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HomeMy WebLinkAboutMINUTES - 07151986 - X.5 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on July 15 , 1986 , by the following vote: AYES: Supervisors Fanden, Schroder, Torlakson, Powers NOES: None ABSENT: Supervisor McPeak ABSTAIN: None -------------------------------------------------------------------- -------------------------------------------------------------------- SUBJECT: Establishment of a TSM Committee, Pleasant Hill BART Redevelopment Area Supervisor Robert Schroder transmitted to the Board a letter dated July 9 , 1986 from Merle D. Gilliland, Wallace-Olson Associates, Inc. , P.O. Box 215 , Moraga 94556 , relative to the establishment of a Contra Costa County TSM Committee for the Pleasant Hill BART Redevelopment Area (attached hereto and by reference incorporated herein) . IT IS BY THE BOARD ORDERED that the attached letter is REFERRED to the County Administrator. cc: County Administrator Community Development Director 1 hereby certify that this Is a true and correct copy of an acttcn taken and entered on the minutes of the Board of Supery s on the date shown. ATTESTED: G PHIL BA ,'EL ., Cleric of the Board of Supervisors and County Administrator Byx G� , Deputy WALLACE OLSON ASSOCIATES, INC. DEVELOPERS • REALTORS P.O. BOX 215, 1100 MORAGA WAY q�rtE MORAGA, CALIFORNIA 94556 (415) 376-3151 CCllii July 9, 1986 JUL 121986 �� �V►S�RWINDER Supervisor Robert Schroder Contra Costa County - Dist. 3 315 Diablo Road Danville, CA 94526 Re: TSM Committee Dear Bob: As I spoke to you by telephone today, a settlement agreement has been reached with Ed Dimmick, regarding his lawsuit against the Boards' action of March 18, 1986 in approving three projects in the Pleasant Hill BART Station area. This agreement requires the establishment of the Contra .Costa County TSM Committee. The purposes of the Contra Costa County TSM Committee ("Committee") are: ( 1) to study traffic problems associated with residential and office development in Central Contra Costa County; and (2) to promote adoption of measures to mitigate those problems. The focus of the Committee's efforts will be to promote an effective model transportation systems management ("TSM") ordinance, and to promote implementation of TSM in both the county and the cities. The Committee shall initially consist of five persons, who shall be designated, as set forth below: 1. The County shall select one member; 2. The Contra Costa Council shall select one member; 3. Citizens for A Better Contra Costa shall select one member; 4. The Sierra Club shall select one member; 5. The Contra Costa Centre Association shall select one member. If the Contra Costa Council, the Sierra Club or Citizens for A Better Contra Costa refuses to designate a representative, then the parties to this Agreement shall select a comparable organization for this purpose by unanimous agreement. It is anticipated that additional members will be added to the Committee in the future. Robert Schroder Page 2 Enclosed is a copy of the Agreement and Bylaws for your reference. Thank you for your announcement of this settlement. I agree with you that something must be done to change the system so that business could be properly handled! We are confident we could win the lawsuit, but we could not carry the property for the two year period necessary to go through the court system. As you mentioned, the legal system is taking planning away from the planners and elected officials. What.can we do to make the public aware of this injustice? Thank you. Sincerely, Merle D. Gilliland MDC :cd. _Encis. cc: Supv.Sunne McPeak Contra Costa Council AGREEMENT P Y A L�' THIS AGREEMENT is made by, and among EDWARD A. DIMMICK ("Dimmick") ; THE COUNTY OF CONTRA COSTA ("County") , REDEVELOPMENT AGENCY OF CONTRA COSTA COUNTY ("AGENCY") (collectively, "County") ; TAYLOR/WARD PROPERTIES, a general partnership ("Taylor/Ward") , SONSPIRIT PROPERTIES, a California corporation (collectively the "Taylor/Ward Group") ; TREAT CORNERS PARTNERSHIP, a general partnership ("Treat Corners") , MERLE - GILLILAND, an individual ("Gilliland") , WALLACE OLSON ASSOCIATES, INC. ("Wallace Olson") (collectively the "Treat Corners Group") ; and TAYLOR WOOD ROW OF CALIFORNIA, INC. , . a California corporation ("Taylor Woodrow") , HOOVER ASSOCIATES, a California corporation (collectively the "Taylor. Woodrow Group") . RECITALS. This Agreement is made with reference to the following facts: A. In 1985, Taylor/Ward applied for a rezoning (2658-RZ) and development plan (3002-85) in connection with its property located in the Pleasant Hill BART station area. In 1985, Treat Corners, Taylor Woodrow, Hoover Associates, Wallace Olson and Gilliland applied for a rezoning (2656-RZ) and development plans. (3003-85 and 3063-85) in connection with other properties in the Pleasant Hill BART station area. On March 18 , 1986, the County approved these rezoning applications and development plan applications. A JUL 121986 -1- �I�pfRVISOR SG�RUDIE.� B. On April 17, 1986, Dimmick filed a petition and complaint initiating Contra Costa County Superior Court Action No. 285120 against the County, its Redevelopment Agency and its Board of Supervisors, as defendants and respondents, and against the other parties to this Agreement as real parties in interest (the "Lawsuit") . In the Lawsuit, Dimmick challenges the propriety of the County' s approval of the above rezoning applications and development plan applications and seeks writs of mandate, an injunction and other relief in connection with those approvals. C. It is the desire of the parties to this Agreement to fully compromise, settle and resolve all of the claims made by Dimmick in the Lawsuit and to settle the Lawsuit, with the understanding that nothing contained herein shall constitute any admission of liability on the part of any of the parties hereto, which is expressly denied, and that all parties merely intend by .their actions pursuant hereto to avoid prolonged and further litigation and to buy their peace. NOW, THEREFORE, it is agreed among the parties hereto as follows: 1. FORMATION OF CONTRA COSTA COUNTY TSM COMMITTEE: 1 . 1 Within twenty (20) days after consummation of this Agreement (as defined in Paragraph 4 below) , there shall be created a nonprofit association known as the "Contra Costa County TSM Committee" (the "Committee") . The Committee will have the -2- - purpose and structure, and will function, as set forth in the Bylaws attached hereto as Exhibit "A" . 1. 2 The Committee shall initially consist of five persons, who shall be designated, as set forth below, within twenty (20) days after execution of this Agreement: n a) . the ,. County shall select one member; (b the Contra Costa Council shall select one member 0c) Citizens for A Better Contra Costa shall select one member llbd) the Sierra Club shall select one member; (J�he Contra Costa Centre Association shall select one member. If the Contra Costa Council, the Sierra Club, the Contra Costa Centre Association or Citizens for A Better Contra Costa refuses to designate a representative, then the parties to this Agreement shall select a comparable organization for this purpose by unanimous agreement. It is anticipated that additional members will be added to the Committee in the future, as set forth in Exhibit "A" . 1 . 3 Within twenty (20) days after execution of this Agreement, Taylor/Ward, Treat Corners and Taylor Woodrow shall each pay to the Committee the sum of $26 ,667 for a total of $80,000 . These funds shall be used for the purposes for which the Committee is formed, as set forth in Exhibit "A" . 2. DISMISSAL OF LAWSUIT: Dimmick agrees to provide to all other parties to this Agreement an executed request for dismissal of the Lawsuit with -3- _ prejudice on or before July 3, 1986, at the time and in the manner as set forth in Paragraph 4 below. Each party shall bear its own costs and attorney' s fees in connection with the Lawsuit. 3. BONUS FAR: County has enacted a transportation systems management ordinance ("TSM Ordinance") applicable to the subject property. The Treat Corners Group agrees, with respect to the bonus FAR in its project, to either: (a) enter into the exchange with the Taylor Woodrow Group described in Paragraph 5 , below, in which event only applicable County requirements shall govern; or (b) both (i) provide quarterly reports to the County TSM Committee, in the form contemplated in the TSM Ordinance, as to such bonus FAR space and (ii) enter into an agreement with the County providing that, with respect to such bonus FAR space, the Treat Corners Group project shall exceed the primary or alternative objective options by 5% , and providing that within 4 years 60% or less will commute by single occupant vehicles under the primary objective option or 55% or less will commute by single occupant vehicles under the alternative objective option. -4- - 4. RELEASE: Dimmick on behalf of himself and his attorneys (hereinafter "Releasing Parties") , hereby forever releases and discharges the County (including its Board of Supervisors and Redevelopment Agency) , Taylor/Ward, Treat Corners, Sonspirit Properties, Taylor Woodrow, Hoover Associates, Gilliland and Wallace Olson, and all of their respective parent corporations, subsidiary corporations, predecessor or successor corporations, agencies , committees, political subdivisions, all of its/their- present and former respective officers, directors, shareholders, counsel, agents, employees, underwriters, associates, predecessors, . successors, heirs, assigns, partners , and all persons acting by, ,through, under or in concert with them, or any of them, of and from any and all manner 'of action or actions, cause or causes of action, in law or in equity, and all suits, liability, claims, demands, damage, loss, cost or expense of any nature whatsoever, fixed or contingent, whether now known or unknown, which Dimmick shall or may have, or may in the future have, against any of the released parties hereto arising out of,, based upon or relating in any way, directly or indirectly, to: . (1) the Lawsuit or to any allegation made in any pleading in the Lawsuit; (2) rezoning applications 2658-RZ and/or 2565-RZ and/or development plan applications 3002-85, 3003-85 and/or 3063-85, and/or the approval of the same; (3) .any of the facts, events, acts, or transactions set forth in Paragraphs A through C of the above Recitals; . (4) the real properties owned by Taylor/Ward, -5- - Treat Corners and Taylor Woodrow, or another released party in the Pleasant Hill BART station area which is the subject of the various above applications (the "Subject Properties") . In addition, the released parties hereunder forever release and discharge Dimmick from any and all manner of action or actions, cause or causes of action, in law or in equity, and all suits, liabilities, claims, demands, damage, loss, cost or expense of any nature, fixed or contingent, known or unknown, which any of the released parties shall or may have, or may in the future have against Dimmick arising out of, based upon or relating, directly or indirectly, to items (1) , (2) , (3) and (4) above. Dimmick, on behalf of the Releasing Parties, further agrees not to prosecute or instigate the prosecution of any further legal actions or proceedings to challenge or otherwise determine the validity of any further ,approvals which the County may make in the future with respect to the Subject Properties so long as such further approvals are consistent with the amended Specific Plan for the Pleasant Hill BART Station area. Dimmick acknowledges that he is familiar with the provisions of California Civil Code section 1542, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. Dimmick, being aware of said Code section, hereby expressly waives any rights he may have thereunder, as well as under any -6- _ . statute or common law principle of similar substance. Dimmick, on behalf of the Releasing Parties, hereby further covenants not to sue or further sue the released- parties, or any of them, with respect to any matter covered by the release contained -in this Paragraph. Neither Dimmick' s dismissal of this action, nor any provision contained in this Agreement, constitutes a waiver of any right, claim, or cause of action not specifically and explicitly included in the Petition for Writ of Mandate and Complaint for Injunctive Relief in this action, which may have. accrued, or which may in the future accrue, to Dimmick against the Board of Supervisors or Redevelopment Agency of Contra Costa County, or the County itself, with respect to any failure to comply with the. California Environmental Quality Act or any other law, or to accomplish in timely fashion all mitigation measures set forth in the Pleasant Hill BART Station Area Specific Plan or the environmental impact report on the Specific Plan or adopted by the Board of Supervisors as a part or condition of the Specific Plan, except that Dimmick forever waives, releases and discharges all' of the above rights , claims and causes of action: (1) against the Taylor/Ward Group, the Treat Corners Group and/or the Taylor Woodrow Group (including any such cause of action in which any of them would be a real party. in interest) ; (2) which would otherwise require that any member of the Taylor/Ward Group, the Treat Corners Group and/or the Taylor Woodrow Group be joined as a party under Code of Civil Procedure section 389; or (3) against any person or entity (including the released parties -7- - above, the County, its Board of Supervisors and its Redevelopment Agency) , to the extent that any such right, claim or cause of action (a) would invalidate or otherwise adversely affect any approval, permit or other authorization given, or to be given, in connection with any of the Subject Properties or any projects or proposed projects thereon or (b) would result in any cost or expense to the Taylor/Ward Group, the Treat Corners Group and/or the Taylor Woodrow Group in connection with any of the Subject Properties or any projects or proposed projects thereon, or any restriction or limitation on the development, use or occupancy of any of the Subject Properties or any projects or proposed projects thereon. Without limiting the generality of the foregoing, the parties further agree that: (1) no party hereto shall assert or maintain any right, claim or cause of action in law or in equity seeking any relief which would result in any of the invalidations, adverse effects, costs, expenses, restrictions or limitations set forth in subpart (3) above; and (2) no party hereto shall obtain any relief in any action or proceeding which would result in any such invalidations, adverse effects, costs, expenses, restrictions or limitations. Nothing contained herein shall be deemed to waive, release or discharge any rights or obligations created by this Agreement. 5. NEW APPLICATIONS: The Taylor Woodrow Group and the Treat Corners Group are considering submitting applications to modify or supersede -8- - the existing approvals contained in rezoning (2656-RZ) and development plans (3003785 and 3063-85) so that a hotel may be built at the south end of Area 10-B to replace the office building approved for that portion of the site and an office building may be built at the north end of Area 10-A to replace the hotel approved for that portion of the site. In the event of such a• joint application: (1) the gross square footage to be approved on Areas 10-A and 10-B shall not exceed 775 ,467 square feet; (2) the total office square footage of Areas 10-A and 10-B shall not exceed 558,967 square feet; (3) none of the buildings shall exceed ten stories in height; (4) subject to these limitations, the size and design of each building shall be within the discretion of the developers, subject to the County' s approval. Nothing contained herein requires the Taylor Woodrow Group or the Treat Corners Group to seek the approvals described above, and either the Taylor Woodrow Group or 'the Treat Corners Group or both may separately apply for modification of its approvals without the participation or application of the other. For example, the Taylor Woodrow Group may seek approval for an office building not to exceed 203,928 square feet in floor area and a hotel not to exceed 216 ,500 square feet to replace the approvals previously granted to it. Similarly, the Treat Corners Group may seek approval for two office buildings (each not to exceed 10 stories in height) not to exceed 395,379 square feet to replace the approvals previously granted to it; in this event Treat Corners shall obtain the right (if at all) to build more -9- _.. than the 295, 379 office square feet already approved, by purchasing transferable development rights, obtaining bonus FAR from the County, or a combination of both. Dimmick agrees that the release of claims contained in this Agreement shall apply with equal force and effect to the above-described applications and approvals and that he, his agents, representatives and attorneys shall not oppose, challenge, contest or comment upon said applications or approvals before any administrative or government agency or any Court. The County is not a party to - this Paragraph 5. 6. ESCROW: Miller, Starr & Regalia, whose address is One Kaiser Plaza, 16th Floor, Oakland, California, shall act as an escrow for the purpose of consummating this Agreement. On or before July 3, 1986 , the designated parties shall comply with the requirements of Paragraph 2 above, and shall also place a counterpart copy of this Agreement executed by each party in escrow. The Agreement shall be consummated, and the exchange of executed copies of this Agreement, the above dismissal, and the payment for herein shall take place, when all the requirements of this paragraph have been met, but no later than July 3, 1986. 7. ENTIRE AGREEMENT: This Agreement contains the entire agreement of the parties hereto with respect to the matters covered hereby, and supersedes all prior agreements, written or oral, among the parties. No other agreement, statement or promise made by any -10- party which is not contained herein shall be valid or binding. This Agreement and its releases shall be binding upon, and inure to the benefit of, the parties hereto, their successors in interest and their assigns. 8. COUNTERPARTS: This Agreement may be executed simultaneously or in counterparts, 'each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. 9. UNDERSTANDING OF AGREEMENT: _ The undersigned hereby declare that they have read this Agreement, and that its meaning has been fully explained to them by their attorneys, and that they fully understand and appreciate its meaning, and have executed this Agreement of their own free will and accord. Dated: EDWARD A. DIMMICK Dated: CONTRA COSTA COUNTY By: Board Chair APPROVED AS TO FORM: ATTEST: PHIL BATCHELOR, Clerk of the Board of Supervisors and County VICTOR J. WESTMAN, Administrator County Counsel By: By: -11- Dated: REDEVELOPMENT AGENCY OF CONTRA COSTA COUNTY By: Its: Dated: TAYLOR/WARD PROPERTIES, a general partnership By: Its : Dated: SONSPIRIT PROPERTIES, a California corporation By: Its : Dated: 7� TREAT CORNERS PARTNERSHIP, �— a general partnership By: 01 Its : -12- - Dated: TAYLOR WOODROW OF CALIFORNIA, INC. , a California corporation By: Its: Dated: HOOVER ASSOCIATES , a California corporation By: Its : Dated: MERVE ZILLILAND Dated: WALLACE OLSON ASSOCIATES , INC. , a California corporation By: Its: -13- BYLAWS OF THE CONTRA COSTA COUNTY TSM COMMITTEE I. Purpose The purposes of the Contra Costa County TSM Committee ("Committee") are: (1) to study traffic problems associated with residential and office development in Central Contra Costa County; and (2) to promote adoption of measures to mitigate those problems. Emphasis will be on measures not involving significant expansion of existing roads or construction of major new roads.. The focus of the Committee's efforts will be to promote an effective model transportation systems management ("TSM") ordinance, and to' promote implementation of TSM in both the county and the cities. This will involve educating and informing the public, community and neighborhood groups, developers, employers, employees and local governments and their staffs. Efforts are already underway by Contra Costa County to enact a model TSM ordinance in the unincorporated areas of the county and to encourage passage of such an ordinance in key cities. This Committee will support those efforts by collecting and disseminating studies on the application and effectiveness of TSM programs elsewhere; conducting informational and educational meetings, workshops, and programs with cities and directly affected groups; . and supporting efforts of the TSM Partnership, the Mayors Conference and the cities who are seeking passage of TSM measures . The work of the Committee is not intended to EXHIBIT A -1- conflict with existing efforts but to supplement and complement them. II. Committee Membership To have maximum credibility, the Committee will seek to include individuals representing the full range of interests affected by central county traffic problems and TSM -- the county, the cities ,(Walnut Creek, Pleasant Hill, Concord, Clayton, Martinez, and San Ramon) , business and neighborhood groups, developers, and environmental groups. At the same time the Committee should not be so large as to be unwieldy. The "core Committee" will have five (5) members made up as follows: (1) a) One representative of the Board of Supervisors shall chair the Committee (1) b) One representative of employers, designated by the Contra Costa Council (1) c) One representative of Citizens for A Better Contra Costa (1) d) One representative of developers designated by the Contra Costa Centre Association (1).' e) One representative of the Sierra Club In addition, the Committee should seek to involve and add to its membership elected or appointed officials from the cities in the central county and representatives of other interested and affected groups. III. Voting Each member of the Committee shall have one (1) vote. In order to amend these Bylaws, a unanimous vote of all Committee EXHIBIT A -2- 1 members will be required. Selection of the consultant, described in Paragraph IV below, also will require a unanimous vote of all Committee members. Otherwise, all decisions of the Committee shall be made by a majority of the members of 'the Committee. IV. Consultant Because the Committee will be made up of lay. people (i.e. , non-experts in traffic analysis) it will be necessary to hire a traffic consultant to review the existing studies of TSM mitigation measures. This consultant should not have the appearance of being beholden to or associated with any agencies, developers, or others who might be affected, or whose studies he/she may be reviewing. The consultant' s job should primarily be to collect data and studies on TSM programs now being implemented elsewhere to help inform cities and the public regarding: - The types of TSM measures used by others (both commercial and residential) - Their effectiveness in terms of changing commute patterns - The cost implementation-, and - Conclusionsregarding the applicability of such measures to Contra Costa County or portions thereof. The consultant shall undertake such additional activities as may be directed. EXHIBIT A -3- V. Staff The substantial public education functions of the Committee will require at least one (1) staff person who is . familiar with Contra Costa County. VI. Duration The target for completion of the Committee's efforts to promote a model TSM ordinance should be 9 - 12 months. This time schedule should be held to so as to promote effectiveness. VII. Funding _ A budget of $80,000 will be established for nine (9) months. If the core Committee determines that additional funds are required, it may take steps as may be appropriate to obtain such funds. EXHIBIT A _- -4-