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| CITY COUNCIL AGENDA ITEM NO. 18
Meeting Date: August 27, 2002
Subject/Title: Approving an Ordinance Approving the Development Agreement Concerning Subdivision Map No. 8281/Martin-Currin Property
Submitted by: Dennis Beougher, City Attorney
Approved by: John Stevenson, City Manager
Approve the attached ordinance, pursuant to Brentwood Municipal Code Chapter 17.810, approving the attached Development Agreement concerning Subdivision No. 8281/Martin-Currin
On July 17, 2001, the Planning Commission reviewed the Developer’s application for a subdivision of its property, consisting of approximately 44 acres generally located south of Lone Tree Way and west of Fairview Avenue The Planning Commission found on July 17, 2001 action the proposed subdivision and its proposed configuration, consisting of approximately 130 homes, was consistent with the City’s General Plan. On August 20, 2002, the Planning Commission recommended that the City Council approve the attached Development Agreement concerning Subdivision No. 8281, Martin-Currin.
Pursuant to the City’s Municipal Code, Chapter 17.810, City Council should review and make appropriate recommendations as follows:
1) The Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the community development plan and applicable specific plans.
On July 17, 2001, the Planning Commission approved the tentative subdivision and at that time found the proposed subdivision configuration and number of lots are consistent with the City’s updated General Plan. The City Council can find that the proposed Development Agreement is consistent with the objectives, policies, and general land use and programs based on the findings attached hereto, the environmental documents approved with the subdivision map, and the number of lots are consistent with the approved zoning designation for the subject property.
2) The development agreement will not be detrimental to the health, safety and general welfare of the 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.
The City Council has examined the issues of health, safety, and general welfare of the persons residing in the immediate area when it approved the subdivision and its configuration and found that the proposal will provide needed infrastructure including public sewer and water to this area, thereby increasing public health and safety to the neighborhood. The road improvements and related fees, generated by this developer, will increase public safety and be a general benefit to all city residents.
3) The development agreement will not adversely affect the orderly development of property or the preservation of property values.
The Planning Commission found that the project is in compliance with the City’s General Plan for the orderly development of the property and the preservation and the enhancement of property value in the general area of this subdivision. The City Council can also find that the project is in compliance with the City’s General Plan for the orderly development of the property and the preservation of property values in the adjacent area based on the facts stated above in items 1 and 2.
4) The development agreement will facilitate the implementation of the any applicable specific plan.
One of the primary reasons for the proposed development agreement is to allow the developer to vest its tentative subdivision map for a period of five years (the proposed term of the development agreement). This five-year term will allow the developer to participate in the City’s financing of certain public improvements for the city’s northwest quadrant infrastructure while insuring that the subdivision map will not expire.
5) The development agreement is consistent with the provisions of Government Code sections 65864 through 65869.5.
Staff believes that the proposed development agreement is consistent with the cited Government Code sections as the agreement increases the certainty of the approvals for development that could, if not provided, result in waste of resources, escalate the cost of housing, and discourage investment in and commitment to comprehensive planning, assurance to the applicant /developer that upon approval of the project, the applicant can proceed with the project in accordance with existing policies, rules, and regulations, strengthen the planning processes, and reduce the economic costs of development.
One of the primary reasons for development agreement legislation is where the lack of public facilities, such as in the area of the northwest quadrant of the city that the project is located in, is a serious impediment to the development of new housing. Whenever possible, as in this situation, applicant/developer and city may include provisions whereby applicant/developer are encouraged to assist in financing public facilities.
The above-cited Government Code sections, including the subject of periodic review, contents of the agreement, and its enforcement, are covered by the City’s development agreement ordinance [Chapter 17.810] and in the development agreement.
The proposed development agreement key provisions are as follows:
(a) five year term (Section 1.2);
(b) require dedication of Lone Tree Way right of way and the cost of the
additional right of way required by the City for this street widening is specified. [Section 2.1(g)];.
[c] required dedication of right of way for the realigned Fairview Avenue at
no cost to the City. [Section 2.1(h)]
(d) agreement to cooperate with City and facilitate the subdivision of property
currently owned by Horace Siino and his wife and associated lot line
adjustment. [Section 2.1(k)]
(e) agreement to participate in the CIPF 2002-1 for needed public improvements.
The subdivider has asked for a development agreement in order to provide a mechanism for land dedication and payment for needed right of way acquisition and to better plan for the financing of needed public improvements that will benefit the City and its residents. The fiscal impact of the development agreement is minimal.
ORDINANCE NO. ____
AN ORDINANCE OF THE CITY OF BRENTWOOD CITY COUNCIL APPROVING THE DEVELOPMENT AGREEMENT FOR TENTATIVE SUBDIVISION MAP NO. 8281/MARTIN-CURRIN PROPERTY, LOCATED SOUTH OF LONE TREE WAY AND WEST OF REALIGNED FAIRVIEW AVENUE
WHEREAS, Paul Martin and William Currin (“Applicant”) have proposed a 130 single family residential subdivision, generally known as Tentative Subdivision Map No. 8281, located south of Lone Tree Way and west of the realigned Fairview Avenue (the “Project Site”); and
WHEREAS, the Applicant in order to implement his proposed plan has applied for a Development Agreement approval; and
WHEREAS, on July 17, 2001, the Planning Commission adopted Resolutions 01-22, approving the Tentative Subdivision Map and to certify the related environmental documents prepared for the project; and
WHEREAS, on August 20, the Planning Commission recommended that the City Council approve the attached Development Agreement concerning Tentative Subdivision Map No. 8281/Martin-Currin property; and
WHEREAS, a legal notice of the Public Hearing on August 27, 2002, was advertised in the Ledger Dispatch pursuant to Government Code Section 65091; and
WHEREAS, at the public hearing on August 27, 2002, the City Council considered the Development Agreement, dated August 27, 2002, the staff report and all public comments.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood hereby finds and determines as follows:
A. The appropriate environmental documents have has been prepared and certified in accordance with all applicable provisions of the California Environmental Quality Act and represents the independent judgment of the City of Brentwood; and
B. The development agreement is consistent with the objectives, policies, general land uses and programs specified in the City General Plan as it provides for the much need public infrastructure, right of way, and funding for public facilities plus appropriate cooperation in the planning for the adjacent (Siino) property.
C. 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.
D. 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 suggested in the General Plan update process.
E. City Council further finds that the proposed development agreement is consistent with the cited Government Code sections, as the agreement increases the certainty of the approvals for development that could, if not provided, result in waste of resources, escalate the cost of housing, and discourage investment in and commitment to comprehensive planning, assurance to the applicant /developer that upon approval of the project, the applicant can proceed with the project in accordance with existing policies, rules, and regulations, strengthen the planning processes, and reduce the economic costs of development.
F. City Council finds that one of the primary reasons for development agreement legislation is where the lack of public facilities, such as in the area of the northwest quadrant of the city that the project is located in, is a serious impediment to the development of new housing.
G. The cited Government Code Sections 65864 through 65869.5, including the periodic review, contents of the agreement, and its enforcement, are covered by the City’s Development Agreement ordinance [Chapter 17.810] and in the development agreement.
BE IT FURTHER RESOLVED that the City of Brentwood City Council does hereby take the following action:
Approves the attached Development Agreement concerning Tentative Subdivision Map No. 8281/Martin-Currin property.
THIS RESOLUTION WAS APPROVED by the City Council of the City of Brentwood at its regular meeting of August 27, 2002, by the following vote:
THIS DEVELOPMENT AGREEMENT with Exhibits (“Agreement”) is entered into as of this __________ day of ________________ 2002, by and between the CITY OF BRENTWOOD, a general law municipal corporation of the State of California (“City”) and Paul Martin and William Currin (“Developer”).
This Agreement is entered into on the basis of the following facts, understandings and intentions of the parties, with definitions provided in Section 7 herein:
A. Brentwood Municipal Code (“BMC”) Chapter 17.810 regulates development agreements in the City of Brentwood in accordance with California Government Code Sections 65864, et seq.
B. Developer’s project site consists of approximately 44 acres generally located south of Lone Tree Way and west of realigned Fairview Avenue in the City of Brentwood and more particularly described in Exhibit A (“Property”). Developer warrants that he has a legal interest in the Property and that any other persons or entities holding legal or equitable interest in the Property are bound by this Agreement.
C. The proposed project consists of 130 single-family dwelling units, will be consistent with the City’s General Plan land use element. The configuration of the development is more particularly depicted on the Tentative Map No. 8281, shown on Exhibit A attached hereto.
D. On July 17, 2001 Planning Commission reviewed the Developer’s application for a Subdivision of the Property and adopted Resolution No. 01-22 approving Tentative Subdivision Map 8281, including without limitation, the adoption of a mitigated negative declaration for TM 8281, consisting of 130 parcels.
E. This Development Agreement will achieve the land use and economic goals and is consistent with the City’s General Plan and Chapter 17.810 of the BMC. This Development Agreement will provide a greater degree of certainty that the Project will be developed in the manner set forth herein than would occur if the City relied on the Project Approvals alone.
In consideration of the mutual covenants contained in this Agreement, City and Developer agree as follows:
Section 1. Effective Date; Term
1.1 Effective Date; Recordation. This Agreement shall be effective as of the effective date of the Enacting Ordinance by the City Council (“Effective Date”). Upon the Effective Date, the City Clerk shall cause a Memorandum of this Agreement to be recorded in the Official Records of the County of Contra Costa, State of California.
1.2 Term. The Term of this Agreement shall commence on the Effective Date and shall expire five (5) years thereafter unless sooner terminated or extended as hereinafter provided.
Section 2. General Development of the Project
2.1 Development of the Project. Developer shall develop the Project on the Property and City shall have the right to regulate development and use of the Property in accordance with the terms and conditions of this Agreement and the Governing Ordinances. The Property’s permitted uses, the density and intensity of use, the maximum height, bulk and size of the proposed buildings, provisions for the acquisition, reservation or dedication of land for public purposes, location of public improvements, location of public utilities, fees and exactions and other terms and conditions of development applicable to the Property shall be those set forth in the Governing Ordinances, the Project Approvals and Subsequent Project Approvals with their respective conditions of approval specifically incorporated herein by this reference, and this Agreement including Exhibit __ “Development Standards” attached hereto.
(a) The provisions of Government Code Section 65866 shall not apply to this Development Agreement, except as otherwise specified in this Agreement and more particularly described in Exhibit __. The Governing Ordinances and Subsequent Project Approvals shall control the overall design, development and construction of the Project and all on-site and off-site improvements. The Governing Ordinances shall control the issuance of Subsequent Project Approvals. To the extent that the Governing Ordinances conflict with this Agreement, this Agreement shall take precedence, except where compliance with conflicting provisions of the Governing Ordinances is necessary to protect the public health or safety. As between this Agreement and provisions or conditions of the Project Approvals, this Agreement shall take precedence.
(b) Developer shall proceed to develop the Residential Project in compliance with the tentative map and development plans referred to in Exhibit __ and the conditions of approval set forth in the Project Approvals within the times set forth herein as may be applicable.
(c) Developer shall be responsible for all the costs of developing the Residential Project and constructing all on- and off-site public and private improvements required by the Agreement, Conditions of Approval or Subdivision Agreement.
(d) Prior to commencement of grading, construction or any work related thereto upon the Property, Developer shall secure, or cause to be secured, any and all Subsequent Project Approvals that may be required by City, as well as any permits and approvals required by any other governmental agency with regulatory authority over such activities.
(e) Development of the Residential Project shall be subject to design and site plan review for overall exterior architectural treatment, streetscape, landscaping and lighting.
(f) As required by Brentwood Municipal Code, Developer shall install fiber optic cable from house connection box to the nearest connection point in the street to be approved on the improvement plans.
(g) Developer shall dedicate right-of-way along the frontage of Lone Tree Way adjacent to the property to a total width of 82’ from the centerline of improvements. Of the 82’ dedication, 29.5’ are reimbursable pursuant to the City’s Development Fee Program. The calculated mutually agreeable price of $133,238.59 shall be paid to the Landowners for the entire right-of-way area required for dedication herein. The calculation of this amount and the right-of-way requirements are shown in Exhibit __ attached hereto and incorporated herein.
In consideration of the Developer agreeing to the provisions of Sections 2.1(h), 2.1(j) and 2.1(k), City shall not charge Developer at time of building permit for the amount paid for right-of-way in excess of what is allowed under the City’s fee schedule up to the amount stated.
(h) Developer shall dedicate right-of-way along the frontage of realigned Fairview Avenue adjacent to the property to a minimum width of 33’ from center line, at no cost to the City.
(i) Developer shall dedicate the necessary right-of-way for Storm Drain Line A5 at no cost to the City.
(j) Developer shall deliver all dedications referred to in Paragraph 2.1 (g,h and i) above to North American Title Company, Excrow 54709-51900705-MEW, within 30 days of the approval of the Development Agreement by City Council.
(k) City shall deliver the sum of $133,238.59 referred to in Paragraph 2.1 (g) above to North American Title Company, Escrow 54709-51900705-MEW, to be delivered to the Landowners upon close of escrow.
(l) Close of escrow will take place when title to said property referred to in Paragraph 2.1 (g, h and I) or interest vests in the City free and clear of all liens, encumbrances, assessments, leases and taxes as shown in the Preliminary Report issued by North American Title. Contra Costa County will segregate taxes, if necessary, and any refund will come directly from the County. City shall pay all escrow, recording or other fees incurred in this transaction, if any; and, if title insurance is desired, Landowner hereby authorizes the City to prepare and file escrow instructions with North American Title Company on behalf of Developer and Landowner.
(m) It is agreed and confirmed by the parties hereto that notwithstanding other provisions in this contract, the right of possession and use of the said property referred to in Paragraph 2.1 (g, h and I) by the City of Brentwood, its contractors and their authorized agents, to enter, construct and bring the necessary workmen, tools and equipment, including the right to remove and dispose of improvements in the area referred to in Paragraph 2.1 (g, h and I) commenced on date of execution by Developer and City of Brentwood.
This City of Brentwood shall hold harmless from any and all claims, demands, damages, losses, actions, liabilities, causes of action or judgments which Developer or Landowners may pay or be required to pay by reason of any damage or injury to any person or property suffered as the sole result of the active negligence of the City of Brentwood in performing the work described herein and excepting only such loss, damage or liability as may be the intentional acts or sole negligence of the Developer or Landowners.
(n) The consideration mentioned in Paragraph 2.1 (g) (total of $133,238.59) includes total compensation for both permanent and temporary rights and includes total compensation for all severance damages to Developer/Landowner’s remaining property.
(o) The parties agree that this development will be exempt from the provisions of RGMP and Inclusionary (Affordable) Housing Ordinances as currently adopted or as may be adopted or amended in the future for the term of this Agreement. This development is exempt from these requirements because it received approval prior to the effective date of either program or requirement. This exemption shall apply to any subsequent approvals which may be required to build this development.
(p) The Developer agrees to cooperate with the City and facilitate the proposed subdivision on the Horace Siino property immediately adjacent to this project by agreeing to participate in subdivision lot line adjustment provided the Developer is granted approval for at least two additional lots in the area subject to the subdivision adjustment lot, and that the Developer shall not be subject to any additional cost other than those directly required for the Developer to construct the additional lots substantially in area and design as set forth in Exhibit __. This is a portion of the right-of-way negotiations for the realigned Fairview Avenue, which is required to provide access to this project. It shall be City’s responsibility to process any required applications in order to perfect Developer’s rights to said lots. It is anticipated that said lots will be a minor revision to Developer’s existing map, and will not affect Developer’s ability to proceed with its existing project independent of the contemplated subdivision of Siino’s property. Finally, development of the additional lots mentioned above shall be covered by the provisions of this agreement.
2.2 Issuance of Subsequent Project Approvals. Developer shall submit applications for any and all Subsequent Project Approvals as necessary to comply with the Schedule of Performance. Nothing in this Section shall obligate City to issue any approval that is not in compliance with this Agreement and the Governing Ordinances.
Upon submission by Developer of any application, City shall promptly commence and complete all steps necessary to review and process the requested Subsequent Project Approval. Notwithstanding the foregoing, City is not obligated to issue a building permit for any phase of the Project unless and until all fees and charges due and payable for that phase have been received by the City. All building permit fees due and payable shall be those in effect at the time of the issuance of a building permit.
2.3 Environmental Review. In connection with City’s approval of any application for Subsequent Project Approvals or issuance of any other permit or approval that is subject to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.), (“CEQA”) and to the extent permitted or required by CEQA:
(a) City shall commence and process all preliminary reviews, initial studies and other assessments pursuant to CEQA. City shall first consider using the mitigated negative declaration and other existing environmental reports and studies as adequately addressing the environmental impacts of such matter or matters before requiring new or supplemental environmental review or documentation.
(b) City may impose new environmental mitigation measures (“Measures”) in addition to those contained in the adopted mitigated negative declaration for this Project to the extent they are feasible and the City finds either: (1) that a failure to do so would place the occupants of the Project, the environment or the immediate community in a condition perilous to their health and/or safety, or (2) that the measure is required in order to comply with state or federal law. This Section shall not apply to Major Amendments as defined in Section 8.2 of this Agreement which may require independent review under CEQA.
2.4 Other Governmental Permits. Developer shall apply for such other permits and approvals as may be required by other governmental or quasi-governmental agencies having jurisdiction over the Project (such as public utilities or utility districts) for the development of, or provision of services to, the Project. City shall cooperate with Developer in order to facilitate the availability of such permits and approvals or services, at each stage of the development of the Project.
2.5 Permitted Uses. The uses permitted on the Project Site are those allowed under the zoning and General Plan designations as allowed under the Project Approvals.
2.6 Bodily Injury and Property Damage Insurance. Prior to the commencement of construction (or any work related thereto) upon the Project Site or upon the Public Improvements by Developer or its agents or contractors, Developer shall furnish, or cause to be furnished, to City duplicate originals or appropriate certificates of bodily injury and property damage insurance policies in the amount of at least $2,000,000 for any person, $2,000,000 for any occurrence and $2,000,000 for property damage, naming City as an additional insured and being primary. Such insurance policies shall contain such other and further endorsements, terms, conditions and coverages as may reasonably be deemed necessary by the City.
Such insurance policies shall be maintained and kept in force, during periods of construction upon the Project Site and until City has issued a Certificate of Completion for the Project. The obligation to indemnify the City as further described in Section 9.2 and 9.5 hereto shall continue for as long as necessary to protect the City from liability for claims arising from the construction of Project.
2.7 Exactions. Developer shall pay and perform the following:
(a) Fees and Charges. At the time of each permit issuance, the applicant shall pay all applicable processing fees, permit fees, connection fees, inspection fees and development fees required pursuant to this Agreement and the Governing Ordinances. This includes without limitation grading permit fees, encroachment permit fees, development impact fees, and third party agency fees such as ECCRFFA sub-regional traffic mitigation fees, school facility fees as established under the July 25, 1995 East Contra Costa County School Facilities Funding and Mitigation Agreement (Liberty Union High School District), as may be amended, and the March 12, 1992 Agreement of the Brentwood elementary School District, as may be amended, and City/EDFPD fire mitigation fees. With the exception of third party agency fees where the rules of the agency dictate otherwise, the fees shall be payable in the amounts in effect at the time the applicable permit is issued. Furthermore, existing policy and AB1600 (Government Code Sections 66000 et seq.) provide notice of the nature of these fees and their manner of calculation. This includes the potential that existing fees may escalate to account for changes in the applicable building cost index. The fees are otherwise subject to change to account for required changes in the City’s Capital Improvement program during the annual fee review the City undertakes in accordance with its existing policy and AB1600. The Project Site shall be subject to a lien for any unpaid fees that are due and payable under this Agreement.
(b) Taxes and Assessments. Developer shall pay all ad valorem property taxes and special assessments imposed on the Project Site and the improvements thereon, including but not limited to the assessments imposed pursuant to any landscaping and lighting, CFD No. 2, districts and City-Wide Park Maintenance Assessment District 2002-1 (collectively, “districts”). Developer agrees to annex to any Landscape and Lighting District and CDF No. 2 as required in the Conditions of Approval approved by the Planning Commission on July 17, 2001, concurrently or before the approval of the Final Map for the first phase of the development. In addition, by agreeing to annex to CDF No. 2, Developer is deemed to have complied with condition 24 of the Conditions of Approval mentioned above. In the event such districts are disbanded, Developer agrees to cooperate with the City to re-establish a district covering the Project’s proportional responsibility for the improvements covered by the original district(s).
Section 3. Additional Obligations of Developer
3.1 Participation in CIFP 2002-1. The parties understand and acknowledge the necessity to provide for local infrastructure to service the Project. Therefore, Developer shall participate in Capital Improvement Financing Program 2002-1 and Assessment District 2002-1 concurrent with this Agreement or as otherwise determined by the City Engineer, which will require the pre-payment of applicable development impact fees. Developer will receive credit for those pre-paid development fees at the time permits are issued for construction of improvements. The estimated total prepayment of fees is $_______. Other details of Developer’s participation in the CIFP are as outlined in the CIFP proceedings and Draft Engineer’s Report.
Section 4. Specific Criteria Applicable To Development Of The Project.
4.1 Applicable Ordinances and Approvals. This Agreement and the Governing Ordinances shall govern the development of the Project. In the event of any conflict between this Agreement and the Governing Ordinances, this Agreement shall control.
(a) Developer shall have the right to proceed with development of the Project in substantial compliance with this Agreement and the Governing Ordinances. City shall not, in subsequent actions applicable to the Project, do any of the following:
(i) Limit the density of the Project, or otherwise require any reduction in the square footage or total number of proposed improvements; or
(ii) Limit the improvements on the Project Site in a manner which is inconsistent with the Project Approvals and this Agreement; or
(iii) Unilaterally change the terms of this Agreement.
4.2 Rights of Access in General. For the purposes of assuring compliance with this Agreement, representatives of City shall have the reasonable right of access to the Project Site without charges or fees for the purpose of inspection of the Project Site as to maintenance of the improvements thereon. Representatives of City shall have the reasonable right of access to the Project Site for the purpose of inspection and repair of public utilities facilities.
Section 5. Transfers and Assignments
5.1 Right to Assign
(a) Developer shall have the right to sell, assign or transfer this Agreement , and all of its rights, duties and obligations hereunder, to any person at any time during the Term, subject to the prior written approval of the City Council. Such approval shall be granted where the buyer, assignee or transferee has demonstrated the experience, qualifications and financial resources to complete and operate the Project, or applicable portions thereof, to the reasonable satisfaction of the City. Developer and each Assignee shall enter into a written assignment agreement which specifies the obligations to be undertaken by the Assignee. The form and content of each assignment agreement shall be subject to approval of the City Attorney. Approval of proposed assignments shall not unreasonably be withheld.
(b) In no event shall the rights, duties and obligations conferred upon Developer pursuant to this Agreement be at any time transferred or assigned except through a transfer of an interest of Developer in the Project Site or portion thereof.
Section 6. Amendment and Termination
6.1 In General. Except as provided in City’s annual review relating to termination in the Event of Default, this Agreement may be cancelled, modified or amended only by mutual written consent of the parties, in accordance with the provisions of Government code Sections 65867, 65867.5 and 65868, and Chapter 17.810 of the BMC.
6.2 Amendment. Any amendment to this Agreement which relates to the term, permitted uses, density or intensity of use, maximum height or maximum dimensions of buildings, requirements for public improvements, substantial deviations from the development plans identified in Exhibit __, monetary obligations of Developer or which causes significant new information about an environmental impact or mitigation measure shall require giving of notice and shall require a public hearing before the Planning Commission and City Council in accordance with the Government Code Sections 65867 and 65867.5.
The City Manager shall be vested with the authority to determine whether a proposed Amendment is consistent with this Agreement in the manner set forth above.
6.3 Recordation of Amendment. The City Clerk shall record an appropriate notice of any major amendment, cancellation or termination with the Contra Costa County Recorder not later than ten (10) days after the effective date of the action effecting such amendment, cancellation or termination, accompanied by a legal description of the Project Site.
Section 7. Definitions
Each capitalized reference in this Agreement to any of the following terms shall have the meaning set forth below:
7.1 Conditions of Approval. The Conditions of Approval are those conditions imposed by the City in connection with the Project Approvals and Subsequent Project Approvals.
7.2 Enacting Ordinance, The Ordinance adopted by the City approving this Agreement, attached as Exhibit __. This Agreement shall constitute a part of the Enacting Ordinance as if incorporated therein in full.
7.3 Event of Default. Failure or unreasonable delay by either party to perform any term, provision or condition of this Agreement as set forth in Section 11.1 of this Agreement.
7.4 Exactions. All exactions that might be imposed by City as a condition of developing the Project, including fees or other monetary payments, requirements for acquisition, dedication or servation of land, obligations to construct on-site or off-site public and private improvements called for in connection with the development of the Project under this Agreement, the Project Approvals, Subsequent Project Approvals and Governing Ordinances.
7.5 Laws. The constitutions and laws of the State of California and the United States and any codes, statutes or executive mandates or any court decision, state or federal, thereunder.
7.6 Governing Ordinances. The ordinances, resolutions, official policies, rules and regulations of City, governing the permitted uses of land, intensity of development, design, improvement and construction standards and specifications applicable to the development of the Project, as may be amended, including without limitation the Project Approvals, Subsequent Project Approvals, with their respective Conditions of Approval, Planning Commission Resolution No. 01-22 (July 17, 2001) adopting standard conditions for all tentative maps, the City’s General Plan, Zoning Ordinance, Subdivision Ordinance, the Enacting Ordinance and the City’s standard construction specifications.
7.7 Project. The Project consists of the improvements to the Project Site and associated off-site improvements, as depicted in the tentative map and development plans referred to in Exhibit C, subject to any modifications or amendments that may be agreed upon by City and Developer pursuant to Section 6.1 of this Agreement.
7.8 Project Approvals. The land use approvals, entitlements and permits required for the development of the Project.
7.9 Project Site or Property. That certain real property described in Exhibit A to this Agreement.
7.10 Term. The term of this Agreement determined under Section 1.
Section 8. Notices
8.1 Procedure. Any notice or communication by any party pursuant to this Agreement (“Notices”) shall be in writing and shall be given either personally, by facsimile transmission, by an overnight delivery courier service or by regular U.S. mail.
(a) If given by overnight delivery courier service, the Notice shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier.
(b) If personally delivered, a Notice shall be deemed to have been given when actually delivered to the party to whom it is addressed.
(c) If delivered by facsimile transmission, a Notice shall be deemed to have been given upon receipt of the entire document by the receiving party’s facsimile machine as shown by the transmission report issued by the transmitting facsimile machine. Notice transmitted after 5 p.m. or on Saturday or Sunday shall be deemed to have been given on the next business day.
(d) If delivered by regular U.S. mail, a Notice shall be deemed to have been given five (5) calendar days after deposit with the U.S. Postal Service.
Notices shall be given to the parties at their addresses set forth below:
CITY: City Manager
City of Brentwood
150 City Park Way
Brentwood, CA 94513
Telephone: (925) 516-5440
Facsimile: (925) 516-5441
DEVELOPER: Paul Martin
Martin Land Company
805 Fletcher Lane, Suite 1
Hayward, California 94544
Telephone: (510) 886-7727
Facsimile: (510) 886-7751
Any party may change its mailing address or contact person(s) at any time by giving written notice of such change to the other party in the manner provided herein at least ten (10) days prior to the date such change is effected.
8.2 Form and Effect of Notice. Each notice requesting consent or approval shall contain reasonably sufficient data or documentation to enable the recipient to make an informed decision.
Section 9. Other Provisions.
9.1 Default; Termination. Failure or unreasonable delay by either party to perform any obligation under this Agreement for a period of thirty (30) days after written notice thereof from the other party shall constitute an Event of Default under this Agreement, subject to extensions of time by mutual consent in writing or event of force. Said notice shall specify the nature of the alleged default and the manner in which said default may be satisfactorily cured. If the nature of the alleged default is such that it cannot reasonably be cured within such thirty (30) day period, the commencement of the cure within such time period and the subsequent diligent prosecution to completion of the cure shall be deemed a cure within such period. However, no thirty (30) day period of cure shall be allowed where this Agreement specifies a date by which particular actions must be taken.
Subject to the foregoing, after notice and expiration of the thirty (30) day period without cure, if applicable, the other party to this Agreement, at its option, may institute legal proceedings pursuant to this Agreement and/or give notice of intent to terminate the Agreement pursuant to Government Code Section 65868 and the City’s development Agreement Ordinance. Following such notice of intent to terminate, the matter shall be scheduled for consideration and review by the City Council within thirty (30) calendar days in the manner set forth in Government Code Sections 65865.1, 65867 and 65868. Following consideration of the evidence presented in said review before the City Council, and a determination by the City Council based thereon, the party alleging the default by the other party may give written notice of termination of this Agreement to the other party.
The waiver by either party of any Event of Default under this Agreement shall not operate as a waiver of any subsequent breach of the same or any other provision of this Agreement.
9.2 Cooperation in the Event of Third-Party Legal Challenge. In the event of any legal action or administrative proceeding instituted by a third party challenging the effect, interpretation or validity of any provision of the Agreement or the procedures leading to its adoption or the issuance of any or all of the Project Approvals, the parties hereby agree to cooperate in defending said action or proceeding. Developer agrees to diligently defend any such action or proceeding and to bear the litigation expenses of defense, including attorney’s fees. City retains the option to employ independent defense counsel at Developer’s expense. The City must pre-approve any decision in the action, including settlement, in which the City’s participation or performance is required. Developer further agrees to hold City harmless from all claims for recovery of the third party’s litigation expenses, including attorney’s fees.
9.3 Legal Actions; Remedies; Attorney Fees. In addition to any other rights and remedies, either party may institute legal action to cure, correct or remedy any default, enforce any covenant to agreement herein, enjoin any threatened or attempted violation or enforce by specific performance the obligations and rights of the parties hereto. In no event shall City or its officers, agents or employees be liable in monetary damages for any breach or violation of this Agreement, it being expressly understood and agreed that the sole legal or equitable remedy available to Developer or its successors for a breach or violation of this Agreement by City shall be an action in mandamus, specific performance, injunctive or declaratory relief to enforce the provisions of this Agreement. In no event shall City be foreclosed from initiating an action to enforce Developer’s obligations to make monetary payments under this Agreement, including without limitation an action to foreclose a lien imposed pursuant to Section 2.7a. In any such legal action, the prevailing party shall be entitled to recover all litigation expenses, including reasonable attorney’s fees and court costs.
9.4 Effect of Termination. Termination of this Agreement shall not affect Developer’s obligation to comply with the standards, terms and conditions of any land use approvals issued with respect to the Project Site or any portion thereof; nor shall it affect any covenants of Developer which are specified in this Agreement to continue after termination or which must remain in effect to achieve their intended purpose, including but not limited to Sections 2.6, 9.2, 9.3 and 9.5.
9.5 Indemnification; Hold Harmless. Except for claims, costs and liabilities caused by the active negligence or intentionally wrongful conduct of City, its elected and appointed representatives, officers, agents and employees, Developer hereby agrees to defend, indemnify, save and hold City and its elected and appointed representatives, officers, agents and employees harmless from claims, costs and liabilities for any personal injury, death or property damage which arises, directly or indirectly, from operations performed or failed to be performed under this Agreement by Developer or Developer’s contractors, subcontractors, agents or employees.
9.6 Negation of Partnership, Agency and Joint Venture; No Third-Party Beneficiaries. The City and Developer specifically acknowledge that the Project is a private development, and that no party is acting as the agent of the other in any respect hereunder. None of the provisions of this Agreement shall be deemed to create a partnership between or among the parties, nor shall it cause them to be considered joint venturers or members of any joint enterprise. This Agreement is not intended nor shall it be construed to create any third party beneficiary rights in any person who is not expressly made a party and signatory to this Agreement.
9.7 Severability. Invalidation of any provision of this Agreement, or of the application thereof to any person, by judgment or court order shall not affect any of the other provisions hereof or the application thereof to any other person and those provisions shall remain in full force and effect.
9.8 Entire Agreement. This Agreement and the Exhibits hereto contain all the representations and the entire agreement between the parties with respect to the subject matter hereof. Except as otherwise specified in this Agreement, all prior correspondence, memoranda, agreements, warranties or representations are superseded in total by this Agreement and the Exhibits hereto.
9.9 Further Documents. Each party shall execute and deliver such further documents as may be reasonably necessary to achieve the objectives of this Agreement.
9.10 Governing Law; Interpretation of Agreement. This Agreement shall be governed by and interpreted in accordance with the laws of the United States, the State of California and the City of Brentwood. The interpretation of this Agreement shall be considered as though the Agreement was drafted by both parties, with both parties having the opportunity to seek review by legal counsel.
9.11 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original Agreement.
9.12 Time of Essence. Time is of the essence of this Agreement and of each and every term and condition hereof.
9.13 Notice of Termination. Upon the expiration of this Agreement, the parties hereto shall, if requested by another party, execute for recordation in the Official Records of Contra Costa County, a notice stating that this Agreement has expired, that the parties have performed all their duties and obligations hereunder and that this Agreement is no longer an encumbrance or servitude on the Project Site.
9.14 Exhibits. The following exhibits are attached to this Agreement and incorporated herein for all purposes:
Exhibit A ________________________________
Exhibit B ________________________________
Exhibit C ________________________________
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
CITY OF BRENTWOOD, a California municipal corporation
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
Fax (925) 516-5441