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CITY COUNCIL AGENDA ITEM NO. 03


Meeting Date: August 13, 2002

Subject/Title: Waive the second reading and adoption of Ordinance No. 712 for an amendment to PD-51 Zone and waive the second reading and adoption of Ordinance 713 for the Development Agreement between the City of Brentwood and Arcadia Development for the Mixed Use Project located at the intersection of Lone Tree Way and Heidorn Ranch Road.

Submitted by: Community Development Department (Oshinsky/Zilm)

Approved by: John Stevenson, City Manager

RECOMMENDATION
Waive the second reading and introduce Ordinance No. 712 approving an amendment to Planned Development (PD) Zone No. 51 for the Arcadia Mixed Use Project

Waive the second reading and introduce Ordinance No. 713 approving the Development Agreement between the City of Brentwood and Arcadia Development.

PREVIOUS ACTION
At its special meeting of August 5, 2002, the City Council introduced and waived the first reading of Ordinance No. 712, amending Planned Development 51 and waived the first reading of Ordinance No. 713, approving the Development Agreement between the City of Brentwood and Arcadia Development.

BACKGROUND
Adoption of Ordinance No. 712 will amend the existing Planned Development 51 to create development standards for the Arcadia Mixed Use project and adoption of Ordinance No. 713 will create a development agreement between the City of Brentwood and Arcadia Development.

Exhibit:
Ordinance No. 712 to amend Planned Development No. 51
Ordinance No. 713 to approved the development agreement between the City of Brentwood and Arcadia Development. 


ORDINANCE NO. 712 

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD TO AMEND PLANNED DEVELOPMENT NO. 51 BY ADDING DEVELOPMENT STANDARDS FOR THE ARCADIA MIXED USE PROJECT, LOCATED SOUTH OF LONE TREE WAY, EAST OF HEIDORN RANCH ROAD AND WEST OF THE HIGHWAY 4 BYPASS. 

WHEREAS, the applicant has filed for an amendment of the development standards of his property to accommodate the subdivision; and

WHEREAS, an Environmental Impact Report was prepared for the Arcadia Mixed Use Project in accordance with the California Environmental Quality Act and was considered as a part of the review and approval process; and

WHEREAS, the Environmental Impact Report identified potentially significant environmental effects associated with the proposed project which can be feasibly mitigated or avoided and these project measures are included in the project conditions of approval and will reduce the impacts identified to a less than significant level; and

WHEREAS, on June 26, 2002 the Planning Commission conducted a duly noticed public hearing, considered public comments and passed Resolution No. 02-38 which recommended the approval of the amendments of Planned Development No. 51 development standards by adding development standards for the Arcadia Mixed Use Project, certified the EIR, and filed the Notice of Determination; and

WHEREAS, a Notice of Public Hearing was legally advertised in the Ledger-Dispatch on June 28, 2002, and mailed to all property owners of record within 300 feet of the subject property according to City policies and Government Code Section 65091; and

WHEREAS, the City Council of the City of Brentwood hereby finds, as follows, that the proposed amendment will:

1. Establish clear development standards for the uses permitted under the General Plan and the approved Arcadia Mixed Use Project.

2. Provide standards resulting in development that is consistent and compatible with surrounding uses due to a well planned site design and buffering and screening of the site edges.

3. Provide for adequate public uses and private open space by the provision of new shopping and job opportunities and providing well landscaped areas.

4. Generate a level of traffic that can be accommodated by the public circulation system, existing or planned, as significant road improvements are a part of this project on Lone Tree Way and Heidorn Ranch Road..

5. That the proposed development will clearly result in a more desirable use of land and a better physical environment than would be possible under any single or combination of zones.

6. That the PD Zone proposed amendment is on property, which has suitable relationship to one or more thoroughfares; and that said thoroughfares are adequate to carry any traffic generated by the development.

7. That the plan for the proposed development presents a unified and organized arrangement of buildings and service facilities which are appropriate in relation to adjacent or nearby properties and that adequate landscaping and/or screening is included to insure compatibility.

8. That the development of the subject property, in the manner proposed by the applicant, will not be detrimental to the public welfare, will be in the best interests of the City and will be in keeping with the general intent and spirit of the Zoning Ordinance and with the City’s Community Development Plan, including all relevant Elements therefore, and with the Special Planning Area provisions adopted by the City.

9. The City Council has reviewed the Environmental Impact Report prepared for this project and orders the filing of the Notice of Determination with the County Clerk.

10. Pursuant to Section 15168 of the CEQA Guidelines, the City Council finds that the project is within the scope of the development levels evaluated in the FEIR prepared for the Arcadia Mixed Use Project. The City Council finds that the project will not have any significant environmental impacts that were not studied in the FEIR. Therefore, since the mitigation measures are incorporated as conditions of approval of the project, the Program EIR for the Arcadia Mixed Use project is adequate for all approvals relating to the project.

11. The City Council further finds that no significant new information within the meaning of the Public Resources Code Section 21092.1 and CEQA Guidelines Section 15088.5 has been presented to the City, which would necessitate recirculation of the Environmental Impact Report for further public review. The Environmental Impact Report has not undergone any reorganization on this account. The City Council has considered all verbal and written comments relating to the Environmental Impact Report and finds no significant new information has arisen.

NOW, THEREFORE, the City Council of the City of Brentwood does hereby ordain as follows:

Section 1. The above recitals are true and correct.

Section 2. The subject project is hereby zoned as the Arcadia mixed Use Project within Planned Development 51 for commercial, residential and retail uses.

Section 3. Chapter 17.506 has hereby been amended for the purpose of regulating certain real property and establishing development standards for the Arcadia Mixed Use Project.

Section 4. Chapter 17.506 is hereby known as Planned Development 51 (PD-51).

Section 5. Amendments to Chapter 17.506 are hereby added to read as shown in Attachment “A” attached hereto and made a part of this Ordinance.

Section 6. 

A. This Ordinance shall be published in accordance with applicable law, by one or more of the following methods:

1. Posting the entire Ordinance in at least three (3) public places in the City of Brentwood, within fifteen (15) days after its passage and adoption; or

2. Publishing the entire Ordinance at least once in the Ledger-Dispatch, a newspaper of general circulation published in the County of Contra Costa and circulated in the City of Brentwood, within fifteen (15) days after its passage and adoption; or

3. Publishing in the Ledger-Dispatch a summary of the Ordinance prepared by the City Attorney and posting a certified copy of the Ordinance in the Office of the City Clerk at least five (5) days prior to passage and adoption and along with the names of those City Council members voting for and against the Ordinance.

B. This Ordinance shall become effective thirty (30) days after the date of its passage and adoption.

Section 7. In accordance with Government Code Section 65863.5, upon the effective date of this Ordinance, a copy shall be delivered to the County Assessor.

THE FOREGOING ORDINANCE was introduced with the first reading waived at a special meeting of the Brentwood City Council on the 5th day of August, 2002 and adopted at a regular meeting of Brentwood City Council on the 13th day of August, 2002, by the following vote:

AYES:
NOES:
ABSENT:
ABSTAIN:

APPROVED:
Michael A. McPoland, Sr., Mayor


ATTEST:

Karen Diaz, CMC, City Clerk 


ATTACHMENT “A”

Chapter 17.506

PD-51 (PLANNED DEVELOPMENT FIFTY-ONE) ZONE - ARCADIA MIXED USE PROJECT AREA

Sections:
17.506.001 Authority, purpose and intent.
17.506.002 Permitted uses.
17.506.003 Conditionally permitted uses.
17.506.004 Development standards.
17.506.005 Performance standards.
17.506.006 Design and site development review.

17.506.001 Authority, purpose and intent.

The authority, purpose and intent for the adoption of the PD-51 (planned development fifty-one) zone are as follows:

A. Authority. PD-51 is adopted pursuant to the authority set forth in Chapter 17.450, Planned Development Zones - General Regulations.

B. Purpose. The purpose of the PD-51 zone is to permit and regulate the phased development of a mix of uses consistent with the General Plan on the approximately 76 gross acres encompassed by the zone. The General Plan includes the PD-51 zone within Special Planning Area (SPA) P, which consists of approximately 525 acres in the northwest corner of the City. SPA P is bounded by Lone Tree Way on the north, Heidorn Ranch Road on the west, Sand Creek Road on the south, and Shady Willow Lane on the east. The State Route 4 Bypass bisects SPA P in the north south direction. SPA P includes the southern portion of the Bypass intersection at Lone Tree Way and borders the City of Antioch on the north and west sides. The PD-51 zone is located in the northwest corner of SPA P. PD-51 is bounded by Lone Tree Way to the north, Heidorn Ranch Road to the west, a 100-foot East Bay Municipal Utility District (EBMUD) right-of-way (Mokelumne Aqueduct) to the south, and the Bypass to the east. SPA P is intended to serve as a major employment area and provide land for large regional retail commercial businesses, professional office uses, manufacturing and light industrial uses due to its strategic location between two Bypass interchanges at Lone Tree Way and Sand Creek Road. The General Plan designates the northern portion of PD-51, encompassing more than half of the zone, for a major regional retail center, and the southern portion either for all retail, or office, or light industrial, or very high density residential, or for a combination of two or more of the foregoing uses.

C. Intent. To achieve the foregoing purpose, the PD-51 zone shall be divided into two subareas and developed generally as described below:

1. Subarea A consists of the northern approximately 51 acres and is intended primarily for the development of a major retail center to meet the retail and commercial needs of residents of Brentwood and the region. Other uses consistent with the “Regional Commercial” General Plan land use designation may be allowed provided that they are found compatible with the primary use.

2. Subarea B consists of the southern approximately 24 acres and is intended primarily for the development of one or a combination of the following uses: retail; office; light industrial; and very high density residential. Other uses consistent with the “Business Park” General Plan land use designation may be allowed provided that they are found compatible with the primary use or uses.

3. The above descriptions of Subarea A and Subarea B are general and intended to be conceptual only. The exact size of each of Subarea A and Subarea B, and the precise boundary between Subarea A and Subarea B, shall be established through the design and site development review procedure contained in Chapter 17.820 and any minor change to the boundary between Subarea “A” and Subarea “B” can be made by the Community Development Director after making the finding that the change is in substantial compliance with the originally approved map.

4. Each of Subarea A and Subarea B may be developed in phases.

17.506.002 Permitted uses.

The following uses are permitted within the PD-51 zone:

A. Subarea A. The following uses are permitted within this area:

1. Large-scale regional retail sales uses including by way of example but not limited to big-box, factory outlet, discount and similar retail uses requiring or best suited for operation within a warehouse type facility; large department stores; and large-scale general merchandise, sporting goods, home furnishings, home improvement and building materials (with or without lumber sales), home appliances, nursery, garden supply, hardware, electronics, office supply, and off-site liquor sales stores; large-scale book, video, music and toy stores; large-scale pet and pet supply stores including on-site veterinary clinics but not kennels; and large-scale automobile, motorcycle, recreational vehicle and boat parts and accessory stores; and similar establishments. 

Outdoor display and/or sale of merchandise shall be permitted within an area approved by the property owner and designated and in accordance with standards specified in a design and site development review approval pursuant to Chapter 17.820. Outdoor display and/or sale within an area so designated on a sidewalk which fronts a building is permitted at all times. Temporary display and/or sale within an area so designated on parking area adjacent to a store shall be limited to six (6) events per year for a maximum of fifteen (15) days per event, except for the period from November 15 through December 31, when the duration may be forty-six (46) days. Temporary parking lot display and/or sale areas shall not be designated for any retail user which occupies less than 20,000 square feet of building space. The semi-enclosed seasonal sales area on the north side of the major tenant on Parcel 5 (Home Depot) has no time restriction on sales in that area. 

2. General retail sales1 including by way of example but not limited to junior department stores; supermarkets; drugstores; general merchandise, sporting goods, home furnishings, home improvement, home appliance, nursery, garden supply, hardware, electronics, office supply and off-site liquor sales stores; book, video, music and toy stores; pet and pet supply stores including on-site veterinary clinics but excluding kennels; and automobile, motorcycle, recreational vehicle and boat parts and accessory stores;2 and similar establishments. 

Temporary outdoor display and/or sale of merchandise shall be permitted only on sidewalks that front buildings, within an area approved by the property owner and designated and in accordance with standards specified in a design and site development review approval pursuant to Chapter 17.820. Sales and display areas are to cover no more than 50% of the sidewalk area in front of a retailer’s building or unit, and are to be maintained in an attractive, neat and clean appearance. Outdoor displays and/or sales are permitted only for up to six (6) ten (10) day periods per year. 

3. Specialty merchandise and convenience sales including by way of example but not limited to specialty foods, delicatessen, bakery, pastry, candy, ice cream, butcher, meat market, wine, tobacco, apparel and accessory, jewelry, cosmetics, gift, stationery, shoe, kitchenware, hobby and specialty interest stores, and similar establishments.

4. Eating, drinking and entertainment establishments including by way of example but not limited to full-service, sit-down restaurant establishments, including restaurants with an on-site liquor sales license; convenience restaurants such as sandwich shops; video arcades; indoor movie theatre; bowling alley; skating rink; and similar establishments.

5. Commercial services including by way of example but not limited to barber shop, beauty shop, hair salon, laundry, dry cleaning, laundromat, electronic, appliance, watch and clock repair, health club, recreation club, reducing studio, tanning studio, small equipment rental and repair, real estate sales and rental, title and escrow services, architectural, engineering, legal and accounting services, insurance agency, employment agency, out-patient medical, dental and optical services, technology access center, telecommuting center, addressing and mailing service, blueprinting, photostating and desk top publishing service (other than a printer or lithographer), drafting service, messenger service, stenographic service, answering service, telegraph office, private postal box service, travel agency, bank branch, ATM facility, and similar establishments.

6. Commercial uses which may or may not manufacture their primary product on the premises such as a drapery, cabinet or upholstery shop, and similar establishments.

7. Financial institutions when three or more such uses are located in the CB district at the time of application for a discretionary approval by the city or, if no discretionary approval is needed, at the time of initial nondiscretionary approval, e.g., building permit or certificate of occupancy,

8. Business, institutional, administrative and professional offices, including but not limited to large-scale single and/or multi-tenant office uses; and public and quasi-public offices such as government offices, library, post office and utility office.

9. Similar uses subject to the approval of the zoning administrator.

10. Accessory, temporary and service uses customarily associated with and related to a principal use in accordance with and subject to compliance with the requirements of Chapter 17.650.

B. Subarea B. The following uses are permitted within this area:

1. All of the uses permitted within Subarea A.

2. Very high density multi-family residential at an average density of from 25 to 30 dwelling units per gross acre.

3. Uses, facilities and buildings customarily associated with and related to high density residential use including but not limited to private recreational facilities for homeowner and/or tenant use only, and a rental and/or management office; and home occupations subject to obtaining a home occupation permit pursuant to Chapter 17.840.

4. Self-service storage facilities (mini-storage or warehouse) with or without a resident manager’s dwelling unit.

5. Light industrial uses including by way of example but not limited to computer software and biotechnology companies; medical supply companies; medical, dental and optical laboratories; warehouse; and similar uses.

6. Research and development facilities including research, office, support and warehouse areas.

7. Similar uses subject to the approval of the zoning administrator.

8. Accessory, temporary and service uses customarily associated with and related to a principal use in accordance with and subject to compliance with the requirements of Chapter 17.650.

17.506.003 Conditionally permitted uses.

Upon obtaining a conditional use permit pursuant to Chapter 17.830, the following uses are permitted in the PD-51 zone:

A. Subarea A. The following uses shall be conditionally permitted within this subarea:

1. All drive-in, drive-through establishments.

2. Outdoor sales, displays and storage, other than outdoor sales and displays permitted under Sections 17.506.002.A.1 and 2.

3. Automobile service stations.

4. Automobile, motorcycle, recreational vehicle sales, service and repair facilities.

5. In-patient medical facilities licensed by the state and medical and dental laboratories.

6. Hotels and motels.

7. Veterinary facilities including kennels.

8. Sports bar, lounge, nightclub and similar establishments with on-site sale of alcoholic beverages, including establishments which offer food, entertainment and/or dancing.

9. Other uses that the zoning administrator determines, because of type of operation, material stored or sold, or other special circumstances require special consideration and regulation through the conditional use permit procedure.

10. Accessory, temporary and service uses customarily associated with and related to a conditionally permitted use in accordance with and subject to compliance with the requirements of Chapter 17.650.

11. All non-motorized or motorized food or merchandise vending carts or vehicles.

B. Subarea B. The following uses shall be conditionally permitted within this subarea:

1. All of the uses which are allowable within Subarea A subject to the issuance of a conditional use permit.

2. Day care facilities for children.

3. Accessory, temporary and service uses customarily associated with and related to a conditionally permitted use in accordance with and subject to compliance with the requirements of Chapter 17.650.

17.506.004 Development standards.

All permitted and conditionally permitted uses developed within Subareas A and B shall conform to the following standards:

A. Basic Standards:

1. General Commercial Development Standards:


Development Standards 
General Commercial

Minimum Parcel Size 
NA1

Minimum building setback from face of curb – internal streets 
15’-0”2,3

Minimum building setback from interior property lines 
0’-0”2,3
Minimum building setback from Highway 4 Bypass right-of-way 30’-0”3
Minimum building setback from face of curb – Lone Tree Way and Heidorn Ranch Road 
25’-0”3

Building Height 
50’-0”4

Office Parking 
1/250 s.f.

Retail Parking 
1/300 s.f.

Restaurant Parking (convenience) 
1/150 s.f.

Restaurant Parking (sit-down) 
10/1000 s.f.

Maximum commercial floor area ratio 
.306

2. Multi-Family Residential Development Standards:


Development Standards 
Multi-Family Residential

Minimum Parcel Size 
NA1

Minimum building setback from face of curb – internal streets 
10’-0” 2,3

Minimum building setback from interior property lines 
5’-0”2,3

Minimum Building Setback from face of curb – Heidorn Ranch Road 
25’-0”3
Minimum building setback from Highway 4 Bypass right-of-way 30’-0”3

Minimum Private Open Space 
100 s.f. patio w/ a 10’ min. dimension or 50 s.f. deck with a min. dimension of 5’

Common Open Space 
50 s.f. of common open space per dwelling unit. The minimum dimension of any space satisfying this standard is 10’. This common open space shall be improved for either passive or active use by the residents.

Maximum Building Height
Maximum Stories 
45’-0”4
3 stories4

Required Parking 
2 spaces/3BR unit
2 spaces/2BR unit
2 spaces/1 BR unit
1.5 space/Studio unit

Maximum residential unit density 
30 units/acre

3. Office Development Standards:


Development Standards 
Office

Lot Size 
NA1

Minimum building setback from face of curb – internal streets 
15’-0”2,3

Minimum building setback from interior property lines 
5’-0”2,3

Minimum Building Setback from face of curb – Heidorn Ranch Road 
25’-0”3
Minimum building setback from Highway 4 Bypass right-of-way 30’-0”3

Maximum Building Height
Maximum Stories 
40’-0”4
3 stories

Required Parking 
1/250 s.f. 

Maximum Office floor area ratio 
.426

4. Light Industrial/R & D Development Standards:


Development Standards 
Light Industrial/R & D

Minimum Parcel Size 
NA1

Minimum building setback from face of curb – interior streets 
15’-0”2,3

Minimum building setback from interior property line 
5’-00” 2,3

Minimum building setback from face of curb - Lone Tree Way and Heidorn Ranch Road 
25’-0”3

Building Height 
40’-0”4
Light Industrial Parking 1/500 s.f. 7

R & D Parking 
1/300 s.f.

Maximum Light Industrial floor area ratio 
.406

Maximum R & D floor area ratio 
.356

_______________________________________

1 As specified in a design and site development review approval under Chapter 17.820 or a conditional use permit under Chapter 17.830. 

2 Building setbacks from internal streets and interior property lines may be reduced by a design and site development review approval under Chapter 17.820 or a conditional use permit under Chapter 17.830.

3 Exceptions to above setback requirements are the following:
a. Architectural projections (such as columns, fireplaces, bay windows, window seats, second floor overhangs, balconies, decks, porches, building facades at entries) and planter boxes may encroach up to a maximum of two feet into the required setback.
b. Freestanding signage as permitted in the planned sign program.
c. Outdoor seating areas may encroach up to a maximum of four feet into the required setback.

4 Greater heights may be permitted by a design and site development review approval under Chapter 17.820 or a conditional use permit under Chapter 17.830. Buildings above 70 feet shall be designed and oriented to minimize obstruction of scenic views of Mt. Diablo and the foothills to the west from Lone Tree Way and the Highway 4 Bypass.

5. Deleted.

6 Greater floor area ratio may be permitted by a design and site development review approval under Chapter 17.820 or a conditional use permit under Chapter 17.830.

7 Office space shall not exceed 50% of floor area.

B. Residential Density: An average of from 25 to 30 dwelling units per gross acre.

C. Landscaping and Screening: PD-51 shall include a distinctive city entry element at the southeast corner of Lone Tree Way and Heidorn Ranch Road to distinguish Brentwood from Antioch and welcome those entering Brentwood. The design of the area along the eastern edge of Heidorn Ranch Road shall include an open space buffer with a minimum width of 25 feet to distinguish Brentwood from Antioch. The buffer shall be graded and landscaped to physically screen Heidorn Ranch Road and residential development to the west from visual, light, glare and noise impacts from development within PD-51. Landscaping and screening shall also be provided along the western edge of the Highway 4 Bypass, along the southern edge of Lone Tree Way, and within PD-51 in accordance with Chapter 17.630. Landscaping and screening requirements for each phase of development within PD-51 shall be specified in a master landscaping and screening program for PD-51 approved by the Planning Commission or in the design and site development review approval for that phase.

All establishments in PD-51 with drive through windows or counters for the purpose of selling food or merchandise to the general public, shall screen those windows and counters from view from the public right of way by extensive shrub and tree landscaping, landscaped berms or trellises. Said screening will be reviewed and approved by the City through the Conditional Use Permit process specified y Section 17.506.003 above.

D. Advertising Signs. The design and site development review approval for the first phase of development within the PD-51 zone shall include the approval of the City of Brentwood Entry monument statement sign, the 2 sided center identification Pylon Sign “D”, the 2 sided Monument center identification Sign “E”, the 2 sided monument tenant identification sign “F”, and the smaller entry and tenant identification statement signs only. For all other signage needs within this center (i.e. individual store front signs, additional identification signs, etc.) the applicant must apply for and receive approval of a Master Sign Program. All signs within the PD-51 zone shall conform to the planned sign program as the same may be amended from time to time pursuant to Chapter 17.820.

E. Other Development Standards:

1. Refuse Disposal Enclosure. All facilities shall provide masonry refuse disposal enclosures to city standards and specifications.

2. Illumination of Parking Facilities and Structures. All facilities shall provide adequate lighting or illumination of parking facilities and structures pursuant to Chapter 17.620.

3. Parking Lot Design and Development Standards. All facilities shall comply with the offstreet parking design and development standards of Chapter 17.620.

4. Open Storage or Display. Open storage and/or outdoor display of merchandise is prohibited unless conducted within an area designated and in accordance with standards specified in a design and site development review approval pursuant to Sections 17.506.002.A.1 and 2, or expressly provided for by a conditional use permit.

5. Accessory structures and buildings shall be permitted pursuant to the provisions of Chapter 17.650.

6. Security Measures. All facilities shall provide security measures in accordance with city standards and subject to design review.

7. Energy Conservation. All facilities shall, to the greatest extent possible, incorporate energy conservation measures in conformance with city standards and subject to design review.

8. Manufacturing and Storage Areas. All manufacturing processes shall be within a structure and all open storage areas shall be screened with a minimum six-foot high view-obscuring fence. No storage shall exceed the height of the fence. Masonry walls shall be utilized for screening areas visible from a public street while chain link with view-obscuring slats or other fencing materials, other than wood, may be used for screening areas not visible from a public street.

9. There shall be no overnight parking of mobile homes, recreational vehicles, buses or campers in the public parking or common areas of PD-51, nor any display of vehicles for sale by owners at any time. There shall also be no permanent or long term (longer than 7 days) storage of merchandise or equipment in the parking areas or sidewalks at any time, with the exception of those areas specifically approved for such uses pursuant to Chapter 17.830.

10. Development shall occur per the phasing plan/map as approved by the Planning Commission on June 26, 2002 or as may otherwise provided in a Development Agreement adopted by the City Council for the Arcadia Mixed Use Development Project. 

17.506.005 Performance standards.

All permitted and conditionally permitted uses developed within Subareas A and B shall conform to the performance standards set forth below:

A. Noise.

1. At the property line, the maximum sound pressure level radiated by listed uses or facilities shall not exceed the following values:

Light industrial and warehouse -- 75dBA
Retail, office, residential -- 65dBA;

2. The sound pressure level shall be measured with a sound level meter and associated octave band analyzer conforming to the standards prescribed by the American Standards Association;

3. American Standards Sound Level Meters for Measurement of Noise and Other Sounds, Z224.3-1994, American Standards Association, Inc., New York, NY, and American Standard Specification for an Octave-Bank Filter Set for the Analysis of Noise and Other Sounds, Z224.10-1953, or latest approved revision thereof, American Standards Association, Inc., New York, NY, shall be used.

4. The sound pressure level limits of this section shall not apply to warning devices.

B. Heat, Glare and Humidity.

1. Any operation producing intense heat shall be performed within a completely enclosed building in such a manner as not to create a public nuisance or hazard along lot lines;

2. Any operation or activity producing glare shall be performed within a completely enclosed building and be conducted so that direct and indirect illumination from the source of light on the lot shall not cause illumination in excess of one foot candle when measured at the lot line. Exposed sources of light shall be shielded and flickering or intense sources of light shall be controlled so as not to cause a nuisance across lot lines;

3. Any use producing humidity in the form of steam or moist air, or producing heat, shall be carried on in such a manner that steam, humidity or heat is not perceptible at any lot line.

C. Vibration. Any industrial operation or activity which shall cause at any point along the property line of the subject use, earth-borne vibrations which are discernible without the use of instruments is prohibited.

D. Fire, Safety and Explosion. All uses shall provide adequate safety devices against fire, explosion and other hazards and adequate firefighting and fire-suppression equipment in compliance with applicable fire prevention and building codes.

E. Soundproofing. Residential and other acoustically-sensitive activities shall be designed so that interior noise levels due to exterior noise sources do not exceed the peak hour Leq 55dBA.

F. Solid and Liquid Waste.

1. No discharge at any point into public sewer, stream or bay or into the ground shall be permitted, except in accord with the standards approved by the state department of health, or standards specified in applicable local ordinances for similar uses of any materials of such nature or temperature as can contaminate any water supply, interfere with bacterial processes in sewage treatment, or otherwise cause the emission of dangerous or offensive elements;

2. No materials or wastes shall be deposited on any property in such form or manner that they may be transferred off the property by natural causes or forces;

3. Any wastes which might be attractive to rodents or insects shall be stored outdoors only in closed containers.

G. Electrical and Radioactive Radiation. No activities shall be permitted which emit dangerous radioactivity at any point, electrical disturbances adversely affecting the operation at any point of any equipment other than that of the creator of such disturbance.

H. Air Pollution. All uses shall comply with regulations of the San Francisco Bay Area Air Pollution Control District.

1. Smoke. For the purpose of determining the density or equivalent opacity of smoke, the Ringlemann Chart as published by the U.S. Bureau of Mines in Circular No. 7718 (August, 1955) shall be employed. The emission of smoke from any chimney, stack, vent, opening or combustion process shall not exceed Ringlemann No. 1;

2. Odors. No emission shall be permitted of odorous gases or other odorous matter in such quantities as to be readily detectable at the property line of the subject use;

3. Toxic and Noxious Matter. No use shall be permitted which creates any emission which endangers human health, can cause damage to animals, vegetation or other property or which can cause soiling at any point beyond the boundaries of the site. (Ord. 526 (part), 1993).

17.506.006 Design and site development review.

The design and site development of each phase within the PD-51 zone shall comply with Chapter 17.820 of the Brentwood Municipal Code. 



ORDINANCE NO. 713

AN ORDINANCE APPROVING THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF BRENTWOOD AND ARCADIA DEVELOPMENT COMPANY 

The Council of the City of Brentwood does ordain as follows:

SECTION 1. FINDINGS. The City Council of the City of Brentwood hereby finds and determines as follows:

A. Arcadia Development Company ("Arcadia") has purchased a legal interest in certain real property, consisting of approximately 75 acres, located in the City and bounded by Lone Tree Way to the north, Heidorn Ranch Road to the west, a 100-foot East Bay Municipal Utility District (“EBMUD”) right of way to the south, and the State Route 4 Bypass to the east ("Property"); 

B. The Property is located within the Special Planning Area (SPA) P, which intended to serve as a major employment area and to provide land large regional retail commercial businesses, professional office uses, manufacturing and light industrial uses due to its strategic location between two State Highway 4 Bypass interchanges at Lone Tree Way and Sand Creek Road;

C. The City’s General Plan designates this Property for a major regional retail center, and the southern portion for all retail, or office, or light industrial, or very high density residential, or for a combination of two or more of the foregoing land uses; 

D. The City acknowledges and the General Plan and Zoning Ordinance reflect the uncertainty regarding the future retail, commercial and residential demands of the community for development of the Property and Arcadia’s need to maintain flexibility for its future development options. 

E. The City has determined that the Project offers substantial health, safety, and general welfare public benefits and opportunities which are advanced by City and Arcadia entering into a Development Agreement;

F. The City desires to promote the orderly development of the subject real property described in the Development Agreement between the City of Brentwood and Arcadia (“Development Agreement") and to outline the applicable law, regulations, ordinances, resolutions, policies, and standards and specifications, permitted uses, and restrictions on moratoria and other limitations on the rate or timing of development, and the life of subdivision maps. 

SECTION 2. The Planning Commission has approved a recommendation to the City Council to enter into the Development Agreement based upon the findings outlined in its July 2, 2002, Resolution No. 02-44 setting forth the Planning Commission's determination the proposed Development Agreement conforms to the findings set forth in Brentwood Municipal Code §17.810.008.

The Planning Commission's recommendation is to approve the Development Agreement and the Project, including the project approvals as outlined in the Development Agreement, and subsequent approvals and certain alternatives to the Project. The Planning Commission has reviewed and assessed the environmental impacts of the Development Agreement and Project based upon the California Environmental Quality Act, California Public Resources Code Section 21000, et seq. the CEQA guidelines, and California Code of Regulations, Title 14, Section 1500, et seq. and the City's local guidelines and based on the project EIR and earlier EIRs and planning studies, including the traffic study for the Property and its proposed land uses and adjacent planned uses as well as the Initial Study/Mitigated Negative Declaration adoption.

SECTION 3. INCORPORATION. The foregoing sections, findings, and staff report statements are found and determined to be true and correct.

SECTION 4. COMPLIANCE. The Development Agreement has been processed, considered, approved, and executed in accordance with Brentwood Municipal Code Chapter 17.810.

SECTION 5. FINDINGS PURSUANT TO B.M.C. §17.810.008. The City Council specifically further finds as follows: 

A. The development agreement is consistent with the objectives, policies, general land uses and programs specified in the City General Plan and Special Planning Area as it provides for the creation of new jobs in an attempt to attain a 1:5 housing to jobs ratio and much needed regional retail center. 

B. The development agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, nor be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the city as a whole, as it simply carries out the land use and zoning designations approved for the Property.

C. The development agreement will not adversely affect the orderly development of property or the preservation of property values as it is the intention of the development agreement to implement the existing land use and zoning designations for the Property as approved in the General Plan update process.

D. As there is an applicable specific plan (SPA P) to the subject sites, the finding concerning facilitation of the implementation of a specific plan is applicable in this case as determined by the City Council through its 
rezoning and Special Planning Area process.

E. The development agreement is consistent with the provisions of Government Code Section 65864 through 65869.5.

SECTION 6. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.

SECTION 7. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in Ledger Dispatch, the official newspaper of the City of Brentwood, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.

SECTION 8. RECORDATION. Pursuant to Government Code §65868.5, the City Council authorizes the City Clerk to record a fully executed copy of the Development Agreement, attached hereto as Exhibit a, in the Official Records of the County of Contra Costa, within 10 days after City enters into this Development Agreement.



PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a special meeting on the 5th day of August 2002 by the following vote:

AYES: Councilmembers
NOES: 
ABSENT: 

_________________________
Michael A. McPoland, Sr.
Mayor

ATTEST:

___________________
Karen Diaz, CMC
City Clerk


State of California)
County of Contra Costa) ss.
City of Brentwood )

I, Karen Diaz, City Clerk of the City of Brentwood, do hereby certify that the foregoing Ordinance had its first reading on August 5, 2002 and had its second reading on August 13, 2002 and was passed by the following vote:

AYES: Councilmembers 
NOES: None
ABSENT: None

_________________________
Karen Diaz, CMC
City Clerk 

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Brentwood
150 City Park Way
Brentwood, California 94513
Attention: City Clerk


(Space Above This Line Reserved For Recorder’s Use)


DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF BRENTWOOD
AND
ARCADIA DEVELOPMENT CO.

Table of Contents
ARTICLE 1. DEFINITIONS 4
ARTICLE 2. EFFECTIVE DATE AND TERM 7
SECTION 2.01. EFFECTIVE DATE 7
SECTION 2.02. TERM 7
ARTICLE 3. OBLIGATIONS OF ARCADIA 7
SECTION 3.01. OBLIGATIONS OF ARCADIA GENERALLY 7
SECTION 3.02. TRAFFIC AND OTHER IMPROVEMENTS 8
SECTION 3.03. EARLY DEDICATION OF PROPERTY FOR PUBLIC ROADWAYS 8
SECTION 3.04. CITY ENTRY ELEMENT AND OTHER CONSIDERATION 9
SECTION 3.05. SITE MAINTENANCE 9
SECTION 3.06. ADDITIONAL SCREENING 9
ARTICLE 4. OBLIGATIONS OF CITY 9
SECTION 4.01. OBLIGATIONS OF CITY GENERALLY 9
SECTION 4.02. PROTECTION OF VESTED RIGHTS 10
SECTION 4.03. AVAILABILITY OF PUBLIC SERVICES 10
SECTION 4.04. RIGHT TO REBUILD 10
SECTION 4.05. IMPOSITION OF DEVELOPMENT FEES 10
ARTICLE 5. COOPERATION - IMPLEMENTATION 11
SECTION 5.01. PROCESSING APPLICATIONS FOR SUBSEQUENT APPROVALS 11
SECTION 5.02. TIMELY SUBMITTALS BY ARCADIA 11
SECTION 5.03. TIMELY PROCESSING BY CITY 11
SECTION 5.04. REVIEW OF SUBSEQUENT APPROVAL APPLICATIONS 11
SECTION 5.05. SPECIFIC SUBSEQUENT APPROVALS 12
SECTION 5.06. OTHER GOVERNMENT PERMITS 12
ARTICLE 6. STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT 12
SECTION 6.01. VESTED RIGHT TO DEVELOP 12
SECTION 6.02. PERMITTED USES VESTED BY THIS AGREEMENT 13
SECTION 6.03. APPLICABLE LAW 13
SECTION 6.04. RETAIL AND COMMERCIAL DEVELOPMENT FEES AND EXACTIONS 13
SECTION 6.05. UNIFORM CODES 13
SECTION 6.06. NO CONFLICTING ENACTMENTS 13
SECTION 6.07. INITIATIVES AND REFERENDA 15
SECTION 6.08. ENVIRONMENTAL MITIGATION 15
SECTION 6.09. LIFE OF SUBDIVISION MAPS, DEVELOPMENT APPROVALS, AND PERMITS 15
SECTION 6.10. STATE AND FEDERAL LAW 16
SECTION 6.11. TIMING OF PROJECT CONSTRUCTION AND COMPLETION 16
SECTION 6.12. EXEMPTING FEES IMPOSED BY OUTSIDE AGENCIES 17
SECTION 6.13. INCLUSIONARY HOUSING ORDINANCE 17
ARTICLE 7. AMENDMENT 18
SECTION 7.01. AMENDMENT TO PROJECT APPROVALS, SUBSEQUENT APPROVALS 18
SECTION 7.02. AMENDMENT OF THIS AGREEMENT 19
ARTICLE 8. ASSIGNMENT, TRANSFER AND MORTGAGEE PROTECTION 19
SECTION 8.01. ASSIGNMENT OF INTERESTS, RIGHTS AND OBLIGATIONS 19
SECTION 8.02. TRANSFER AGREEMENTS 19
SECTION 8.03. NON-ASSUMING TRANSFEREES 20
SECTION 8.04. MORTGAGEE PROTECTION 21
SECTION 8.05. NOTICE OF COMPLIANCE 22
ARTICLE 9. COOPERATION IN THE EVENT OF LEGAL CHALLENGE 22
SECTION 9.01. COOPERATION 22
SECTION 9.02. CURE; REAPPROVAL 23
ARTICLE 10. DEFAULT; REMEDIES; TERMINATION 24
SECTION 10.01. DEFAULTS 24
SECTION 10.02. TERMINATION BY CITY 24
SECTION 10.03. PERIODIC REVIEW 25
SECTION 10.04. DEFAULT BY CITY OR ARCADIA 26
SECTION 10.05. EXCUSABLE DELAY; EXTENSION OF TIME OF PERFORMANCE 26
SECTION 10.06. LEGAL ACTION 26
SECTION 10.07. CALIFORNIA LAW 26
SECTION 10.08. RESOLUTION OF DISPUTES 26
SECTION 10.09. ATTORNEYS’ FEES 27
SECTION 10.10. HOLD HARMLESS 27
SECTION 10.11. NON-ASSUMING TRANSFEREE 27
ARTICLE 11. MISCELLANEOUS 27
SECTION 11.01. INCORPORATION OF RECITALS AND INTRODUCTORY PARAGRAPH 27
SECTION 11.02. ENFORCEABILITY 27
SECTION 11.03. FINDINGS 28
SECTION 11.04. SEVERABILITY 28
SECTION 11.05. OTHER NECESSARY ACTS 28
SECTION 11.06. CONSTRUCTION 28
SECTION 11.07. OTHER MISCELLANEOUS TERMS 29
SECTION 11.08. COVENANTS RUNNING WITH THE LAND 29
SECTION 11.09. NO AGENCY, JOINT VENTURE OR PARTNERSHIP 29
SECTION 11.10. NOTICES 29
SECTION 11.11. ENTIRE AGREEMENT, COUNTERPARTS AND EXHIBITS 30
SECTION 11.12. RECORDATION OF DEVELOPMENT AGREEMENT 31



DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF BRENTWOOD
AND
ARCADIA DEVELOPMENT CO.

THIS DEVELOPMENT AGREEMENT (the “Agreement”) is entered into as of ___________ ___, 2002 by and between Arcadia Development Co., a California corporation (“Arcadia”), and the City of Brentwood, a municipal corporation (“City”), pursuant to California Government Code Section 65864 et seq.
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 Section 65864 et seq. (the “Development Agreement Statute”), which authorizes the City to enter into a development 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, City has adopted procedures and requirements for the consideration of development agreements (City of Brentwood Municipal Code, Chapter 17.810). This Agreement has been processed, considered and executed in accordance with such procedures and requirements.
C. Arcadia has a legal interest in certain real property consisting of approximately 75 acres located in the City of Brentwood and bounded by Lone Tree Way to the north, Heidorn Ranch Road to the west, a 100-foot-wide East Bay Municipal Utility District (EBMUD) right-of-way (Mokelumne Aqueduct) to the south, and the State Route 4 Bypass to the east, as more particularly described in Exhibit A-1 attached hereto, and as diagrammed in Exhibit A-2 attached hereto (the “Property”).
D. The City of Brentwood General Plan includes the Property within Special Planning Area (SPA) P, which consists of approximately 525 acres in the northwest corner of the City. SPA P is intended to serve as a major employment area and provide land for large regional retail commercial businesses, professional office uses, manufacturing and light industrial uses due to its strategic location between two Bypass interchanges at Lone Tree Way and Sand Creek Road. The City of Brentwood Zoning Ordinance includes all of the Property, and no other property, within the PD-51 (Planned Development Fifty-One) Zone-Arcadia Mixed Use Project Area (the “PD-51 Zone”).
E. The General Plan designates the northern portion of the Property, encompassing more than half of the PD-51 Zone, for a major regional retail center, and the southern portion either for all retail, or office, or light industrial, or very high density residential, or for a combination of two or more of the foregoing uses. To implement the General Plan, Chapter 17.506 of the Zoning Ordinance, the PD-51 Zoning Regulations, divides the Property into two subareas: Subarea A consists of the northern approximately 51 acres and is intended primarily for the development of a major retail center to meet the retail and commercial needs of residents of the City and the region. Other uses consistent with the “Regional Commercial” General Plan land use designation may be allowed provided they are found compatible with the primary use. Subarea B consists of the southern approximately 24 acres and is intended primarily for the development of one or a combination of retail, office, light industrial and very high density residential uses. Other uses consistent with the “Business Park” General Plan land use designation may be allowed provided they are found compatible with the primary use or uses.
F. The City acknowledges Arcadia’s need to maintain flexibility for its future development options on the Property. Consistent therewith, Arcadia has submitted and City has reviewed and evaluated two alternative designs and site development plans for the Property. Site Plan A is generally shown and described in Exhibit B-1 attached hereto; and Site Plan B is generally shown and described in Exhibit B-2 attached hereto. The off-site and on-site public roadway and other major infrastructure facilities for development of the Property in its entirety, and the retail and commercial development within Subarea A, are the same in both Site Plans. The differences between the two are included within Subarea B. Site Plan A would include additional retail, office and storage uses within Subarea B; and Site Plan B would include office and very high-density multi-family residential uses within Subarea B. Each of the two Site Plans has been fully analyzed and evaluated in the Final EIR, defined below; and each has been approved by both the Planning Commission and the City Council. Site Plan A and Site Plan B shall be referred to herein collectively as the “Project.” The existing and contemplated City land use entitlements related to the Project are further described in the Project Approvals, defined below.
G. City has taken several actions to review and plan for the future development of the Project. These include, without limitation, the following: 
1. Final Environmental Impact Report. The environmental impacts of the Project, including the Project Approvals (as defined below), the Subsequent Approvals (as defined below) and certain alternatives to the Project have properly been reviewed and assessed by City pursuant to the California Environmental Quality Act, California Public Resources Code Section 21000 et seq., the “CEQA Guidelines,” California Code of Regulations, Title 14, Section 15000 et seq., and City’s local guidelines promulgated thereunder (hereinafter collectively referred to as “CEQA”). On June 26, 2002, at a duly noticed public hearing and pursuant to CEQA, the Planning Commission certified the Final Environmental Impact Report for the Arcadia Mixed Use Development Project (the “Final EIR”), made the findings required by Public Resources Code Section 21081 (the “CEQA Findings”), made findings of overriding considerations pursuant to Public Resources Code Section 21081 (the “Overriding Findings”), and adopted a Mitigation Monitoring Program for the Project pursuant to Public Resources Code Section 21081.6;
2. Planned Development Zoning Regulations. On ____________, 2002, at a duly noticed public hearing, and after review and consideration of the Final EIR, and review and ratification of the CEQA Findings and Overriding Findings made by the Planning Commission and the Mitigation Monitoring Program adopted by the Planning Commission, and upon recommendation of the Planning Commission, the City Council adopted Ordinance No. _______, establishing development regulations for Planned Development Zone 51 (the “PD-51 Zoning Regulations”); 
3. Design and Site Development Plan. On June 26, 2002, at a duly noticed public hearing, and after review and consideration of the Final EIR, and subject to City Council adoption of the PD-51 Zoning Regulations, the Planning Commission approved Design and Site Development Plan A for the Site Plan A alternative (“Development Plan A”) and Design and Site Development Plan B for the Site Plan B alternative (“Development Plan B”), pursuant to Planning Commission Resolution No. 02-39;
4. Tentative Map. On June 26, 2002, at a duly noticed public hearing, and after review and consideration of the Final EIR, and subject to City Council adoption of the PD-51 Zoning Regulations, the Planning Commission approved Tentative Subdivision Map 8515 Arcadia Mixed Use Development Plan A for the Property consistent with Development Plan A, and Tentative Subdivision Map 8515 Arcadia Mixed Use Development Plan B for the Property consistent with Development Plan B (hereinafter collectively called the “Tentative Map”), pursuant to Planning Commission Resolution No. 02-39. The Tentative Map provides for phased final maps. The Tentative Map permits either the phased filing of final maps containing an aggregate of 14 parcels, consistent with Development Plan A, should Arcadia opt to complete development of the Project consistent with Development Plan A, or the phased filing of final maps containing an aggregate of 12 parcels, consistent with Development Plan B, should Arcadia opt to complete development of the Project consistent with Development Plan B;
5. Development Agreement. On __________, 2002, at a duly noticed public hearing, and after review and consideration of the Final EIR, and upon recommendation of the Planning Commission, the City Council adopted Ordinance No. ______ approving this Agreement.
The approvals and development policies described in this Recital G, as the same may be amended from time to time, are collectively referred to herein as the “Project Approvals.”
H. City has determined that the Project offers substantial health, safety and general welfare public benefits and opportunities that are advanced by City and Arcadia entering into this Agreement. This Agreement will, among other things, (1) reduce uncertainties in planning and provide for the orderly development of the Project; (2) mitigate certain significant environmental impacts; (3) implement the General Plan goals for the Property; (4) strengthen the City’s economic base with a variety of retail and commercial jobs, in addition to shorter term construction jobs; (5) improve the City’s jobs-housing balance; (6) provide for and generate substantial revenues for the City in the form of one time and annual fees and exactions and other fiscal benefits, including sales taxes generated by the regional retail development; (7) result in the construction of certain regionally significant infrastructure improvements; (8) provide housing opportunities for the employees of the retail businesses immediately adjacent to the workplace thereby reducing commute traffic at peak hours if the residential component is constructed; and (9) otherwise achieve the goals and purposes in the General Plan for which the Development Agreement Statute was enacted.
I. In exchange for the benefits to City described in the preceding Recital, together with the other public benefits that will result from the development of the Project, Arcadia will receive by this Agreement assurances and vested rights that it may proceed with the Project in accordance with the “Applicable Law” (defined below), and therefore desires to enter into this Agreement.
J. The City Council, after conducting a duly noticed public hearing, has found that this Agreement is consistent with the General Plan and has conducted all necessary proceedings in accordance with the City’s rules and regulations for the approval of this Agreement.
NOW, THEREFORE, in consideration of the premises, covenants and provisions set forth herein, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
DEFINITIONS
“Administrative Project Amendment” shall have that meaning set forth in Section 7.01 of this Agreement.
“Agreement” shall have that meaning set forth in the introductory clause of this Agreement.
“Applicable Law” shall have that meaning set forth in Section 6.03 of this Agreement.
“Arcadia” shall mean Arcadia Development Co., a California corporation.
“CEQA” shall have that meaning set forth in Recital G.1 of this Agreement.
“CEQA Findings” shall have that meaning set forth in Recital G.1 of this Agreement.
“Certificate of Occupancy” shall mean a certificate of occupancy issued by the Building Division of the Brentwood Community Development Department for the “cold shell” of a building only, and shall not mean or require the issuance of a certificate of occupancy for tenant improvements within any such building.
“Changes in the Law” shall have that meaning set forth in Section 6.11 of this Agreement.
“City” shall mean the City of Brentwood, and shall include, unless otherwise provided, any of the City’s agencies, departments, employees or consultants.
“City Council” shall mean the Brentwood City Council.
“City Law” shall have that meaning set forth in Section 6.07 of this Agreement.
“Community Development Director” shall mean the Director of the City of Brentwood Department of Community Development, or his or her designee.
“Default Notice” shall have that meaning set forth in Section 10.01 of this Agreement.
“Deficiencies” shall have that meaning set forth in Section 9.02 of this Agreement.
“Development Agreement Statute” shall have that meaning set forth in Recital A of this Agreement.
“Development Fee Program” shall mean the City of Brentwood 2002 Development Fee Program.
“Development Plan” shall mean either or both of Development Plan A and Development Plan B.
“Development Plan A” shall have that meaning set forth in Recital G.3 of this Agreement.
“Development Plan B” shall have that meaning set forth in Recital G.3 of this Agreement.
“Effective Date” shall have that meaning set forth in Section 2.01 of this Agreement.
“Final EIR” shall have that meaning set forth in Recital G.1 of this Agreement.
“General Plan” shall mean the City of Brentwood General Plan.
“Improvements” shall mean the on-site and offsite improvements, including Master Plan Infrastructure Improvements, which the Project Approvals require Arcadia to dedicate real property for, and/or to design, construct, bond, finance and install.
“Judgment” shall have that meaning set forth in Section 9.02 of this Agreement.
“Master Plan Infrastructure Improvements” shall mean the capital improvement facilities identified in the 2002 Development Fee Program.
“Minimum Construction” shall have that meaning set forth in Section 2.02 of this Agreement.
“Mitigation Monitoring Program” shall have that meaning set forth in Recital G.1 of this Agreement.
“Mortgage” shall have that meaning set forth in Section 8.04 of this Agreement.
“Mortgagee” shall have that meaning set forth in Section 8.04 of this Agreement.
“Non-Assuming Transferee” shall have that meaning set forth in Section 8.03 of this Agreement.
“Notice of Compliance” shall have that meaning set forth in Section 8.05 of this Agreement.
“Overriding Findings” shall have that meaning set forth in Recital G.1 of this Agreement.
“PD-51 Zoning Regulations” shall have that meaning set forth in Recital G.2 of this Agreement.
“Periodic Review” shall have that meaning set forth in Section 10.03 of this Agreement.
“Phase I,” “Phase II” and “Phase III” shall mean the areas and development shown and described as Phase I, Phase II and Phase III on the documents entitled Phasing Plan A and Phasing Plan B, dated May 20, 2002, and prepared by SGPA Architecture & Planning, reduced copies of which are attached hereto as Exhibit C-1 and Exhibit C-2, respectively.
“Planning Commission” shall mean the Planning Commission of the City of Brentwood.
“Project” shall have that meaning set forth in Recital F of this Agreement.
“Project Approvals” shall have that meaning set forth in Recital G of this Agreement.
“Property” shall have that meaning set forth in Recital C of this Agreement.
“Site Plan A” shall have that meaning set forth in Recital F of this Agreement.
“Site Plan B” shall have that meaning set forth in Recital F of this Agreement.
“Subarea A” shall have that meaning set forth in Recital E of this Agreement.
“Subarea B” shall have that meaning set forth in Recital E of this Agreement.
“Subdivision Ordinance” shall mean the City of Brentwood Subdivision Ordinance.
“Subsequent Approval” shall mean any other land use approvals, entitlements, and permits other than the Project Approvals that may be necessary or desirable for the implementation of the Project. The Subsequent Approvals may also include, without limitation, the following: amendments of the Project Approvals, design review approvals, improvement agreements, use permits, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, subdivision maps, permits, resubdivisions, and any amendments to, or repealing of, any of the foregoing.
“Tentative Map” shall have that meaning set forth in Recital G.4 of this Agreement.
“Term” shall have that meaning set forth in Section 2.02 of this Agreement.
“Transfer Agreement” shall have that meaning set forth in Section 8.02 of this Agreement.
“Transferee” shall mean a transferee under a Transfer Agreement, pursuant to Section 8.02 of this Agreement, or a Non-Assuming Transferee, pursuant to Section 8.03 of this Agreement.
“Zoning Ordinance” shall mean the City of Brentwood Zoning Ordinance.
EFFECTIVE DATE AND TERM
5. Effective Date. This Agreement shall become effective upon the date the ordinance approving this Agreement becomes effective (the “Effective Date”).
6. Term. The term of this Agreement (the “Term”) shall commence upon the Effective Date and continue for a period of five (5) years unless extended as hereinafter set forth. Upon the issuance of one or more Certificates of Occupancy for an aggregate of no less than 120,000 square feet of retail/commercial uses within the Project (which shall constitute “Minimum Construction” as that term is used in this Agreement) during the initial five (5) years of the Term, the Term shall be extended for an additional two (2) years to a total of seven (7) years. Upon the issuance of one or more Certificates of Occupancy for an aggregate of no less than an additional 150,000 square feet of retail/commercial uses within the Project, or an aggregate total of no less than 270,000 square feet of retail/commercial uses within the Project, during the first seven (7) years of the Term, the Term shall be extended for an additional three (3) years to a total of ten (10) years. Upon the issuance of one or more Certificates of Occupancy for an aggregate of no less than an additional 75,000 square feet of retail/commercial uses within the Project, or an aggregate total of no less than 345,000 square feet of retail/commercial uses within the Project, during the first ten (10) years of the Term, then the Term shall be extended for an additional five (5) years to a total of fifteen (15) years from the effective date of this Agreement. In the event Arcadia fails to commence construction of the Minimum Construction prior to the fifth (5th) anniversary of the Effective Date, this Agreement shall terminate. Notwithstanding anything to the contrary set forth elsewhere herein, if City has issued a Certificate of Occupancy for a building within the Term, then with respect to any such building and related improvements only, the Term shall be extended to the twenty-fifth (25th) anniversary of the Effective Date.
OBLIGATIONS OF ARCADIA
7. Obligations of Arcadia Generally. The parties acknowledge and agree that City’s agreement to perform and abide by the covenants and obligations of City set forth in this Agreement is a material consideration for Arcadia’s agreement to perform and abide by its long term covenants and obligations, as set forth herein. The parties acknowledge that many of Arcadia’s long term obligations set forth in this Agreement are in addition to Arcadia’s agreement to perform all the mitigation measures identified in the Final EIR and the Mitigation Monitoring Program. Arcadia shall pay the City for all outside consultant costs related to its environmental process.
Section 1.01. Traffic and Other Improvements. Arcadia shall complete the traffic and other Project specific on-site and offsite Improvements set forth as the responsibility of Arcadia in, and in accordance with and subject to the provisions of the Project Approvals.
8. Early Dedication of Property for Public Roadways. Arcadia, acting both individually and through its predecessors-in-interest to portions of the Property, has heretofore conveyed to City a fee interest in certain real property and non-exclusive easements in certain other real property (hereinafter collectively called the “Right-of-Way Property”) adjacent to the then existing rights-of-way of Lone Tree Way and Heidorn Ranch Road for the purpose of widening and improving Lone Tree Way and Heidorn Ranch Road. Arcadia conveyed the Right-of-Way Property to City at the request of City prior to the time Arcadia would otherwise be required to do so in order to enable the City of Brentwood, the City of Antioch and the State Route 4 Bypass Authority to construct the improvements necessary to complete the intersection of Lone Tree Way and the State Route 4 Bypass and open up to public use the completed portion of the State Route 4 Bypass, which now ends near Lone Tree Way. The early conveyance of the Right-of-Way Property to City was made by Arcadia and requested and accepted by City in contemplation of this Agreement, and constitutes material consideration from Arcadia to City for this Agreement. City acknowledges that the early dedication of the Right-of-Way Property and construction of the Lone Tree Way improvements by the Bypass Authority has provided certain public benefits to City, including greater certainty in planning area roadway improvements, an earlier opening of the completed portion of the State Route 4 Bypass, and an increase in City’s potential to obtain additional transportation funding. The Right-of-Way Property was conveyed by Arcadia to City in that certain Grant Deed, Reservation of Ingress and Egress, Declaration of Covenants, Restrictions And Reservations recorded in the Official Records of Contra Costa County (the “Official Records”) as Instrument No. 0352350 on November 16, 2001 (the “Arcadia Grant Deed”); by Ruckstahl, LLC, a California limited liability company, to City in that certain Grant Deed, Reservation of Ingress and Egress, Declaration of Covenants, Restrictions And Reservations recorded in the Official Records as Instrument No. 0352351 on November 16, 2001 (the “Ruckstahl Grant Deed”); and by The Roman Catholic Bishop of Oakland, a corporation sole, to City in that certain Grant Deed, Reservation of Ingress and Egress, Declaration of Covenants, Restrictions And Reservations recorded in the Official Records as Instrument No. 0352349 on November 16, 2001 (the “Church Grant Deed”). The Arcadia Grant Deed, the Ruckstahl Grant Deed and the Church Grant Deed shall hereinafter be collectively called the “Right-of-Way Deeds.” This Agreement is intended to be consistent with, and to implement, all of the reservations, covenants and restrictions set forth in the Right-of-Way Deeds, and shall not be construed or applied in any manner or way that would supersede, negate or modify any of said reservations, covenants and restrictions.
9. City Entry Element and Other Consideration. Additional material consideration from Arcadia to City for this Agreement shall include, without limitation, the construction by Arcadia of an approved City Entry Statement on land owned by Arcadia at the southeast corner of the intersection of Lone Tree Way and Heidorn Ranch Road; the provision by Arcadia of substantial landscaping along the project boundaries with Lone Tree Way and Heidorn Ranch Road to implement the Memorandum of Understanding between Brentwood and Antioch, in order to create a perception of separation between the Cities; the provision and improvement by Arcadia of a north/south pedestrian and bicycle trail through the Project; and early reimbursement by Arcadia of City for City’s payment to the Highway 4 Bypass Authority of City’s fair share of the Lone Tree Way improvements heretofore constructed by the Authority along the Project frontage.
10. Site Maintenance. Prior to the issuance of a Certificate of Occupancy for any building, Arcadia shall subject the Property to a recorded instrument in substance and form satisfactory to the City Attorney which shall require that the private roads, parking areas, lighting and landscaping within the Project be maintained in a good condition and state of repair, and which shall require the owner of each parcel within the Project, or its tenants, to so maintain and repair the private roads, parking areas, lighting and landscaping within its parcel, or contribute to a common fund the proceeds of which shall be used to so maintain and repair the private roads, parking areas, lighting and landscaping within all or a portion of the Project. The recorded instrument shall grant each complying owner of a parcel within the Project the right to enforce the maintenance and repair obligation as an equitable servitude against each non-complying owner through appropriate legal proceedings.
Section 1.02. Additional Screening. The truck driveway service areas abutting the Highway 4 Bypass, behind the anchor tenant buildings on Parcels 5 and 8, shall be screened by a minimum of six (6) foot high masonry wall to the satisfaction of the Community Development Director.
OBLIGATIONS OF CITY
11. Obligations of City Generally. The parties acknowledge and agree that in addition to the consideration described in Article 3 above, Arcadia’s agreement to perform and abide by its covenants and obligations set forth in this Agreement is a material consideration for City’s agreement to perform and abide by the long-term covenants and obligations of City, as set forth herein.
12. Protection of Vested Rights. To the maximum extent permitted by law, City 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 Arcadia and any Transferee, and to prevent any City Law, as defined below, from invalidating or prevailing over, all or any part of this Agreement. City shall cooperate with Arcadia and any Transferee, and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. City shall not support, adopt, or enact any City Law, or take any other action which would conflict with the express provisions or intent of the Project Approvals or the Subsequent Approvals; provided, however, that nothing set forth herein shall limit the right of City under Government Code Section 65865.3(b) to modify or suspend the provisions of this Agreement if City determines that the failure of City to do so would place the tenants and residents of the Project, or the residents of City, or both, in a condition dangerous to their health or safety, or both.
13. Availability of Public Services. To the maximum extent permitted by law and consistent with its authority, City shall for the term of this Agreement (i) reserve for Arcadia such wastewater treatment capacity in City’s wastewater treatment facilities as may be necessary to serve and operate the Project, (ii) reserve for Arcadia such capacity and transmission for water services as may be necessary to serve and operate the Project, and (iii) assist Arcadia in reserving stormwater drainage capacity sufficient to accommodate runoff from the impervious surfaces related to the buildout of the Project.
14. Right to Rebuild. City agrees that within the Term of this Agreement, Arcadia or a Transferee may renovate or rebuild the Project or such part thereof as it may then own should it become necessary due to natural disaster, changes in seismic requirements, changes in federal or state laws, or should the buildings located within the Project become functionally outdated, within Arcadia’s or the Transferee’s sole discretion, due to changes in technology. Any such renovation or rebuilding shall be subject to the capacity, square footage, number of dwelling units, and height limitations vested by this Agreement, and shall comply with the Project Approvals, and the building codes existing at the time of such rebuilding or reconstruction, and the requirements of CEQA.
15. Imposition of Development Fees. The aggregate value of the real property dedications and payments which Arcadia is required to make under the Project Approvals and this Agreement in connection with the development of Phase I and Phase II of the Project in order to design, finance, install and construct public Master Planned Infrastructure Improvements exceeds the aggregate value of the dedications and payments Arcadia would be required to make with respect to Phase I and Phase II of the Project under City’s 2002 Development Fee Program and Conditions 4 and 5 of Planning Commission Resolution No. 02-39. Therefore, City shall not impose on the development of Phase I and Phase II, and Arcadia shall not be obligated to pay in connection with the development of Phase I and Phase II, any fee under City’s 2002 Development Fee Program, as the same may be amended from time to time, and any fee under either Condition 4 or Condition 5 of Planning Commission Resolution No. 02-39. Phase III of the project shall be responsible for payment of full Development Fees in effect at the time building permits are requested.
COOPERATION - IMPLEMENTATION
16. Processing Applications for Subsequent Approvals. By approving the Project Approvals, City has made a policy decision that the Project, either as shown and described in Development Plan A, or as shown and described in Development Plan B, is in the best interests of the City and promotes the public health, safety and general welfare. Accordingly, City shall not use its discretionary authority in considering any application for a Subsequent Approval to change the policy decisions reflected by the Project Approvals or otherwise to prevent or delay development of the Project as set forth in the Project Approvals. Instead, the Subsequent Approvals shall be deemed to be tools to implement those policy decisions and shall be issued by City so long as they comply with this Agreement and Applicable Law and are not inconsistent with the Project Approvals as set forth above.
17. Timely Submittals By Arcadia. Arcadia acknowledges that City cannot expedite processing Subsequent Approvals until Arcadia submits complete applications on a timely basis. Arcadia shall use its best efforts to (i) provide to City in a timely manner any and all documents, applications, plans, and other information necessary for City to carry out its obligations hereunder; and (ii) cause Arcadia’s planners, engineers, and all other consultants to provide to City in a timely manner all such documents, applications, plans and other necessary required materials as set forth in the Applicable Law. It is the express intent of Arcadia and City to cooperate and diligently work together to obtain any and all Subsequent Approvals.
18. Timely Processing By City. Upon submission by Arcadia of all appropriate applications, submittal materials, and processing fees for any Subsequent Approval, City shall promptly and diligently commence and complete all steps necessary to act on the Subsequent Approval Application including, without limitation: (i) providing at Arcadia’s expense and subject to Arcadia’s request and prior approval, reasonable overtime staff assistance and/or private staff consultants for planning and processing of each Subsequent Approval Application; (ii) if legally required, providing notice and holding public hearings; and (iii) acting on any such Subsequent Approval Application. Nothing set forth in this Section 5.03 shall negate City’s obligation to take such steps as may reasonably be necessary to review and act on Subsequent Approval Applications expeditiously and efficiently absent the request and agreement of Arcadia to pay for overtime or outside consultants.
19. Review of Subsequent Approval Applications. City agrees to review and act on Subsequent Approval Applications in accordance with Section 5.03 and implement Subsequent Approvals that comply with this Agreement, the Project Approvals and Applicable Law (provided, however, that inconsistency with the Project Approvals shall not constitute grounds for denial of a Subsequent Approval which is requested by Arcadia as an amendment to that Project Approval). City may approve an application for such a Subsequent Approval subject to any conditions necessary to bring the Subsequent Approval into compliance with this Agreement, the Project Approvals or Applicable Law. If City denies any application for a Subsequent Approval, City must specify in writing the reasons for such denial and suggest modifications that could be approved. Any such specified modifications must be consistent with this Agreement, Applicable Law and the Project Approvals, and City shall approve the application if it is subsequently resubmitted for City review and addresses the reason for the denial in a manner that is consistent with this Agreement, Applicable Law and the Project Approvals.
20. Specific Subsequent Approvals. City acknowledges that timing and other factors preclude Arcadia from applying for and City from acting on certain Subsequent Approvals as of the Effective Date. These contemplated Subsequent Approvals may include Development Plan and Tentative Map amendments, site plans for parcels and uses not specifically addressed in the Development Plan, and conditional use permits for those uses which would require a conditional use permit under the PD-51 Zoning Regulations. In addition to the other general covenants concerning processing of Subsequent Approvals set forth in this Agreement, City shall, to the maximum extent permitted by law, promptly and diligently commence and complete all steps (including noticing and public hearings) necessary to act on these contemplated Subsequent Approval applications. City agrees that the Applicable Law is hereby vested, and that Arcadia may develop the Project substantially in accordance with either Development Plan A or Development Plan B subject to the provisions of the Project Approvals.
21. Other Government Permits. At Arcadia’s sole discretion and in accordance with Arcadia’s construction schedule, Arcadia shall apply for such other permits and approvals as may be required by other governmental or quasi-governmental entities in connection with the development of, or the provision of services to, the Project. City shall cooperate with Arcadia in its efforts to obtain such permits and approvals. Arcadia recognizes that other governmental permits may be necessary prior to grading or construction as determined by such other entities and that the responsibility to obtain such permits is solely that of Arcadia.
STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT
22. Vested Right to Develop. Arcadia shall have a vested right to develop and use the Project on the Property in accordance with the terms and conditions of this Agreement, and the Project Approvals.
23. Permitted Uses Vested by This Agreement. The permitted uses of the Property; the density and intensity of use of the Property; 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 general location of public utilities; and other terms and conditions of development applicable to the Project, shall be as set forth in the Project Approvals and, if, as and when they are issued (but not in limitation of any right to develop as set forth in the Project Approvals), the Subsequent Approvals.
24. Applicable Law. The rules, regulations, official policies, standards and specifications applicable to the Project (the “Applicable Law”) shall be those set forth in this Agreement and the Project Approvals, and, with respect to matters not addressed by this Agreement or the Project Approvals, those rules, regulations, official policies, standards and specifications (including City ordinances and resolutions) governing permitted uses, building locations, timing of construction, densities, design, heights, fees, exactions, and taxes in force and effect on the Effective Date of this Agreement.
25. Retail and Commercial Development Fees and Exactions. City shall not establish, enact, increase (except for annual increases in an amount no greater than the applicable engineering index which are uniformly applied to comparable properties and projects Citywide), impose against or apply to either Phase I or Phase II of the Project any conditions, exactions, dedications, fees, taxes (including without limitation general, special and excise taxes), assessments, liens or other monetary obligations, through the exercise of either the police power or the taxing power, which are not specifically authorized and in force and effect on the Effective Date of this Agreement. Increases in the Business License tax applied uniformly to comparable businesses Citywide are specifically excluded from this clause. This does not restrict the City from recovering costs associated with State and/or Federally mandated programs such as NPDES through fees which are applied uniformly to comparable properties and projects Citywide.
26. Uniform Codes. City may apply to the Property, at any time during the Term, then current Uniform Building Code and other uniform construction codes, provided (1) any such uniform code or standard has been adopted and uniformly applied by City on a citywide basis, and (2) no such code or standard is adopted for the purpose of preventing or otherwise limiting construction of all or any part of the Project; provided, however, that nothing contained herein shall limit City’s right under Government Code Section 65865.3(b) to modify or suspend the provisions of this Agreement if City determines that the failure of City to do so would place the tenants and residents of the Project, or the residents of City, or both, in a condition dangerous to their health or safety, or both.
27. No Conflicting Enactments. City shall not impose on the Project (whether by action of the City Council or by initiative, referendum or other means) any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each individually, a “City Law”) that is in conflict with Applicable Law or this Agreement or that reduces the development rights or assurances provided by this Agreement. Without limiting the generality of the foregoing, any City Law shall be deemed to conflict with Applicable Law or this Agreement or reduce the development rights provided hereby if it would accomplish any of the following results, either by specific reference to the Project or as part of a general enactment which applies to or affects the Project:
(a) Change any land use designation or permitted use of the Property; 
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 connections or sewage capacity rights, sewer connections, etc.) for the Project;
Limit or control the location of buildings, structures, grading, or other improvements of the Project in a manner that is inconsistent with or more restrictive than the limitations included in the Project Approvals or the Subsequent Approvals (as and when they are issued);
Limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner other than as specified in this Agreement;
Apply to the Project any City Law otherwise allowed by this Agreement that is not uniformly applied on a City-wide basis to all substantially similar types of development projects and properties;
Result in Arcadia having to substantially delay construction of the Project or require the issuance of additional permits or approvals by the City other than those required by Applicable Law; 
Substantially increase the cost of constructing or developing the Project or any portion thereof other than as may be specifically contemplated and allowed by this Agreement; 
Establish, enact, increase, or impose against the Project or Property any fees, taxes (including without limitation general, special and excise taxes), assessments, liens or other monetary obligations (including demolition permit, encroachment permit and grading permit fees) other than those applicable at the Project Approval time and specifically contemplated and permitted by this Agreement, or other than connection fees imposed by third party utilities;
Impose against the Project any condition, dedication or other exaction not specifically authorized by Applicable Law; or
Limit the processing or procuring of applications and approvals of Subsequent Approvals.
28. Initiatives and Referenda.
(b) If any City Law is enacted or imposed by initiative or referendum, or by the City Council directly or indirectly in connection with any proposed initiative or referendum, which City Law would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement, such Law shall not apply to the Project.
Without limiting the generality of any of the foregoing, no moratorium, growth management restriction, or other limitation (whether relating to the rate, timing, phasing or sequencing of development) affecting subdivision maps, building permits or other entitlements to use that are approved or to be approved, issued or granted within the City, or portions of the City, shall apply to the Project.
To the maximum extent permitted by law, City shall prevent any City Law from invalidating or prevailing over all or any part of this Agreement, and City shall cooperate with Arcadia and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect.
City shall not support, adopt or enact any City Law, or take any other action, which would violate the express provisions or spirit and intent of this Agreement, the Project Approvals or the Subsequent Approvals.
Arcadia reserves the right to challenge in court any City Law that would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement.
29. Environmental Mitigation. The Final EIR for the Project was prepared following the completion of numerous studies. The parties understand that the Final EIR is intended to be used in connection with each of the Project Approvals and Subsequent Approvals needed for the Project. Consistent with the CEQA policies and requirements applicable to the Final EIR, City agrees to use the Final EIR in connection with the processing of any Subsequent Approval to the maximum extent allowed by law and not to impose on the Project any mitigation measures or other conditions of approval other than those specifically imposed or implied by the Project Approvals and the Mitigation Monitoring Program or specifically required by Applicable Law.
30. Life of Subdivision Maps, Development Approvals, and Permits. The term of any subdivision map or any other map, permit, rezoning or other land use entitlement approved as a Project Approval or Subsequent Approval shall automatically be extended for the longer of the duration of this Agreement (including any extensions) or the term otherwise applicable to such Project Approval or Subsequent Approval if this Agreement is no longer in effect. The term of this Agreement and any subdivision map or other Project Approval or Subsequent Approval shall not include any period of time during which a development moratorium (including, but not limited to, a water or sewer moratorium or water and sewer moratorium) or the actions of other public agencies that regulate land use, development or the provision of services to the land, prevents, prohibits or delays the construction of the Project or a lawsuit involving any such development approvals or permits is pending.
31. State and Federal Law. As provided in California Government Code § 65869.5, this Agreement shall not preclude the application to the Project 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 City and Arcadia shall take such action as may be required pursuant to this Agreement including, without limitation, Article 5 (Cooperation -Implementation) and Section 10.05 (Excusable Delays; Extension of Time of Performance). Not in limitation of the foregoing, nothing in this Agreement shall preclude City from imposing on Arcadia any fee specifically mandated and required by state or federal laws and regulations, provided, however, that Arcadia expressly reserves its right to contest any fees imposed pursuant to this Section 6.10. 
32. Timing of Project Construction and Completion.
(c) Notwithstanding any provision of this Agreement, but subject to the Term set forth in Section 2.02 above, the restrictions on residential development set forth in Section 6.11(c) below, and the provisions of Section 6.11(e) below, City and Arcadia expressly agree that there is no requirement that Arcadia initiate or complete development of the Project or any particular phase of the Project within any particular period of time, and City shall not impose such a requirement on any Project Approval. The parties acknowledge that Arcadia 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 Arcadia, such as market orientation and demand, interest rates, competition, and other similar factors.
(d) In light of the foregoing and except as set forth in Section 2.02 above and Subsections 6.11(c) and (e) below, the parties agree that Arcadia shall be able to develop in accordance with Arcadia’s own time schedule as such schedule may exist from time to time, and Arcadia shall determine which part of the Property to develop first, and at Arcadia’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 Arcadia shall have the right to develop the Project in such order and at such rate and at such times as Arcadia deems appropriate within the exercise of its subjective business judgment.
(e) Notwithstanding anything to the contrary set forth elsewhere herein, City shall not be required to issue any building permits for the initial 240 residential units included within Development Plan B until such time as City has issued Certificates of Occupancy for an aggregate 200,000 square feet of retail and/or commercial development within the Project; and City shall not be required to issue any building permits for the balance of the residential units included within Development Plan B until such time as City has issued Certificates of Occupancy for an additional 150,000 square feet, or an aggregate total of 350,000 square feet, of retail and/or commercial development within the Project.
Nothing in this Agreement shall exempt Arcadia from completing work required by a subdivision agreement, road improvement agreement or similar agreement in accordance with the terms thereof; provided, however, that City shall not require Arcadia to enter into any such agreement which is inconsistent with the provisions of this Agreement.
Notwithstanding anything to the contrary set forth elsewhere herein, City shall not be required to issue any building permits for the Project until such time as Arcadia has reimbursed City for City’s share of the Lone Tree Way improvements heretofore constructed along the Project frontage by the Highway 4 Bypass Authority. This subsection shall not entitle City to withhold or delay issuance of grading or similar permits for work customarily undertaken prior to the construction of structures for retail and/or commercial use.
33. Exempting Fees Imposed by Outside Agencies. This Agreement shall not prohibit the City from imposing on Arcadia any fee or obligation that is imposed by other governmental agencies or a regional agency in accordance with state or federal obligations and implemented by the City in cooperation with such regional agency; provided, however, that Arcadia expressly reserves its right to contest the imposition of any such fee or obligation.
Section 1.03. Inclusionary Housing Ordinance. Notwithstanding anything to the contrary set forth elsewhere herein, Arcadia agrees to comply with any inclusionary housing ordinance which City may adopt after the Effective Date with respect to residential units for which building permit applications are first submitted after the effective date of the ordinance; provided, however, that Arcadia expressly reserves its right to contest the adoption of any such ordinance.
AMENDMENT
34. Amendment to Project Approvals, Subsequent Approvals. To the extent permitted by state and federal law, any Project Approval or Subsequent Approval may, from time to time, be amended or modified in the following manner:
(f) Administrative Project Amendments. Upon the written request of Arcadia for an amendment or modification to a Project Approval or Subsequent Approval, the Community Development Director or other appropriate City Department Head or his/her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (ii) whether the requested amendment or modification is substantially consistent with this Agreement and Applicable Law. If the Community Development Director/City Engineer/Director of Parks and Recreation or his/her designee finds that the proposed amendment or modification is minor, substantially consistent with this Agreement and Applicable Law, and will result in no new significant impacts not addressed and mitigated in the Final EIR, the amendment shall be determined to be an “Administrative Project Amendment” and the Community Development Director/City Engineer/Director of Parks and Recreation or his/her designee may, except to the extent otherwise required by law, approve the Administrative Amendment, following consultation with other relevant City staff, without notice and public hearing. Without limiting the generality of the foregoing, lot line adjustments, reductions in the density, intensity, scale or scope of the Project, minor alterations in vehicle circulation patterns or vehicle access points, changes in trail alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the design and location of structures that do not substantially alter the design concepts of the Project, variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Property diagram or Property legal description shall be treated as Administrative Amendments.
Non-Administrative Amendments. Any request of Arcadia for an amendment or modification to a Project Approval or Subsequent Approval which is determined not to be an Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Law and this Agreement.
Non-Assuming Transferees. No amendment of this Agreement shall affect the vested rights afforded by Section 8.03 of this Agreement to a Non-Assuming Transferee with respect to the portion of the Project owned by the Non-Assuming Transferee without the prior written consent of the Non-Assuming Transferee.
35. Amendment of This Agreement. Consistent with Section 17.810.011 of the Brentwood Municipal Code, 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:
(g) Administrative Agreement Amendments. Any amendment to this Agreement which does not substantially affect (i) the Term of this Agreement, (ii) permitted uses of the Property, (iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions, (v) the density or intensity of use of the Property or the maximum height or size of proposed buildings, or (vi) monetary contributions by Arcadia, shall be an “Administrative Agreement Amendment,” and shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto. Such amendment may be approved by City resolution.
Amendment Exemptions. No amendment of a Project Approval or Subsequent Approval, or the approval of a Subsequent Approval, shall require an amendment to this Agreement. Instead, any such matter automatically shall be deemed to be incorporated into the Project, the Project Approvals and vested under this Agreement.
ASSIGNMENT, TRANSFER AND MORTGAGEE PROTECTION
36. Assignment of Interests, Rights and Obligations. Arcadia may transfer or assign all or any portion of its interests, rights or obligations under this Agreement, the Project Approvals or Subsequent Approvals to third parties acquiring an interest or estate in the Project or any portion thereof including, without limitation, purchasers or ground lessees of lots, parcels or facilities.
37. Transfer Agreements.
(h) In connection with the transfer or assignment by Arcadia of all or any portion of the Project (other than a transfer or assignment by Arcadia to an affiliated party, a “Mortgagee” (as defined in Section 8.04) or a “Non-Assuming Transferee” (as defined in Section 8.03)), Arcadia and the Transferee shall enter into a written agreement (a “Transfer Agreement”) regarding the respective interests, rights and obligations of Arcadia and the Transferee in and under the Agreement, the Project Approvals, and the Subsequent Approvals. Such Transfer Agreement may (i) release Arcadia from obligations under the Agreement, the Project Approvals, or the Subsequent Approvals that pertain to that portion of the Project 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 and use that portion of the Project being transferred and (iii) address any other matter deemed by Arcadia to be necessary or appropriate in connection with the transfer or assignment.
Prior to completion of Minimum Construction, Arcadia shall seek City’s prior written consent to any Transfer Agreement, which consent shall not be unreasonably withheld or delayed. Failure by City to respond within forty-five (45) days to any request made by Arcadia for either (i) an acknowledgement of a Transfer Agreement, or (ii) a consent to a Transfer Agreement, shall be deemed to be City’s approval of such Transfer Agreement. City may refuse to give its consent only if, in light of the proposed Transferee’s reputation and financial resources, such Transferee would not in City’s reasonable opinion be able to perform those obligations under this Agreement proposed to be assumed by such Transferee. Such determination shall be made by the Community Development Director and City Engineer, and is appealable by Arcadia to the City Council. Upon completion of Minimum Construction, Arcadia shall not be required to obtain City’s consent to any Transfer Agreement, but Arcadia shall notify the City in writing within ten (10) days of such Transfer Agreement.
Any Transfer Agreement shall be binding on Arcadia, City and the Transferee. Upon recordation of any Transfer Agreement in the Official Records of Contra Costa County, Arcadia shall automatically be released from those obligations assumed by the Transferee therein.
Arcadia 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 Arcadia’s obligations under this Agreement shall be attributed to Arcadia, nor may Arcadia’s rights hereunder be canceled or diminished in any way by any breach or default by any such person.

38. Non-Assuming Transferees. Except as otherwise required by Arcadia in Arcadia’s sole discretion, the burdens, obligations and duties of Arcadia under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor City’s consent shall be required in connection with (i) any single residential condominium unit conveyed to a purchaser (should Arcadia or a Transferee elect to develop Development Plan B multi-family residential units as condominium units provided that Arcadia or a Transferee must first receive approval from the City of Brentwood to develop and/or sell the multi-family residential site as condominiums in compliance with all City regulations applicable to condominium development at the time the application for the condominium tentative map is filed, including any Inclusionary Housing requirements that may be in effect at that time), (ii) any property that has been established, developed and built as one or more separate legal parcels for multi-family residential use, or (iii) any property that has been established, developed and built as one or more separate legal parcels for office, commercial, industrial 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.
39. Mortgagee Protection.
(i) Mortgage Protection. This Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording of this Agreement, including the lien of any deed of trust or mortgage (“Mortgage”). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement (including but not limited to City’s remedies to terminate the rights of Arcadia (and its successors and assigns) under this Agreement, to terminate this Agreement, and to seek other relief as provided in this Agreement) shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee (“Mortgagee”) who acquires title to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure, or otherwise.
Mortgagee Not Obligated. Notwithstanding the provisions of Section 8.04(a) above, no Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of improvements, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by this Agreement, or otherwise under the Project Approvals.
Notice of Default to Mortgagee. If City receives a written notice from a Mortgagee or from Arcadia requesting a copy of any notice of default given Arcadia and specifying the address for service thereof, then City shall deliver to such Mortgagee at such Mortgagee’s cost (or Arcadia’s cost), concurrently with service thereon to Arcadia, any notice given to Arcadia with respect to any claim by City that Arcadia has committed an event of default, and if City makes a determination of default hereunder, City shall if so requested by such Mortgagee likewise serve at such Mortgagee’s cost (or Arcadia’s cost) notice of such noncompliance on such Mortgagee concurrently with service thereon on Arcadia. Each Mortgagee shall have the right during the same period available to Arcadia to cure or remedy, or to commence to cure or remedy, the event of default claimed or the areas of noncompliance set forth in City’s notice.
No Supersedure. Nothing in this Section 8.04 shall be deemed to supersede or release a Mortgagee or modify a Mortgagee’s obligations under any subdivision improvement agreement or other obligation incurred with respect to the Project outside this Agreement, nor shall any provision of this Section 8.04 constitute an obligation of City to such Mortgagee, except as to the notice requirements of Section 11.10.
40. Notice of Compliance. Within thirty (30) days following any written request which Arcadia may make from time to time, City shall execute and deliver to Arcadia (or to any party requested by Arcadia) a written “Notice of Compliance,” in recordable form, duly executed and acknowledged by City, that certifies:
(j) 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;
There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default;
Any other information reasonably requested by Arcadia. The failure to deliver such a statement within such time shall constitute a conclusive presumption against City that this Agreement is in full force and effect without modification except as may be represented by Arcadia and that there are no uncured defaults in the performance of Arcadia, except as may be represented by Arcadia. Arcadia shall have the right at Arcadia’s sole discretion, to record the Notice of Compliance.
COOPERATION IN THE EVENT OF LEGAL CHALLENGE
41. Cooperation.
(k) 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 the Agreement or any Project Approval or Subsequent Approval, the parties shall cooperate in defending such action or proceeding. The parties shall use best efforts to select mutually agreeable legal counsel to defend such action, and Arcadia shall pay compensation for such legal counsel; provided, however, that such compensation shall include only compensation paid to counsel not otherwise employed as City staff and shall exclude, without limitation, City Attorney time and overhead costs and other City staff overhead costs and normal day-to-day business expenses incurred by City. Arcadia’s obligation to pay for legal counsel shall not extend to fees incurred on appeal unless otherwise authorized by Arcadia. In the event City and Arcadia are unable to select mutually agreeable legal counsel to defend such action or proceeding, each party may select its own legal counsel at its own expense.
The parties agree that this Section 9.01 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.
42. Cure; Reapproval.
(l) If, as a result of any administrative, legal or equitable action or other proceeding as described in Section 9.01, all or any portion of this Agreement, Project Approvals, 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 this Agreement, Project Approvals, and/or Subsequent Approvals, and to cure the Deficiencies related thereto, as follows, unless the Parties mutually agree in writing to act otherwise:
If any Judgment requires reconsideration or consideration by City of this Agreement, Project Approval, or Subsequent Approval, then the City 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 this Agreement, Project Approval, 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. City shall then readopt or reenact this Agreement, Project Approval, Subsequent Approval, or any portion thereof, to which the Deficiencies related. 
Acting in a manner consistent with the intent of this Agreement includes, but is not limited to, (x) recognizing that the Parties intend that Arcadia may develop on the Property the Project shown and described in the Final EIR, either as Site Plan A or as Site Plan B, and shown and described in the Development Plan, either as Development Plan A or as Development Plan B, at the election of Arcadia, and (y) adopting or approving such ordinances, resolutions, other enactments and entitlements, including but not limited to a subsequent or supplemental environmental impact report, a negative declaration, or an addendum to the Final EIR, a design and site development plan, a tentative map, a conditional use permit and a development agreement, as are necessary to readopt or reenact all or any portion of this Agreement, Project Approvals, and/or Subsequent Approvals without contravening the Judgment. 
The parties agree that this Section 9.02 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.
DEFAULT; REMEDIES; TERMINATION
43. Defaults. Upon failure by either party to perform any term or provision of this Agreement, the party alleging such failure to perform shall give written notice to the other party, which notice shall specify the nature of the alleged failure with reasonable particularity and, where appropriate, the manner in which said failure satisfactorily may be cured (the “Default Notice”). Upon receipt of such Default Notice, the alleged breaching party shall have a period of thirty (30) days to either (a) use good faith efforts to cure such breach, or (b) if in the determination of the alleged breaching party, such event does not constitute a breach of this Agreement, such party may deliver to the party claiming the breach a “Notice of Non-Breach” which sets forth with reasonable particularity the reasons that a breach has not occurred. 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. Any alleged breach that 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), or for which no Notice of Non-Breach was received and acknowledged in writing by the non-breaching party as acceptable, shall constitute a default under this Agreement. 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.
44. Termination by City. If City elects to consider terminating this Agreement due to a material default of Arcadia, then City shall give a notice of intent to terminate this Agreement and the matter shall be scheduled for consideration and review by the City Council at a duly noticed and conducted public hearing; provided, however, that public notice of such hearing shall be given no earlier than thirty (30) days after the notice of intent to terminate is given to Arcadia in accordance with the provisions of Section 11.10 of this Agreement. Arcadia shall have the right to offer written and oral evidence prior to or at the time of said public hearing. If the City Council determines that a material default has occurred and is continuing, and elects to terminate this Agreement, City shall give written notice of termination of this Agreement to Arcadia by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter; provided, however, that if Arcadia files an action to challenge City’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 City’s termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired).
45. Periodic Review.
(m) Conducting the Periodic Review. Throughout the Term of this Agreement, at least once every twelve (12) months following the execution of this Agreement, City shall review the extent of good-faith compliance by Arcadia with the terms of this Agreement. This review (the “Periodic Review”) shall be conducted in accordance with Section 17.810.012 of the Brentwood Municipal Code and shall be limited in scope to compliance with the terms of this Agreement pursuant to California Government Code Section 65865.1.
Notice. At least thirty (30) days prior to the Periodic Review, and in the manner prescribed in Article 13 of this Agreement, City shall deposit in the mail to Arcadia a copy of any staff reports and documents to be used or relied upon in conducting the review and, to the extent practical, related exhibits concerning Arcadia’s performance hereunder. Arcadia shall be permitted an opportunity to respond to City’s evaluation of Arcadia’s performance, either orally at a public hearing or in a written statement, at Arcadia’s election. Such response shall be made to the Community Development Director.
Good Faith Compliance. During the Periodic Review, the City shall review Arcadia’s good-faith compliance with the terms of this Agreement. At the conclusion of the Periodic Review, the City Council shall make written findings and determinations, on the basis of substantial evidence, as to whether or not Arcadia has complied in good faith with the terms and conditions of this Agreement. If the City Council finds and determines, based on substantial evidence, that Arcadia has not complied with such terms and conditions, the City Council may initiate proceedings to terminate or modify this Agreement, in accordance with California Government Code Section 65865.1, by giving notice of its intention to do so, in the manner set forth in California Government Code Sections 65867 and 65868. The costs incurred by City in connection with the Periodic Review process described herein shall be shared equally by Arcadia and City.
Failure to Properly Conduct Periodic Review. If City fails, during any calendar year, to either (i) conduct the Periodic Review or (ii) notify Arcadia in writing of City’s determination, pursuant to a Periodic Review, as to Arcadia’s compliance with the terms of this Agreement and such failure remains uncured as of December 31 of any year during the term of this Agreement, such failure shall be conclusively deemed an approval by City of Arcadia’s compliance with the terms of this Agreement.
Written Notice of Compliance. With respect to any year for which Arcadia has been determined or deemed to have complied with this Agreement, City shall, within thirty (30) days following request by Arcadia, provide Arcadia with a written notice of compliance, in recordable form, duly executed and acknowledged by City. Arcadia shall have the right, in Arcadia’s sole discretion, to record such notice of compliance.
46. Default by City or Arcadia. In the event City or Arcadia defaults under the terms of this Agreement, City or Arcadia shall have all rights and remedies provided herein or under law.
47. Excusable Delay; Extension of Time of Performance. In addition to specific provisions of this Agreement, 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, judicial decisions, enactment or imposition against the Project of any moratorium, or time period of legal challenge of such moratorium by Arcadia, or similar basis for excused performance which is not within the reasonable control of the party to be excused. Litigation attacking the validity of this Agreement or any of the Project Approvals or Subsequent Approvals, or any permit, ordinance, entitlement or other action of a governmental agency other than City necessary for the development of the Project pursuant to this Agreement, or Arcadia’s inability to obtain materials, power or public facilities (such as water or sewer service) to the Project, shall be deemed to create an excusable delay as to Arcadia. 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.
48. Legal Action. Either party may, in addition to any other rights or remedies, institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, recover damages for any default, enforce by specific performance the obligations and rights of the parties hereto, or obtain any remedies consistent with the purpose of this Agreement.
49. California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
50. Resolution of Disputes. With regard to any dispute involving development of the Project, the resolution of which is not provided for by this Agreement or Applicable Law, Arcadia shall, at City’s request, meet with City. The parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 10.08 shall in any way be interpreted as requiring that Arcadia and City and/or City’s designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Arcadia unless expressly agreed to by the parties to such meetings.
51. Attorneys’ Fees. In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Agreement, the prevailing party is entitled to reasonable attorneys’ fees and any other costs incurred in that proceeding in addition to any other relief to which it is entitled.
52. Hold Harmless. Arcadia shall hold City and its elected and appointed officers, agents, employees, and representatives harmless from claims, costs, and liabilities for any personal injury, death, or property damage which is a result of the construction of the Project, or of operations performed under this Agreement by Arcadia or by Arcadia’s contractors, subcontractors, agents or employees, whether such operations were performed by Arcadia or any of Arcadia’s contractors, subcontractors, agents or employees. Nothing in this section shall be construed to mean that Arcadia shall hold City harmless from any claims of personal injury, death or property damage arising from, or alleged to arise from, the sole negligence or willful act on the part of City, its elected and appointed representatives, officers, agents and employees.
53. Non-Assuming Transferee. Notwithstanding anything to the contrary contained elsewhere herein, the termination of this Agreement, whether voluntarily or involuntarily, by City on account of a default by Arcadia and/or a Transferee under Section 8.02 or otherwise, or by Arcadia or a Transferee under Section 8.02 on account of a default by City or otherwise, shall not affect the vested rights afforded by Section 8.03 of this Agreement to a Non-Assuming Transferee with respect to the portion of the Project owned by the Non-Assuming Transferee absent the express written consent of the Non-Assuming Transferee. Absent such consent, a Non-Assuming Transferee shall continue to benefit from such rights for the remainder of the Term of this Agreement provided that the Non-Assuming Transferee continues to pay all fees and assessments and comply with all conditions of approval applicable to that portion of the Project owned by the Non-Assuming Transferee as set forth in Section 8.03.
Miscellaneous
54. 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.
55. Enforceability. City and Arcadia agree that unless this Agreement is amended or terminated pursuant to the provisions of this Agreement, this Agreement shall be enforceable by any party hereto notwithstanding any change hereafter enacted or adopted (whether by ordinance, resolution, initiative, or any other means) in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or any other land use ordinance or building ordinance, resolution or other rule, regulation or policy adopted by City that changes, alters or amends the rules, regulations and policies applicable to the development of the Property at the time of the approval of this Agreement as provided by California Government Code Section 65866.
56. Findings. City hereby finds and determines that: (a) this Agreement furthers the public health, safety and general welfare; (b) this Agreement is consistent with the objectives, policies, land uses and programs specified in the General Plan; (c) this Agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area nor be detrimental or injurious to property or persons in the general neighborhood of the Project or to the general welfare of the residents of City as a whole; (d) this Agreement will not adversely affect the orderly development of property or the preservation of property values; (e) this Agreement is consistent with the provisions of Government Code Sections 65864 through 65869.5; and (f) the Tentative Map complies with the provisions of Government Code Section 66473.7.
57. 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 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, either City or Arcadia may (in their sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other party.
58. 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 Project Approvals, Subsequent Approvals and this Agreement and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder.
59. Construction. Each reference in this Agreement to this Agreement or any of the Project Approvals or Subsequent Approvals shall be deemed to refer to the Agreement, Project Approval 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 City and Arcadia, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement.
60. 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.
61. Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon and benefit the parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Project, 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 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 Project, as appropriate, runs with the Property and is for the benefit of and binding upon the owner of all or a portion of the Property and each successive owner during its ownership of such property.
62. No Agency, Joint Venture or Partnership. The parties hereto specifically understand and agree that: (i) the Project is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, as City accepts the same pursuant to the provisions of this Agreement or in connection with the various Project Approvals or Subsequent Approvals; (iii) Arcadia shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Arcadia under this Agreement, the Project Approvals, Subsequent Approvals, and Applicable Law; and (iv) City and Arcadia hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Arcadia and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Arcadia.
63. Notices. Any notice or communication required hereunder between City and Arcadia must be in writing, and may be given either personally, by telefacsimile (with original forwarded by regular U.S. Mail), by registered or certified mail (return receipt requested), or by Federal Express or other similar courier promising overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving party’s facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. 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 given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. 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 City, to: City of Brentwood
Attn: City Manager
150 City Park Way
Brentwood, CA 94513-1396
Tel: (925) 516-5440
Fax: (925) 516-5441
With a Copy to: City Attorney
City of Brentwood
150 City Park Way
Brentwood, CA 94513-1396
Tel: (925) 516-5440
Fax: (925) 516-5441
If to Arcadia, to: Arcadia Development Co. 
Attn: President
1115 Coleman Avenue
P.O. Box 5368 
San Jose, CA 95150-5368
Tel: (408) 286-4440
Fax: (408) 286-4443
With Copies to: Ellman Burke Hoffman & Johnson
Attn: Michael J. Burke
One Ecker, Suite 200
San Francisco, CA 94105
Tel: (415) 777-2727
Fax: (415) 495-7587
Michael P. Carbone, Esq. 
Steuart Tower, Sixteenth Floor
One Market Plaza
San Francisco, CA 94105
Tel: (415) 357-1622
Fax: (415) 357-1633
64. 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 ____ pages and ____ 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 City and Arcadia. The following exhibits are attached to this Agreement and incorporated herein for all purposes:
Exhibit A-1 Property Description
Exhibit A-2 Property Diagram
Exhibit B-1 Site Plan A
Exhibit B-2 Site Plan B
Exhibit C-1 Phasing Plan A
Exhibit C-2 Phasing Plan B
65. Recordation of Development Agreement. Pursuant to California Government Code § 65868.5, no later than ten (10) days after City enters into this Agreement, the City 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 Arcadia and City as of the day and year first above written.

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov