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 CITY COUNCIL AGENDA ITEM NO. 19


Meeting Date: September 10, 2002

Subject/Title: Public Hearing: An amendment to the PD-3 Zone by creating development standards for an approximate 10-acre general commercial site and approval of an operating covenant between the City of Brentwood and Safeway, Inc. relating to the existing store located at 1125 Second Street and the proposed store located within the Balfour Village Center project, located at the southeast corner of Balfour Road and Fairview Avenue (APN 010-030-029)

Submitted by: Community Development Department (Mitch Oshinsky, Community Development Director/Erik Nolthenius, Associate Planner)

Approved by: John Stevenson, City Manager


RECOMMENDATION 
It is recommended that the City Council take the following actions:

1. Waive the first reading and introduce an Ordinance approving an amendment to Planned Development No. 3 Zone by creating development standards for an approximate 10-acre general commercial site known as Balfour Village Center
2. Approve the attached operating covenant between the City of Brentwood and Safeway, Inc., subject to any amendments approved by the City Council. 

PREVIOUS ACTION
The project site was redesignated from Low Density Residential to General Commercial as part of the City of Brentwood General Plan Update, approved by the City Council on November 27, 2001. The Planning Commission recommended approval of the amendment to PD-3 at its meeting of August 20, 2002, and recommended approval of the operating covenant at its meeting of July 30, 2002.

BACKGROUND
At its meeting of July 30, 2002, the Planning Commission considered the requests to amend PD-3 for a 10.13-acre site located at the southeast corner of Balfour Road and Fairview Avenue, to create development standards for a proposed neighborhood shopping center, and to approve an operating covenant between the City of Brentwood and Safeway, Inc. At that meeting, the Commission decided to continue the discussion of the development standards, but passed Resolution No. 02-11 on a 3-1 vote (with one abstention) recommending that the City Council approve the operating covenant, subject to certain amendments concerning the force majeure provision and if the liquidated damages are received the process, the process to expend the money.

The Commission subsequently considered the development standards at its meeting of August 20, 2002 (along with a design review for the shopping center and a conditional use permit to allow a master sign program for the center), and passed Resolution No. 02-47 on a 5-0 vote recommending that the City Council approve the amendment to PD-3. The one significant point of discussion during the Commission meeting was whether or not to allow financial institutions by right. The recommendation from the Commission is that they be permitted if there are at least 3 financial institutions in the CB Zone (downtown area), otherwise they would be conditionally permitted and require a use permit.

The operating covenant considered by the Commission includes a provision requiring the continued operation of the existing Safeway store located at 1125 Second Street for a period of 5 years, beginning with the issuance of a Certificate of Occupancy for the proposed store located on the project site. A breach of the operating covenant would require Safeway, Inc. to pay the City $1 million. A provision has been added to the operating covenant that if the existing Safeway store closes, and the $1 million is paid, the Redevelopment Agency will make a recommendation how that money would be spent to either renovate the existing TownCentre shopping center, or be otherwise used.

It should be noted that there is no provision in the operating covenant for restricting future land use changes or rezonings in the area surrounding the existing Safeway store that would allow supermarkets. Safeway’s position is that this provision is critical and must be in the operating covenant. This issue could be decided nor resolved by staff prior to this public hearing. Language has been added to the proposed development standards to ensure that the operating covenant is entered into prior to the issuance of any building permits for the proposed project.

A Design Review (DR 01-34) application for the shopping center, along with a Conditional Use Permit (CUP 02-05) to allow a master sign program for the shopping center, was approved by the Commission on August 20, 2002. A Mitigated Negative Declaration was prepared for the overall project in accordance with the requirements of the California Environmental Quality Act (CEQA). All applicable mitigation measures were made conditions of approval of the project. The developer, McNellis Partners, would like to receive approval for the creation of these development standards in order to move forward with its commercial development plans. The development standards recommended for approval by the Planning Commission are attached to the Ordinance as Attachment "A". These standards are in conformance with the General Plan.

ANALYSIS
Staff believes that the recommended development standards and operating covenant will allow the applicant to develop the site to its potential while maintaining consistency with the General Commercial designation of the site and ensuring compatibility with existing and future land uses in the vicinity of the site. The Planning Commission and staff believe that approval of the proposed development standards and operating covenant would serve to implement the goals and policies of the General Plan by facilitating development of the project site and will not adversely impact the adjacent residential parcels.

FISCAL IMPACT
It is estimated that this neighborhood shopping center will generate revenue via sales and property tax for the City of Brentwood.

EXHIBITS
A. City Council Ordinance No. ___ (for the amendment to PD-3)
B. City Council Resolution No. ___ (for the operating covenant)

EXHIBIT "A"

ORDINANCE NO. ___

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING THE PLANNED DEVELOPMENT NO. 3 (PD-3) ZONE BY CREATING DEVELOPMENT STANDARDS FOR AN APPROXIMATE 10-ACRE GENERAL COMMERCIAL SITE, LOCATED AT THE SOUTHEAST CORNER OF BALFOUR ROAD AND FAIRVIEW AVENUE (APN 010-030-029).

WHEREAS, McNellis Partners has requested that the City approve an amendment to the PD-3 Zone, located at the southeast corner of Balfour Road and Fairview Avenue; and

WHEREAS, on August 20, 2002, the Planning Commission conducted a duly noticed public hearing, considered public comments, and passed Resolution No. 02-47 which recommends the approval of the amendment to the PD-3 Zone by creating development standards for the approximate 10-acre project site; and

WHEREAS, specific development plans for the project site were reviewed and approved by the Planning Commission on August 20, 2002, in accordance with Resolution No. 02-49; and

WHEREAS, an Initial Study and Mitigated Negative Declaration were prepared for this project in accordance with the California Environmental Quality Act (CEQA) and are considered a part of this review and approval process; and

WHEREAS, the Mitigated Negative Declaration identifies 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, the availability of said environmental document for the minimum 20-day public review and comment period was begun on June 24, 2002, and ended on July 15, 2002, and all comments received during the review period were noted by the Planning Commission; and

WHEREAS, a Notice of Public Hearing was legally advertised in the Ledger-Dispatch on June 14, 2002, and again in the Contra Costa Times on August 31, 2002, and mailed to all property owners of record within 300 feet of the project site in accordance with City policies and Government Code Section 65090; and

WHEREAS, the City Council held a public hearing on the proposed amendment on September 10, 2002, for the purpose of reviewing the application, considering the Planning Commission's action and considering all comments made by the public with respect to this proposed amendment; and

WHEREAS, after the close of the public hearing, the City Council considered all public comments received both before and during the public hearing, the Planning Commission recommendation, the presentation by City Staff, the staff report, and all other pertinent goals, policies, regulations, and documents regarding the proposed amendment; and

WHEREAS, the City Council of the City of Brentwood hereby makes the following supporting findings for this application as required by Section 17.870.008 of the City Zoning Ordinance:

1. The site is physically suitable for the type and the density of development proposed; and

2. The proposed amendment to the PD-3 Zone is consistent with the City's Zoning Ordinance and the City Council's previously expressed intent to stimulate job generating uses within the City; and

3. Specific development standards for the uses permitted under the General Plan and the approved Balfour Village Center project have been established; and

4. The development standards will result in development that is consistent and compatible with surrounding uses; and

5. The level of traffic to be generated can be accommodated by the public circulation system, both existing and planned; and

6. The project will serve the housing needs of the City and the region and will not create a detrimental imbalance between the public service needs of its residents and available fiscal and environmental resources (Government Code Section 65863.6); and

7. 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 zone or combination of zones; and

8. The Planned Development Zone is on property which has a suitable relationship to one or more thoroughfares, and said thoroughfares are adequate to carry any traffic generated by the development; and

9. 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

10. The natural and scenic qualities of the site are protected with adequate available public and private open spaces designated on the development plan; and

11. 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 thereof, and with any applicable Specific Plan adopted by the City; and

12. A Mitigated Negative Declaration has been prepared and approved for this project; and

13. The proposed amendment to the PD-3 Zone has been processed in accordance with the applicable provisions of the California Government Code and the California Environmental Quality Act (CEQA).

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood does hereby ordain as follows:

Section 1.

Approves the amendment to the PD-3 Zone for Commercial Subarea "B" as shown on the map attached as Attachment "A" and adopts development standards for this area as designated on Attachment "B" attached hereto and made a part of this Ordinance.

Section 2.

Chapter 17.453 of the Zoning Ordinance is hereby amended for the purpose of regulating certain real property and establishing development standards for the project, as shown on Attachment "B" attached hereto and made a part of this Ordinance.

Section 3.

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

B. This Ordinance shall go into effect thirty (30) days after the date of its passage and adoption.

Section 4.

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 regular meeting of the Brentwood City Council on the 10th day of September 2002, and adopted at a regular meeting of the Brentwood City Council on the 24th day of September 2002, by the following vote:


Attachments:
Attachment "A" - Subarea Map for PD-3
Attachment "B" - Development Standards for PD-3 Amendment (Chapter 17.453)

ATTACHMENT "B" TO
CITY COUNCIL ORDINANCE NO. ___


CHAPTER 17.453
PD-3 (PLANNED DEVELOPMENT NO. 3) ZONE
COMMERCIAL SUBAREA “B”

BALFOUR VILLAGE CENTER


17.453.001 AUTHORITY & PURPOSE
17.453.002 PERMITTED USES
17.453.003 CONDITIONALLY PERMITTED USES
17.453.004 REGULATIONS FOR LOT AREA, DENSITY, YARDS, HEIGHT AND RELATED MATTERS
17.453.005 OTHER REGULATIONS


17.453.001 AUTHORITY & PURPOSE 

The authority & purpose for the adoption of the PD-3 (Planned Development No. 3) Commercial Subarea “B” Zone, as shown on Attachment “A”, are as follows:

A. Authority: The PD-3 Commercial Subarea “B” Zone is adopted pursuant to the authority set forth in Chapter 17.450, Planned Development Zones, General Regulations, of the Brentwood Municipal Code.

B. Purpose: The purpose of the PD-3 Commercial Subarea “B” Zone is to permit and regulate the orderly development of 10.13 acres located at the southeast corner of Balfour Road and Fairview Avenue with general commercial uses, including a supermarket, in accordance with the Brentwood General Plan.

C. Intent: The intent of creating the PD-3 Commercial Subarea “B” Zone is to ensure the coordinated development of the entire property in order to minimize impacts on adjacent residential areas, while providing for the flexibility to maximize the potential for job creation and serve the needs of surrounding residential and commercial neighborhoods.

17.453.002 PERMITTED USES:

The following uses are permitted in the PD-3 Commercial Subarea “B” Zone:

A. Convenience retail uses with up to 20 seats such as bakeries, pastry shops, coffee shops, book stores, candy stores, florists, newsstands, stationery/gift shops, ice cream parlors, and similar uses;

B. Supermarkets, drug stores, and similar uses;

C. On-sale or off-sale liquor sales relating to a supermarket, drug store, restaurant or similar use;
D. Service uses such as barber or beauty shops, shoe repair stores, laundromats, dry cleaners, mailing/mailbox centers, and similar uses;

E. Professional office uses such as dentist offices, real estate offices, chiropractic offices, optometrist offices, and veterinary clinics or pet stores (excluding boarding facilities);

F. Restaurants and cafes with up to 20 seats providing take-out service or having quick-serve capability (as determined by the Community Development Director), with no restriction on the number or area of such uses within the center;

G. Restaurants and cafes with sit-down facilities, limited to a total of 11,500 square feet within the entire shopping center;

H. Financial institutions when three or more such uses are located in the CB Zone at the time of application for a discretionary approval by the City or, if no discretionary approval is needed, at the time of the initial non-discretionary approval (i.e. building permit or certificate of occupancy); and

I. Convenience retail, service, and other permitted uses that conform with the City’s Noise Ordinance pursuant to the definition set forth in Chapter 17.200.004 and Chapter 9.32 as amended February 12,2002.

17.453.003 CONDITIONALLY PERMITTED USES:

Upon obtaining a Conditional Use Permit pursuant to Chapter 17.830, the following uses are permitted:

A. On-sale or off-sale liquor establishments not relating to a supermarket, drug store, restaurant or similar use;

B. Convenience stores;

C. Meeting rooms/fraternal halls and neighborhood community centers;

D. Free standing restaurants and cafes, excluding a drive in or drive thru establishment;

E. Open storage or outdoor display of seasonal merchandise; 
F. Restaurants and cafes with sit-down facilities, when the total square footage exceeds 11,500 square feet within the entire center;

G. Financial institutions when less than three such uses are located in the CB Zone at the time of application for a discretionary approval by the City or, if no discretionary approval is needed, at the time of the initial non-discretionary approval (i.e. building permit or certificate of occupancy);

H. Child care nurseries, child care centers, day care centers, and similar uses; and

I. Other uses that the Community Development Director determines, because of the type of operation, material stored or sold, or other special circumstances require special consideration and regulations through the conditional use permit procedure.

17.453.004 REGULATIONS FOR LOT AREA, DENSITY, YARDS, HEIGHT, AND RELATED MATTERS:

All permitted and conditionally permitted uses developed within the PD-3 Commercial Subarea “B” Zone shall comply with the following regulations:

A. Minimum Lot Area: Twenty-five thousand (25,000) square feet, except that a master planned shopping center may be subdivided into parcels having a minimum lot area of ten thousand (10,000) square feet and a minimum lot width of one hundred (100) feet.

B. Minimum Street Frontage: One hundred and twenty (120) feet, except in the event of a subdivision pursuant to subsection A of this section where frontage is not required provided perpetual access is provided by easements.

C. Minimum Street Frontage Yards: Ten (10) feet that, except for driveway approaches, shall be landscaped pursuant to Section 17.630.

D. Minimum Non-Street Frontage Yards: Fifty (50) feet. These yards shall be screened if required pursuant to Section 17.630.

E. Maximum Building Height: The maximum height of all structures in the PD-3 Commercial Subarea "B” Zone shall be one (1) story not to exceed thirty (30) feet except for architectural features (including roof elements) which can extend up to thirty-seven (37) feet.

F. Delivery Hours: Supermarkets shall restrict delivery hours to 7am to 10pm, Monday through Saturday, and 9 am to 10 pm on Sunday.




17.453.005 OTHER REGULATIONS:

A. Parking: Off-street parking shall be provided in accordance with Chapter 17.620 of the Brentwood Municipal Code, except that sit-down restaurants shall provide 1 parking space for each 100 square feet of gross floor area.

B. Development Standards: The uses within the PD-3 Commercial Subarea “B” Zone shall comply with Section 17.200.003 of the Brentwood Municipal Code.

C. Performance Standards: The uses within the PD-3 Commercial Subarea "B” Zone shall comply with Section 17.200.004 of the Brentwood Municipal Code.

D. Signs: All signage for uses within the PD-3 Commercial Subarea “B” Zone shall be in accordance with the Master Sign Program, as approved by the City of Brentwood.

E. Prohibited Uses: Prohibited uses within the PD-3 Commercial Subarea "B" Zone shall include drive-in or drive-thru facilities and gas station facilities.

F. Operating Covenant: No building permits shall be issued for any development unless and until the operating covenant between the City of Brentwood and Safeway Inc. has been entered into and recorded with Contra Costa County.


EXHIBIT "B"

RESOLUTION NO. ___

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE OPERATING COVENANT BETWEEN THE CITY OF BRENTWOOD AND SAFEWAY INC. RELATED TO THE EXISTING STORE LOCATED AT 1125 SECOND STREET AND THE PROPOSED STORE LOCATED WITHIN THE BALFOUR VILLAGE CENTER PROJECT, LOCATED AT THE SOUTHEAST CORNER OF BALFOUR ROAD AND FAIRVIEW AVENUE (APN 010-030-029).

WHEREAS, Safeway Inc. ("Applicant”) has proposed the construction of a 65,589 sq. ft. supermarket located at the southeast corner of Balfour Road and Fairview Avenue in the City of Brentwood (the “Project Site”); and

WHEREAS, the overall project includes an amendment to the Planned Development No. 3 (PD-3) Zone to add development standards for this project, an Agreement Respecting Operating Covenant, Design Review approval, and a Conditional Use Permit for a Master Sign Program; and

WHEREAS, on July 30, 2002, the Planning Commission passed Resolution No. 02-48, recommending that the City Council approve the operating covenant for the project; and

WHEREAS, a legal notice of the Public Hearing was advertised in the Ledger-Dispatch on August 31, 2002, and mailed to property owners of record within 300 feet of the project site pursuant to City policies and Government Code Section 65091; and 

WHEREAS, at the public hearing on September 10, 2002, the City Council considered the draft Agreement Respecting Operating Covenant, as recommended by the Planning Commission, the staff report, and all public comments.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BRENTWOOD AS FOLLOWS:

Section 1. The above recitals are true and correct.

Section 2. The Agreement Respecting Operating Covenant is hereby approved, as amended by the City Council, as attached hereto, and authorizes the Mayor to execute the Agreement Respecting Operating Covenants.

ADOPTED by the City Council of the City of Brentwood at a regular meeting of said Council held on the 10th day of September, 2002, by the following vote:


Attachment:
Attachment "A" - Agreement Respecting Operating Covenant



ATTACHMENT "A" TO
CITY COUNCIL RESOLUTION NO. ____


AGREEMENT RESPECTING OPERATING COVENANT


THIS AGREEMENT RESPECTING OPERATING COVENANT (this "Agreement") is made as of this _________ day of _______________, 2002 (the "Effective Date"), by and between SAFEWAY INC., a Delaware corporation ("Safeway"), and the CITY OF BRENTWOOD, a municipal corporation (the "City").

RECITALS:

A. Safeway is the fee owner of that certain real property and the improvements located thereon commonly known as 1125 Second Street, Brentwood, California, at which location Safeway operates a grocery supermarket (the "Existing Supermarket").

B. Safeway is negotiating a Ground Lease with McNellis Partners as the ground lessor and Safeway as the ground lessee, which Ground Lease would demise to Safeway that certain real property located at the southeast corner of Balfour Road and Fairview Avenue, Brentwood, California (the "New Location"), at which New Location Safeway desires to construct a new grocery supermarket (the "New Supermarket").

C. The City has requested of Safeway, as a corollary to rezoning the New Location to permit the construction and operation of the New Supermarket, that Safeway agree to operate the Existing Supermarket for a period of five (5) years.

D. Safeway has agreed to operate the Existing Supermarket for a period of five (5) years, subject to the terms and conditions contained in this Agreement.

NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual agreements hereinafter contained, Safeway and the City agree as follows:

1. Definitions.

(a) Force Majeure Event. As used in this Agreement, the term "Force Majeure Event" shall mean and include any disruption of business operations caused by condemnation or eminent domain proceeding, fire, flood, inclement weather or other casualty, strikes, lockouts or other labor or industrial disturbance affecting the Existing Supermarket and other supermarkets operated by Safeway or its affiliates, civil disturbance, act of public enemy, war, riot, sabotage, or terrorism, blockade or embargo, or the failure or the inability to secure materials, utilities, supplies or labor through ordinary sources by reason of shortages or priority, or other similar causes (other than financial causes) not within the reasonable control of Safeway.

(b) Operating Period. As used in this Agreement, the term "Operating Period" means the period commencing on the Trigger Date (defined in Section 1[d]) and ending on the fifth (5th) anniversary of the Trigger Date.

(c) Remodel. As used in this Agreement, the term "Remodel" means a four- (4-) wall remodel of the interior of the Existing Supermarket, including new décor and new equipment.

(d) Trigger Date. As used in this Agreement, the term "Trigger Date" means the date on which Safeway has received a Certificate of Occupancy for the New Supermarket subject to no terms or conditions unacceptable to Safeway in its sole discretion, acting in good faith and dealing fairly.

2. Operating Covenant. Safeway agrees that, provided the Trigger Date occurs, the Existing Supermarket shall be operated during the Operating Period as a conventional grocery store of similar quality to the current grocery store operation in the Existing Supermarket, except to the extent prevented by a Force Majeure Event or by the performance of repairs or alterations to the Existing Supermarket (provided that such repairs or alterations are diligently pursued). The covenant contained in this Section 2 is hereinafter referred to as the "Operating Covenant".

3. Breach of Operating Covenant. In the event of a breach of the Operating Covenant which continues for thirty (30) days after Safeway's receipt of written notice from the City of such breach, then the City shall have as its sole remedy and in lieu of any other remedies provided by law or herein the right to collect from Safeway as liquidated damages, and not as a penalty, the sum of One Million and no/100s Dollars ($1,000,000.00) (the “Liquidated Damages”). The City shall, after collection of the Liquidated Damages, either spend the Liquidated Damages received from Safeway to renovate the existing Town Center shopping center or another appropriate expenditure, as determined by a recommendation by the City's Redevelopment Agency.

4. Remodel of Existing Supermarket. Provided that Safeway obtains all discretionary and ministerial permits, approvals, licenses, certificates, and other entitlements required for the Remodel (collectively, the "Remodel Permits"), without the imposition of conditions unsatisfactory to Safeway, in its sole discretion, acting in good faith and dealing fairly, including, without limitation, sign permits, Safeway shall commence the Remodel within not more than six (6) months following the date Safeway commences the construction of the New Supermarket, and Safeway shall diligently pursue the completion of the Remodel. Safeway shall use commercially reasonable efforts to obtain the Remodel Permits.

5. Automatic Termination. In the event that (a) the City shall rezone property within that portion of the City depicted as the "No New Grocery Store Area" on Exhibit A, attached hereto and incorporated herein, to allow (as a permitted or conditional use) the construction and/or operation of a grocery supermarket or grocery store operation (such as for example and not by way of limitation, a grocery department within a Costco or Wal-Mart), other than the New Supermarket, and (b) following such rezoning such grocery supermarket or grocery store operation opens for business within the No New Grocery Store Area, then this Agreement shall automatically terminate and be of no further force or effect on the date of such opening for business.

6. Safeway's Right to Terminate. In the event that the Trigger Date has not occurred within twenty-four (24) months following the Effective Date, then Safeway may terminate this Agreement by written notice to the City given at any time following the expiration of such 24-month period.

7. Notices. Notices required or desired to be made by the parties hereto may be delivered by private receipted express courier service such as Federal Express, or by depositing the same in the United States mail, postage prepaid, certified or registered mail, in each case addressed as follows:

THE CITY: City of Brentwood
150 City Park Way
Brentwood, CA 94513
Attention: John Stevenson, City Manager

SAFEWAY: Safeway Inc.
Real Estate Law Department
5918 Stoneridge Mall road
Pleasanton, CA 94588
Attention: Thomas L. Hanavan

8. Attorneys’ Fees. In any action or proceeding which either party brings against the other (including any cross-complaint, counterclaim or third-party claim) to enforce its rights under this Agreement, the unsuccessful party shall pay all costs incurred by the prevailing party, including reasonable attorneys’ fees, which amounts shall be a part of the judgment in said action or proceeding.

9. Severability. If any provision of this Agreement or the application of any such provision shall be held by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, the remaining provisions of this Agreement and the application thereof shall remain in full force and effect and shall not be affected, impaired or invalidated.

10. Waiver of Jury Trial. The parties hereto waive trial by jury on any and all defaults under this Agreement.

11. Assignment. Safeway may assign its rights and delegate its duties under this Agreement (a) to any entity which controls, is controlled by, or is under common control with, Safeway, or (b) to an entity into which Safeway merges or consolidates as a result of an asset or stock sale, or (c) to any corporation or other business entity which acquires the Existing Supermarket as part of a portfolio purchase, or (d) to a nationally-or regionally-recognized grocery store operator.

12. Duration. The term of this Agreement shall commence on the Effective Date and shall continue until the expiration of the Operating Period, unless sooner terminated as described in Section 5(a) or 6(a) above.

13. Applicable Law and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. Any suit brought to enforce the provisions of this Agreement shall be brought in Contra Costa County, California.

14. Binding on Successors and Assigns. This Agreement is entered into by each party on its own behalf and on behalf of its successors and assigns, and shall be binding on all such successors and assigns of each such party to the same extent that it binds the applicable party.

15. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, representations, communications and understandings of the parties. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all the parties.

16. Waiver. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.

17. No Recordation. This Agreement shall not be recorded. The City and Safeway acknowledge and agree that recording this Agreement shall be deemed a material breach hereof.

IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above.

SAFEWAY INC.,
a Delaware corporation,

By: ______________________________
Assistant Vice President

By: 
Assistant Secretary

FORM APPROVED: _____________ CITY OF BRENTWOOD,
a municipal corporation


By: 

print name
Its: 


Approved as to Form:


By: 
Dennis Beougher
City Attorney
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