program" shall have that meaning set forth in Section 3.14 of this Agreement. "Mortgage" and "Mortgagee" shall have the meanings assigned to those terms in Section 14.01 of this Agreement. "NGO Settlement Agreement" shall have that meaning set forth in Recital E(5)(f) of this Agreement. "Non-Assuming Transferee" shall have that meaning set forth in Section 13.03 of this Agreement. "Notice of Compliance" shall have that meaning set forth in Article 15 of this Agreement. "Off-Site Traffic Improvements" shall have that meaning set forth in Article 3 of this Agreement. "On-Site Traffic Improvements" shall have that meaning set forth in Article 3 of this Agreement. "Permit Tracking System" shall have that meaning set forth in Section 3.14 of this Agreement. "Planning Actions" shall have that meaning set forth in Recital E(6) of this Agreement. "Planning Commission" shall mean the County's Planning Commission. "Pleasanton Settlement Agreement" shall have that meaning set forth in Recital E(5)(b) of this Agreement. 6 2881 v8 t r i "Preliminary Development Plan" shall have that meaning set forth in Recital E(6) of this Agreement. "Processing Fees" shall have that meaning set forth in Section 3.13 of this Agreement. "Project Approvals" shall have that meaning set forth in Recital G of this Agreement. "Project Traffic Improvements" shall have that meaning set forth in Section 3.09 of this Agreement. "San Ramon Settlement Agreement" shall have that meaning set forth in Recital E(5)(a) of this Agreement. "Second Approval Date" shall have that meaning set forth in Recital E(6) of this Agreement. "Settlement Agreements" shall have that meaning set forth in Recital E(5) of this Agreement. "Shapell Site" or "Gale Ranch Site" shall mean the approximately 2,090 acres owned by Shapell Industries, Inc., located in the Dougherty Valley excluding the Country Club Site. "Specific Plan" shall have that meaning set forth in Recital E(4) of this Agreement. "Term" shall have that meaning set forth in Section 1.02 of this Agreement. "Traffic Impact Fee" shall have that meaning set forth in Section 3.09 of this Agreement. "Urban Limit Line Modification" shall have that meaning set forth in Recital E(2) of this Agreement. "Walnut Creek Settlement Agreement" shall have that meaning set forth in Recital E(5)(c) of this Agreement. "Windemere Ranch" shall mean the Windemere Site and all improvements to be constructed thereon as described in the Planning Actions and (as and when they are adopted or issued) the Project Approvals, and all off-site improvements to be constructed in connection therewith. "Windemere Site" shall have that meaning set forth in Recital C of this Agreement. "Zoning" shall have that meaning set forth in Recital E(6) of this Agreement. ARTICLE 3. OBLIGATIONS OF DEVELOPER AND COUNTY Section 3.01. Obligations of Developer Generally. The parties acknowledge and agree that County's agreement to perform and abide by the covenants and obligations of County set 7 2881 v8 forth herein is material consideration for Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein. Section 3.02. Obligations of County Generally. The parties acknowledge and agree that Developer's agreement to perform and abide by the covenants and obligations of Developer set forth herein is material consideration for County's agreement to perform and abide by the covenants and obligations of County set forth herein. Section 3.03. Compliance with Settlement Agreements. The terms and provisions of this Agreement are intended to be consistent with and not to modify, and shall not be deemed to abrogate or limit compliance with or the implementation or enforcement of, the terms and provisions of any of the Settlement Agreements. In the event of any conflict between the terms and provisions of this Agreement and any Settlement Agreement, the terms and provisions of such Settlement Agreement shall prevail to the extent of such conflict. If and to the extent any obligation of any party under any of the Settlement Agreements is terminated for any reason, including, without limitation, any obligation under Section 3.12 (relating to the Interstate 680/Highway 24 Interchange), Section 3.07 (relating to Design Issues), Section 3.10 (relating to the payment of traffic fees to the City of Pleasanton), then such obligation shall not be-required to be satisfied hereunder. Section 3.04. Preliminary Development Plan. Except as otherwise specifically agreed by County, Developer shall comply with all conditions of approval to the Preliminary Development Plan. Section 3.05. Affordable Housing. Developer shall, in connection with its development of Windemere Ranch; implement the terms and provisions of the Affordable Housing Program as adopted by the Board of Supervisors on March 22, 1994 pursuant to board order (the "Affordable Housing Program"), which requires that a minimum of twenty-five percent (25%) of all dwelling units be developed as affordable to low, very low and moderate income households. Section 3.06. Designation of Preferred Water Provider. In consequence of the court- sanctioned EBMUD Settlement Agreement, Policy U-1 of the Specific Plan which identifies alternative water suppliers shall be interpreted and applied to Windemere Ranch as follows: Dublin San Ramon Services District is the preferred water provider for the Windemere Site. EBMUD is an alternative water provider, but only pursuant to the terms and conditions set forth in the EBMUD Settlement Agreement. County staff will support and diligently process an amendment which will incorporate such language into the Specific Plan. Section 3.07. Design Issues. Paragraphs 2, 3(a) and 3(b) of the NGO Settlement Agreement require certain actions to be taken with respect to the design of Windemere Ranch, including participation in the development of a design program for the "Village Center" of the Dougherty Valley; provision of approximately eighty (80) acres of additional open space (provided that such reconfiguration is physically feasible and permitted by law); and relocation of the high school site proposed for the Dougherty Valley. Any obligation of Developer or County under such provisions of the NGO Settlement Agreement shall be satisfied in connection with any tentative map covering the area of the Windemere Site affected by such obligation, which 8 2881 v8 tentative map will be approved together with any necessary general plan amendment, specific plan amendment or rezoning. Section 3.08. Coordination of On-Site Improvements. County shall require that access or right-of-way for those certain road improvements described on Exhibit B, attached hereto and incorporated herein by reference, as roadway segments W-1 and W-2, be offered for dedication as and at the times provided in the conditions of approval of Shapell's preliminary development plan for the Gale Ranch Site (as approved by the .Board on the Second Approval Date pursuant to Ord. 95-62) and the conditions of approval for the preliminary development plan for the Country Club Site (as approved by the Board on December 20, 1994 pursuant to Ord. 94-649.); provided, however, that if Developer's project generates the need for access or right-of-way for roadway segments W-1 and/or W-2 over the Shapell Site prior to the time such access or right-of-way is required for Shapell's project, then County shall ensure that the provision of such access or right-of-way is subject to the following: In order to accommodate Developer's development schedule, Developer may elect to assume responsibility for constructing, without reimbursement from Shapell, roadway segments W-1 and/or W-2 in which case Shapell shall dedicate or offer to dedicate, as required by County, the necessary right-of-way to County upon satisfaction of the following conditions: (i) Shapell will have reasonably reviewed and approved Bollinger Canyon Road's horizontal and vertical alignment, grading and improvement plans; (ii) Developer shall have provided to Shapell improvement agreements deemed acceptable by County and executed by all parties, together with completion and payments bonds so that the improvements shall be duly completed and no liens shall remain on Shapell's property; and (iii) Developer shall have procured a policy of Comprehensive General Liability Insurance in an amount and from an insurance company reasonably satisfactory to County naming Shapell as an additional insured. Shapell shall have the right but not the obligation reasonably to designate the source of cut/fill dirt from the Gale Ranch Site which shall be used to the extent needed for roadway segments W-1 and/or W-2. Section 3.09. Danville/San Ramon/County Traffic Mitigation. (1) Certain traffic improvements within the County, San Ramon and Danville are or may be required to accommodate development under the Specific Plan(the "Project Traffic Improvements"). The Project Traffic Improvements include (i) the on-site traffic improvements described in the Specific Plan as the "Internal Circulation System" (the "On-Site Traffic Improvements"), (ii) the off-site traffic improvements described on Exhibit C-1, attached hereto and incorporated herein by reference (the "Initial Project Traffic Improvements") and (iii) certain additional off-site traffic improvements described on Exhibit C-2, attached hereto and incorporated herein by reference (the "Additional Project Traffic Improvements"). The Initial Project Traffic Improvements and the Additional Project Traffic Improvements are sometimes referred to collectively below as the "Off-Site Traffic Improvements." - (2) Subject to the provisions of Section 3.08 above, Developer shall be responsible for the construction of those On-Site Traffic Improvements made necessary by Windemere Ranch. 9 2881 v8 (3) Developer shall pay to County a per-unit traffic impact fee (the "Traffic Impact Fee") in the amount necessary, but no more than the amount necessary, to fund Developer's fair share of the cost of construction of the Off-Site Traffic Improvements; provided, however, that Developer shall have responsibility for constructing roadway segment W-3 as shown on attached Exhibit B and Shapell shall have responsibility for constructing roadway segments S-1 and S-2 as shown on attached Exhibit B. In calculating Developer's and Shapell's respective obligations for the construction and/or funding.of the Off-Site Traffic Improvements, the costs of roadway segments S-1, S-2 and W-3 shall be deducted from the aggregate total cost of the Off-Site Traffic Improvements and not considered in making such calculations. The amount of the Traffic Impact Fee shall be determined as set forth in subsection(4) below, and shall apply to residential units developed on the Windemere Site. The Traffic Impact Fee applicable to a residential unit shall be paid when the building permit for such unit is issued. (4) The amount of the Traffic Impact Fee shall be determined within six (6) months following County's approval of this Agreement, but no later than the date upon which the County first approves a tentative subdivision map showing individual residential lots for any portion of the Dougherty Valley (other than for the Country Club Site), in the following manner: County, Developer, Shapell and, as required by the San Ramon Settlement Agreement representatives of Danville and San Ramon, shall meet and confer in good faith to determine (i) the estimated reasonable cost of the Off-Site Traffic Improvements and (ii) the respective proportions of such cost that fairly should be borne by Windemere and Shapell (taking into account, among other things, development planned for the Country Club Site and the fees being paid by Shapell with respect thereto) and other projects or parties, if any, contributing to the need for such improvements and to whom the Traffic Impact Fee will apply. In making such determinations and establishing the amount of the Traffic Impact Fee, it shall be recognized that (a) Developer's pLo rata contribution to the traffic improvements described on Exhibit C-3, attached hereto and incorporated herein by reference, shall be no more than is specified in, and shall be paid as described in, Exhibit C-3; and (b) Developer and Shapell shall, taken together, be responsible for the entire cost of the Initial Project Traffic Improvements as set forth in the San Ramon Settlement Agreement (although each shall be responsible only for its fair share of the cost of such improvements). The costs and proportions so determined and agreed-upon by County and Developer shall be reflected, as appropriate, in the Traffic Impact Fee. The amount of the Traffic Impact Fee shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. (5) County shall enter into such agreements with San Ramon and Danville as may be necessary or appropriate to establish a joint exercise of powers agreement (the"JEPA") or some other program or mechanism to provide for(i) the collection of traffic impact fees from development projects in San Ramon, Danville and Contra Costa County and within the boundary of the JEPA or other program or mechanism that will contribute to the need for the Additional Project Traffic Improvements, which fees shall be in amounts consistent with the determinations made under Subsection (4) above, (ii) the establishment of an account or accounts (the"Local TIF Account") to hold Traffic Impact Fees collected from Developer and Shapell, and traffic impact fees collected from the developers of other projects that will contribute to the need for the Additional Project Traffic Improvements (collectively, the "Local TIF Funds"); and (iii) the 10 2881 v8 . � s transfer to San Ramon, Danville and County of Local TIF Funds attributable to the Off-Site Traffic Improvements to be developed within those jurisdictions (the"Local TIF Program"). (6) The timing of when an Off-Site Traffic Improvement is needed will be determined by Measure C (1988) and any conditions of approval for subdivision maps. If the Local TIF Program has not received sufficient developer fees to fund such an improvement when it is needed, then Developer may be required to fund the difference, or construct the improvement, to ensure the improvement is built on time. In such case, Developer shall enter into a reimbursement agreement with County to credit or reimburse Developer the eligible construction costs that were advanced to build the project. Any credit so provided shall be applied in full against the Traffic Impact Fee for each residential unit that receives a building permit following completion of the Off-Site Traffic Improvement by Developer(rather than pro rata against the Traffic Impact Fee for all remaining residential units in the Project) until such time as the full credit has been provided. (7) County shall establish and implement a mechanism to reimburse Developer, and shall reimburse Developer, that portion of the costs to be incurred by Developer in connection with the funding or construction of the On-Site Traffic Improvements and the Off-Site,Traffic Improvements that represents the extent to which such traffic improvements will serve traffic generated by projects that are developed pursuant to general plan amendments approved on or after the Effective Date. (8) To the extent that any Project Traffic Improvement funded or constructed by Developer is included on a project list under any Measure C Action Plan or CMP Deficiency Plan, and provided such transportation improvement has sufficient priority under such Action Plan or Deficiency Plan, Developer shall receive a credit against, or reimbursement from, any traffic fee imposed upon Developer under Section 3.09(11) or Section 3.12 of this Agreement. (9) Some portion of the Traffic Impact Fee may be allocated to and collected from commercial development (on a per-square-foot basis) to occur as a part of Windemere Ranch; provided, however, that the total amount of Traffic Impact Fee to be collected from residential development to occur as a part of Windemere Ranch(as determined above) shall be reduced by the amount of funds to be so collected from commercial development. (10) County shall make its final determination of compliance with the standards of the Growth Management Element of the General Plan relating to traffic in conjunction with the review and approval of tentative subdivision maps. (11) County shall not impose on Developer any fee or other obligation with respect to roads or traffic impacts other than as specifically set forth in this Agreement, Section 4.4 of the San Ramon Settlement Agreement (relating to assurance of compliance with traffic service objectives), Paragraph 1 of the Walnut Creek Settlement Agreement or Paragraph I of the Pleasanton Settlement Agreement (relating to Developer's payment of fees to Pleasanton). Notwithstanding the foregoing, nothing in this Agreement shall prevent the County from (i) applying to Windemere Ranch any subregional traffic impact fee required by Measure C (1988) and adopted and applied consistently and on a uniform basis throughout the Tri-Valley subregion 11 2881 v8 by each of the seven jurisdictions that are now signatories to the Tri-Valley Transportation Council joint powers agreement which is adopted prior to the vesting date of any tentative map (provided, however, that County shall provide to Developer a credit against any such fee for traffic improvements constructed and/or funded by Developer under this Agreement or the San Ramon Settlement Agreement), (ii) imposing on Windemere Ranch reasonable requirements for the funding or construction of additional minor traffic improvements made necessary by Windemere Ranch and identified through CEQA review of individual tentative map applications for Windemere Ranch, or (iii) imposing on the Windemere Ranch a subregional traffic fee developed by the JEPA identified in Section 3.09(5) to satisfy Measure C requirements and for the sole purpose of funding a fair share contribution of the Alcosta ramp realignment project at I-680 and the auxiliary lanes project on I-680 between Bollinger Canyon Road and Diablo Road. Section 3.10. Pleasanton Traffic Mitigation. Separate and apart from the Traffic Impact Fee, Developer shall pay to County $150 for each residential unit developed pursuant to the Project Approvals ("Pleasanton Traffic Fees"). The Pleasanton Traffic Fees will be collected by County upon its issuance of the building permit for each such unit and delivered to Pleasanton for the mitigation of traffic impacts on roadways located in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of Windemere Ranch), San Ramon shall collect and deliver the Pleasanton Traffic Fees as set forth above. As provided in Paragraph 5(b) of the Pleasanton Settlement Agreement, Developer's obligations pursuant to this Section 3.10 and Paragraph 1 of the Pleasanton Settlement Agreement shall cease in the event that Pleasanton files any legal action challenging any use or approval or any modification to any use or approval relating to the Dougherty Valley. Section 3.11. Dublin Traffic Mitigation. County and Developer shall work with the City of Dublin to establish a mutually acceptable fee to account for the cost of mitigating the traffic- related impacts of the Project on roadways located in the City of Dublin net of the cost of mitigating the traffic-related impacts of development projected to occur within the City of Dublin (including, without limitation, the East Dublin project) on the On-Site and Off-Site Traffic Improvements, if any. Such fee, if any, will be collected by County upon its issuance of the building permit for each residential unit in the Project and delivered to Dublin for the mitigation of traffic impacts on roadways in its jurisdiction. If for any reason San Ramon assumes the responsibility for issuing building permits for the Project (although the parties anticipate that County will retain responsibility for the issuance of building permits notwithstanding the municipal annexation of any portion of Windemere Ranch), San Ramon shall collect and deliver the such traffic fees as set forth above.. If County, Developer and the City Dublin are unable to arrive at a mutually acceptable fee within six (6) months following the Effective Date, then County and Developer may themselves determine the amount of such fee; provided, however, that such six- month period shall be extended for a period of time equal to the period of any undue delay caused by Developer or County in establishing the amount of such fee. Any fee imposed on the Project pursuant to this Section 3.11 shall be approved by the Board of Supervisors and, except as otherwise agreed by County and Developer, remain fixed throughout the term of this Agreement; provided, however, that such fee may be subject to escalation in accordance with the 12 2881 v8 "Construction Cost Index" published in Engineering News Record. If any regional traffic fee is established and required to be paid by Developer under Section 3.09(11) of this Agreement, and such regional traffic fee provides funding for those improvements in Dublin included in calculating the amount of the traffic fee to be paid to Dublin as set forth above then, with respect to any residential unit upon which such regional traffic fee is imposed, Developer shall be relieved of its obligation to pay such portion of the fee described in this Section 3.11 that is attributable to those improvements in Dublin that are funded by such regional fee. Section 3.12. Walnut Creek Traffic Mitigation. Notwithstanding any other provision contained herein, all future tentative subdivision maps covering the Windemere Site shall be subject to all standards and requirements adopted by the County pursuant to Measure C (1988), including but not limited to the Tri-Valley Action Plan or fees adopted thereunder, and all standards and requirements adopted pursuant to Title 7, Division 1, Chapter 2.5 of the Government Code (Section 65080 et seq.), including but not limited to all congestion management plans and deficiency plans adopted thereunder, provided that such standards and requirements are designed to mitigate congestion on the Interstate 680l11ighway 24 interchange or streets within Walnut Creek, are applied to all other major residential projects within the member jurisdictions of SWAT, TRANSPAC and TRANSPLAN, and are imposed by'the County or City only to the extent of the project's impacts on the interchange or streets within Walnut Creek. Neither the foregoing provision nor any other provision of this Agreement (other than the section of this Agreement relating to traffic-based reductions in permitted development (Section 4.01)) shall limit the authority of the County to apply the standards and requirements described above adopted pursuant to Measure C (1988), including, but not limited to, any Action Plan or fees. Section 3.13. Processing Fees. Fees charged by County which solely represent the reasonable costs to County for County staff time and resources spent reviewing and processing Project Approvals are referred to in this Agreement as "Processing Fees." County may charge Developer any applicable Processing Fee that is operative and in force and effect on a Countywide basis at the time such Processing Fee ordinarily is collected. Section 3.14. Mitigation Monitoring Program. Developer shall fund development and operation of a system(the "Permit Tracking System") to monitor compliance with the requirements of the San Ramon Settlement Agreement regarding the provision of certain capital facilities, compliance with mitigation measures and compliance with project conditions, through the payment of a fee not to exceed $100 per residential unit developed on the Windemere Site, payable at recordation of the final map encompassing such unit. Developer shall, at the time services are performed, pay the County staff costs of carrying out the County's Mitigation Monitoring Program, as adopted by the Board on the First Approval Date, and as it may be amended for the purposes of compliance with CEQA(the"Mitigation Monitoring Program"), which are attributable to development of the Windemere Site, on a time and materials basis, and shall pay the reasonable costs of consultants as necessary to implement the Mitigation Monitoring Program. 13 2881 v8 Section 3.15. Other Financiniz Requirements. (1) County and Developer shall cooperate in (i) the formation, as soon as reasonably practicable but in any event prior to the filing of the first final subdivision map for any portion of the Dougherty Valley, of a County Service Area or other financing entity to receive certain funds and provide certain services, including the operation and maintenance of facilities and infrastructure, as described in Section 3.3 of the San Ramon Settlement Agreement and (ii) the establishment, as soon as reasonably practicable but in any event prior to the filing of the first final subdivision map for any portion of the Dougherty Valley, of a mechanism adequate to fund the provision of such services as described in Section 3.3 of the San Ramon Settlement Agreement. (2) As described in Section 3.4 of the San Ramon Settlement Agreement, to ensure that the Community Center, Senior Center, Library, and Police Substation described in the Specific Plan will be constructed on a timely basis and made available to Dougherty Valley residents at the appropriate time, County shall (except to the extent some other method for the financing or provision of such facilities is requested or established by Developer or Shapell, as appropriate) assess against residential units to be developed in the Dougherty Valley a-fee, special tax or assessment in an amount sufficient to fund Developer's and Shapell's obligation to contribute to the cost of such facilities. Funds so collected will be held in a separate account and made available to Developer or Shapell, as appropriate, for the construction of such facilities. The precise form,.timing and amount of such fee, tax or assessment shall be in accordance with the terms and provisions of Exhibit D, attached hereto. ARTICLE 4. STANDARDS, LAWS AND PROCEDURES GOVERNING WINDEMERE RANCH Section 4.01. Permitted Uses. (1) In General. The permitted uses of the Windemere Site; the density and intensity of use of the Windemere Site; the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the location of public utilities; and other terms and conditions of development applicable to Windemere Ranch, shall be as set forth in the Planning Actions and, as and when they are adopted or issued, the Project Approvals. (2) Exceptions. Not in limitation of the foregoing, the permitted uses, density and intensity of use of the Windemere Site shall include 5,170 residential units at the densities provided for in the Specific Plan and 369,200 square feet of commercial space (exclusive of any community college uses), subject to the following limitations: a. All development of the Windemere Site shall be consistent with the General Plan, including the Growth Management Element thereof, as it existed on the Second Approval Date. County may modify the permitted uses of the Windemere Site to the extent necessary to attain such consistency, provided no other method of attaining such consistency is feasible. 14 2881 v8 b. The parties acknowledge and agree that the terms and provisions of the Settlement Agreements include certain conditions to and limitations on the development of Windemere Ranch. All development of Windemere Ranch shall be consistent with such conditions and limitations. County may limit the development of the Windemere Site to attain consistency with such conditions and limitations if no other method of attaining such consistency is feasible. C. Subject to Section 4.05 of this Agreement, County may modify the permitted uses of the Windemere Site to the extent necessary to satisfy County's obligations under CEQA and (as provided in Section 4.09 below) other State and federal laws, provided no other method of satisfying such obligations is feasible. d. Except to the extent otherwise specifically required by state or federal law, no modification of the permitted uses of the Windemere Site shall occur with respect to any portion of the Windemere Site with respect to which County has approved a tentative or vesting tentative subdivision map. Section 4.02. Applicable Law. The rules, regulations, official policies, standards and specifications applicable to Windemere Ranch (the "Applicable Law") shall be those in force and effect on the Second Approval Date including, without limitation, the Planning Actions. Applicable Law shall also include the Project Approvals as and when they are adopted or issued from time to time. Section 4.03. No Conflicting Enactments. Except as otherwise specifically set forth herein or agreed to by Developer, County shall not apply to Windemere Ranch any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each individually, a "County Law") that is in conflict with Applicable Law (including this Agreement) or that reduces the development rights provided by this Agreement. Without limiting the generality of the foregoing, any County Law shall be deemed to conflict with Applicable Law(including this Agreement) or reduce the development rights provided hereby if it would accomplish any of the following results, either by specific reference to Windemere Ranch or as part of a general enactment which applies to or affects Windemere Ranch: a. except as otherwise specifically provided in Section 4.01(2) above, reduce the number of residential units permitted to be developed on the Windemere Site to fewer than 5,170 units, or revise the densities permitted by the Specific Plan; b. except as otherwise specifically provided in Section 4.01(2) above, reduce the square footage of commercial development permitted to be developed on the Windemere Site to fewer than 369,200 square feet (exclusive of community college uses), C. except as otherwise specifically provided in Section 4.01(2) above, limit or reduce the density or intensity of Windemere Ranch, or any part thereof, otherwise require any reduction in the square footage or number of proposed buildings or other improvements or revise the densities permitted by the Specific Plan; 15 2881 v8 d. except as otherwise specifically provided in Section 4.01(2) above, change any land use designation or permitted use of the Windemere Site; e. except as otherwise specifically provided in Section 4.01(2) above, limit or control the location of buildings, structures, grading, or other improvements of Windemere Ranch in a manner that is inconsistent with or more restrictive than the limitations included in the Planning Actions or(as and when they are issued) the Project Approvals; f. except as otherwise specifically provided in Section 4.01(2) above, limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water connections or sewage capacity rights, sewer connections, etc.) for Windemere Ranch; Cr. except as otherwise specifically provided in Section 4.01(2) above, limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of Windemere Ranch; h. apply to Windemere Ranch any County Law otherwise allowed by this Agreement that is not uniformly applied on a County-wide basis to all substantially similar types of development projects and project sites; i. require the issuance of additional permits or approvals by County other than those required by Applicable Law; j. establish, enact, increase, or impose against Windemere Ranch any fees, taxes (including without limitation general, special and excise taxes), assessments, liens or other monetary obligations other than (i) those specifically permitted by this Agreement (including Traffic Impact Fees, Processing Fees, fees to fund the Mitigation Monitoring Program and financial obligations associated with the financing of the construction, operation and maintenance of facilities and infrastructure, and the provision of services, as set forth in Article 3 above) and made necessary by Windemere Ranch and (ii) any County-wide taxes and assessments; k. establish, enact, increase or impose against Windemere Ranch any rules, regulations, policies or standards that were not in effect on the Second Approval Date, or otherwise impose against Windemere Ranch any condition, dedication or other exaction not specifically authorized by Applicable Law and (except as authorized by the Settlement Agreements or required by the conditions to the Preliminary Development Plan) not made necessary by Windemere Ranch; or 1. limit the processing or issuance of Project Approvals or applications for Project Approvals. None of the Settlement Agreements shall be considered a conflicting enactment for the purposes of this Agreement. Section 4.04. Uniform Codes. Notwithstanding anything to the contrary contained in this Agreement, County may apply to Windemere Ranch, at any time during the Term, then-current 16 2881 v8 Uniform Building Code and other uniform construction codes, and County's then-current design and construction standards for road and storm drainage facilities, provided that any such uniform code or standard shall apply to Windemere Ranch only to the extent that such code or standard has been adopted by County and is in effect on a County-wide basis. Section 4.05. CEQA. County's environmental review of Project Approvals pursuant to CEQA shall utilize the EIR and the Addendum to the fullest extent permitted by law. Section 4.06. Moratoria and Restrictions and Limitations on the Rate or Timing of Development. In the event a County Law is enacted (whether by action of the Board or otherwise, or by initiative, referendum, issuance of a Project Approval or other means) which relates to the growth rate, timing, phasing or sequencing of new development or construction in County or, more particularly, development and construction of all or any part of Windemere Ranch, such County Law shall not apply to Windemere Ranch, or any portion thereof. County Laws made inoperative by this provision include, but are not limited to, those that were not in force and effect on the Second Approval Date and that tie development or construction to the availability of public services and/or facilities (for example, the presence of a specified traffic level of service or water or sewer availability). - Section 4.07. Further Assurances. a. County shall not support, adopt or enact any County Law, or take any.other action which would violate the express or implied provisions, conditions, spirit or intent of any of the Planning Actions or the Project Approvals. b. Developer reserves the right to challenge in court any County Law that would, in Developer's opinion, conflict with Applicable Law (including this Agreement) or reduce the development rights provided by this Agreement. C. County shall take any and all actions as may be necessary or appropriate to ensure that the vested rights provided by this Agreement can be enjoyed by Developer including, without limitation, any actions as may be necessary or appropriate to ensure the availability of public services and facilities to serve Windemere Ranch as development occurs. d. Should any initiative, referendum, or other measure be enacted, and any failure of to apply such measure by County to the Windemere Ranch be legally challenged, Developer agrees to fully defend the County against such challenge, including providing all necessary legal services, bearing all costs therefor, and otherwise holding the County harmless from all costs and expenses of such legal challenge and litigation. Section 4.08. Life of Subdivision Maps, Development Approvals, and Permits. The term of any subdivision map or and other permit approved as a Project Approval shall automatically be extended as provided under California Government Code § 66452.6(a) or California Government Code § 65863.9. Notwithstanding the foregoing, the vested rights associated with any vesting tentative map (but not the term of such tentative map) shall terminate upon the expiration of the Term of this Agreement. 17 2881 v8 Section 4.09. State and Federal Law. As provided in California Government Code § 65869.5, this Agreement shall not preclude the application to Windemere Ranch of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations ("Changes in the Law"). In the event Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law, and County and Developer shall take such action as may be required pursuant to this Agreement including, without limitation, Article 6 (Cooperation-Implementation) and Section 8.03 (Excusable Delays, Extension of Time of Performance). Not in limitation of the foregoing, nothing in this Agreement shall preclude County from imposing on Developer any fee specifically mandated and required by state or federal laws and regulations. Section 4.10. Timing of Project Construction and Completion. a. Notwithstanding Sections 84-66.1406(1) and 84-66.1602 of the County Code, there is no requirement that Developer initiate or complete development of Windemere Ranch or any particular phase of Windemere Ranch within any particular period of time, and County shall not impose such a requirement on any Project Approval. The parties acknowledge that Developer cannot at this time predict when or the rate at which or the order in which phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. b. In light of the foregoing and except as set forth in subsection (c) below, the parties agree that Developer shall be able to develop in accordance with Developer's own time schedule as such schedule may exist from time to time, and Developer shall determine which part of the Windemere Site to develop first, and at Developer's chosen schedule. In particular, and not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later- adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' desire to avoid that result by acknowledging that Developer shall have the right to develop Windemere Ranch in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. C. Nothing in this Agreement shall exempt Developer from completing work required by a subdivision agreement, road improvement agreement or similar agreement in accordance with the terms thereof. Section 4.11. Developer Review of Infrastructure Plans. Developer shall have the right to review and comment on plans for any infrastructure improvement (including, without limitation, streets, roads, trails and detention basins) to be constructed on the Windemere Site by any private party. 18 2881 v8 � N ARTICLE 5. AMENDMENT Section 5.01. Amendment of Planning Actions and Project A0provals. To the extent permitted by state and federal law, any Planning Action (other than this Agreement) or Project Approval may, from time to time, be amended or modified in the following manner: (1) Administrative Amendments. Upon the written request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Project Approval, the Community Development Director or his/her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of Windemere Ranch as a whole; and (ii) whether the requested amendment or modification is consistent with Applicable Law (other than that portion of Applicable Law sought to be amended). If the Community Development Director or his/her designee finds that the proposed amendment or modification is both minor and consistent with Applicable Law (other than that portion-of Applicable Law sought to be amended), the amendment shall be determined to be an "Administrative Amendment" and the Community Development Director or his designee may, except to the extent otherwise required by law, approve the Administrative Amendment without notice and public hearing. For the purpose of this Article 5, lot line adjustments, changes in trail alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of lots or homesites that do not substantially alter the design concepts of Windemere Ranch, and variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of Windemere Ranch, shall be treated as Administrative Amendments. (2) Non-Administrative Amendments. Any request of Developer for an amendment or modification to a Planning Action (other than this Agreement) or Project Approval which is determined not to be an Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to Applicable Law (other than subsection (1) above). Nothing in this section 5.01 shall limit any obligations of the County under the San Ramon Settlement Agreement to submit any amendment or,modification of a Planning Action or Project Approval to the "Dougherty Valley Oversight Committee," established under the San Ramon Settlement Agreement, for its review and comment or to submit or provide any documentation required by any Settlement Agreement in accordance with the terms of such Settlement Agreement. Section 5.02. Amendment Of This Agreement. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the parties hereto or their successors in interest, as follows: (1) Insubstantial Amendments. Paragraph G of County's "Procedures and Requirements for the Consideration of Development Agreements" (adopted by Board Resolution No. 85/412) permits a development agreement to establish an alternative procedure for the processing of"insubstantial amendments" to such an agreement. Pursuant to said Paragraph G, any amendment to this Agreement which does not relate to (i) the Term of this Agreement, (ii) permitted uses of the Windemere Site, (iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions, (v) the 19 2881 v8 density or intensity of use of the Windemere Site or the maximum height or size of proposed buildings or(vi) monetary contributions by Developer, shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto; provided, however, that nothing in this Section 5.02 shall limit any obligations of the County under the San Ramon Settlement Agreement to submit any amendment to their Agreement to the Dougherty Valley Oversight Committee for review and comment. (2) Amendment Exemptions. No amendment of a Planning Action (other than this Agreement) or a Project Approval requested by Developer shall require an amendment to this Agreement. Instead, any such amendment automatically shall be deemed to be incorporated into Windemere Ranch and vested under this Agreement. (3) Parties Required to Amend. Where a portion of Developer's rights or obligations have been transferred and a "Transfer Agreement" (as described in Article 13 below) has been executed in connection therewith, the signature of the person to whom such rights or obligations have been transferred shall not be required to amend this Agreement unless such amendment would materially alter the rights or obligations of such transferee hereunder; provided, however, that any such transferee shall be provided with thirty (30) days' prior written-notice of any amendment to this Agreement. (4) Non-Assuming Transferees. In no event shall the signature or consent of any "Non-Assuming Transferee" (described in Section 13.03 below) be required to amend this Agreement. ARTICLE b. COOPERATION-IMPLEMENTATION Section 6.01. Processiniz. (1) In taking the Planning Actions, County has established standards and procedures to guide the future development of Windemere Ranch. The Project Approvals shall be deemed to be tools to implement those standards and procedures and must be consistent therewith. (2) Without limiting the generality of the foregoing, except as otherwise agreed to by Developer, County shall not through any Project Approval or the imposition of any condition of approval thereto, (i) except as specifically required pursuant to Section 4.01 of this Agreement, reduce the number of residential units permitted to be developed on the Windemere Site to fewer than 5,170 or change the distribution of those 5,170 units by density as provided in the Specific Plan or reduce the square footage of commercial development permitted to be developed on the Windemere Site to fewer than 369,200 square feet (exclusive of community college uses); or(ii) otherwise enact or impose against Windemere Ranch any ordinance, resolution, rule, regulation, standard, directive, condition or other measure that is in conflict with Applicable Law (including this Agreement) as it exists immediately prior to the issuance of such Project Approval, or that reduces the development rights provided by this Agreement. 20 2881 v8 (3) Upon submission by Developer of all appropriate applications and processing fees for any Project Approval, County shall commence and complete (and shall use its best efforts to promptly and diligently commence and complete) all steps necessary to act on the Project Approval application including, without limitation, (i) the notice and holding of public hearings and (ii) the decision whether to approve the Project Approval application as set forth below. (4) An application by Developer for a Project Approval may be denied by County only if such application does not comply with Applicable Law, is inconsistent with the Planning Actions (provided, however, that inconsistency with a Planning Action shall not constitute grounds for denial of a Project Approval requested by Developer that is an amendment to that Planning Action) or County is unable to make all findings required by state law in connection with such Project Approval. County may approve an application for such a Project Approval subject to any conditions necessary to bring the Project Approval into compliance with Applicable Law, make the Project Approval consistent with the Planning Actions or allow County to make the findings required by state law, so long as such conditions comply with subsection (2) of this Section 6.01. If County denies any application for a Project Approval, County must specify in making such denial modifications which are required to obtain approval of such application. Any such specified modifications must be consistent with this Agreement (including subsection (2) of this Section 6.01) and Applicable Law, and County shall approve the application if subsequently resubmitted for County review if it complies with the specified modifications. (5) Developer shall, in a timely manner, provide County with all documents, applications, plans, and other information necessary for County to carry out its obligations hereunder and cause Developer's planners, engineers, and all other consultants to submit, in a timely manner, all required materials and documents therefor. (6) Any reduction in the amount of permitted development in the Dougherty Valley resulting from either the application of Section 4.01(2) of this Agreement or the application of any comparable provision in any development agreement to which the Gale Ranch Site or the Country Club Site (collectively, the "Entire Gale Ranch Site") is subject shall be allocated as follows: If the reduction is the result of impacts of development in the Dougherty Valley that cannot feasibly be allocated between development of the Entire Gale Ranch Site and Windemere Ranch, the reduction in permitted development shall be allocated between Shapell and Developer such that the permitted development on the Entire Gale Ranch Site shall be 53 percent of the permitted development in the Dougherty Valley and the permitted development on the Windemere Site shall be 47 percent of the permitted development in the Dougherty Valley. If the reduction is the result of impacts of development in the Dougherty Valley that can be feasibly allocated to either the development of the Entire Gale Ranch Site or Windemere Ranch, such project shall bear such reduction. Reductions based on traffic-related impacts shall be allocated 53% to Shapell and 47% to Windemere. Subject to the foregoing, 3,995 residential units of the first 8,500 units in the Dougherty Valley shall be allocated to Developer, and forty-seven percent of any development beyond 8,500 units in the Dougherty Valley will be allocated to Developer. No failure or delay by Shapell in 21 2881 v8 constructing its first 4,505 residential units on any portion of the Entire Gale Ranch Site shall prevent or delay Developer from or in developing any units beyond its first 3,995 residential units. Section 6.02. Eminent Domain Powers. County shall cooperate with Developer in implementing the Planning Actions and Project Approvals. To the extent permitted by law and subject to the terms and provisions of the San Ramon Settlement Agreement, such cooperation shall include, without limitation, the use by County of its eminent domain powers where necessary to implement the Planning Actions and any Project Approvals. Section 6.03. Other Government Permits. Developer shall apply for such other permits and approvals as may be required by other governmental or quasi-governmental agencies in connection with the development of, or the provision of services to, Windemere Ranch. County shall cooperate with Developer in its efforts to obtain such permits and approvals and shall, from time to time at the request of Developer, use its best efforts to enter into binding agreements with any such agency as may be necessary to ensure the availability of such permits and approvals. ARTICLE 7. COOPERATION IN THE EVENT OF LEGAL CHALLENGE Section 7.01. Cooperation. ' (1) In the event of any administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of any Planning Action or Project Approval, the parties shall cooperate in defending such action or proceeding, or proceeding to settlement or final judgment. Each party shall select its own legal counsel and retain such counsel at its own expense, and in no event shall County be required to bear the fees or costs of Developer's attorneys. Developer shall save and hold harmless County from and against any and all claims and awards for third-party attorneys' fees associated with such action or proceeding. (2) The parties agree that this Section 7.01 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside. Section 7.02. Cure, Reapproval. (1) If, as a result of any administrative, legal or equitable action or other proceeding as described in Section 7.01, all or any portion of the Planning Actions (including, but not limited to, this Agreement) or Project Approvals are set aside or otherwise made ineffective by any judgment (a "Judgment") in such action or proceeding(based on procedural, substantive or other deficiencies, hereinafter "Deficiencies"), the parties agree to use their respective best efforts to sustain and reenact or readopt those Planning Actions and/or Project Approvals that the Deficiencies related to, as follows, unless the Parties mutually agree in writing to act otherwise: 22 2881 v8 a. If any Judgment requires reconsideration or consideration by County of a Planning Action or Project Approval, then the County shall consider or reconsider that matter in a manner consistent with the intent of this Agreement. If any such Judgment invalidates or otherwise makes ineffective all or any portion of any Planning Action or Project Approval, then the Parties shall cooperate and shall cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of this Agreement. County shall then readopt or reenact the Planning Action or Project Approval, or any portion thereof, to which the Deficiencies related. b. Acting in a manner consistent with the intent of this Agreement includes, but is not limited to, recognizing that the Parties intend that, subject to the provisions Section 4.01(2) above, Developer may develop 5,170 residential units at the densities provided in the Specific Plan and 369,200 square feet of commercial uses (exclusive of community college uses), and adopting such ordinances, resolutions, and other enactments, including but not limited to zoning ordinances, a specific plan and general plan amendments, as are necessary to readopt or reenact all or any portion of the Planning Actions and/or Project Approvals without contravening the Judgment. (2) The parties agree that this Section 7.02 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the partiesi agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside. ARTICLE 8. DEFAULT; REMEDIES; TERMINATION Section 8.01. General Provisions. (1) Defaults. Any failure by either party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty(30) days following written notice of such failure from the other party (unless such period is extended by mutual written consent), shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence ("Default Notice") shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such 30-day period. Upon the occurrence of a default under this Agreement, the non-defaulting party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, then no default shall exist and the noticing party shall take no further action. (2) Termination. If County elects to consider terminating this Agreement due to a material default of Developer, then County shall give a notice of intent to terminate this Agreement and the matter shall be scheduled for consideration and review by the Board at a duly noticed and conducted public hearing. Developer shall have the right to offer written and oral 23 2881 v8 evidence prior to or at the time of said public hearings. If the Board determines that a material default has occurred and is continuing;and-elects to terminate this Agreement, County shall give written notice of termination of this Agreement to Developer by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter; provided, however, that if Developer files an action to challenge County's termination of this Agreement within such sixty-day period, then this Agreement shall remain in full force and effect until a trial court has affirmed County's termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired). (3) Nothing in this Section 8.01 is intended to limit the effect of the dispute resolution process described in Article VI of the San Ramon Settlement Agreement to the extent such process applies to a dispute arising under this Section 8.01. Section 8.02. Annual Review. (1) On or before October 15 of each year, the Developer shall submit to the County Community Development Department a report demonstrating Developer's good-faith compliance with the terms of the Agreement(the "Annual Review"). This review shall be limited in scope to compliance with the terms of this Agreement. (2) The Community Development Director shall, at a noticed public hearing, consider a staff report regarding Developer's compliance with the terms and provisions of this Agreement. After considering the evidence presented at such public hearing, the Community Development Director shall.adopt, adopt with modifications or deny the staff report. (3) Prior to January 30 of each calendar year, and based on the staff report, the Community Development Director shall make a determination regarding compliance with the Agreement. If the Community Development Director finds and determines that Developer has not complied with such terms and conditions, and non-compliance may amount to a default if not cured, then the Community Development Director may deliver a Default Notice pursuant to Section 8.01 of this Agreement, in which case the provisions of Section 8.01 shall apply. If the Community Development Director does not send such a Default Notice, then the Community Development Director and County shall take no further action. The County, including the Community Development Director, may exercise its right relating to any such event of default only after complying with Section 8.01 of this Agreement. (4) County shall deliver to developer a copy of all staff reports and documents to be used or relied upon in conducting the Annual Review and, to the extent practical, related exhibits concerning Developer's performance hereunder, at least ten (10) days prior to any such Annual Review. Developer shall be permitted during the Annual Review to respond orally or by a written statement, or both, to County's evaluation of Developer's performance. (5) In the event County fails to either: (i) conduct the Annual Review or (ii) notify Developer in writing (following the time during which the review is to be conducted) of County's determination as to compliance or noncompliance with the terms of this Agreement and such failure remains uncured as of 60 days following the anniversary of the Effective Date in any 24 2881 v8 y , year during the term of this Agreement, such failure shall be deemed an approval by County of Developer's compliance with the terms of this Agreement for that Annual Review period. (6) With respect to any year for which an Annual Review is conducted and compliance is approved, or with respect to any year in which County is deemed to approve of Developer's compliance with this Agreement pursuant to the preceding paragraph, County, upon request of Developer, shall provide Developer with a written "Notice of Compliance," pursuant to Article 15 of this Agreement. (7) Nothing in this Section 8.02, which describes a process solely related to County's review of Developer's good faith compliance with the terms and provisions of this Agreement, shall limit obligation of the County under the San Ramon Settlement Agreement to participate in the preparation, consideration and adoption of"Annual Compliance Reports" as and at the times described in the San Ramon Settlement Agreement. Section 8.03. Excusable Delays; Extension of Time of Performance. Notwithstanding anything to the contrary contained herein, neither party shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations), enactment of conflicting state or federal laws or regulations or similar basis for excused performance which is not within the reasonable control of the party to be excused. Upon the request of either party hereto, an extension of time for the.performance of any obligation whose.performance has been so prevented or delayed will be memorialized in writing. The term of any such extension shall be equal to the period of the excusable delay, or longer, as may be mutually agreed upon. Section 8.04. Legal Action. Either party may, in addition to any other rights or remedies, institute an equitable action to cure, correct, or remedy any default, enforce any covenant or agreement herein,.enjoin any threatened or attempted violation thereof or enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the foregoing. In no event shall either County or Developer be entitled to monetary damages for breach of contract by the other party to this Agreement. Section 8.05. California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Section 8.06. Resolution of Disputes. With regard to any dispute involving development of the specific plan area, the resolution of which is not provided for by this Agreement or Applicable Law, Developer shall, at County's request, meet with County and/or any party designated by County. The parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 8.06 shall in any way be interpreted as requiring that Developer and County and/or County's designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on County or Developer unless expressly agreed to by the parties to such meetings. 25 2881 v8 ARTICLE 9. DEFENSE AND INDEMNITY (1) Developer's Actions. Developer shall defend and indemnify County and its elected and appointed officers, agents, employees, and representatives from claims, costs, and liabilities for any personal injury, death, or physical property damage (including inverse condemnation) to any third party which arises, directly or indirectly, as a result of the construction of Windemere Ranch, or of operations performed under this Agreement, by Developer or by Developer's contractors, subcontractors, agents or employees, whether such operations were performed by Developer or any of Developer's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for Developer or any of Developer's contractors or subcontractors. (2) County's Actions. Nothing in Subsection 1 above shall be construed to mean that Developer shall defend or indemnify County or its elected or appointed officers, agents, employees and representatives from any claims of personal injury, death or property damage arising from, or alleged to arise from the maintenance or repair by County of improvements that have been offered for dedication and accepted by County for maintenance. (3) Further Agreements. County and Developer may from time to time enter into subdivision improvement agreements, as authorized by the Subdivision Map Act, Cal. Gov't Code § 66000 et sea., which agreements may include defense and indemnity provisions different from those contained in subsections (1) and (2) above. In the event of any conflict between such provisions in any such subdivision improvement agreement and subsections (1) and (2) above, the provisions of such subdivision improvement agreement shall prevail. ARTICLE 10. NO AGENCY, JOINT VENTURE OR PARTNERSHIP It is specifically understood and agreed to by and between the parties hereto that: (i) the subject development is a private development; (ii) County has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that County accepts the same pursuant to the provisions of this Agreement or in connection with the various Planning Actions or Project Approvals; exclusive control of Windemere Ranch herein described, subject only to the limitations and obligations of Developer under Planning Actions, the Project Approvals and Applicable Law; and (iv) County and Developer hereby renounce the existence of any form of agency relationship,joint venture or partnership between County and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between County and Developer. ARTICLE 11. MISCELLANEOUS Section 11.01. Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. Section 11.02, Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of 26 2881 vs competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, Developer may (in Developer's sole and absolute discretion) terminate this Agreement by providing written notice of such termination to County. Section 11.03. Other Necessary Acts. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out Planning Actions and Project Approvals and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. . Section 11.04. Construction. Each reference in this Agreement to any of the Planning Actions or Project Approvals shall be deemed to refer to the Planning Action or Project Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both County and Developer, and no presumption or rule that ambiguities shall be construed,against the drafting party shall apply to the interpretation or enforcement of this Agreement. Section 11.05. Covenants Running with the Land. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including, without limitation, Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Windemere Site, as appropriate, runs with the Windemere Site and is binding upon the owner of all or a portion of the Windemere Site and each successive owner during its ownership of such property. Section 11.06. Annexation to San Ramon. The San Ramon Settlement Agreement anticipates the potential annexation of the Windemere Site to San Ramon. To the extent any portion of the Windemere Site is so annexed, this Agreement shall continue to apply to the Windemere Project until the expiration of the Term (to the maximum extent permitted by law) and, to the extent such construction is reasonable, appropriate and consistent with the terms of the San Ramon Settlement Agreement, any annexation agreement that may then exist between Developer and San Ramon and any property tax exchange agreement or other agreement that may then exist between San Ramon and County relating to Windemere Ranch, with respect to any portion of the Windemere Site that has been annexed, (i) the term "County" as used herein shall mean "San Ramon" and (ii) San Ramon shall be deemed to be a successor in interest to County's rights and obligations under this Agreement. Section 11.07. Dougherty Valley Development Str9M. The Dougherty Valley is the subject of a comprehensive and integrated planning effort. It has been designed to allow development by phases. The timing of phase development will reflect market conditions and business decisions of the developers of the Dougherty Valley, while requiring that each phase make provision for its needs for infrastructure, services and amenities. Recognizing this development strategy, it is the intent of the Parties that while development must occur in furtherance of the valley-wide Dougherty Valley planning effort and the County's Growth 27 2881 v8 t j ' Management Element, developers of the Dougherty Valley should be able to pursue development in a manner commensurate with their own goals and resources. In imposing conditions of approval, County shall to the extent reasonably feasible allocate to Developer and Shapell their respective separate and distinct obligations relating to development under the Specific Plan. The parties recognize that this may require that, for example, with regard to the construction of facilities involving both Shapell and Windemere, County may need to allocate the separate obligations of each Developer. Nothing in this Section 11.07 shall in any way modify the provisions of Section 4.3.3 of the San Ramon Settlement Agreement. Section 11.08. Other Public Agencies. Nothing in this Agreement shall be construed to limit the County's discretion to determine when and if it will enter into any agreements with other public agencies concerning the subject-matter and provisions of this Agreement or require that the County take any legal action concerning such other public agencies and their provision of services or facilities. Section 11.09. Attorneys' Fees. In the event of any litigation or arbitration between the parties to this Agreement relating to an alleged breach of this Agreement, neither party shall be entitled to an award of attorneys' fees. ARTICLE 12. NOTICES Any notice or communication required hereunder between County or Developer must be in writing, and may be given either personally or by registered or certified mail (return receipt requested). certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of(i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party 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: (510) 646-2026 Facsimile: (510) 646-1309 18 2881 v8 With Copies to: County Counsel Contra Costa County Administration Building 651 Pine Street, Ninth Floor Martinez, CA 94553 Telephone: (510) 646-2074 Facsimile: (510) 646-1078 Director of Public Works 255 Glacier Drive Martinez, CA 94553 Telephone: (510) 313-2000 Facsimile: (510) 313-2333 If to Developer, to: Windemere Ranch Partners 1350 Treat Boulevard, Suite 560 Walnut Creek, California 94596 Telephone: (510) 933-1405 Facsimile: (510) 933-1404 With Copies to: Morrison& Foerster P.O. Box 8130 101 Ygnacio Valley Road, Suite 450 Walnut Creek, California 94596 Attention: R. Clark Morrison Telephone: (510) 295-3300 Facsimile: (510) 946-9912 ARTICLE 13. ASSIGNMENT, TRANSFER AND NOTICE Section 13.01. Assignment of Interests, Rights and Obligations. Developer may transfer or assign all or any portion of its interests, rights or obligations under the Planning Actions (including this Agreement) or the Project Approvals to third parties acquiring an interest or estate in Windemere Ranch or any portion thereof including, without limitation, purchasers or ground lessees of lots, parcels or facilities. Section 13.02. Transfer Agreements. a. In connection with the transfer or assignment by Developer of all or any portion of Windemere Ranch (other than a transfer or assignment by Developer to an affiliated party, a "Mortgagee" (as defined in Section 14.01 below) or a "Non-Assuming Transferee" (as 29 2881 v8 defined in Section 13.03 below)), Developer and the transferee shall enter into a written agreement (a "Transfer Agreement") regarding the respective interests, rights and obligations of Developer and the transferee in and under the Planning Actions and the Project Approvals. Such Transfer Agreement may(i) release Developer from obligations under the Planning Actions (including this Agreement) or the Project Approvals that pertain to that portion of Windemere Ranch being transferred, as described in the Transfer Agreement, provided that the transferee expressly assumes such obligations, (ii) transfer to the transferee vested rights to improve that portion of Windemere Ranch being transferred and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment. b. Developer shall seek County's prior written consent to any Transfer Agreement, which consent shall not be unreasonably withheld or delayed. Failure by County to respond within forty-five (45) days to any request made by Developer for such consent shall be deemed to be County's approval of the Transfer Agreement in question. County may refuse to give its consent only if, in light of the proposed transferee's reputation and financial resources, such transferee would not in County's reasonable opinion be able to perform the obligations proposed to be assumed by such transferee. Such determination shall be made by the Community Development Director, and is appealable by Developer to the Board. ' C. Any Transfer Agreement shall be binding on Developer, County and the transferee. Upon recordation of any Transfer Agreement in the Official Records of Contra Costa County, Developer shall automatically be released from those obligations assumed by the transferee therein. d. Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a transferee pursuant to a Transfer Agreement. No breach or default hereunder by any person succeeding to any portion of Developer's obligations under this Agreement shall be attributed to Developer, nor may Developer's rights hereunder be canceled or diminished in any way by any breach or default by any such person. Section 13.03. Non-Assuming Transferees. Except as otherwise required by Developer in Developer's sole discretion, the burdens, obligations and duties of Developer under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor County's consent shall be required in connection with (i) any single residential parcel conveyed to a purchaser, (ii) any property transferred as fewer than fifty (50) lots to a single retail builder or (iii) any property that has been established as one or more separate legal parcels for office, commercial, industrial, open space, park, school or other nonresidential uses. The transferee in such a transaction and its successors ("Non-Assuming Transferees") shall be deemed to have no obligations under this Agreement, but shall continue to benefit from the vested rights provided by this Agreement for the duration of the Term. Nothing in this section shall exempt any property transferred to a Non-Assuming Transferee from payment of applicable fees and assessments or compliance with applicable conditions of approval. 30 2881 v8 ARTICLE 14. MORTGAGEE PROTECTIONS Section 14.01. Mortgagee Protection. Notwithstanding any other provision of this Agreement, neither this Agreement nor any provision, amendment or breach of this Agreement shall operate to defeat or render invalid the rights of any present or future "Mortgagee" (defined below) under a "Mortgage" (defined below) encumbering the Windemere Site or any part thereof, or any interest therein, made for value; provided, however, that after the "Foreclosure" (defined below) of any such interest therein, that had been encumbered by such Mortgage shall remain subject to and entitled to the benefits of this Agreement. As used in this Agreement, (i) the term "Foreclosure" shall mean judicial foreclosure, sale under a power of sale, or(deed in lieu of either of the foregoing or a private or public foreclosure sale under the California Uniform Commercial Code, (ii) the term "Mortgage" shall mean a mortgage, deed of trust, or other security instrument and (iii) the term "Mortgagee" shall mean a mortgagee, a beneficiary of a deed of trust or the secured party under any other security instrument. Section 14.02. Notice of Default to Mortgagee. If County receives notice from a Mortgagee requesting a copy of any notice of default given to Developer hereunder and specifying the address for service of such copy, then County shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer under Section 8.01 above. Each Mortgagee shall have the right, but not the obligation, at its option, to cure or remedy any such default under this Agreement by the Developer in accordance with Section 14.03 below. Section 14.03. Mortgagee Opportunity to Cure. This Agreement shall not be terminated by County as to any Mortgagee (i) who has requested notices of default, as set forth above, but is not given notice by the County or(ii) to whom such notice is given and as to which either of the following is true: (1) as to any default involving the payment of money to County by Developer, such Mortgagee has cured such default within sixty (60) days after receipt of notice of default; (2) as to any default not involving the payment of money by Developer to County: a. such Mortgagee has cured, or caused to be cured, the default within ninety (90) days after receipt.or notice thereof, or b. such Mortgagee, within ninety (90) days after the receipt of notice of default, commences foreclosure proceedings to acquire title to the applicable portion of Windemere Ranch and thereafter diligently pursues the Foreclosure to completion. Subject to the foregoing, if any Mortgagee records a notice of default as to its Mortgage, Developer's rights and obligations under this Agreement may be transferred to the Mortgagee or to any purchaser of the Developer's interest in a Foreclosure. 31 2881 v8 Section 14.04. Approval by Mortgagees. County recognizes that the provisions of this Agreement may be a matter of concern to any Mortgagee intending to make a loan secured by a Mortgage encumbering the Windemere Site, or a portion thereof. If such Mortgagee should require, as a condition to such financing, any modification of this Agreement to protect its security interest in the Windemere Site or portion thereof, County shall execute the appropriate amendments; provided, however, that County shall not be required (but is permitted) to make any modification that would (i) materially and adversely affect County's rights hereunder, (ii) increase County's obligations hereunder, (iii) reduce Developer's obligations hereunder or (iv) constitute an amendment other than an "Insubstantial Amendment" as described in Section 5.02 above. Section 14,05. Notice of Proposed Amendment to Mortgagee. This Agreement may be amended without the approval or execution of any such amendment by any Mortgagee. However, if County receives notice from a Mortgagee requesting notices of proposed amendments, County shall provide a copy of any proposed amendment to such Mortgagee. ARTICLE 15. NOTICE OF COMPLIANCE Within thirty (30) days following any written request which Developer may make from time to time, County shall execute and deliver to Developer(or to any party requested by Developer) a written "Notice of Compliance," in recordable form, duly executed and acknowledged by County, that certifies: (1) 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 modifications; (2) There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default; (3) Any other information reasonably requested by Developer. The failure to deliver such a statement within such time shall constitute a conclusive presumption against County that this Agreement is in full force and effect without modification except as may be represented by the Developer and that there are no uncured defaults in the performance of the Developer, except as may be represented by the Developer. Developer shall have the right at Developer's sole discretion, to record the Notice of Compliance. 32 2881 v8 ARTICLE 16. ENTIRE AGREEMENT, COUNTERPARTS AND EXHIBITS This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of thirty-five (35) pages and six (6) exhibits which constitute in full, the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of County and the Developer. The following exhibits are attached to this Agreement and incorporated herein for all purposes: (i) Exhibit A - Legal Description (ii) Exhibit B - Responsibilities for Certain Traffic Improvements (iii) Exhibit C-1 - Initial Project Traffic Improvements (iv) Exhibit C-2 - Additional Project Traffic Improvements (v) Exhibit C-3 - Cost Allocations for Certain Additional Project Traffic Improvements (vi) Exhibit D - Establishment of Capital Facilities Fee 33 2881 v8 • ARTICLE 17. RECORDATION OF DEVELOPMENT AGREEMENT Pursuant to California Government Code § 65868.5, no later than ten (10) days after County enters into this Agreement, the County Clerk shall record an executed copy of this Agreement in the Official Records of the County of Contra Costa. IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and County as of the day and year first above written. WINDEMERE RANCH PARTNERS, a California limited partnership By: SOMERSET HOMES, a California corporation Its: General Partner By: V�& F. Allan 91apman President By: WINDEMERE GENERAL PARTNERS, a California general partnership Its: Managing General Partner By: CWL WINDEMERE ASSOCIATES, L.P., a California limited partnership Its: General Partner By: CWL WINDEMERE GROUP, a California limited partnership Its: General Partner By- V. Allan Cha man General Partner 34 2881 v8 • COUNTY OF CONTRA COSTA By: A�a VJarvevy Bragdon Its: Director of Community Development APPROVED AS TO FORM: VICTOR J. WESTMAN County Counsel County of Contra Costa By: J—Lit'n3Ccl Silvan B. Marchesi Assistant County Counsel 35 2881 v8 CALIFORNIA ALL-PURPOSOACKNOWLEDGMENT • State of _Z1,71"9211-4"9211-4 ir'cs County of e.'m L,-, r On before me, 9#1e tne and Title of Officer(e.g.,"Jane Doe,Notary Public") personally appeared Names)of ner(s) ❑personally known to me—OR proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), XWSAAD or the entity upon behalf of which the person(s) acted, COW";105714 executed the instrument. •'� Notary Ptbla—CaMMW CONTRA COSTA COUW MvCon}}1.r4l --MAY 6.1 WITNESS my h nd and official seal. Signature of Notary Pu is OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: ! Ir Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual. ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator - ❑ Other: Top of thumb here ❑ Other; Top of thumb here Signer Is Representing: Signer Is Representing: 0 1994 National Notary Association•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder.Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5193 r State of �=�r" �u-^ OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER County of v�- ��`�- � n Though statute does not require the Notary to ' ` ^ fill in the data below, doing so may prove l q9 L % v A' ' zz j� invaluable to persons relying on the document. On �^ before me, �R f INDIVIDUAL v' DATE NAME,TITLE OF OFFICER-E.G.,'-JANE DOE, 07 Y PUBLIC" � —f �/L CORPORATE OFFICER(S) personally appeared �� N„M's)of sl''r`G��a(S) , TITLE(S) ®personally known to me-OR - proved to me on the basis of satisfactory evidence PARTNER(S) LIMITED to be the person(s) whose name(s) is/are ® GENERAL subscribed to the within instrument and ac- ❑ATTORNEY-IN-FACT knowledged to me that he/she/they executed ❑TRUSTEE(S) the same in his/her/their authorized GUARDIAN/CONSERVATOR capacity(ies), and that by his/her/their OTHER: LILIBETH V ABAD -p signature(s) on the instrument the person(s), C .` Comm.It 972666 15 or the entity upon behalf of which the NOT19Y 008LIC CALiF03NIA person(s) acted, executed the instrument. Contra Costa County <<„o ' * Pty Ca nrl.Expires Sept.3.1996 SIGNER IS REPRESENTING: NAME OF PERSON(S)OR ENTITY(IESL WITNESS my hand and official seal. , � C.vflL SIGNATURE OF NOTARY OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT THE DOCUMENT DESCRIBED AT RIGHT: . NUMBER OF PAGES DATE OF DOCUMENT Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. SIGNER(S)OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 EXHIBIT A Legal Description 2881 v8 EXHIBIT A • REAP_PROPERTY in an unincorporated area,County of Contra Costa, State of California.described as follows: PARCEL ONE: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 22, 23, 24 and 25 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Commencing at the 1 1/2' iron pipe with tag marked LS 4477 at the southwest corner of said Lot 24 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20. Official Records of Contra Costa County, thence North 22' OT 54' East along the westerly line of Lot 24 as shown on said Record of Survey, 236.36 feet to the point of beginning; thence along the westerly and northerly lines of Lot 24 as shown on said Record of Survey the following courses and distances: North 22' 0r 54' East 588.46 feet; North 28' 07' 54' East 396.08 feet; North 53' 06' 17' East 330.63 feet; North 46' 36' 57' East 594.88 feet; North 20' 52' 53' East 481.65 feet; South 88' 52' 59' East 3490.31 feet; Thence leaving said northerly fine of Lot 24 and along the following courses and distances: South 19' 38' 15' West 1896.78 feet; South 06' 41' 36' East 809.15 feet; North 72' 40' 16' West 2217.98 feet; North 880 44' 58' West 2106.57.feet; To the point of beginning. A.P.No.: 206-050-006 PARCEL TWO: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 21, 22, 23, 24, 25 and 26 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Commencing at the 1 1/2' iron pipe with tag marked LS 4477 at the southwest comer of said Lot 25 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records First American Title EXHIBIT A of Contra Costa County, thence North 38' 37' 32' East along the westerly line of Lot 25 as shown on said Record of Survey, 535.10 feet to the point of beginning; thence continuing along said westerly line the following courses and distances: North 14' 52' 426 East 709.65 feet; North 310 52' 49' East 372.42 feet; North 22' OT 54' East 236.36 feet; Thence leaving said westerly line and along the following courses and distances: South 88' 44' 58' East 2106.57 feet; South 72' 40' 16' East 2217.98 feet; South 06° 41' 36' East 708.77 feet; South 24' 13' 46' West 884.33 feet; North 760 38' 14' West 3651.87 feet; North 79' 57' 30' West 871.37 feet To the point of beginning. A.P.No.: 206-050-007 PARCEL THREE: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all- of Lots 21, 22, 25, 26 and 27 of the Map of the Estate of Elizabeth A. Dougherty as said Map Is recorded in Book C of Maps at Page 63 lying within the following described boundary. Commencing at the 1 1/2' iron pipe at the southwest comer of said Lot 26 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County; thence North 16' 43' 490 East along the westerly Gne of Lot 26 as shown on said Record of Survey, 278.22 feet to the point of beginning; thence continuing along said westerly line of Lot 26 and the westerly line of said Lot 25 as shown on said Record of Survey the following courses and distances: North 16' 43' 49' East 286.61 feet; North 46' 11' 32' East 317.30 feet; North 35' 07' 42' East 810.38 feet; North 389 3T 32' East 535.10 feet; Thence leaving the westerly line of Lot 25 and along the following courses and distances: South 79' 5T 30' East 871.37 feel; South 76° 38' 14' East 3651.87 feet; South 24' 13' 46' West 1256.89 feet; North 83' 32' 15' West 5039.04 feet; To the point of beginning. A.P.No.: 206-050-008 First American 7-Itle EXHIBIT A PARCEL FOUR: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 21, 26, 27, 28, 37 and 38 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63 lying within the following described boundary: Commencing at the 1 1/2' iron pipe with tag marked LS 4477 at the southwest comer of said Lot 27 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 00' 15'290 West along the westerly line of Lot 27 as shown on said Record of Survey, 396.17 feet to the point of beginning; thence continuing along said westerly line of trot 27 and along the westerly line of said Lot 26 as shown on said Record of Survey, the following courses and distances: North 150 13' 54' East 429.38 feet, North 180 45' 20' West 461.93 feet; North 310 12' SO' East 594.77 feet; North 260 30' 28' West 659.73 feet; North 130 28' 59' East 326.98 feet; , North 330 12' 41' East 280.88 feet; North 160 43' 49' East 278.22 feet; Thence leaving the westerly fine of Lot 26 and along the following courses and distances: South 830 32' 15' West 5039.04 feet; South 24° 13' 466 West 1793.85 feet; South 86° 40' 37- West 1863.13 feet; South 61" 53' 31' West 1511.24 feet; North 790 30' 52' West 1389.27 feet; To the point of beginning. A.P.No.: 206-050-009 PARCEL FIVE: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 2 i. 27, 28, 30, 37 and 38 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Commencing at the 1 1/2' iron pipe with tag marked LS 4477 at the southwest comer of said Lot 27 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 000 15' 29' West along the westerly line of Lot 27 as shown on said Record of Survey, 396.17 feet; thence South 79° 30' 52' East, 1389.27 feet to the point of beginning; thence along the following courses and distances: North 610 53' 31' East 1511.24 feet; North 86° 40' 37' East 1863.13 feet; South 100 27' 08' West 2017.48 feet; South 850 37' 28' West 1900.54 feet; North 350 27' 02' West 1606.89 feet First American Title EXHIBIT A To the point of beginning. A.P.No.: 206-090-004 PARCEL SIX: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 27, 30, 37 and 38 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, tying within the following described boundary. Beginning at the 1 1/2' iron pipe with tag marked LS 4477 at the northwest comer of said Lot 37 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 00' 15' 29' West along the westerly line of Lot 27 as shown on said Record of Survey, 396.17 feet; thence leaving said westerly line and along the following courses and distances: South 79' 30' 52' East 1389.27 feet; South 35' 27' 02' East 1606.89 feet; , South 55' 56' 11' West 3036.06 feet; To the westerly line of said Lot 37 as shown on said Record of Survey, thence along said westerly line the following courses and distances: North 35' 30' 46' West 1744.38 feet; North 42' 26' 53' East 264.40 feet; North 86' 52' 12' East 562.01 feet; North 21' 58' 30' East 1316.13 feet To the point of beginning. A.P.No.: 206-090-005 PARCEL SEVEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 26, 29, 30, 37 and 38 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Beginning at the 1 1/2' iron pipe at the westerly comer of said Lot 30 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 35' 30' 46' West along the westerly line of said Lot 30 as shown on said Record of Survey, 366.16 feet; thence leaving said westerly line and along the following courses and distances: North 55' 56' 11' East 3036.06 feet; North 85' 37' 28' East 1900.54 feet; South 00' 58' 50' West 1753.26 feet; South 27' 02' 31' West 1874.24 feet; North 89' 17' 29' West 2015.55 feet First American Title EXHIBIT A To said westerly line of Lot 30; thence along said westerly line the following courses and distances: North 360 59' 49' West 481.74 feet; North 640 32' 38' West 612.93 feet; North 370 00' 49' West 758.45 feet To the point of beginning. A.P.No.: 206-090-006 PARCEL EIGHT: A parcel ,,I land situated in the Rancho San Ramon, Contra Costa County, Califomia, being all of lots 18, 19, 28, 29 and 30 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Commencing at the hub and tack at the southerly comer of that parcel of land shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 470 38'45'West along the southerly boundary thereof, 1165.71 feet to the point of beginning; thence leaving said southerly line and along the following courses and distances: North 140 00' 310 East 2881.61 feet, North 76" 47' 58' West 1495.21 feet; South 27° 02' 31' West 1874.24 feet To a 6' by 6' concrete monument with nail at an angle point in said southerly line; thence South 47° 38' 45' East along said southerly line, 2178.99 feet to the point of beginning. A.P.No.: 206-090-007 PARCEL NINE: A parcel of land situated in the Rancho San Ramon, Contra Costa County, Califomia, being all of Lots 17, 18, 19, 28 and 29 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Beginning at the 2' iron pipe with tag marked LS 3400 at the southeast comer of that parcel of land shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 760 27' 22' West along the southerly line thereof, 526.21 feet to a 1 1/2' iron pipe with tag marked LS 4477; thence continuing along said southerly line the following courses and distances: South 620 17' 26' West 886.61 feet; South 760 21' 49' West 202.39 feet; North 470 38' 45' West 1165.71 feet; Thence leaving said southerly line and along the following courses and distances: North 140 00' 31' East 2881.61 feet; South 76° 47' 58' East 1876.12 feet First American 7"elle EXHIBIT A To the easterly line of said Parcel; thence along said easterly line the following courses and distances: South 010 52' 24' West 146.47 feet; South 01" 48' 08' West 404.58 feet; South 040 11' 52' East 1156.35 feet; South 120 00' 35' West 1136.95 feet To the point of beginning. A.P.No.: 206-090-008 PARCEL TEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 18, 19, 20, 21, 27, 28, 29, 30 and 38 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Commencing at the 1 1l2" iron pipe with tag marked LS 4477 at the northeasterly comer of said Lot 21 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence North 18° 41'02' East along the easterly fine of Lot 22 of said Map of the Estate of Elizabeth A. Dougherty as shown on said Record of Survey, 219.30 feet; thence leaving said easterly line and along the following courses and distances: North 87° 54' 08' West 2647.98 feet; South 24° 13' 460 West 3050.74 feet; To the point of beginning; thence along the following courses and distances: South 61' 04' 56' East 1056.76 feet; South 37° 27' 21' East 1271.07 feet; South 14° 00' 31' West 2636.87 feet; North 76° 47' 58' West 1495.21 feet; North 00° 58' 50' East 1753.26 feet; North 10° 2T 08' East 2017.48 feet To the point of beginning. A.P.No.: 206-090-010 PARCEL ELEVEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 18, 19, 20, 28 and 29 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. First American Title EXHIBIT A Commencing at the 2' iron pipe with tag marked LS 3400 at the southeast comer of that parcel of land shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20,.Official Records of Contra Costa County, thence North 120 00' 35' East along the easterly line of said Parcel, 1136.95 feet to a 2' iron pipe; thence_ continuing along the easterly line of said Parcel the following courses and distances: North 040 11' 52' West 1156.35 feet; North 010 48' 08' East 404.58 feet; North 01' 52' 24' East 146.47 feet; To the point of beginning; thence continuing along said easterly line the following courses and distances: North 01' 52' 24' East 999.43 feet; North 410 25' 00' East 555.81 feet; North 240 50' 12' East 1412.60 feet; North 470 32' 09' West 593.54 feet; Thence leaving said easterly line and along the following courses and distances: South 86° 20' 31' West 1747.64 feet; South 14' 00' 31' West 2636.87 feet; South 76° 47' 58' East 1876.12 feet To the point of beginning. A.P.No.: 206-090-009 PARCEL TWELVE: A parcel of land situated in the Rancho San Ramon, Contra Costa County, Califomia, being all of Lots 19, 20, 21 and 28 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Commencing at the 1 112' iron pipe with tag marked LS 4477 at the northeast comer of said Got 21 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence along the easterly Gne of said Lot 21 as shown on said Record of Survey the following courses and distances: South 480 43' 31' East 330.00 feet; South 02° 37' 48' West 438.24 feet; South 380 29' 47' West 808.50 feet; To a 1 1/2' iron pipe with tag marked LS 4477 and the point of beginning; thence continuing along said easterty line the following courses and distances: South 12° 23' 49' West 151.33 feet; South 010 32' 04' West 94.62 feet; South 06° 29' 47' West 653.74 feet; South 00° 03' 04' West 1705.65 feet To a 1 1/2' iron pipe with tag marked LS 4477; thence leaving said easterty line and along the following courses and distances: First American 7-1de EXHIBIT A South 860 20' 31' West 1747.64 feet; North 370 27' 21' West 1271.07 feet; North 49° 29' 42' East 2778.99 feet; South 780 28' 34' East 525.18 feet To the point of beginning. A.P.No.: 206-090-011 PARCEL THIRTEEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 20, 21, 22, 25, 26, 27, 28 and 38 of the Map of the Estate of Elizabeth A Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary. Beginning at the 1 1/2' iron pipe with tag marked LS 4477 at the northeast comer of said Lot 21 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence along the easterly line of said Lot 21 as shown on said Record of Survey the following courses and distances: South 480 43' 31' East 330.00 feet; South 02' 3T 48' West 438.24 feet South 38° 29' 4r West 808.30 feet~ To a 1 1/2' iron pipe with tag marked LS 4477; thence leaving said easterly Gne and along the following courses and distances North 780 28' 34' West 525.18 feet; South 49° 29' 42' West 2778.99 feet; North 610 04' 56' West 1056.76 feet; North 240 13' 46' East 3050.74 feet; South 87° 54' 08' East 2647.98 feet To the easterly line of said Lot 22 as shown on said Record of Survey, thence South 180 41' 024 West along said easterly line, 219.30 feet to the point of beginning. A.P.No.: 206-050-010 PARCEL FOURTEEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, Califomia; being all of Lots 22, 23, 24, 25, and 26 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63, lying within the following described boundary: Commencing at the 1 1/2' iron pipe with tag marked LS 4477 at the northeast comer of said Lot 23 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence along the easterly line of said Lot 23 as shown on said Record of Survey the following courses and distances: South 05° 47' 38' West 1186.86 feet; South 25° 36' 43' East 971.76 feet; First American Title EXHIBIT A To a 1 1/2' iron pipe with tag marked LS 4477 and the point of beginning; thence continuing along saiu easterly line of said Lot 23 and along the easterly line of said Lot 22 as shown on said Record of Survey the following courses and distances: South 02° 53' 42' West 874.71 feet; South 46° 43' 40' West 508.29 feet; South 540 42' 12' West 228.41 feet; South 180 41' 02' West 757.50 feet; Thence leaving said easterly line of said Lot 22 and along the following courses and distances: North 870 54' 08' West 2647.98 feet; North 240 13' 46' East 884.33 feet; North 060 41' 36' West 708.77 feet; North 790 12' 02' East 2779.99 feet; South 83° 15' 06' East 481.83 feet To the point of beginning. A.P.No.: 206-050-011 PARCEL FIFTEEN: A parcel of land situated in the Rancho San Ramon, Contra Costa County, California, being all of Lots 22, 23, 24, and 25 of the Map of the Estate of Elizabeth A. Dougherty as said Map is recorded in Book C of Maps at Page 63, tying within the following described boundary. Beginning at the 1 1/2' Iron pipe with tag marked LS 4477 at the northeast comer of said Lot 23 as shown on the Record of Survey recorded in Book 68 of Land Survey Maps at Page 20, Official Records of Contra Costa County, thence along the easterly One thereof the following courses and distances: South 05° 47' 38' West 1186.86 feet; South 25° 36' 43' East 971.76 feet; To a 1 1/2' iron pipe with tag marked LS 4477; thence leaving said easterly line and along the following courses and distances: North 839 15' 06' West 481.83 feet; South 790 12' 02' West 2779.99 feet; North 06° 41' 36' West 809.15 feet; North 190 38' 15' East 1896.78 feet; First American 7-ale EXHIBIT A To the northerly line of said Lot 24 as shown on said Record of Survey, thence South 880 52' 59' East along said northerly line, 104.88 feet to a 1 1/2' iron pipe with tag marked LS 4477 at the northwest comer of said Lot 23 as shown on said Record of Survey; thence South 88° 18' 36' East along the northerly line of said Lot 23, 2261.97 feet to the point of beginning. A.P.No.: 206-050-012 EXCEPTING FROM PARCELS ONE THROUGH FIFTEEN: The rights reserved in the Deed from Emil Gumpert, et al to Edcel, N.V., a Netherlands Antilles corporation, recorded March 28, 1980, as Instrument No. 80-39830, as follows: 'But only as to the area lying more than five hundred (500) feet below the land surface of the real property, an undivided one-half (1/2) interest in and to all rights to, and one-half (1/2) of all oil, gas, minerals, petrochemicals and other hydrocarbon substances in, under or produced and saved from, the real property. First American Title EMMIT B Responsibilities For Certain Traffic Improvements 2881 v8 EXHIBIT B • 08 Ile w • � l O• 1 + / # j 1 1 i W N r N r O o � Nm S � p o zm { Cmm �O `m o v'�S E So G z czi z � m m �+ zv < nU, 00 0 o � " O � og g. C° a� dC� q� N n � 1 4 F Z J . ENMBIT C-1, C-2 and C-3 Traffic Improvements 2881 v8 EXHIBIT CA Initial Project Traffic Improvements C-1.1. Camino Tassajara/Crow Canyon Rd.Blackhawk Rd. intersection improvements. Within existing curb-to-curb pavement section, reconfigure NB approach (Crow Canyon Rd.) to provide two left-turn lanes, one exclusive through lane, one shared through/right-turn lane, and one exclusive right-turn lane. On Tassajara Ranch Drive, remove median and add bike lanes. C-1.2. Sycamore Valley Rd./1-680 NB on-ramp/Camino Ramon intersection improvements. Reconfigure WB approach (Sycamore Valley Rd.) to provide one exclusive left- turn lane, one exclusive through lane, one shared through/right-turn lane, and one exclusive right- turn lane. C-1.3. Crow Canyon Rd./Dougherty Rd. intersection improvements. Reconfigure EB approach (Crow Canyon Rd.) to provide three exclusive through lanes, and one "free"right-turn lane to SB Dougherty Rd. Reconstruct SB Dougherty Rd., south of Crow Canyon Rd., to provide dedicated curb lane to accept right-turns from EB Crow Canyon Rd. C-1.4. Bollinger Canyon Rd./Camino Ramon intersection improvements. If needed; reconfigure SB approach(Camino Ramon) to provide two exclusive left-turn lanes, one shared through/right-turn lane, and one exclusive right-turn lane. C-1.5. Bollinger Canyon.Rd./Alcosta Blvd. intersection improvements. Reconfigure EB approach(Bollinger Canyon Rd.) to provide one exclusive left-turn lane, three exclusive through lanes, and one exclusive right-turn lane. Reconfigure WB approach (Bollinger Canyon Rd.) to provide one exclusive left-turn lane, three exclusive through lanes and one exclusive right-turn lane. Reconfigure SB approach(Alcosta Blvd.) to provide one exclusive left-turn lane, two exclusive through lanes, and one exclusive right-turn lane. Widen Bollinger Canyon Rd., east of Alcosta Blvd., to provide three through lanes, plus turn lanes as needed, in EB and WB directions from Alcosta Blvd. to project limits. Construct traffic signal at Canyon Lakes Drive. C-1.6. Dougherty Road, re-alignment and construction of a six lane facility between the northerly project limits and Crow Canyon Road. C-1.7. Windemere Parkway, construction of a new four lane, divided arterial facility between the project limits and Camino Tassajara Road. Intersection improvements at the Windemere Parkway/Camino Tassajara intersection which include a traffic signal, left-turn channelization, and transition tapers from six to four lanes on Camino Tassajara north of the intersection.. C-1.8. Windemere Parkway/Camino Tassajara Road intersection improvements, provide left turn channelization, a four phase traffic signal, and tapers on Camino Tassajara to transition from six to four lanes north of the intersection. 2881 v8 C-1.9. Crow Canyon Road, widen to six lanes between Dougherty Road and Tassajara Ranch Road. C-1.10. Crow Canyon Road, widen from 4 to 6 lanes from Alcosta Blvd. to Dougherty Road. C-1.11. Dougherty Road, widen to 6 lanes from southerly limits of development to Old Ranch Road. Intersection improvements at the Dougherty Road/Old Ranch Road intersection are included and consist of a traffic signal, left-turn pockets, and right-turn pockets. C-1.12. Dougherty Road, widen to 6 lanes from Old Ranch Road to the County line. C-1.13. Dougherty Road/Old Ranch Road, intersection improvements to accommodate four lanes on Old Ranch Road and six lanes on Dougherty Road, with left turn and right turn channelization. Install a traffic signal. C4.14. Alcosta Blvd./Old Ranch Road intersection improvements (Currently, controlled by a three- way stop sign). Install a traffic signal. 2881 v8 EXHIBIT C-2 Additional Project Traffic Improvements C-2.1. Bollinger Canyon Road, construct eight lanes from I-680 to Alcosta. C-2.2. Camino Tassajara Road, widen from two to six lanes between Windemere Parkway and the County line. C-2.3. Camino Tassajara/Sycamore Valley Road intersection improvements, widen/restripe SB leg for 1 LT/RT lane and 1 LT lane. C-2.4. Crow Canyon Road, widen from 6 to 8 lanes from 1-680 to Alcosta. C-2.5. I-680 northbound off ramp/Bollinger Canyon Road intersection improvements. On NB leg, widen right turn radius, construct raised island to convert curb right turn lane to a free right turn lane, restripe 2nd right turn lane to stay under signal control, and modify signal control. C-2.6. Alcosta/Crow Canyon Road intersection improvements. Add exclusive right turn EB. C-2.7. Alcosta/Crow Canyon Road intersection improvements. Add one NB exclusive RT lane. C-2.8. Camino Ramon/Crow Canyon Road intersection improvements. Widen/restripe SB approach to one RT, one through lane, and 1 LT lane; add an EB exclusive RT lane. C-2.9. Crow Canyon Road/I-680 NB off-ramp intersection improvements. Intersection will be congested due to queues from adjacent intersections. Add another RT lane on NB off- ramp. C-2.10. I-680 SB ramps/Crow Canyon Road. Restripe to revise existing right turn lane to provide shared right/left lane. C-2.11. Bollinger Canyon Rd./Sunset Dr. intersection improvements. If needed, reconfigure SB approach (Sunset Dr.) to provide one exclusive left-turn lane, one exclusive through lane, and one "free" right-turn lane to WB Bollinger Canyon Rd. Widen Bollinger Canyon Rd., west of Sunset Dr., to provide dedicated curb lane to accept right-turns from SB Sunset Dr. C-2.12. Crow Canyon Road Noise Attenuation. As appropriate, construct soundwalls along Crow Canyon Rd. between Dougherty Rd. and Alcosta Blvd. C-2.13. Crow Canyon Road, Camino Tassajara and Sycamore Valley Road. Provide for pavement overlays of these roads between the Dougherty Valley project and 1-680. 2881.v8 EXHIBIT C-3 Cost Allocations for Certain Additional Project Traffic Improvements Not in limitation of any obligation of the Developer to provide a pro rata contribution to any of the improvements described on Exhibit C-2 other than the improvements listed below, the following improvements shall be funded by a fee, to be paid at building permit for each residential unit in the Project, not to exceed $200 per unit. Reference to Improvement Exhibit C-2 C-3.1 Camino Tassajara Overlay C-2.13 C-3.2 Crow Canyon Road Overlay C-2.13 C-3.3 Sycamore Valley Road Overlay C-2.13 C-3.4 Crow Canyon Soundwall C-2.12 C-3.5 Camino Tassajara/ C-2.3 Sycamore Intersection The per-unit fee described above shall be adjusted annually in accordance with the construction cost index published in the Engineering News Record. Any obligation to pay a fee to fund any of the improvements described in this Exhibit C-3 shall be conditioned upon construction of the identified improvements. Failure to construct an identified improvement shall result in a corresponding refund to the Developer. 2881 v8 EXHIBIT D Community Facilities Fee 2881 v8 • cXH-IHIT D • Dougherty Valley • Community Facilities Fee 1. Form of Ameemetntt -This agreement regarding Community Facilities Fees, shall be incorporated into all existing and future development agreements regarding the Shapell and Windemere portions of the Dougherty Valley. This agreement will be executed by the developers and Contra Costa County, and will be agreed as to form, by the City of San Ramon. 2. Definition of Community Facilities- "Community Facilities" include the Library, the Community Center,the Senior Center,a Corporation Yard and the Police Substation. The square footage requirements and timing for design and construction are as defined, and are subject to revision as specified in the Agreement to Settle Litigation dated May 11th, 1994. 3. Timing for Establishment of Fee - Prior to the filing of the first final map in the Dougherty Valley, a "Community Facility Fee" shall be established for the entire 11,000 unit Dougherty Valley project. 4. Community Facilities Cost Com2gnents - As illustrated in Attachment A, the total cost of each community facility required in the Dougherty Valley shall include the coat of the facility design, the cost of construction, the cost of furnishings, and the cost of site development. The amount illustrated in Attachment A is not inclusive of land costs,. 5. Land Dedication-Land required for the facilities shall be dedicated by the developers. Approximately six acres are required for the five subject facilities. In the event one developer is required to dedicate more than three acres, the other developer shall reimburse, at the time of construction, the dedicating developer for the cost of the land as determined by appraisal at that time- 6. Fee Amount - Fees shall be collected by the County at the issuance of the building permit. As illustrated in Attachment A. the total fee per unit equates to $1,410 The designated expenditure allocation is as follows: Library S 326 (pro-rata cost for 11,000 units) Community Center S 520 (pro-rata cost for 11,000 units) Pollee Substation S 61 (pro-rata,cost for 11,000 units). Corporation Yard S 269 (pro-rata cost for 11,000 units) Senior Center S 234 (Pro-rata cost for 8,500 units) Total Fee $1,410 The portion of the fee attributable to the Library, Community Center, Police Substation and Corporation Yard, shall be paid by all 11,000 units in the Dougherty Valley,except as is indicated below. The portion of the fee attributable to the Senior Center, shall be paid by the first 8,500 units in the Dougherty Valley. 7. Cost of Living Adivatments-The Community Facilities fee shaf'De•adju_sted according to the Engineering News Record Construction Cost Index each year. EXHIBIT D 8. Escrow AcMIA. - Upon collection by the Count, O- es shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commences. 9. Obligation to Fund Shortfall - When funds are required for the construction of any community facility, the pro-rata obligation for funding each community facility shall be divided 531-75 to Shapell and 47% to Windemere. This percentage allocation shall apply regardless of the ultimate, or then-current, number of units constructed on either developer's property. Each developer is individually responsible for providing their pro-rata share of costs (53% Shapell/ 47% Windemere)when the funds for a specific community facility is required. Each developer may use the fees generated by prior units, and may finance the balance of the funds in any manner available to them. If a developer provides a sourer of funding other than that which has accumulated is the Community Facilities Escrow Accounts, the parties to this agreement shall re- evaluate the fee amount at that time,with the intention of offsetting future fees by an amount commensurate with the developer's other funding method 10 Ability to Cure Developgr Default - As specified in Section 43.3.2 of the May 11, 1994 Agreement to Settle Litigation,if one developer defaults in the obligation to fund the pro-rata share of a community facility, the other developer may cure the default. and not be penalized by a cessation of building permits. However,the developer in default may again obtain building permits,by funding with interest,their original pro- rata.cost obligation (53% Shapell/ 47% Windemere). 11. Satisfaction of a DevelogMr bliggtion by a Third PaM• If a developer's obligation to provide a specific community facility is satisfied by an alternate contribution- acceptable to the County and the City of San Ramon, the Fee paid by subsequent units in the Dougherty Valley shall be re-evaluated with the intention of offsetting future fees .by an amount commensurate with the alternate satisfaction of the obligation. 12. Cam= Service Area Charge - A County Service Area (CSA) is required by Section 33.1 of the May 11, 1994 Agreement to Settle Litigation, to be in place prior to anucmdon of any portion of the Dougherty Valley. As part of the formation of the CSA, an assessment equal to the estimated total future operation and maintenance cost, may be applied to units for construction of the community facilities. This capital charge will be reduced, dollar for dollar, as the operationand maintenance charges for those facilities are incurred. Page Two EXMI9IT" D Upon collectiL&the County, CSA charges attribu. *to the capital facdities,shall be deposited into separate escrow accounts for each developer which will be set up at a title company to be chosen by each developer. Collected fees shall be placed in an interest bearing account. Escrow instructions, to be approved by the developers and Contra Costa County shall include a provision that collected fees, along with accumulated interest, may be released to each developer or the appropriate jurisdiction, when design of a community facility commences. Funds accumulated under this CSA charge, shall be considered a "source of other financing" as is identified in #9 above. 13. Coun Aporoval/ Review - Pians for the design and construction of the community facilities shall be approved by Contra Costa County and reviewed by the City of San Ramon. The County agrees to give good faith consideration to all comments received from the City. If a dispute arises, the County and City agree to participate in the Dispute Resolution process outlined in Article V of the Agreement to Settle litigation dated May 11, 1994` 14. Facilill Desi® and Construction - The Developers shall. be allowed, based on the design and construction specifications from the appropriate agency and with the. approval of the County and the review of the City of San Ramon, to design and construct each of the community facilities. 15. Desimi Changes Resulting in Exceeding F�ty Budget-The developers will not be required to fund facility construction costs greater than that described in Attachment A unless the increased cost is a result of cost of living adjustments(see paragraph 7) or changes in federal or state law. 16. Annual Revorts - An annual report summarizing the Community Facilities Fee Escrow Account balances, and the CSA Escrow Account balances shall be provided with the annual mitigation monitoring prollm- Page three Dougherty Valley MMIBTT D - Attachment A Community Facilities Fees Report Date: 9/20/95 Library(11.600 Square Feel Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Type QuantityPrice Total Cost Units Site Development 1 AC 1.00 $108,900 5108,900 $10 Hard Construction Costs SF 11,600 $155.00 $1,798,000 $163 Soft Construction Costs 2 LS 1 $343,242 $343,242 $31 Furnishings SF 11,600 $15.00 $174,000 $16 Subtotal $2,424,142 $220 Educational Materials 3 Book 58,000 $20.00 S1,160,000 $105 Total S3,584,142 326 Footnotes: 1. Assumes cost of$2.50 per square foot. 2. Assumes 18%of both hard construction costs and site development. 3. Assumes 2 books per capita for approximately 29,000 people. Community Center(24,000 Square Feet) Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Type Quantity Price Total Cost Units Site Development 1 AC 2.00 5108,900 $217,800 $20 Hard Construction Costs SF 24,000 $185.00 $4,440,000 $404 Soft Construction Costs 2 US 1 $698,670 $698,670 $64 Furnishings SF 24,000 $15.00 5360,000 $33 Total $5,716,470 520 Footnotes: 1. Assumes site development cost of approximately$2.50 per square foot. 2. Assumes 15%of both hard construction costs and site development. Dougherty Valley EXHIBIT D - Attachment A Community Facilities Fees Report Date: 9/20/95 Senior Center(10.000 Square Feet) Cost per Unit Unit Unit Estimated 5,500 Cost Component Note Type_ Quantity Price Total Cost Units Site Development 1 AC 1.00 $108,900 $108,900 $13 Hard Construction Costs SF 10,000 $150.00 $1,500,000 $176 Soft Construction Costs 2 LS 1.00 $241,335 $241,335 $28 Furnishings SF 10,000 $14.00 S140,000 $16 Total $1,990,235 234 Footnotes: 1. Assumes site development cost of approximately$2.50 per square foot 2. Assumes 15%of both hard construction costs and site development Police Substation(Approximate 4.$00 Square Feet) Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Type . Quantity Price Total Cost Units Site Development 1 AC 0.34 $367,647 $125,000 $11 Hard Construction Costs SF 4,500 580.00 $360,000 533 Soft Construction Costs 2 LS 1 572,750 572,750 $7 Furnishings SF 4,500 $25.00 $112,500 $10 Total $670,250 61 Footnotes: 1. Assumes site development cost of approximately$8.45 per square foot(rounding) 2. Assumes 15%of both hard construction costs and site development I • Dougherty Valley 1Marr D - Attachment A Community Facilities Fees Report Date: 9/20/95 Corporation Yard Cost per Unit Unit Unit Estimated 11,000 Cost Component Note Tie_ Quantity Price Total Cost Units Site Development Costs 1 AC 1.70 $108,900 S185,130 $17 Hard Constr&Furnishings 2 US 1 $2,500,000 $2,500,000 $227 Soft costs 3 LS 1 $268,513 $268,513 $24 Total $2,953,643 269 Footnotes: 1. Assumes site development cost of approximately$2.5 per square foot 2. Total cost estimated at$2.5 million;includes parking,landscaping,furnishings,4480 square feet for sh6p space, 800 square feet for offices and 1,680 square feet for locker areas. 3. Assumes 10%of both hard construction costs dt furnishings and site development.