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Current Council Agenda and Past Meeting Information

CITY COUNCIL AGENDA ITEM NO. 8

Meeting Date: April 27, 2004

Subject/Title: Second Reading and adoption of Ordinance No. 775 amending the Municipal Code by Pre-zoning the Vineyards Project to Planned Development No. 64; Ordinance 776 amending the General Plan Text and Map; Ordinance 777 amending the Zoning Ordinance to include Planned Development 64 with development standards; Ordinance 778 approving the Development Agreement between the Vineyards at Marsh Creek LLC and the City of Brentwood.

Prepared by: J. Zilm, Senior Planner

Submitted by: M. Oshinsky, Community Development Director

RECOMMENDATION
Second Reading and adoption of Ordinance No. 775 amending the Municipal Code by Pre-zoning the Vineyards Project to Planned Development No. 64; Ordinance 776 amending the General Plan Text and Map; Ordinance 777 amending the Zoning Ordinance to add Planned Development 64 with development standards; Ordinance 778 approving the Development Agreement between the Vineyards at Marsh Creek LLC and the City of Brentwood.

PREVIOUS ACTION
At its meeting of April 13, 2004 the Council voted unanimously to approve the Vineyards at Marsh Creek Project.

BACKGROUND
The Planning Commission at their March 16, 2004 meeting considered and on a unanimous vote recommended that the City Council amend the Municipal Code by Pre-zoning the Vineyards Project to Planned Development 64, amend the General Plan Text and Map, amend the Zoning Ordinance to add Planned Development 64 with development standards and approve the Development Agreement between the Vineyards at Marsh Creek LLC and the City of Brentwood.

Attachments:

A. Ordinance No. 775 with Legal Description and Map
B. Ordinance No. 776
C. Ordinance No. 777 with PD-64 Development standards
D. Ordinance No. 778 with the Development Agreement

ORDINANCE NO. 775

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING THE MUNICIPAL CODE BY PREZONING THE ANNEXED PROPERTY REFFERRED TO AS THE VINEYARDS AT MARSH CREEK PROJECT, THE CONTRA COSTA COUNTY COMMUNITY COLLEGE SITE AND THE JOHN MARSH HOUSE SITE, LOCATED AT THE CURRENT TERMINOUS OF FAIRVIEW AVENUE AND CONCORD AVENUE, WEST OF MARSH CREEK, EAST AND NORTH OF THE NEW STATE PARK ON THE FORMER COWELL RANCH TO PLANNED DEVELOPMENT NO. 64 CONSISTING OF APPROXIMATELY 624 ACRES

WHEREAS, the subject property is adjacent to urban development of varying uses; and

WHEREAS, the City of Brentwood on behalf of the property owner desirous of urban services now or in the foreseeable future is pursuing annexation of the subject property; and

WHEREAS, the applicant is requesting an amendment to the Municipal Code to pre-zone the area as required by Chapter 17.060.008 of the Municipal Code and the Cortese-Knox Local Government Reorganization Act of 1985; and

WHEREAS, a Notice of Public Hearing was legally advertised in the Ledger Dispatch on April 2,2004 and mailed to all property owners of record within 300 feet of the project site in accordance with City policies and Government Code Sections 65090 and 65091; and

WHEREAS, on March 16, 2004, the Planning Commission of the City of Brentwood recommended the pre-zoning of the approximately 624 acre area, known as the Vineyards at Marsh Creek Project, Contra Costa Community College site, and the John Marsh House site, by passing Resolution No. 04-19; and

WHEREAS, the Planning Commission has forwarded the pre-zoning request to the City Council for action; and

WHEREAS, the City Council of the City of Brentwood held a public hearing on the proposed pre-zoning on April 16, 2004 for the purpose of reviewing said change; 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 presentation by City staff, the staff report, which includes an analysis of the consistency of the proposed pre-zoning with the goals and policies of the City General Plan, and the Planning Commission recommendations; and

WHEREAS, a legal description of the boundaries to be pre-zoned is outlined and identified in “Exhibit A”, which is attached hereto and by this reference incorporated herein; and

WHEREAS, the City Council of the City of Brentwood makes the following supporting findings for this application:

1. The propose pre-zoning has been processed in accordance with the applicable provisions of the California Government Code and the California Environmental Quality Act as the Planning Commission has certified the environmental review of the Project by Resolution N0 04-17.

2. Pursuant to Section 15168 ( c ) and 15162 of the CEQA Guidelines, the City Council finds that the project is within the scope of the development levels evaluated in the EIR prepared for the Vineyards at Marsh Creek Project.

3. 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 EIR for the Vineyards at Marsh Creek Project. Therefore, no further environmental review is necessary.

4. On the basis of the whole record before it, there is no substantial evidence that this project will have a significant effect on the environment and the EIR reflects the City Council’s independent judgment and analysis.

5. The proposed pre-zoning designation is consistent with the City General Plan.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood takes the following action:

1. Directs staff to file a Notice of Determination with the County Clerk, if one has not already been filed.

2. Pre-zones the area outlined in Exhibit “A” to Planned Development Sixty-four (PD-64).

3. That specific development standards and regulations shall be adopted for this planned development zone prior to any discretionary approvals for this area.

4. The City Clerk shall cause this Ordinance to be published in the manner required by Government Code 36933.

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

THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 13th day of April, 2004, and introduced with the second reading waived at a regular meeting of the Brentwood City Council on the 27th day of April, 2004 by the following vote:

Exhibits:
A. Legal Description and map

CITY COUNCIL ORDINANCE NO. 776

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A GENERAL PLAN TEXT AND MAP AMENDMENT FOR THE VINEYARDS AT MARSH CREEK PROJECT LOCATED AT THE CURRENT TERMINOUS OF FAIRVIEW AVENUE AND CONCORD AVENUE, WEST OF MARSH CREEK, EAST AND NORTH OF THE NEW STATE PARK ON THE FORMER COWELL RANCH AND ANNEXATION SITES CONSISTING OF APPROXIMATELY 624 ACRES

WHEREAS, the Vineyards at Marsh Creek, LLC., has applied for a General Plan Map Amendment from the existing Ranchette Estate Residential, Very Low Density Residential, Low Density Residential, Business Park, and Urban Reserve designations to Low Density Residential, Business Park, Community College, Park, and Public Facility designations; and

WHEREAS, the Planning Commission found and certified by adopting Resolution No. 04-17 that the Environmental Impact Report prepared for the Vineyards at Marsh Creek Project was prepared as required by the California Environmental Quality Act and the mitigation measures were incorporated into the project which are intended to reduce the identified impacts to a less than significant level and the Planning Commission adopted a Statement of Overriding Considerations for the remaining impacts that cannot be mitigated to a less than significant level; and

WHEREAS, a Notice of Public Hearing before the City Council was mailed to all property owners of record within 300 feet of the project and published in the Ledger-Dispatch on April 2, 2004; and

WHEREAS, on April 13, 2004 the City Council conducted a duly noticed public hearing, reviewed the request, considered the staff recommendation and public comment; 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 presentation by City staff, the staff report and all other pertinent documents and associated actions regarding the proposed amendment; and

WHEREAS, the City Council of the City of Brentwood makes the following findings associated with the Project:

1. The Planning Commission by Resolution No. 04-17 found that the Environmental Impact Report for the Vineyards at Marsh Creek Project has been prepared in accordance with all applicable provisions of the California Environmental Quality Act and represents the independent judgment of the City of Brentwood. The City Council further finds that the project is within the scope of the development levels evaluated in the EIR, as certified by the Planning Commission by Resolution No. 04-17, and the City Council hereby incorporates Planning Commission Resolution No. 04-17 by reference.

2. The City Council, further finds that no significant new information within the meaning of Public Resources Code Section 21092.1 and CEQA Guidelines Section 15088.5 and 15164 has been presented to the City which would necessitate recirculation of the EIR for further review, or which would require the City to prepare a supplemental or subsequent EIR.

3. The General Plan text and Map amendment is consistent with and implements the General Plan.

WHEREAS, the 2001 General Plan Update established a citywide jobs/housing balance of 1.5 jobs per household, and designated 5,500 acres of Special Planning Area (SPA) J for development, with 398 acres designated for job generating land uses, in order to provide for a jobs/housing balance of 2 jobs per household for SPA J; and

WHEREAS, subsequently, the County amended the Urban Limit Line (ULL), and moved the majority of land in SPA J outside the Line, including large areas designated for job generating land uses, so that those areas cannot be developed, and only 481 acres were left inside the Line in SPA J; and

WHEREAS, a development has now been proposed for an active adult residential development, with commercial center, winery, and community college job generating uses proposed on the remaining SPA J acreage that is inside the Line. This project has been reviewed by the City Council Housing Committee, and SPA J Committee, which both committees have recommended approval of the proposal to the City Council; and

WHEREAS, Gruen Gruen + Associates, economic consultants have completed a telephone survey of 100 active senior households residing in the Brentwood Summerset development in May 2000, which represented a 10% sample of the total of 1,000 Summerset households in existence at the time. A 10% sample size of a population provides a 95% confidence coefficient and a +/- .01% error estimate. For the sample, 17 households had one employed member (either full or part time), and 4 had two employed persons (either full or part time) for a total of 25 employed persons per 100 households; and

WHEREAS, in Summerset, active seniors work at the rate of 25 persons per 100 households, generating a need for a jobs/housing balance of only 0.25 jobs per household. Therefore, such senior housing does not generate the same need for job generation, as does family housing that instead consists of one or two working adults per household. Documented studies have also demonstrated that senior housing generates less than half the average vehicle trips of family housing, and the City has adjusted its trip generation rates and fees to recognize that lower rate; and

WHEREAS, since SPA J has lost considerable job creating land to outside the ULL, it is appropriate that SPA J not be required to provide a 2:1 jobs/housing ratio, but rather it should meet the citywide 1.5:1 jobs/housing ratio, and since senior units only generate the need for .25 jobs per household, it is appropriate that the senior housing units job generation need of .25 jobs per household be equivalent to the family housing standard of 2 jobs per household; and

WHEREAS, Hausrath economic consultants have completed a jobs/housing analysis for the Vineyards at Marsh Creek project that concluded that there would be approximately 760 permanent jobs created by development of the employment generating uses in the project, that would equal approximately 1 job per household for the entire Vineyards project; and

WHEREAS, the Vineyards Project includes approximately 1400 senior housing units at .25 jobs per household for 351 jobs, approximately 50 multi-family housing units at 1.5 jobs per household for 75 jobs, and approximately 132 single family housing units at 1.5 jobs per household for 198 jobs, the total job goal for SPA J is 624 jobs, and the project will generate approximately 760 jobs, therefore the project will be consistent with the General Plan jobs/housing balance of 1.5:1, as amended herein; and

NOW, THEREFORE BE IT RESOLVED the City Council of the City of Brentwood approves of the amendment to the General Plan text and Map on the subject property described below.

1. The subject property is hereby changed from the existing Ranchette Estate Residential, Very Low Density Residential, Low Density Residential, Business Park, and Urban Reserve designations to Low Density Residential, Mixed Use Business Park, Public Facility, Park and Community College designations and added to the General Plan Land Use Map as reflected in Exhibit “A”.

2. General Plan text is hereby amended as follows with deletions identified by strike-out and additions identified by underlining:

Page IV. 1-8

Policy 7.2.6 Habitat Conservation Plan: Require a Habitat Conservation Plan to be prepared and adopted prior to any General Plan Amendments in the southwest portion of the Planning Area (designated Special Planning Areas).

Page II. 1-12

2. Mixed Use Business Park (BP)

The intent and purpose of this mixed use category is to provide for integrated subclusters of businesses and research parks, large individual corporate establishments, and professional and administrative office or light industrial complexes. Selected complementary commercial activities and limited residential uses may be allowed as a secondary use. Examples of allowed uses in this category include computer software companies, medical supply companies, research laboratories, copying services, title companies, printing companies, warehousing, offices, cabinet makers, auto services, equipment repair, wholesale home furnishings, light manufacturing, retail commercial services, retail uses, and convenience stores, restaurants, wineries (and associated orchards, row crops, production facilities, packing and shipping facilities, amphitheater and related uses, and catering facilities), multi-family housing units, senior apartments, and institutional levels of congregate care.

Page II. 1-19

PLANNING PROCESS

Development within a Special Planning Area (SPA) shall occur in accordance with the following process:

Preparation of multiple specific plans or planned development zone districts for a SPA may be allowed when the City finds that this would be in the public interest due to ownership pattern, size of Planning Area, timing of development, or other similar factors. However, in no case shall a specific plan or planned development zone district contain less than fifty (50) acres or represent less than twenty-five (25%) of the developable acreage of a Planning Area.

Page II. 1-39

SPECIAL PLANNING AREA J

Background

This special planning area, approximately 5,500 acres in size, is located in the southwest corner of the Planning Area. The area is bounded by Walnut Boulevard on the east, Marsh Creek Road/Camino Diablo on the south, Deer Valley Road on the west, and the Deer Ridge and Hancock properties on the north. Approximately 4,000 acres have been conveyed to the state park system and approximately 50 percent of the SPA is located outside of the City’s Sphere of Influence.

Page II. 1-40

POLICY DIRECTION

Development shall occur in a compact urban form in order to encourage pedestrian and transit use with close proximity of housing to jobs, shopping and community facilities such as schools, parks, and day care centers. Residential development shall provide a range of densities and housing types from apartments to entry level affordable ownership units to a large executive home. Sufficient land shall be designated for employment generating uses. Commercial, retail and office facilities in this SPA shall be developed to meet the daily service needs of the residents and a Village Center mixed use business parks shall be developed in an attempt to bring the City’s Job/Housing ratio to 1.5 jobs per household. A minimum of 60% of the area inside the City Sphere of Influence shall be designated as urban reserve and a. All areas outside the City Sphere of Influence should be designated as open space. A habitat conservation plan Feasible measures shall be incorporated into development activities to identify and protect heritage trees and to reduce effects on sensitive wildlife habitat.

DESIGN OBJECTIVES

Development within the planning area shall comply with the applicable community design goals and policies in the General Plan with specific emphasis given to the following:

• Attain a Job/Housing balance at a minimum of 2.0 1.5 jobs per household within this SPA and attain 1.5 Jobs/Housing balance citywide.

Page II. 1-16 (Table 3)

GENERAL PLAN CATEGORIES AND ZONING DISTRICTS

Add “CC – Community College” under the General Plan Categories.

Page III - 1

Add “Contra Costa Community College District” under Provider.

Page III. 2-1

SETTING

Two school districts primarily serve the Brentwood Planning Area: Brentwood Union (k-8) and Liberty Union (9-12). Knightson Union, Oakley Union and Byron Union School Districts serve limited portions of the Planning Area. The two primary districts operate four schools in the Planning Area: three elementary, one middle and one high. A new middle school and a new high school are projected for 1994 2005/2006. The City of Brentwood collects school impact fees on behalf of the two districts. A Contra Costa Community College District (CCCCD) site was also recently annexed into the southern portion of the City of Brentwood. An existing CCCCD facility exists in the City of Brentwood. However, the CCCCD may look at the recently annexed site in the southern Brentwood as a site to relocate their existing Brentwood facility.

The proposed General Plan Land Use Map Summary is as follows:

L Low Density Residential 391.50 acres
BP Business Park 71 acres
PF Public Facility 11 acres

TOTAL 473.5 acres

Other Land Use Summary

PF PG&E Gas Terminal 13.36 acres
P John Marsh House Park 45.64 acres
CC Community College 29.12 acres
Other State of California land___________ 20.79 acres

State Route 4 Bypass 22.86 acres
CCWD 7.04 acres
Concord Avenue and Marsh Creek Road 11.59 acres

TOTAL 623.92 acres

THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 13th day of April, 2004, and introduced with the second reading waived at a regular meeting of the Brentwood City Council on the 27th day of April, 2004 by the following vote:

CITY COUNCIL ORDINANCE NO. 777

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE PRE-ZONE FOR THE VINEYARDS AT MARSH CREEK PROJECT SITE BY CREATING PLANNED DEVELOPMENT ZONE NO. 64 (PD-64) WITH DEVELOPMENT STANDARDS FOR THE PROJECT, LOCATED AT THE CURRENT TERMINOUS OF FAIRVIEW AVENUE AND CONCORD AVENUE, WEST OF MARSH CREEK, EAST AND NORTH OF THE NEW STATE PARK ON THE FORMER COWELL RANCH AND ANNEXATION SITES CONSISTING OF APPROXIMATELY 624 ACRES

WHEREAS, the applicant has applied to annex the project site pursuant to Cortese-Knox Local Government Reorganization Act of 1985, Gov. Code §§56000, et seq. and the City Ordinance requires that project area proposed to be annexed be pre-zoned; and

WHEREAS, the pre-zoning must be consistent with the City’s General Plan and becomes effective at the same time the annexation becomes effective; and

WHEREAS, the Vineyards at Marsh Creek, LLC has filed an application for pre-zoning to establish specific regulations and standards for the development and use of the site consistent with the project as shown and described in the companion Design and Site Development Review and Tentative Subdivision Map applications filed by the Vineyards at Marsh Creek, LLC, and the City of Brentwood has proposed use of PD-64 for pre-zoning of the John Marsh house and community college annexation sites, and;

WHEREAS, at a duly noticed public hearing on March 16, 2004, the City’s Planning Commission passed Resolution No. 04-17 in which it certified the Final Environmental Impact Report and adopted a Mitigation Monitoring and Reporting Plan and a Statement of Overriding Considerations, and;

WHEREAS, a Notice of Public Hearing on this application for approval of the pre-zoning and creation of PD-64 was legally advertised in the Ledger-Dispatch on April 2, 2004, and mailed to all property owners of record within 300 feet of the subject property according to City policies and Government Code Section 65091.

WHEREAS, on April 13, 2004, the City Council conducted a duly noticed public hearing on this application for approval of the pre-zoning and creation of PD-64 Standards, and has reviewed and considered all of the evidence in the record of these proceedings, including, but not limited to, the Project’s FEIR, the MMRP, and the testimony and exhibits presented during the public hearing.

Based on the foregoing, the City Council hereby finds as follows:

1. The foregoing recitals are true and are incorporated herein by reference.
2. Planning Commission Resolution No. 04-17 is incorporated herein by reference.
Based on the foregoing, the City Council further finds that the proposed pre-zoning and creation of PD-64 Standards:

1. Is consistent with and implements the intent of the General Plan as amended.

2. Will be consistent with and establish clear development standards for the uses permitted under the General Plan.

3. Will provide standards resulting in development that is consistent and compatible with surrounding uses.

4. Will provide for adequate public uses and private open space.

5. Will generate a level of traffic that can be accommodated by the public circulation system, existing or planned.

6. 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).

7. That the proposed Project 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.

8. That the PD-64 Zone is on property which has a suitable relationship to one or more thoroughfares; and that said thoroughfares are adequate to carry any traffic generated by development consistent with the proposed PD-64 Standards.

9. That the site plan for the proposed Project 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 if necessary to insure compatibility.

10. That the natural and scenic qualities of the site are protected with adequate available public and private open spaces designated on the proposed development plans for the Project.

11. That the development of the Project, in the manner proposed by the Vineyards at Marsh Creek, LLC and the anticipated potential development of the annexation sites, 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.

12. The FEIR and the MMRP are adequate for and applicable to all approvals relating to the Project.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood hereby approves the pre-zone and creates the PD-64 Zone in the form of the PD-64 Development Standards attached to this resolution as Exhibit A.

THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 13th day of April, 2004, and introduced with the second reading waived at a regular meeting of the Brentwood City Council on the 27th day of April, 2004 by the following vote:

Exhibit:

A. PD-64 Development Guidelines

EXHIBIT “A”

CHAPTER 17.521
PD-64 (PLANNED DEVELOPMENT) ZONE

VINEYARDS AT MARSH CREEK

17.521.001 AUTHORITY, PURPOSE AND INTENT

17.521.002 SUBAREA A
PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS, (LOW DENSITY RESIDENTIAL AREA WITH ACTIVE ADULT NEIGHBORHOODS, EXECUTIVE NEIGHBORHOODS, A RECREATION CENTER, A WATER TANK SITE, STORM DRAINAGE BASINS, PARKS AND ASSOCIATED OPEN SPACE)

17.521.003 SUBAREA B
PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS, (MIXED USE BUSINESS PARK WINERY, AMPHITHEATER AND ASSOCIATED USES)

17.521.004 SUBAREA C
PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS, (MIXED USE BUSINESS PARK VILLAGE CENTER WITH COMMERCIAL, OFFICE, PARKS, SENIOR AND OTHER MULTI-FAMILY RESIDENTIAL)

17.521.005 SUBAREA D
PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS, (PG&E SITE)

17.521.006 SUBAREA E
PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS, (JOHN MARSH HOUSE STATE PARK SITE)

17.521.007 SUBAREA F
PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS, (COMMUNITY COLLEGE SITE)

17.521.008 OTHER REGULATIONS

17.521.009 EXCEPTIONS

17.521.001 AUTHORITY, PURPOSE AND INTENT:

The authority, purpose and intent for the adoption of the PD-64 (Planned Development 64) Zone are as follows:

A. AUTHORITY: PD-64 is adopted pursuant to the authority set fourth in Chapter 17.450, Planned Development Zones, General Regulations, of the Brentwood Municipal Code.

B. PURPOSE: The purpose of the PD-64 Zone is to permit and regulate the orderly development of the area shown as Exhibit “A” in accordance with the Brentwood General Plan for up to 1,100 Active Adult Single-Family Residential Units; up to 150 Executive Single-Family Residential Units; a Recreation Center; a Winery with Amphitheater and associated uses; a Village Center with civic, commercial, office, hotel lodging (B&B) senior and other Multi-Family Residential units; a water tank and pump stations; two Water Quality/Detention Basins; and associated parks, open space and landscape parcels. In addition, this PD includes three additional areas (the PG&E site, the John Marsh House State Park Site, and a future Community College Site) that will be defined as applicable at a later date when projects are developed. The PD-64 area then is divided into six (6) subareas as shown in Exhibit “B” which is attached to this ordinance and incorporated herein by reference.

C. INTENT: The zoning district is intended to describe the project “The Vineyards at Marsh Creek” which will provide private distinguished neighborhoods among an agriculturally-themed landscape of vineyards and olive groves. The overall architectural style will be Tuscan, French Spanish – Mediterranean – with it’s historical roots in the villas and villages of the inland Coastal Spain, the Balearic Islands and the French and Italian Mediterranean regions of Provence and Tuscany. This palette will expand to include other wine regions such as Bordeaux and Rhone areas of France as well as the more California Craftsman pallette of our own Napa Valley in the Custom Estate home area. The Residential components include single-story Active Adult Single Family homes with a central Recreation Center. The active adult neighborhoods will be of a density similar to the existing Summerset Development north of the site, including golf cart accessibility even though they do not back onto a golf course. In addition, there will be up to two private Executive Single-Family Neighborhoods located in close proximity to the Winery and open space. The executive homes architectural style having a more craftsman interpretation of the Mediterranean style than that of the active adult area. The Winery is intended to become a distinguishing focal point for the City as a whole, and the Village Center is intended to serve the needs of the surrounding community, and not compete with downtown commercial activities. All uses will be in conformance with the adopted General Plan with Amendments.

17.521.002 PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS FOR SUBAREA A

(LOW DENSITY RESIDENTIAL AREA WITH ACTIVE ADULT NEIGHBORHOODS, EXECUTIVE NEIGHBORHOODS, A RECREATION CENTER, A WATER TANK AND PUMP STATIONS, STORM DRAINAGE BASINS, PARKS AND ASSOCIATED OPEN SPACE)

A) Permitted Uses:

1. Single-family single-story detached for age-restricted occupancy.
2. Duet units for age-restricted occupancy.
3. Single-family detached homes for non-age-restricted occupancy.
4. Single Family uses not exceeding a density of 5.0 dwelling units per gross acre.
5. Accessory facilities or buildings related to the primary use subject to Chapter 17.660
6. Home Occupation subject to obtaining a Home Occupation Permit pursuant to Chapter 17.840.
7. The keeping of domestic animals or pets subject to Chapter 17.670.
8. Model home sales facilities;
9. Recreation Center and related facilities including clubhouse, tennis courts, swimming pools, maintenance structures and related recreation facilities;
10. Homeowners' association recreation buildings, tennis courts, swimming pools, gatehouses, other common-use facilities and open area;
11. Water Tank, pump stations and associated structures;
12. Detention Basin, Water Quality Basin and associated structures;
13. Agricultural Planting Areas with vineyards and olive groves, maintenance and related structures;
14. Temporary uses related to the primary use and subject to obtaining a Temporary Use Permit pursuant to Chapter 17.850.
15. Parks, playgrounds, and recreational trail.
16. Other uses determined by the Community Development department to be similar to and compatible with the preceding permitted uses.

B) Conditionally Permitted Uses:

1. Uses ancillary to a recreation center, which will serve persons other than residents of the active adult community, such as a restaurant or bar;
2. Other uses determined by the community development department to be similar to the ancillary use.

C) General Development Standards:

1. Maximum Number of Units and Minimum Lot Area.
a. Maximum Active Adult Units. A maximum of one thousand one hundred single story active adult single family dwelling units and duets shall be permitted within the lands of SubArea A;
b. Maximum Executive Units. A maximum of one hundred fifty single family dwelling units shall be permitted within the lands of SubArea A;
c. Recreation Center. One community center which may have a distinguishing tower that exceeds 35 ft. in height, is allowed on a centrally located approximately 9-acre site.
d. Lot Area. Minimum lot area shall be 4,000 square feet for active adult single-family lots, 2,500 square feet for active adult duet lots, and 9,000 square feet for executive single-family lots; A variety of lot sizes, larger than the minimums, shall be included to provide a variety of housing products and yard conditions.
e. Setbacks, Height and Parking. Each yard setback below shall be measured from its respective property line, regardless of guest parking bays, except that measurement shall be from the back of sidewalk wherever a street's sidewalk lies inside a lot. All yard setbacks shall be measured to the nearest specified wall of the dwelling. Allowable projections into yard setbacks shall be as set forth in Section 17.660.005 of Chapter 17.660, Encroachments Into Required Yards.

The Vineyards at Marsh Creek
Setback Criteria & Lot Coverage

Active Adult Residential
Duet Lot 48'x97' Lot 58'x97' Lot 72'-75'x97' Lot
Minimum Frontage on a Curve /Culdesac or Knuckle 18' 35’ 35’ 35’
A. Minimum Front Yard
1. To a garage door of a front-entry garage 18’ 18’ 18’ 18’
2. To a wall of a side entry garage 12’ 12’ 12’ 12’
3. To a wall of a habitable room 12’ 12’ 12’ 12’

B. Minimum Side Yard Adjoining a Street 10’ 10’ 10’ 10’

C. Minimum Side Yard at an Interior Lot Line
1. To a wall of a garage 0 / 5’ 5' 5' 5'
2. To a wall of a habitable room 0 / 5’ 5' 5' 5'
3. To landscape structures not exceeding 6' in height 3’ 3' 3' 3'
4. Aggregate, both side yards at garage 5’ 10' 10' 10'
5. Aggregate, both side yards at non-garage 5’ 10' 10' 10'
6. Aggregate, both side yards at landscape walls 3’ 6' 6' 6'

D. Minimum Rear Yard 8' minimum with a 15' average 8' minimum with a 15' average 8' minimum with a 15' average
E. Minimum Off Street Parking Spaces
1. In a garage 2 2 2 2
2. In a driveway 2 2 2 2

F. Maximum Building Height 35’ 35' 35' 35'

G. Lot Coverage
(Note: all plans are single story) sq. ft. % Coverage % Coverage % Coverage
Plan 1 1737 37.31
Plan 2 2135 45.85
Plan 3 2221 47.70
Plan 4 2357 41.89
Plan 5 2515 44.70
Plan 6 2664 47.4
Plan 7 2966 40.77
Plan 8 3003 41.29
Plan 9 3189 43.79

Executive Single Family Residential
9,000 SF Lot 13,000 SF Lot
Minimum 9,000 SF Minimum 13,000 SF
Average 11,500SF Average 17,000SF
(Min 70’x110’) (Min 75’x110’)
Minimum Frontage on a Curve/Culdesac or Knuckle 35’ 35’
A. Minimum Front Yard
1. To a garage door of a front-entry garage 20' 20'
2. To a wall of a side entry garage 15 ' 15'
3. To a wall of a habitable room 15' 15'

B. Minimum Side Yard Adjoining a Street 10' 15'

C. Minimum Side Yard at an Interior Lot Line
1. Minimum /Aggregate setbacks 5/15 10/20

D. Minimum Rear Yard 15'first floor
20' second floor
Lots backing onto Fairview:20'first floor 25' second floor other lots 25'
E. Minimum Off Street Parking Spaces
1. In a garage 3 3
2. In a driveway 2 2
3. Total off street 5 5
F. Maximum Building Height 35' 35'

G. Lot Coverage
% Coverage % Coverage
1. Single story 45 45
2. 2-story 40 40

D) Construction Standards for Active Adult and Executive Housing.
1. Variety in Building Mass. Variety in building mass shall be accomplished by:
a. Inclusion in the floor plans available for purchase, varying front facade design, such as side-entry garages and varying the entryway location and design;
b. Avoidance of using of a single façade design more than twice in any group of contiguous homes;
c. Inclusion of floor plan purchase-options, such as additional golf cart garage space, which alters the visual mass of a floor plan;
d. Executive single family homes that back up onto Fairview shall have one story profiles. This is defined by having a minimum of a 5' horizontal setback between the first and second floors, having a single story component for at least 80 % of the length of the rear elevation. See exhibit “C” for lot locations and example profiles.
e. At the time site design and development review of multiple floor plans, incorporating design variations such as those described above, shall be submitted.

E) Additional Residential Design Items
1. Design Review. Design review shall be required as follows:
a. Residential Buildings. Design and site development review shall be required pursuant to Chapter 17.820. The architectural style has a palette of cut and rustic stone with hues of rose, buff, and ochre, ornamental carved or cast stone, terra cotta colored clay or concrete roof tile, awning shutters, detailed ironwork, and plants in terra cotta pots. Residential units have been organized for “street presence” with several models possessing gathering and semi-private terraces on the street side of the property. Identifying features may consist of:
i. Roofs are typically “S” and barrel concrete or clay tiles at a low pitch
ii. Doors and windows are generally recessed into thick walls
iii. Accents may include tile surround, metal railings, shutters and awnings
iv. Use of columns, window and door surrounds

b. Landscaping, Fencing and Walls. Landscaping, fencing and walls in areas adjoining a public or private street shall conform to the plans approved by the Planning Commission. Individual lot landscaping includes a lawn area and a palette of groundcovers and smaller trees in the front and side yards with a mix of shrubs flowering groundcovers, and grasses to provide moderate privacy screening and seasonal interest. Where lot size permits, gardens will be anchored by larger shade trees. Trellises or patio trees that shade courtyards off of living spaces are encouraged. Trellises and walls may be covered with climbing landscaping. Walls are generally stucco, smooth and in earth tone colors. Gatehouses will reflect the residential architecture and incorporate community monumentation.

c. Public and Common Open Space. As part of the aesthetic productive landscape, grapes and olives will be cultivated wherever possible. In larger open-space production areas, grapes will be grown in rows spaced to allow mechanical harvesting. However, in some areas where aesthetics are equally important such as the rows flanking Fairview Avenue, the rows may have to be spaced more tightly and thus harvested by hand. Olive orchards can be located on slopes that are steeper than 3:1. Harvest will be by hand or mechanical means, depending on orchard access.

Since the agricultural components are part of a true working landscape, access within the vineyards and orchards will be restricted to those who are growing the grapes and olives. Limited pedestrian and service vehicular access only will be allowed where possible in designated areas.

d. Recreation Facilities and Conditional Use Permit Uses. Design and site development review approval by the planning commission pursuant to Chapter 17.820 shall be required for the following:
i. Recreation Center buildings and accompanying outdoor facilities such as pools;
a. Design elements may include stone accents and a distinguishing tower. Large view oriented spaces will be designed as lightly scaled trellis or outdoor loggia elements (though glass enclosed) attached to the more traditional mass of this architectural character.
ii. Buildings for which approval of a conditional use permit by the planning commission is required. (Ord. 552 § 3 (Exh. A (part)), 1995)

F) Roadway Items
1. Fairview Avenue: Public 140’ Right of way, including two to four travel lanes, turn lanes at intersections, bike lanes, with no parking allowed. Landscaping to allow vineyards and olive groves in addition to traditional street trees and groundcover. Public 8-foot multi use path located on each side of Fairview.

2. Local Spine Streets: Private 36’ curb to curb, including two travel lanes and on-street parking allowed. One side only 5-feet of traditional landscaping between a separated 4’ sidewalk and the curb. 10-foot PUE, that overlaps the right-of-way by 6-inches located each side of the roadway.

3. Local Streets: Private 36 curb to curb’, including two travel lanes and on-street parking allowed. One side only 4.5-foot curb adjacent sidewalk. 10-foot PUE, that overlaps the right-of-way by 6-inches located each side of the roadway.

17.521.003 PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS FOR SUBAREA B

(MIXED USE BUSINESS PARK WINERY, AMPHITEATER AND ASSOCIATED USES)

A) Permitted Uses.
1. Winery including tasting rooms, storage, production and General commercial retail and service businesses which are ancillary to the primary winery uses.
2. Amphitheater that hosts events with dancing and/or live entertainment and amplified sound;
3. Parks, playgrounds, and recreational trail;
4. Accessory facilities including kitchens, –lodging for VIP guests and performers, offices and parking lots or buildings related to the primary use subject to Chapter 17.660;
5. Up to 4 single-family homes on quarter-acre lots;
6. Temporary uses related to the primary use and subject to obtaining a Temporary Use Permit pursuant to Chapter 17.850;

B) Conditionally Permitted Uses:
1. Tasting Room and Stores which sell beer and /or wine (packaged goods off-sale);
2. Neighborhood bar and/or restaurant which serves or sells alcoholic beverages;
3. Outdoor sales or display;
4. Temporary and Interim Uses: The following uses may be permitted as a temporary interim use. The CUP will establish the timeframe for these activities:
a. Nursery;
b. Produce market;
c. Auction gallery;
d. Flea market;
e. Craft and art fairs;

C) General Development Standards
1. Setbacks, Height and Parking. Each yard setback below shall be measured from its respective property line, except that measurement shall be from the back of sidewalk wherever a street's sidewalk lies inside a lot. All yard setbacks shall be measured to the nearest specified wall of the dwelling. Allowable projections into yard setbacks shall be as set forth in Section 17.660.005 of Chapter 17.660, Encroachments Into Required Yards.
1. Front Yard Setback: ten feet from curb line or parking bay, 5’ from property line
2. Side Yard Setback: Zero lot line, minimum
3. Rear Yard Setback: 5’ from property line
4. Maximum Height: 45’ or three stories
5. Parking: Per Code, with shared parking allowed.

2. Design Standards. The site is characterized as a sloping site overlooking the historic John Marsh Home and the new Fairview Avenue, intended for a winery. The winery complex may be a collection of major buildings plus several secondary buildings and set in the midst of vineyards and olive trees. The architecture can vary from California Mission Style to the Vineyards at Marsh Creek Mediterranean style, featuring tiled roofs and arched arcades. A turf amphitheater will provide a venue for concerts.

Winery Buildings for production, storage and shipping may total over 80,000 square feet. A public events building provides for conferences, weddings, tasting events and retail sales. Picnicking areas may be included in the landscaping, and winery tours may be offered.

The vineyards and landscaping may extend into the public right-of-ways and common spaces between new residential areas. Pedestrian and golf cart paths may link the residential areas to the winery. Parking for concerts (300+ spaces) and employees / visitors (80+ spaces) should be onsite or planned in a shared parking

arrangement with nearby uses (i.e.: village center; Community College etc.).

The winery site may provide a site for cultural, social and entertainment events for the community. The vineyards and winery operation represent not only a cultural amenity in the community, but also an appropriate, credible link to the agricultural heritage of the City of Brentwood.

17.521.004 PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS FOR SUBAREA C

SUBAREA C, (MIXED USE BUSINESS PARK VILLAGE CENTER WITH COMMERCIAL, OFFICE, PARKS, SENIOR AND OTHER MULTI-FAMILY RESIDENTIAL)

The Village Center is proposed along Fairview Avenue to maximize the potential synergies between commercial and recreational uses, and allowing Fairview Avenue to serve as a central spine for a variety of public uses including a lodging facility, the Winery and associated event facilities such as the amphitheater, the John Marsh House, retail and office space, the Village Green, and the proposed future site of the Contra Costa Community College Campus.

Based upon Public Workshops held from April to July 2003, the uses allowed in PD-64 could include the following:

Marsh Creek Village Center Program
Retail Total

ATM
Bank Branch
Barber shop
Bookstore / Music
Casual Dining
Coffee shop / newsstand
Convenience store
Deli / ice cream
Dry Cleaner Outlet
Gifts / Cards
Mailboxes Etc.
Miscellaneous Retail
Pharmacy
Small Grocery
Retail Subtotal 60150

Civic

Community Multi purpose
John Marsh House Storefront
Interfaith Center
Fire station
Library
Civic Subtotal 10000

Office

Brokerage / Finance
General Office
Insurance
Medical
Office Suites
Real Estate Office
Office Subtotal 30000

Hotel

Public space
Restaurant

Rooms
Spa/ Beauty
Hotel Subtotal 115000

Winery

Production / Cooperage 80000
Tasting / Sales Facilities 32000
Winery Subtotal 112000

Institutional

Assisted Living 200000

MF Residential

Market rate / senior
rentals 200 units 200000
Senior rentals 150 units 150000
Residential Subtotal 350000

A) Permitted Uses: MIXED USE BUSINESS PARK/COMMERCIAL/OFFICE USES
1. Retail sales or rentals of new merchandise or service such as:
2. Convenience retail uses such as a bakery, pastry shop, coffee shop, candy store, newsstand, ice cream parlor
3. Clothing Stores
4. Pharmacies / Drug Stores
5. Small Grocery stores (20,000 sq. ft. maximum floor area), delicatessens, bakeries or pastry shop
6. Hardware stores
7. Stores which sell alcoholic beverages (packaged goods off-sale)
8. Restaurants, including those which sell or serve alcoholic beverages and provide outdoor use of designated seating areas..
9. Bookstores and video stores, provided more than fifty percent (50%) of the displayed inventory or stock on hand, at any time is not adult oriented as defined and regulated by the City of Brentwood Zoning ordinance.
10. Florist
11. Stationary Store / Gift Shop
12. Printing or copying stores
13. Office Supply store;
14. Sales of personal or financial services such as:
15. Barber shops and beauty parlors
16. Banks and savings and loans with drive through & ATM
17. Clothes cleaning, laundry pickup stations, launderettes, pressing shops and shoe repair
18. Professional offices
19. Nurseries and pre-schools
20. Studios and instructional facilities, such as dance studios, music studios, or similar establishments;
21. Public and quasi public uses, such as government office, library, employment office, utility offices, and similar uses;
22. Professional and business offices including medical offices; General commercial retail and service businesses which are ancillary to the primary medical uses, limited to ten percent of the total building area on any parcel;
23. Veterinary clinic;
24. Incidental and accessory buildings and uses on the same lot with and necessary for the operation of any permitted use, such uses may include a parking lot;
25. Hotel, motel;
26. Health/fitness center;
27. Parks, playgrounds, and recreational trail;
28. Rooming and Boarding Subject to Section 17.650.003;
29. Temporary uses related to the primary use and subject to obtaining a Temporary Use Permit pursuant to Chapter 17.850.
30. Finished product assembly such as computer assembly, bookbinding, garment manufacture.
31. Commercial or retail uses that may or may not manufacture their primary product on the premises such as drapery shop, upholstery shop, carpet sales, spa sales, satellite dish sales and furniture sales provided that there is no outdoor storage.

B) Permitted Uses: RESIDENTIAL USES
1. Multi-Family dwelling units in a complex form not exceeding a density of 40.0 dwelling units per gross acre and a 4 story maximum;
2. Multi-Family Age-Restricted dwelling units in a complex form not exceeding a density of 40.0 dwelling units per gross acre and a 4 story maximum;
3. Convalescent hospitals, large residential care facilities, including residential, congregate residential and convalescent care; facilities for the care of the sick or elderly, health club or recreational club, dining room, entertainment area, library, art and craft room and private dining room, full service main kitchen and laundry areas;
4. Accessory facilities or buildings related to the primary use subject to Chapter 17.660;
5. Temporary uses related to the primary use and subject to obtaining a Temporary Use Permit pursuant to Chapter 17.850;
6. Home Occupation subject to obtaining a Home Occupation Permit pursuant to Chapter 17.840;
7. The keeping of domestic animals or pets subject to Chapter 17.670;
8. Swimming and related facilities serving the residents, including pools and pool equipment, shade structures, restrooms, shower areas, changing areas, aquatic apparatus, meeting rooms, facility staff offices, and vending machines.
9. Similar uses subject to the approval of the Zoning Administrator.

C) Conditionally Permitted Uses:
1. Stores which sell beer and /or wine (packaged goods off-sale);
2. Neighborhood bar and/or restaurant which serves or sell alcoholic beverages.
3. Outdoor sales or display;
4. Parking lot and/or parking structures constructed at an elevation more than thirty-six (36) inches above or below the elevation of the top of the nearest street curb;
5. Tasting Rooms or boutique wineries;
6. Temporary and Interim Uses: The following uses may be permitted as a temporary interim use. The CUP will establish the timeframe for these activities:
a. Nursery;
b. Produce market;
c. Auction gallery;
d. Flea market;
e. Craft and art fairs;
7. Churches and religious institutions and parochial or private schools.
8. Other similar uses as determined by the Community Development Director. (Ord. 676 § 7(B) (part), 2001)

D) General Development Standards:
2. Maximum Number of Units and Minimum Lot Area.
a. Senior Apartments. A maximum of three hundred and fifty senior apartments, of which 200 may be market rate, shall be permitted within the lands of SubArea C;
b. Institutional. A maximum of two hundred thousand square feet of institutional room space shall be permitted within the lands of SubArea C.
c. Should a development or ownership approach be proposed where lots are
d. Setbacks, Height and Parking. Each yard setback below shall be measured from its respective property line, except that measurement shall be from the back of sidewalk wherever a street's sidewalk lies inside a lot. All yard setbacks shall be measured to the nearest specified wall of the dwelling. Allowable projections into yard setbacks shall be as set forth in Section 17.660.005 of Chapter 17.660, Encroachments Into Required Yards.
1. Front Yard Setback: Per UBC
2. Side Yard Setback: Per UBC
3. Rear Yard Setback: Per UBC
4. Maximum Height: 50’ or four stories’
5. Parking: Per Code, or as approved with a shared parking plan.
3. Architecture
Given the prominence adjacent to Fairview Avenue and serving as the southern entry to the Vineyards at Marsh Creek, the mixed-use village center will play a major role in establishing the overall image of the local community. This village center is envisioned as a place for social gathering, and conducting personal and community related business in a pedestrian friendly atmosphere and within walking, biking or golf-carting distance from residential neighborhoods.

In order to create mixed-use areas that are aesthetically pleasing, functionally planned and uniquely identifiable, the design should incorporate measures to provide transitions in scale and land use. By establishing unifying elements such as access, landscaping, signing and building materials and colors, these areas will be integrated with the other land use components of the Vineyards at Marsh Creek community.

Individual Tenants' buildings are encouraged to use originality and creativity in interpreting the preferred vocabulary and criteria of the Mediterranean architectural style. The intent is not to create mirror image buildings. However, buildings shall be compatible in massing, form, color, and materials to achieve a sense of architectural continuity.

The recommended residential architectural style is:

• Tuscan, French, Spanish - Mediterranean which may incorporate the covered colonnades and loggias typical of those surrounding a Mediterranean village plaza.

This vocabulary has its historical roots in the villas and villages of the inland Coastal Spain, the Balearic Islands and the French and Italian Mediterranean regions of Provence and Tuscany and has a palette of cut and rustic stone and plaster with hues of rose, buff and ochre, ornamental carved or cast stone, terra cotta colored roof tile, awning shutters, detailed iron work, and plants potted in terra cotta. Identifying features may consist of:
• Walls are generally stucco, smooth and in earth tone colors, complimented by stone accents or stone architectural elements (towers, entries etc.)
• Roofs are typically ‘S’ and barrel tiles at low pitch’s
• Doors and windows are generally recessed into thick walls
• Accents include tile surround, metal railings, shutters and awnings
• Use of cast columns and window and door surrounds

4. Landscape
Transitioning from the agrarian-oriented open spaces of the rest of the development, the streets in the commercial core will retain similar plant material but organize it in a more urban context. The street trees that line Fairview Avenue will continue into the streetscape of the village center, tying this area to the main thoroughfare. Sidewalks and parking areas will be shaded by the street trees, set into designated planting areas within the paving. These planting areas at the bases of the trees and in traffic islands will also reflect the palette chosen for the entryways into the various neighborhoods off of Fairview Avenue. Flowering areas will provide seasonal interest. Climbing landscaping may be introduced where possible to cover walls and other architectural structures. Benches, seatwalls and other street furniture in keeping with the architectural style of the buildings may be located throughout the commercial area.

Designated park areas within the village center core will provide opportunities for informal gathering and more organized events. The central open space area will function as the “village green” and will offer both paved areas and expanses of lawn.

17.521.005 PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS FOR SUBAREA D

(PG&E SITE)

A) Permitted Uses: PG&E Brentwood Facility and related uses.

B) Conditionally Permitted Uses: None.

C) General Development Standards:
1. To be defined at a later date as applicable, when plan is proposed.

17.521.006 PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS FOR SUBAREA E

(JOHN MARSH HOUSE STATE PARK SITE):

A) Permitted Uses: John Marsh House State Park and related uses.

B) Conditionally Permitted Uses: To be defined at a later date as applicable, when plan is proposed.

C) Development Standards: To be defined at a later date as applicable, when plan is proposed.

17.521.007 PERMITTED & CONDITIONALLY PERMITTED USES AND GENERAL DEVELOPMENT STANDARDS FOR SUBAREA F

(COMMUNITY COLLEGE SITE)

A) Permitted Uses: Contra Costa Community College District Education Center and related uses.

B) Conditionally Permitted Uses: To be defined at a later date as applicable, when plan is proposed.

C) Development Standards: To be defined at a later date as applicable, when plan is proposed.

17.521.008 OTHER REGULATIONS:

A) Design and Site Development shall be required for all housing units pursuant to Sections 17.100.003 and 17.100.004H.

B) The parking and storage of boats, trailers and similar vehicles and equipment shall be subject to the provisions of Section 17.620.016.

D) Accessory buildings and structures shall be permitted pursuant to the provisions of Chapter 17.660.

E) Signs subject to Chapter 17.640. (Ord. 560 § 4 (part),1995; Ord. 408 (part), 1987)

F) The development of this zoning district shall be substantially in accordance with the Development Plan. Variations in the Development Plan including street and lot pattern may be approved though the Community Development Department.

G) Allowable projections into yard setbacks shall be set forth in Section 17.6360.005 of Chapter 17.660, Encroachments into Required Yards.

17.521.009 EXCEPTIONS:

A) Exception to Zoning Regulations. The community development department may permit exceptions to the regulations of this chapter an the remainder Title 17 upon finding that granting of the exception will constitute an insignificant deviation from the land uses, activities and construction otherwise resulting from strict application of the regulations of this chapter. This exception specifically includes:

1. One pylon / monument sign adjacent to Hwy 4 on a smaller parcel and at a maximum height no greater than the maximum building height specified in the sub area.
2. Tower Elements in Subarea A, B and C at a maximum height no greater than the maximum building height specified in the sub area

3. Density in Sub Area C at 40 du/acre and a 4 story maximum height.

B) Exception to Engineering Standards. The City engineer may permit exceptions to adopted city engineering standards in the City’s Title 17, Subdivision and Land Department Ordinance, the engineering design standards, the standard drawings upon finding that granting the exception will constitute an insignificant deviation from the land uses, activities and construction otherwise resulting from strict application of the regulations of this chapter.

CITY OF BRENTWOOD CITY COUNCIL
ORDINANCE NO. 778

AN ORDINANCE OF THE CITY OF BRENTWOOD CITY COUNCIL APPROVING THE DEVELOPMENT AGREEMENT FOR THE VINEYARDS AT MARSH CREEK PROJECT, GENERALLY LOCATED AT THE CURRENT TERMINUS OF FAIRVIEW AVENUE AND CONCORD AVENUE, WEST OF MARSH CREEK ROAD, EAST AND NORTH OF THE PIONEER STATE PARK ON A PORTION OF THE FORMER COWELL RANCH, TENTATIVE SUBDIVISION MAP NO. 8796.

WHEREAS, the Vineyards at Marsh Creek, LLC., has submitted an application for development approval of the site plan for the Project, which would generally include residential, commercial, office, winery, amphitheater, recreational center, small lodge facility, community college, parks, and open space; and

WHEREAS, the Applicant in order to implement its proposed plan has applied for approval of Planned Development Zone Sixty-Four (PD-64) with development standards, a Tentative Subdivision Map, a Development Agreement, a General Plan Amendment, a Pre-zone and a Design Review; and

WHEREAS, on March 16, 2004, the Planning Commission adopted Resolutions 04-17, 04-18, 04-19, 04-20 and 04-21, certifying the EIR; recommending to the City Council approval of General Plan Amendment 02-03, approval of Pre-zone 02-13, and approval of Development Agreement 04-01 for the project; and approving TSM 8796 and Design Review 04-03; and

WHEREAS, the Planning Commission certified the Environmental Impact Report for the Project on March 16, 2004 by approving Resolution No. 04-17; and

WHEREAS, the Applicant in order to implement its proposed plan has applied for a Development Agreement approval; and

WHEREAS, a legal notice of the Public Hearing on April 13, 2004, was advertised in the Ledger Dispatch pursuant to Government Code Section 65091; and

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood hereby finds and determines as follows:

A. An EIR has been prepared and certified by the City’s Planning Commission pursuant to Resolution No. 04-17, on March 16, 2004 in accordance with all applicable provisions of the California Environmental Quality Act and represents the independent judgment of the City of Brentwood. The City Council further finds that the project is within the scope of the development levels evaluated in the EIR, as certified by the Planning Commission by Resolution No. 04-17, and the City Council hereby incorporates Planning Commission Resolution No. 04-17 by reference; and

ARTICLE 1 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 needed public infrastructure, right of way, funding for public facilities, and the creation of new jobs plus much needed commercial facilities.

ARTICLE 2 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 carries out the land use and zoning designations approved for the Property.

ARTICLE 3 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 Government Code section 65864 because the development 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; and provides 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, which strengthens the planning processes and reduces 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 former Cowell Ranch that the project is located in, is a serious impediment to the development of new housing, commercial development, and job creation, plus providing such amenities as land for city owned amphitheater, a winery site, and the preservation/expansion of agricultural uses.

G. The contents of 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 Development Agreement (DA 04-01), attached hereto and made a part of this ordinance.

THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 13th day of April, 2004, and introduced with the second reading waived at a regular meeting of the Brentwood City Council on the 27th day of April, 2004 by the following vote:

Exhibit

A. Development Agreement

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
THE VINEYARDS AT MARSH CREEK LLC

THIS DEVELOPMENT AGREEMENT (Agreement) by and between the City of Brentwood, a municipal corporation (City) and The Vineyards at Marsh Creek LLC, a California limited liability company (The Vineyards), pursuant to the authority of Sections 65864 et seq., of the Government Code.
RECITALS
A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the California State Legislature enacted 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 Government Code Section 65865, the City has adopted policies, procedures and requirements for the consideration of development agreements that are codified in its Municipal Code at Chapter 17.810. This Agreement has been processed, considered and executed in accordance with those City rules and regulations and the Development Agreement Statute.
C. The Vineyards has an equitable interest in certain real property located in unincorporated Contra Costa County adjacent to City and more particularly described in Exhibit A-1, and diagrammed in Exhibit A-2 (the Property). The Property is a portion of a larger parcel commonly known as the Cowell Ranch.
D. In 2002, The Vineyards entered into an agreement to purchase the Property from the S. H. Cowell Foundation. This was after the County’s Urban Limit Line was adjusted to exclude the Cowell Ranch, except for the Property, from the area in which development might occur. The Property was specifically reserved for development and allowed to remain inside the Urban Limit Line conditioned upon the preservation of the remainder of the Ranch as permanent open space, except for a 30 acre parcel to be offered to the Contra Costa Community College District for a new campus. As agreed, the Foundation offered to donate the parcel to be used for the campus and sold the remainder, consisting of approximately 3,900 acres, to the Trust for Public Land, which received acquisition funding from various public agencies. The Trust then transferred the 3,900 acres to the State Department of Parks and Recreation for the establishment of a new State park adjacent to Mount Diablo State Park, including the historic John Marsh Home, and now known as Pioneer State Park.
E. The City of Brentwood and The Vineyards initiated a series of community charettes to plan the future of the Property in April 2003. The development plan that evolved from those charettes and subsequent City hearings is described in the Project Approvals and this Agreement and includes an active adult community, estate homes, a neighborhood commercial center including a small hotel/lodge site, a winery with associated amphitheater and vineyards, and multi-family residences, congregate care and assisted living facilities and includes a substantial number of affordable housing units (collectively the Project).
F. The City has taken several actions authorizing the Project. These actions are collectively referred to as the Project Approvals and include, without limitation, the following:
1. Final Environmental Impact Report. The environmental impacts of the Project have been reviewed and assessed by the City pursuant to the California Environmental Quality Act, Public Resources Code Section 21000 et seq., the CEQA Guidelines, California Code of Regulations, Title 14, Section 15000 et seq., and City’s CEQA guidelines. On March 16, 2004, at a duly noticed public hearing and pursuant to CEQA, the Planning Commission, by Resolution No. 04-17, certified the Final Environmental Impact Report for the Project (the Final EIR), made the findings required by Public Resources Code Section 21081 and adopted a Mitigation Monitoring Program for the Project pursuant to Public Resources Code Section 21081.6.
2. Amendment of General Plan. On March 16, 2004, the Planning Commission, by Resolution No. 04-18, recommended, and on April 13, 2004, by Resolution No. _________, the City Council amended the General Plan as necessary to accommodate the Project.
3. Planned Development Zoning Regulations. On March 16, 2004, the Planning Commission, by Resolution No. 04-19, recommended, and on April 13, 2004, by Ordinance No. _____, the City Council established development regulations for Planned Development Zone PD-64, which encompasses the entire Project site.
4. Design and Site Development Plan. On March 16, 2004, the Planning Commission, by Resolution No. 04-20, approved the Design and Site Development Plan.
5. Vesting Tentative Map. On March 16, 2004, the Planning Commission, by Resolution No. 04-20, approved the Vesting Tentative Map. The Vesting Tentative Map provides for phased final maps.
6. Development Agreement. On April 13, 2004, at a duly noticed public hearing, and after review and consideration of the Final EIR, and upon recommendation of the Planning Commission, pursuant to Resolution No. 04-21, the City Council adopted Ordinance No. ______ approving this Agreement, attached as Exhibit B.
7. RGMP Allocation. On March 9, 2004, by Resolution No. 2004-50 the City Council allocated RGMPs for the Project.
G. The Project is consistent with the City’s General Plan, as amended as described above in Recital F.2. The Vineyards is willing to construct necessary infrastructure and public amenities, subject to the City’s agreement to reimburse it, by credits against development fees, for the portions of the infrastructure that provide benefits to the City over and above providing service to the Project, including extensions of utility infrastructure that eventually will facilitate service to the Contra Costa Community College site, the John Marsh Historic House, and the Lodge and Winery Parcels. By providing market rate and below market rate housing, by dedicating sites for affordable housing, a winery, amphitheater and event center and assisting development of the community college campus through construction of public infrastructure, the Project will facilitate the creation of new jobs and will further the goals of the City as expressed in its General Plan, Agricultural Preservation Program, Housing Element and Economic Development Plan. In exchange for the commitment of The Vineyards to provide these benefits and in order to encourage the investment by it necessary to do so, the City is willing to vest the right to construct the Project as provided in this Agreement. The infrastructure items, dedications, amenities and development fees constitute the Project’s fair share of the public improvements and equivalent to that which would be generated by the City’s Development Fee Program.

AGREEMENT
NOW, THEREFORE, in consideration of the promises, covenants and provisions set forth herein, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 EFFECTIVE DATE, TERM AND VESTING DATE
.1 Condition Precedent. This Agreement shall not be effective until the Property is annexed to the City of Brentwood. Upon the satisfaction of this condition, the Agreement shall be effective as of January 1, 2004 (the Effective Date).
.2 Term. The Term of this Agreement shall commence as of the Effective Date and continue for a period of twelve (12) years unless extended or terminated in the manner permitted below. The expiration of the term of this Agreement shall not be interpreted to, and shall not affect, terminate or waive any vested rights that may exist independent of this Agreement; e.g., rights arising from vesting tentative maps, common law vesting or other laws or regulations of the State or the City.
.3 Extensions. The term of this Agreement, or any Project Approval, Implementing Approval or Subsequent Approval, may be extended by mutual written agreement of the parties.
.4 Vesting Date. The Vesting Date shall be the Effective Date.
ARTICLE 2 COVENANTS OF THE VINEYARDS
.1 Obligations of The Vineyards Generally. The Vineyards is not required to construct the Project, but if it does, it shall construct it in accordance with the provisions of this Agreement.
.2 Sale of Winery Parcels. When directed by the City, The Vineyards shall convey to a purchaser approved by the City, for a nominal consideration not to exceed one hundred dollars, Parcels S, PP and QQ (the Winery Parcels) and upon City approval of a lot line adjustment or final map as described in Section 3.2.1, a portion of the parcel designated on the VTM as Parcel NN for the purpose of constructing an Event Center (the Event Center Parcel). If the Winery Parcels and Event Center Parcel have not been conveyed to such a purchaser by the fifth anniversary of the Effective Date, or if they have been conveyed but title has reverted to the Vineyards, The Vineyards shall offer to dedicate, and the City shall accept the dedication of the Winery Parcels and Event Center Parcel at a time no later than said fifth anniversary or if there has been a reverter, three months thereafter or at such later time as the City Manager and The Vineyards agree. The Winery Parcels and Event Center Parcel shall not be sold until the liens of the assessment districts identified in Section 4.1 below and of other funding districts contemplated by this Agreement have been imposed and any conveyance shall be subject to those liens as well as to a restrictive covenant that limits the use of the Winery Parcels and Event Center Parcel to those uses permitted by the Agreement. The title conveyed shall also be subject to a reverter if the Transferee has not commenced construction within one year of the conveyance or such later time as may be specified in writing by the City Manager. The Transferee (defined below in Section 7.1) or successor in interest to the Transferee shall pay for all of the expenses and shall complete the planting of the olives and grapes on Parcels S, PP, and QQ, pursuant to a plan approved by the City’s Director of Parks and Recreation Department. The Vineyards also may, at its discretion, convey with the Winery Parcels and Event Center Parcel, one or more of Parcels RR, HHH, II, and JJJ , the uses of which are described in Section 3.2.4.2. However, under no circumstance shall The Vineyards be required to offer to dedicate Parcels RR, HHH, II and JJJ to the City.
.3 Dedication of Amphitheater Parcel, Agricultural Parcels and EMT Parcel. Upon City approval of a lot line adjustment or final map as described in Section 3.2.1, The Vineyards shall dedicate to the City, and the City shall accept the dedication of a portion of the parcel designated on the VTM as Parcel NN for the purpose of constructing and establishing a public amphitheater and associated parking for the benefit of the citizens of the City (the Amphitheater Parcel). The Vineyards also shall offer to dedicate to the City, and the City shall accept the dedication of parcels to be shown on a final map that includes substantially the same property that is designated on the VTM as Parcels P, Q, U, X, BB, EE, MM, OO AND W (the Agricultural Parcels) for the purpose of preserving said parcels as open space devoted to agricultural purposes and maintained by the City with funds provided by the LLD that the City intends to form as described below. The Vineyards shall pay for all of the expenses and shall complete the planting of the olives and grapes on the Agricultural Parcels, pursuant to a plan approved by the City’s Director of Parks and Recreation Department. The Vineyards also shall offer to dedicate to the City, and the City shall accept the dedication of Parcel HH for the purpose of providing open space devoted to agricultural purposes, including storage of irrigation water, and maintained by the City as with the Agricultural Parcels. Said dedications shall be by offer and acceptance on the final map or maps that create said Parcels. The Vineyards also shall offer to dedicate to the City, and the City shall accept the dedication of the parcel at the southeast corner of the intersection of realigned Concord Avenue and Fairview Avenue for the purpose of providing a location for a paramedic ambulance station. On such parcel, the Vineyards shall construct a paramedic ambulance station similar to the AMR station located on Brentwood Boulevard, the square footage of which shall not exceed 1,200 square feet.
.4 Public Improvements. The Vineyards shall construct and dedicate the infrastructure improvements that are more particularly described in Exhibit C attached. The City shall provide to The Vineyards credits against Development Fees for a portion of the cost of that work as set forth in Section 3.5 below. The Vineyards shall perform the work in accordance with improvement plans approved by the City Engineer under Applicable Law, including City’s standards and specifications and, to the extent there are no such standards or specifications applying to a public improvement or a portion thereof, under industry standards and in good and workmanlike manner. Otherwise, the means and methods of construction of the public improvements shall be determined by The Vineyards.
.5 Dedication of Easement on Parcels QQ and S. The Vineyards shall dedicate to the City an easement over Parcels QQ and S that limits the uses of the Parcels to agricultural and open space uses including those allowed by the Project Approvals.
.6 Development Fees.
.6.1 Payment. The Vineyards shall pay the fees set out in Exhibit D in the manner and at the times provided therein. Except as provided below, the City shall not require, as a condition of any approval, any entitlement or any permit required to construct or occupy the Project, or otherwise, the payment of any other fee or of any amount in excess of those set forth in said Exhibit. On and after the sixth anniversary of the issuance of the first building permit for the Project or at anytime thereafter, the City may charge fees that are calculated according to the following formula: X/D = T/C, where X is the fee to be paid, D is the fee shown on Exhibit D and T is the then current total development fee charged by City and C is the total current fee shown on Exhibit D1, and The Vineyards shall pay such fees, provided that (a) the fees are adopted in accordance with all applicable city, state and federal laws including sections 66000 et seq., of the Government Code, (b) that, except as specified in Section 2.6.3 below, the fees for Active Adult Units shall not be more than 43.56% of the fees then charged for single family units in the City, and (c) that the fees charged are generally applicable to similar development within the City. Nothing herein shall prevent The Vineyards from protesting or challenging any such fee or increase in fees, in the manner provided by law. The foregoing notwithstanding, the development fees for Parcels RR, HHH, III, JJJ, PP, NN, HH, S, and QQ shall be as set forth in Sections 2.6.5 and 3.2.4.2 below.
.6.2 Inapplicability of Certain Statutes. Notwithstanding any other term in this Agreement, the Development Fees paid pursuant to the terms of this Agreement are not subject to Government Code sections 66001 through and inclusive of section 66025, in particular those provisions (a) requiring identification of the purpose of the fee, or (b) limiting the use of the fees, or (c) questioning whether the fee exceeds the estimated reasonable cost of the providing of the service or facility for which the fee or exaction is imposed, or any other provision of Government Code sections 66001, 66002, 66003, or 66005, or section 66006, except that The Vineyards may protest or challenge the amount of any increase in Development Fees after the sixth anniversary of the Effective Date of this Agreement, in the manner provided by law. As the development fees have been negotiated in good faith between the parties, and are not part of, or adopted pursuant to the City’s Development Fee Program, any fees paid in excess of the agreed fee credits as shown in Exhibit D shall be deposited in the general fund of the City, and shall be used in the City’s sole discretion for the restoration of the John Marsh House and the construction of the City’s amphitheater and related public improvements, or any other public improvement in the City, including the City’s share, if any, of the construction of the Event Center.
.6.3 SR4 Bypass Fees. At issuance of building permit, The Vineyards shall pay the ECCRFFA Fee applicable to the construction for which the permit is obtained; provided however that for Active Adult units, within the limits of City authority and does not cause City to incur an additional costs or violate its agreement with ECCRFFA , The Vineyards shall not be required to pay any amount in excess of 43.56% of the fee that is charged for single-family residences in Brentwood at the time the building permit for the Active Adult unit is issued.
.6.4 Initial Funding for Pioneer State Park Master Plan, John Marsh Home and Amphitheater. The Vineyards shall pay $350,000 for the Pioneer State Park Master Plan and $500,000 to the preservation of the John Marsh Home, as a fee creditable expense as specified by Section 3.5, no later than ninety (90) days after commencement of mass grading of the Property or at such later date as is approved in writing by the City Manager. The Vineyards also shall pay $3,500,000 of the costs for developing the amphitheater, associated facilities, event center and parking lot as a fee creditable expense as specified by Section 3.5, which payment shall be made by funds generated from an assessment district and provided to City by the commencement of construction of Phase 2 or, at The Vineyards’ option, from another funding source that the City determines would be sufficient to provide such amount and provided to City spread out over a maximum of thirty-six (36) months from the commencement of construction of the improvements on the Amphitheater Parcel, or at such later date as is approved in writing by the City Manager.
.6.5 Fees for Winery Parcels. The Vineyards shall not be required to pay development fees for the Winery Parcels and Event Parcel; instead, when a winery developer pulls a building permit, the Development Fees normally associated with building permit issuance will be paid by the City from funds held in the Ag Mitigation account and will cover Sanitary Sewer, Water, Community Facilities and Fire Fees. Roadway Fees will have already been paid through construction and CIFP bonds and no additional Roadway Fees will be due. Development Fees for Parcels RR, HHH, III, and JJJ shall be generally applicable single-family residential development fees as stipulated in the City’s Development Fee Program at the time of issuance of building permits for each individual lot. Fee restrictions stipulated elsewhere on other residential lots do not apply to these four lots, and they will pay the citywide fees in effect at the time they pull permits.
.7 Below Market Rate Dwelling Units. The Project shall include three hundred four (304) below-market rate dwelling units (BMR units) as set forth below. Moderate income, low income and very low income shall mean the income and eligibility levels determined in the manner provided in Applicable Law, namely section 17.725.002 F. of the Municipal Code. Each BMR unit sold or rented by The Vineyards shall be subject to resale controls or rent restrictions to ensure that the unit remains affordable to moderate, low or very low income households that are applicable for the periods, and in the manner, and for the periods specified in Applicable Law, namely section 17.725.002 H. of said Code, and shall be in the form attached as Exhibit E-1 or E-2, as applicable. These restrictions shall run with the land and bind subsequent owners of the BMR units for a term not less than that required by Applicable Law, namely section 17.725.005 A. of the Municipal Code. Prior to the issuance of a building permit for a BMR unit, The Vineyards shall prepare, execute and record an Affordability Control Agreement in the form of Exhibit E -1 or E-2 or such other form as may be approved, from time to time, by the City Attorney. Such agreement need not be recorded prior to issuance of building permits for market rate units and is not a condition precedent to such permits or any other approvals necessary for the construction, sale and occupancy of market rate units. Dwelling units that are not subject to those controls and restrictions are referred to herein as market rate units. If the Applicable Law, namely section 17.725.002 of the Municipal Code, is revised to allow a higher percentage of required BMR units to be “moderate income units” than specified in this Agreement, then the distribution of moderate income units, low income units, and very low income units specified in this Agreement shall be modified to reflect the distribution of unit types specified in the revised ordinance. Under no circumstance shall The Vineyards be required to provide more low income units or very low income units than the number of each specified in this Agreement.
.7.1 Moderate Income Units. The Vineyards shall provide one hundred eighty-four (184) moderate-income dwelling units.
.7.2 Low Income Units. The Vineyards shall provide twenty (20) low income dwelling units, subject to Resale Controls and/or Rent Restrictions as provided in Section 2.7 above.
.7.3 Dedication of Land for BMR Units. The Vineyards shall dedicate to the City a parcel comprised of a portion of the property designated on the VTM as Parcels EEE and FFF for the construction of up to eighty (80) low income and twenty (20) very low income units as provided in Section 3.7 below. Said property shall be divided between the City and The Vineyards in approximate proportion to the number of units to be constructed on it by each party. In the alternative, by subsequent agreement and without amending this Agreement, the parties may agree to pursue a joint project on said property or that one or both parties will convey said property to a third party developer of affordable housing. The dedications shall be by offer and acceptance on the final map that includes said property.
.7.4 Housing Types; Densities, Timing of Construction. The BMR units, provided by the Vineyards and described above in this Section 2.7, may, in its discretion, be (a) for sale or rental, (b) age restricted, (c) duet, multi-family, assisted or congregate living, (d) in any mix and location. The City shall approve final maps that divide lots shown on the VTM to accommodate duet units, provided the number of active adult lots, including duet lots within the Project does not exceed 1100 and such final maps shall be deemed to be in substantial compliance with the VTM as required by section 66474.1 of the Map Act and the City shall not require revisions, additions or amendments to the VTM prior to approval of any such final map. The timing of construction of the units shall be as set forth in Exhibit F subject to revision in accordance with Section 10.12 below. The Vineyards shall have no obligation to construct any BMR units or to dedicate any land for that purpose until it commences construction of Phase I as shown on the VTM and thereafter the obligation to construct the BMR units shall never exceed the number obtained by application of the following formula: x/BP = 204/U, when x is the number of BMR units, BP is the number of building permits previously issued for market rate units and U is the number of market rate units included in the Project Approvals.
.7.5 Satisfaction of City Requirements. Satisfaction of the covenants contained in this Section 2.7 is an alternative equivalent method permitted by, and satisfies that which is required by Applicable Law for the Project. Such satisfaction shall constitute full compliance with, and full satisfaction of the City’s Affordable Housing Program as set out in its General Plan, Municipal Code, Ordinance 756, and uncodified ordinances, policies and regulations for the Property, the Project and for the property and project that are the subjects of vesting tentative map 8781 and related applications. This Agreement shall constitute the Affordability Control Agreement required by Applicable Law.
ARTICLE 3 COVENANTS OF THE CITY OF BRENTWOOD
.1 Obligations of City Generally. The City shall act in good faith to accomplish the intent of this Agreement and shall cooperate with The Vineyards so that it receives the benefits of this Agreement and the rights vested hereby, including cooperation and assistance in obtaining necessary or desirable permits or other approvals from other governmental entities for the Project.
.2 Vested Development Rights. The City confirms and grants to The Vineyards the vested right to develop, construct and use the Project in accordance with the Project Approvals and Implementing Approvals and Subsequent Approvals (as defined in Section 4.5). Not in limitation or derogation of the foregoing, the City also confirms and grants to The Vineyards the vested rights to the following:
.2.1 The Winery Parcels and Event Center Parcel. Any party or parties to which The Vineyards transfers the Winery Parcels and Event Parcel pursuant to Section 2.2 above may construct wineries and associated improvements and facilities, including restaurants and winery-associated activities such as olive pressing, on the Winery Parcels (i.e., Parcels S, PP and QQ) and an event building on the Event Parcel, and the City shall approve each of the same subject only to this Agreement, the Project Approvals, landscape plan review, and ministerial issuance of building and occupancy permits; provided the event building is completed by the date the City completes the amphitheater and parking lot on the Amphitheater Parcel, or at another date approved by the City Manager. Title to the Winery Parcels shall be subject to covenants, conditions and restrictions that require the owner of the Winery Parcels to plant and maintain vines and olives on the Winery Parcels. No conditions of approval shall be imposed except for those imposed by this Agreement, the Project Approvals and those related to the review mentioned above and, in no circumstances shall any additional condition impose requirements for off-site improvements or mitigation or for mitigation due to impacts, direct or cumulative, resulting from interference with views or conversion of open space or from any other environmental impact considered in the preparation of the Final EIR for this Project. The City shall pay any Development Fees imposed by the City for Parcels S, PP, QQ, and NN. In addition, the City shall approve either a lot line adjustment consistent with the requirements of the Subdivision Map Act such that the Event Parcel is included in one of the Winery Parcels and Parcel NN is limited to the Amphitheater Parcel, or the City shall approve a final map that divides Parcel NN into two parcels and such final map shall be deemed to be in substantial compliance with the VTM as required by section 66474.1 of the Map Act and the City shall not require revisions, additions or amendments to the VTM prior to approval of any such final map.
.2.2 Lodge Parcel. For a period of ten years after the Effective Date, Parcel D (the Lodge Parcel) may be used only for a small hotel or lodge and associated improvements, including recreational and eating establishments. The City shall approve same subject only to the Project Approvals, design review of the exterior of the building and site and landscape plan review and issuance of building and occupancy permits. No conditions of approval shall be imposed except for those imposed by the Project Approvals and those related to the review mentioned above and, in no circumstances shall any additional condition impose requirements for off-site improvements or mitigation or for mitigation due to impacts, direct or cumulative, resulting from interference with views or conversion of open space or from any other environmental impact considered in the preparation of the Final EIR for this Project. If approved by the City Manager, the lodge may be constructed on one or more of the Winery Parcels instead of on the Lodge Parcel. From and after the date the City allows the lodge to be constructed on one or more of the Winery Parcels or from and after the tenth anniversary of the Effective Date, if not previously developed with a small hotel/lodge, whichever of these two dates is earlier, the Lodge Parcel shall be considered part of the Village Center and its use shall be governed by Section 3.2.3 below.
.2.3 Village Center. In the area shown on the VTM as the Village Center, The Vineyards may construct 120,000 square feet of commercial improvements and facilities and 200,000 square feet of congregate care facility and the City shall approve same subject only to design review of the exterior of the building and site and landscape plan review and issuance of building and occupancy permits. No conditions of approval shall be imposed except for those imposed by the Project Approvals and those related to the review mentioned above and, in no circumstances shall any additional condition impose requirements for off-site improvements or mitigation or for mitigation due to impacts, direct or cumulative, resulting from interference with views or conversion of open space or from any other environmental impact considered in the preparation of the Final EIR for this Project. The lot lines shown on the VTM are conceptual only and any configuration and number of lots shown on a final map including the Village Center, or a portion thereof, shall be deemed to substantially comply with the VTM provided the lots shown on the final map comply with the provisions of the Project Approvals. The City shall permit payment of Development Fees for non-residential uses within the Project, including the Village Center and the Lodge Parcel to be paid over a ten year period, with the first payment due at occupancy and annual payments thereafter.
.2.4 Residential Development.
.2.4.1 Active Adult Units. The Vineyards may construct up to 1100 age restricted active adult residential units and residential improvements and facilities, including no more than 86 duet units, and a recreational center subject only to landscape plan review and issuance of building and occupancy permits. No conditions of approval shall be imposed except for those imposed by the Project Approvals and those related to the review mentioned above and, in no circumstances shall any additional condition impose requirements for off-site improvements or mitigation or for mitigation due to impacts, direct or cumulative, resulting from interference with views or conversion of open space or from any other environmental impact considered in the preparation of the Final EIR for this Project. Duet units may be constructed on any active adult lot shown on the VTM. The final map shall divide such lots to allow sale of the duets to different purchasers and such map shall be deemed to be in substantial compliance with the VTM without the need for any additional approval, application, submittal or approval. In addition, The Vineyards may construct on Parcel T a recreational facility not to exceed 29,290 square feet.
.2.4.2 Market Rate Single Family Residences. The Vineyards may construct up to 128 market rate single family residences subject only to design review of the exterior of the building, landscape plan review and issuance of building and occupancy permits. No conditions of approval shall be imposed except for those imposed by the Project Approvals and those related to the review mentioned above and, in no circumstances shall any additional condition impose requirements for off-site improvements or mitigation or for mitigation due to impacts, direct or cumulative, resulting from interference with views or conversion of open space or from any other environmental impact considered in the preparation of the Final EIR for this Project. Notwithstanding anything herein to the contrary, in addition to the 128 units, The Vineyards may construct single-family units on Parcels RR, HHH, III, and JJJ subject to the following: (a) each such Parcel may be used for a single-family residence and accessory uses subject to design review pursuant to Applicable Law generally applicable to the construction of single-family homes in the City except setback requirements and lot coverage restrictions, including the 40% coverage restriction, shall not apply to Parcels RR, HHH, III, and JJJ; (b) at issuance of each building permit for such use on any such Parcel, the applicant for the permit shall pay the then-applicable development fees; and (c) the total acreage of Parcels RR, HHH, III, and JJJ shall not exceed one acre.
.2.4.3 Multi-Family Residences. The City and The Vineyards may construct 200 MFR units on Parcels EEE and FFF. The City shall construct at least 99 of these units in accordance with Section 3.7 below. The Vineyards may construct 150 MFR units on Parcels I and J subject only to design review of the exterior of the building, landscape plan review and issuance of building and occupancy permits. No conditions of approval shall be imposed except for those imposed by the Project Approvals and those related to the review mentioned above and, in no circumstances shall any additional condition impose requirements for off-site improvements or mitigation or for mitigation due to impacts, direct or cumulative, resulting from interference with views or conversion of open space or from any other environmental impact considered in the preparation of the Final EIR for this Project.
.3 Availability of Utility Services. City shall exercise its best efforts to make available public services and facilities to serve the Property as development occurs. To the maximum extent permitted by law and consistent with its authority, the City shall for the term of this Agreement (i) reserve for The Vineyards such wastewater treatment capacity in the City’s wastewater treatment facilities as may be necessary to serve and operate the Project, (ii) reserve for The Vineyards the storage and transmission capacity for water services that is necessary to serve and operate the Project, and (iii) assist The Vineyards in reserving stormwater drainage capacity sufficient to accommodate runoff from the impervious surfaces related to the buildout of the Project.
.4 Processing Fees. In recognition of the size of the Project, the economies of scale and the statutes limiting processing fees charged by cities to the reasonable actual cost of processing development projects, the City shall charge for this Project, and The Vineyards shall be required to pay no more than the processing fees set forth in Exhibit D.
.5 Credit for Infrastructure. The City shall reimburse The Vineyards by credit against Development Fees for the construction and dedication of the public improvements in the amount described in Exhibit D. These credits are in accordance with City policy, including its Development Fee Program. The credits include credits for oversized infrastructure and for infrastructure that provides a citywide benefit in excess of that which otherwise would be required to offset the impacts and demands of the Project. The credits have been determined based upon engineer’s estimates prepared by Carlson, Barbee & Gibson, Inc., dated January 6, 2004, which in turn are based on assumptions regarding the specifications for the improvements. The Vineyards and the City Manager may agree that different specifications be used and, in such case, the credit for the work to which the revised specifications apply shall be adjusted in accordance with a revised engineer’s estimate. A revised Exhibit D shall be prepared to reflect the adjustment to the credits and, upon approval by the City Manager, the revised Exhibit shall constitute an amendment to this Agreement, and shall govern the credits to which The Vineyards is entitled and vested by this Agreement. The parties may agree in writing or by conditions of approval accepted by the Vineyards that the Vineyards will perform additional work for which the City will reimburse The Vineyards at its actual cost plus a reasonable overhead and administration amount.
.6 Use of Non-Potable Water. The Vineyards shall use non-potable water obtained from ECCID to irrigate grapes and olives and, as feasible, other areas of extensive landscaping. The City shall not require the Project to use recycled water.
.7 Affordable Housing. The City shall construct eighty (80) low income dwelling units and twenty (20) very low income dwelling units on land dedicated by The Vineyards, as provided in Section 2.7.3 above. As provided in Section 2.7, if the Applicable Law, namely section 17.725.002 of the Municipal Code, is revised to allow a higher percentage of required BMR units to be “moderate income units” than specified in this Agreement, then the distribution of moderate income units, low income units, and very low income units specified in this Agreement shall be modified to reflect the distribution of unit types specified in the revised ordinance. The City may decline to construct one low income unit and by written notice given to The Vineyards at a reasonable time in relation to its construction schedule, but in no event later than approval of the final map for the phase of the Project in which these units are to be located, may require The Vineyards to construct said one unit. The units to be provided by the City shall be multi-family units, for sale or rental, and shall be subject to Resale Controls and/or Rent Restrictions as provided in the Applicable Law that are no less onerous than those imposed upon the BMR units to be constructed by The Vineyards. All units constructed by the City shall be age-restricted for senior citizens.
.8 Compliance. The dedications that The Vineyards are required by this Agreement to make shall constitute full compliance with, and full satisfaction of the policies, requirements and provisions of the City’s General Plan and its Conservation/Open Space Element including Goal 1 its BMR program and its Agricultural Preservation and Fee Program.
ARTICLE 4 COOPERATION-IMPLEMENTATION
.1 Establishment of Districts. The City and The Vineyards, as appropriate, shall form the following:
(a) An Infrastructure Financing District;
(b) A Geologic Hazard Abatement District (GHAD);
(c) A Landscaping and Lighting District (LLD);
(d) A Capital Improvement Financing Program (CIFP) and related assessment district for the acquisition of infrastructure such as roads, sewer, water, flood control and drainage. All proceeds from the assessment district shall be used to repay bonds to be issued for such acquisitions and the proceeds from the sale of the bonds shall be used only to acquire infrastructure from The Vineyards, interest reserve and fees of bond counsel. No proceeds shall be used to prepay fees or for any other purpose without the consent of the Vineyards. Nothing contained herein shall prevent the City from refinancing any bonds issued by the district or from using any additional proceeds obtained in the refinancing for any lawful purpose; and
(e) A Community Finance District with an annual assessment not to exceed $800 per single-family detached dwelling unit and $150 for multi-family and duet residential units. The assessment may include funding for State Park facilities and services, and for facilities and services that jointly benefit the Project and the future college campus.
Unless otherwise determined by The Vineyards, all of the Property is to be included in these districts, except City owned parcels. The foregoing notwithstanding, formation of the Infrastructure Financing District shall be at the option of the City; The Vineyards shall cooperate in the formation of it; and it shall be effective only as to portions of the Property not included in a final map prior to the formation. If the district is formed by the City, The Vineyards shall not oppose it and shall vote in favor of the formation and shall do all things necessary by it to accomplish the formation; provided the terms of the formation are as set forth herein. If the district is formed by The Vineyards, the City shall cooperate and do all things necessary by it to accomplish the formation of the district.
.2 Change of Organization of Various Governmental Entities. The City shall do all things necessary to apply, and shall apply to LAFCO for a change of organization to annex the Property to the City, and shall prosecute the application diligently and in good faith. In addition, when requested, City shall cooperate with and support or make applications for changes in organization or reorganizations that would annex or deannex the Property to or from other governmental entities (not including the City) as The Vineyards deems desirable or necessary to efficiently construct, complete and occupy the Project. In particular, but not in limitation of the generality of the foregoing, the City shall cooperate and support the annexation of the Property to ECCID.
.3 Other Government Permits. At times of its choosing, but in advance of any work requiring such, The Vineyards shall obtain such other permits and approvals as are lawfully required by other governmental entities in connection with the development of, or the provision of services to, the Project. The City shall cooperate with The Vineyards in its efforts to obtain such permits and approvals.
.4 Timely Processing. The City shall timely process and grant all applications for City action that The Vineyards deems necessary or desirable for the efficient and economical development and sale of the Project, including but not limited to entitlements, permits, approvals, contracts, acceptance of improvements, and release and reduction of bonds, whether discretionary or ministerial (Implementing Approvals) provided all non-discretionary requirements of Applicable Law are satisfied.
.4.1 Submittals By The Vineyards. The Vineyards 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 the City to carry out its obligations under this Section 4.4; and (ii) cause The Vineyards’ planners, engineers, and other consultants to provide to the City in a timely manner all such documents, applications, plans and other materials required by Applicable Law.
.4.2 Timely Processing By City. The City shall use its best efforts to review applications for Implementing Approvals. Upon receipt of an application and any required processing fee for Approval, the City shall use its best efforts to promptly and diligently commence and complete all steps necessary to grant the Implementing Approval. City shall (i) provide at The Vineyards’ expense and subject to The Vineyards’ request and prior approval, reasonable overtime staff assistance and/or private staff consultants for planning and processing of the application; (ii) provide notice and holding public hearings as required by law; and (iii) action the application within the time provided by law or if no time is provided, within a reasonable time. Nothing set forth in this Section shall negate any obligation the City may have under Applicable Law or applicable State law to take such steps as may reasonably be necessary to review and act on the application expeditiously and efficiently absent the request and agreement of The Vineyards to pay for overtime or outside consultants. The City shall make its best efforts to process and decide each application within the applicable times set forth in (1) the Permit Streamlining Act; (2) the California Environmental Quality Act; and (3) the Subdivision Map Act. Nothing contained in this section 4.4.2 is intended to, or shall be interpreted to alter, limit or increase the City’s obligations under applicable law relating to the timely processing of development applications.
.5 Project Approvals; Subsequent Approvals; Implementing Approvals. Project Approvals means those entitlements and approvals set forth in Recital F. Subsequent Approvals means approvals, requested by The Vineyards, that would alter the uses or the density or intensity of development or the term of this Agreement. Implementing Approvals is defined in Section 4.4 and includes, but is not limited to approvals, requested by The Vineyards, of maps pursuant to the Map Act or local ordinance, building and occupancy permits, rezonings, use permits, design review permits and approvals, and other land use entitlements, but does not include Subsequent Approvals.
ARTICLE 5 STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT
.1 Applicable Law. Except as otherwise provided in this Agreement, the rules, regulations, ordinances, resolutions, official policies, standards and specifications of the City including without limitation the applicable Project Approvals and this Agreement, in force and effect on the Vesting Date (the Applicable Law) shall be applied to the Property. If The Vineyards requests changes in the Applicable Law, all new or modified rules, regulations, ordinances, policies and standards adopted pursuant to such request shall apply to the Project and thereafter shall be included in the Applicable Law. If there is a conflict between the Project Approvals, the Implementing Approvals or the Subsequent Approvals, or this Agreement and other Applicable Law, the former (i.e., the Project Approvals, the Implementing Approvals, the Subsequent Approvals or this Agreement, whichever is at issue) shall control. If there is a conflict between the Project Approvals or the Implementing Approvals or the Subsequent Approvals and this Agreement, this Agreement shall control. If there is a conflict between a Subsequent Approval or an Implementing Approval and the Project Approvals or this Agreement, the Subsequent or Implementing Approval shall control.
.2 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 this Agreement 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.
.3 Protection of Vested Rights. To the maximum extent permitted by law, the 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 The Vineyards and to prevent any City Law, as defined below, from invalidating or prevailing over, all or any part of this Agreement or other Applicable Law. Except as otherwise provided in Article 9 below, the City shall cooperate with The Vineyards, and shall undertake all such actions as may be necessary to ensure this Agreement remains in full force and effect.
.4 No Conflicting Enactments. Except as permitted by Section 2.6, the 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, fee, dedication, exaction 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 and this Agreement and 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;
(b) 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;
(c) 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);
(d) 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;
(e) 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;
(f) Result in The Vineyards 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 current Applicable Law;
(g) 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;
(h) 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 expressly permitted by this Agreement and fees lawfully imposed by other governmental entities and collected by the City;
(i) Impose against the Project any condition, dedication or other exaction not specifically authorized by Applicable Law;
(j) Limit the processing or procuring of applications for Subsequent Approvals or Implementing Approvals;
(k) Withhold any permit or approval except as expressly allowed by, and in accordance with procedures established by Applicable Law; or
(l) Withhold acceptance of any improvements constructed by The Vineyards pursuant to this Agreement, unless the improvement does not conform to the City’s approved plans and specifications for public improvements.
The above list is not intended to be comprehensive or to limit the types of actions that would conflict with Applicable Law and, therefore, with this Agreement or to reduce the development rights provided hereby.
.5 Initiatives, Referenda and Moratoria.
.5.1 Conflicting Laws. 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, that 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.
.5.2 No Growth Moratoria or Restrictions. 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, except as provided in Section 5.11 below.
.5.3 Cooperation. To the maximum extent permitted by law, the City shall cooperate with The Vineyards and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect.
.5.4 No Actions to Violate. The City shall not support, adopt or enact any City Law, or take any other action, that would violate the provisions of this Agreement, the Project Approvals, the Implementing Approvals or the Subsequent Approvals.
.5.5 Right to Challenge. The Vineyards 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.
.6 Further CEQA Review and Environmental Mitigation. The Final EIR for the Project was prepared following the completion of numerous studies. The Final EIR is intended to be used in connection with each of the Project Approvals and Implementing Approvals needed for the Project. Consistent with the CEQA policies and requirements applicable to the Final EIR and to the maximum extent allowed by law, the City shall use the Final EIR for Implementing Approvals and shall not impose on any Implementing Approval or on the Project any mitigation measures, other than those specifically imposed as conditions of the Project Approvals and those identified in the Final EIR that are applicable to the Implementing Approval.
.7 Life of Subdivision Maps, Development Approvals, and Permits. The term of each Project Approval, Implementing Approval and Subsequent Approval shall automatically be extended for the longer of the term of this Agreement (including any extensions) or the term otherwise applicable to such Approval if this Agreement were no longer in effect. The term of this Agreement and of each Approval shall be extended by a time period equal to the sum of any periods of time during which a development moratorium, as defined in section 66452.6(f) of the Map Act, is in effect.
.8 Processing Applications for Implementing Approvals and Subsequent Approvals. By approving the Project Approvals and this Agreement, the City has made a policy decision that the Project is in the best interests of the City and promotes the public health, safety and general welfare. Accordingly, unless expressly requested by The Vineyards, the City, in considering any application for an Implementing Approval, shall not use its discretionary authority to change the policy decisions reflected in the Project Approvals and this Agreement or otherwise to prevent or delay development of the Project. Instead, the Implementing Approvals shall be deemed to be tools to implement those policy decisions and shall be issued by the City so long as they comply with Applicable Law. Applications by The Vineyards for Supplemental Approvals shall be processed in accordance with the City’s then existing or new rules, regulations, and policies, as required by Brentwood Municipal Code section 17.810.010(E).
.9 Review of Subsequent Approval Applications. The City shall review and act on applications for Subsequent Approval in accordance with the City’s then existing or new rules, regulations, and policies, as required by Brentwood Municipal Code section 17.810.010(E). The City may approve an application for a Subsequent Approval subject to any conditions necessary to bring the Subsequent Approval into compliance with then current law. Any such specified modifications must be consistent with then existing City rules, regulations, and policies as required by Brentwood Municipal Code section 17.810.010(E).
.10 State and Federal Law. 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). As provided in section 65869.5 of the Government Code, 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. In such event, the City and The Vineyards shall take such action as may be required pursuant to this Agreement including, without limitation, Article 4 (Cooperation-Implementation) and Section 9.4 (Excusable Delays; Extension of Time of Performance). Not in limitation of the foregoing, nothing in this Agreement shall preclude the City from imposing on The Vineyards any fee specifically mandated and required by state or federal laws and regulations that require collection by the City, provided The Vineyards expressly reserves its right to contest any fees imposed.
.11 Timing of Project Construction and Completion.
.11.1 No Requirement. The Vineyards is not required to initiate or complete development of the Project or any particular phase of the Project within any particular period of time, and the City shall not impose such a requirement on any Project Approval or Implementing Approval. Notwithstanding any terms stated above, provided that once construction of a Phase of the Project has begun, The Vineyards shall complete (a) the affordable housing included in that phase and (b) the public infrastructure related to that Phase in accordance with the Subdivision Improvement Agreement for that Phase and shall not commence the next Phase of the Project before doing so. Phasing of the Project shall be in accordance with the phases shown on the VTM, and phased final maps shall be approved in accordance therewith.
.11.2 Timing. Except as set forth in Section 2.7.4 and in section 5.11.1 above, The Vineyards may develop in accordance with its own time schedule, as it exists from time to time, and The Vineyards shall determine which part of the Property to develop first, all within the exercise of its subjective business judgment. The parties expressly acknowledge that they have considered and, by this provision, intend to, and do expressly provide for the timing of development of the Project. Subsequently adopted ordinances, resolutions, and initiatives purporting to relate to, restrict or control the timing of the Project shall not apply to the Project and shall not prevail over this Agreement. The parties intend by this provision to make inapplicable to this Project the decision of the California Supreme Court in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984).
.11.3 Subdivision and Other Agreements. Nothing in this Agreement shall exempt The Vineyards from completing work required by a subdivision agreement, road improvement agreement or similar agreement in accordance with the terms thereof. The City shall not require The Vineyards to enter into any such agreement that is inconsistent with this Agreement or the Project Approvals or that requires more work than is required by them.
.11.4 Exempting Fees Imposed by Outside Agencies. This Agreement shall not prohibit the City from collecting from The Vineyards any fee or obligation that is imposed by other local governmental agencies or by a regional agency in accordance with state or federal law or regulation and implemented by the City in cooperation with such local or regional agency; provided, however, that the fee or obligation and the City’s role implementing it are allowed by law; and provided further that The Vineyards expressly reserves its right to contest the imposition of any such fee or obligation.
ARTICLE 6 AMENDMENT
.1 Amendment to Approvals. To the extent permitted by state and federal law, any Project Approval, Implementing Approval or Subsequent Approval (hereafter in this Section 6.1 an Approval) may, from time to time, be amended or modified in the following manner:
.1.1 Administrative Project Amendments. Upon the written request of The Vineyards for an amendment or modification to an Approval, the Community Development Director or other authorized official, including but not limited to the City Engineer and the Director of Parks and Recreation, or his/her designee (collectively Authorized Official) 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 Applicable Law. If the Authorized Official finds that the proposed amendment or modification is minor, substantially consistent with 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 Authorized Official 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.
.1.2 Non-Administrative Amendments. Any request of The Vineyards for an amendment or modification to an 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.
.1.3 Non-Assuming Transferees. No amendment of this Agreement shall affect the vested rights afforded by Section 7.3 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.
.2 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:
.2.1 Administrative Amendments. Any amendment to this Agreement that 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) the density or intensity of use of the Property or the maximum height or size of proposed buildings, or (v) monetary payments by The Vineyards, 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. By resolution, the City Council may approve such amendment or delegate authority to do so to the City Manager.
.2.2 Amendment Exemptions. Neither the amendment of a Project Approval or Subsequent Approval nor the approval of a Subsequent Approval or an Implementing Approval, requested by The Vineyards, shall require an amendment to this Agreement. Instead, any such matter automatically shall be deemed to be incorporated into the Project and the Project Approvals and vested under this Agreement.
ARTICLE 7 ASSIGNMENT, TRANSFER AND MORTGAGEE PROTECTION
.1 Assignment of Interests, Rights and Obligations. Nothing herein limits the right of The Vineyards to freely alienate or transfer all or any portion of the Property. The Vineyards may transfer or assign all or any portion of its interests, rights or obligations under this Agreement, the Project Approvals or Implementing Approvals or Subsequent Approvals (a Transfer) to any third party who acquires an interest or estate in the Property or any portion thereof including, without limitation, purchasers or ground lessees of lots, parcels or facilities (a Transferee).
.2 Transfer Agreements.
.2.1 Written Agreement. In connection with a Transfer by The Vineyards (other than a Transfer by The Vineyards to an affiliated party, to a Mortgagee [as defined in Section 7.4] or to a Non-Assuming Transferee [as defined in Section 7.3]), The Vineyards and the Transferee shall enter into a written agreement (a Transfer Agreement) regarding the respective interests, rights and obligations of The Vineyards and the Transferee in and under the Agreement, the Project Approvals, the Implementing Approvals and the Subsequent Approvals. Such Transfer Agreement may (i) release The Vineyards from obligations under the Agreement, the Project Approvals, or the Implementing 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 The Vineyards to be necessary or appropriate in connection with the transfer or assignment. The Vineyards shall notify the City in writing that it plans to execute a Transfer Agreement at least ten (10) days in advance of the execution date, unless the transfer is subject to Section 7.2.2 below, in which case The Vineyards shall comply with that Section.
.2.2 Obligations To Construct Infrastructure Improvements. The foregoing Section 7.2.1 notwithstanding, prior to substantial completion of the public improvements listed in Exhibit C, no Transfer Agreement that includes an assumption of the obligations to construct said improvements shall be effective to release The Vineyards from such obligations without the written consent of the City as provided in this Section 7.2.2. In such case, The Vineyards shall provide written notice to the City of a proposed transfer or assignment and seek the City’s written consent to any Transfer Agreement. A Subcommittee of the City Council shall review the proposed transfer and grant consent to any Transfer Agreement, unless in the City’s reasonable opinion the Transferee would not be able to perform obligations under this Agreement due to insufficient financial resources. Failure by the City to respond within forty-five (45) days to any request made by The Vineyards for a consent to a Transfer Agreement shall be deemed to be the City’s approval of such Transfer Agreement. The determination of a Subcommittee of the City Council shall be appealable to the City Council by The Vineyards. If a Transfer Agreement is made without approval of the City, it shall not be effective to release The Vineyards from the obligations to construct the public improvements listed in Exhibit C.
.2.3 Binding. Any Transfer Agreement shall be binding on The Vineyards, the City and the Transferee. Upon recordation of any Transfer Agreement in the Official Records of Contra Costa County, The Vineyards shall automatically be released from those obligations assumed by the Transferee therein, subject to the provisions of Section 7.2.2 above.
.2.4 Liabilities. The Vineyards 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 assuming any portion of The Vineyards’ obligations under this Agreement with the City’s consent shall be attributed to The Vineyards, nor may The Vineyards’ rights hereunder be canceled or diminished in any way by any breach or default by any such person.
.3 Non-Assuming Transferees. Except as otherwise required by The Vineyards in its sole discretion, the burdens, obligations and duties of The Vineyards under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor the City’s consent shall be required in connection with (i) any single residential lot improved with a residence or improved condominium unit conveyed to a purchaser, (ii) any property that has been established, developed and built as one or more separate legal parcels for multi-family residential use and conveyed to an entity or person not affiliated with The Vineyards, (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. The obligations of a transferee of the Winery Parcels shall be as set forth in Section 2.2 of this Agreement.
.4 Mortgagee Protection.
.4.1 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 the City’s remedies to terminate the rights of The Vineyards (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.
.4.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 7.4.1 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.
.4.3 Notice of Default to Mortgagee. If the City receives a written notice from a Mortgagee or from The Vineyards requesting a copy of any notice of default given The Vineyards and specifying the address for service thereof, then the City shall deliver to such Mortgagee at such Mortgagee’s cost, concurrently with service thereon to The Vineyards, any notice given to The Vineyards with respect to any claim by the City that The Vineyards has committed an event of default, and if the City makes a determination of default hereunder and if requested by such Mortgagee, the City shall likewise serve at such Mortgagee’s cost notice of default on such Mortgagee concurrently with service thereon on The Vineyards. Each Mortgagee shall have the right during the same period available to The Vineyards to cure or remedy, or to commence to cure or remedy, the event of default claimed or the areas of noncompliance set forth in the City’s notice.
.4.4 No Supersedure. Nothing in this Section 7.4 shall be deemed to supersede or release a Mortgagee or modify a Mortgagee’s obligations under any subdivision improvement agreement or other obligation with respect to the Project incurred other than by this Agreement, nor shall any provision of this Section 7.4 constitute an obligation of the City to such Mortgagee, except as to the notice requirements of Section 7.4.3 above and Sections 7.5 and 10.9.
.5 Notice of Compliance. Within thirty (30) days following any written request which The Vineyards or a Mortgagee may make from time to time, the City shall execute and deliver to the requesting party (or to any other party identified by the requesting party) a written Notice of Compliance, in recordable form, duly executed and acknowledged by the City, that certifies:
.5.1 This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modifications;
.5.2 There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default;
.5.3 Any other information reasonably requested by The Vineyards. The failure to deliver such a statement within such time shall constitute a conclusive presumption against the City that this Agreement is in full force and effect without modification except as may be represented by The Vineyards and that there are no uncured defaults in the performance of The Vineyards, except as may be represented by The Vineyards. The Vineyards shall have the right, in its sole discretion, to record the Notice of Compliance.
ARTICLE 8 COOPERATION IN THE EVENT OF LEGAL CHALLENGE
.1 Cooperation. The Vineyards, as the real party in interest, will defend and hold harmless the City, as provided in Section 9.9 of this Agreement in any administrative, legal or equitable action or proceeding challenging this Agreement, or any Project Approval or Implementing Approval or Subsequent Approval, or any provision thereof, but shall have no obligation to pay for counsel employed by the City, or to reimburse the City for other costs it incurs.
ARTICLE 9 DEFAULT; TERMINATION; ANNUAL REVIEW
.1 Defaults and Notices to Cure. Any failure by either Party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other Party, unless such period is extended by written mutual consent, shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such 30-day period. Upon the occurrence of a default under this Agreement, the non-defaulting Party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, then no default shall exist and the noticing Party shall take no further action. Nothing herein shall limit the City’s authority to immediately act if the City Council or an official with delegated authority to act determines that the failure of the City to act immediately or prior to the expiration of any such cure period would place its residents in a condition dangerous to their health or safety, or both. In such case, the City’s actions shall be the minimum reasonably necessary to address the condition so that it no longer is a threat to public health or safety.
.2 Termination. If the City elects to consider terminating this Agreement due to a material default of The Vineyards, then the 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. The Vineyards shall have the right to offer written and oral evidence prior to or at the time of said public hearings. If the City Council determines that a material default has occurred and is continuing and elects to terminate this Agreement, the City shall give written notice of termination of this Agreement to The Vineyards by certified mail and this Agreement thereby shall be terminated sixty (60) days thereafter; provided, however, that if The Vineyards files an action to challenge the City’s termination of this Agreement within such 60-day period, then this Agreement shall remain in full force and effect until a trial court has affirmed the City’s termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired).
.3 Annual Review.
.3.1 Conducting the Annual Review. Throughout the Term of this Agreement, at least once every twelve (12) months following the execution of this Agreement, the City shall review the extent of good-faith compliance by The Vineyards 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 Government Code Section 65865.1.
.3.2 Notice. At least thirty (30) days prior to the Periodic Review, the City shall deposit in the mail to The Vineyards 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 The Vineyards’ performance hereunder. The Vineyards shall be permitted an opportunity to respond to the City’s evaluation of The Vineyards’ performance, either orally at a public hearing or in a written statement, at The Vineyards’ election. If before the public hearing, such response shall be directed to the Community Development Director.
.3.3 Good Faith Compliance. During the Periodic Review, the City shall review The Vineyards’ 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 The Vineyards 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 The Vineyards has not complied with such terms and conditions, the City Council may initiate proceedings to terminate or modify this Agreement, in accordance with Government Code Section 65865.1, by giving notice of its intention to do so, in the manner set forth in Government Code Sections 65867 and 65868.
.3.4 Failure to Properly Conduct Periodic Review. If the City fails, during any calendar year, to either (i) conduct the Periodic Review or (ii) notify The Vineyards in writing of the City’s determination, after a Periodic Review, as to The Vineyards’ 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, then it shall be conclusively presumed that The Vineyards has complied in good faith with the terms and conditions of this Agreement during that calendar year.
.3.5 Written Notice of Compliance. With respect to any year for which The Vineyards has been determined or presumed to have complied with this Agreement, the City shall, within thirty (30) days following request by The Vineyards, provide The Vineyards with a written notice of compliance, in recordable form, duly executed and acknowledged by the City. The Vineyards shall have the right, in The Vineyards’ sole discretion, to record such notice of compliance.
.4 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, or 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 any time period for legal challenge of such moratorium by The Vineyards, 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 Implementing Approvals or Subsequent Approvals, or any permit, ordinance, entitlement or other action of a governmental agency other than the City necessary for the development of the Project pursuant to this Agreement, or The Vineyards’ 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 The Vineyards. 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 shall 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.
.5 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.
.6 California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
.7 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, the City or The Vineyards shall, at the request of the other party, agree to meet to attempt in good faith to resolve the dispute. Nothing in this Section 9.7 shall in any way be interpreted as requiring that The Vineyards and the City reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on the City or The Vineyards unless expressly agreed to by the parties to such meetings.
.8 Attorneys’ Fees. Attorneys’ Fees in an amount not exceeding $85 per hour per attorney, and in total amount not exceeding $5000, shall be recoverable as costs (by filing of a cost bill) by the prevailing party in any legal action or actions or other proceeding brought by either party to enforce or interpret the provisions of this Agreement. The above $5000 limit is the total of attorneys’ fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorneys’ fees arising out of an action, or actions, to enforce the provisions of this Agreement.
.9 Hold Harmless. The Vineyards shall hold the 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 The Vineyards or by The Vineyards’ contractors, subcontractors, agents or employees, whether such operations were performed by The Vineyards or any of The Vineyards’ contractors, subcontractors, agents or employees. Nothing in this section shall be construed to mean that The Vineyards is required to hold the 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 the City, its elected and appointed representatives, officers, agents and employees.
.10 Non-Assuming Transferee. Notwithstanding anything to the contrary contained elsewhere herein, the termination of this Agreement, whether voluntarily or involuntarily, by the City on account of a default by The Vineyards or a Transferee, or by The Vineyards or a Transferee on account of a default by the City, shall not affect the vested rights afforded by Section 7.3 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 7.3.
.11 No Cross-defaults. Notwithstanding anything to the contrary contained elsewhere herein, the City may not terminate this Agreement as to the portions of the Project and Property owned by a non-defaulting owner because of a default by the owner of another portion of the Project or Property. Such a default may be the basis only for termination of this Agreement as to the portion of the Project or Property owned by the defaulting owner. For example, from and after the sale of the Winery Parcels, a default by the Transferee of said Parcels shall not be cause for termination of this Agreement as it applies to the balance of the Project and Property, but only as it applies to the Winery Parcels and vice-versa.
ARTICLE 10 MISCELLANEOUS
.1 Enforceability. 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 the 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.
.2 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; provided however, if a provision relating to vested rights or fee credits is held invalid by final judgment of such a court, The Vineyards shall have the right to terminate this Agreement by written notice.
.3 Other Necessary Acts. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Project Approvals, Implementing Approval, 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.
.4 Findings. The 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 the 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.
.5 Construction. Each reference in this Agreement to this Agreement or any of the Project Approvals or Implementing Approvals or Subsequent Approvals shall be deemed to refer to the Agreement, Project Approval, Implementing 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 the City and The Vineyards, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement.
.6 Other Miscellaneous Terms. The singular shall include the plural except where the context otherwise indicates; the masculine gender shall include the feminine; “shall” is mandatory; and, “may” is permissive.
.7 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 Property, 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 Property, as appropriate, runs with the Property and is for the benefit of and binding upon the owner, The Vineyards, and each successive owner of all or a portion of the Property, during its ownership of such property.
.8 No Agency, Joint Venture or Partnership. The City and The Vineyards hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer. Nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between the City and Developer.
.9 Notices. Any notice or communication required hereunder between the City and The Vineyards 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 The Vineyards, to: The Vineyards at Marsh Creek LLC
Attn: Stephen P. Beinke
3820 Blackhawk Road
P.O. Box 807
Danville, CA 94526
Tel: (925) 736-1571
Fax: (925) 648-0163
With Copies to: Bingham McCutchen LLP
Attn: Sanford M. Skaggs, Esq.
1333 North California Blvd., Suite 210
Walnut Creek, CA 94596-1270
Tel: (925)937-8000
Fax: (925)975-5390

.1 Entire Agreement, Counterparts and Exhibits. This Agreement is executed in duplicate, each of which is deemed to be an original. This Agreement consists of 33 pages and 10 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 the City and The Vineyards. 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 Ordinance
Exhibit C Infrastructure
Exhibit D Fees
Exhibit E-1 Affordability Control Agreement (for sale units)
Exhibit E-2 Affordability Control Agreement (for rental units)
Exhibit F Phasing of BMR Units
Exhibit G Fairview Golf Cart Paths
Exhibit H Public Art Requirements
.2 Recordation of Development Agreement. Pursuant to Government Code § 65868.5, no later than ten (10) days after the 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.
.3 Modification of Phasing. Upon request of The Vineyards, the phasing established by the Project Approvals may be modified by a writing executed by the City Manager and such shall constitute an Implementing Approval vested by this Agreement. If the City Manager declines to approve any such request, The Vineyards may appeal the decision to the City Council, which shall hear and decide the appeal within thirty (30) days of the filing of a written appeal with the City Clerk. The inclusion of the Winery in the phasing schedule included in the Project Approvals does not require that the project be started or completed at any particular time, or in any particular relationship to the other portions of the Project; it is included as a goal and merely to document the reasonable expectations of the parties and to encourage the Transferee of the Winery Parcels to proceed expeditiously; provided however, The Vineyards shall mass grade the Winery Parcels and Parcel NN when the remainder of the Property is mass graded.
.4 Improvement of Trail. The Vineyards, as agent of the City, shall provide a road grader and operator to create a rough dirt trail along a route determined by the City, extending generally from the John Marsh House to Round Valley, approximately eight (8) feet in width, but not including crossings of roads or streams, as directed by the City as provided below. This obligation is conditioned upon receipt on or before January 1, 2007, a writing executed on behalf of the City authorizing it to proceed, representing and warranting that the City has obtained all necessary approvals, rights and permits from public agencies and the owners of the properties on which the work is to be performed, and that all environmental review required by law has been completed. A City representative, duly authorized, shall be present on the job site and shall direct the work. The Vineyards shall provide written notice to the City Engineer at least five working days before commencement of work to allow the City to schedule its representative to be present. The Vineyards shall not be obligated to perform any work that is not expressly directed by the City representative.
.5 Interpretation. The following rules of interpretation shall apply:
.5.1 Approval of Third Parties. Whenever in the Applicable Law or Project Approvals any requirement or action by The Vineyards is made subject to the approval or satisfaction, however expressed, of any entity other than the City, including City-retained experts (referred to in this subsection as a third party), such condition shall not be interpreted as providing the third party the right to make any final decision other than as may be vested in it by law other than the Applicable Law. Where a third party has no right vested in it by law other than the Applicable Law to make a final decision, a condition requiring approval or satisfaction of such third party, however expressed, shall mean that the third party shall provide, as appropriate, advice, consultation, a recommendation and/or an initial decision regarding the condition. The actual determination in such case will be made by the official or entity of the City required or authorized to make such determination in accordance with the applicable provisions of the Brentwood Municipal Code. Appeals from determinations made by City officials or entities shall be made in accordance with applicable provisions of the Municipal Code, or if no appeal is provided in accordance with the direction of the City Manager in response to any request for guidance.
.5.2 Satisfaction. Whenever in the Applicable Law or Project Approvals design or construction of an improvement is to be made to the satisfaction of an official, entity or other person, and without identifying the standards which that person shall apply, satisfaction shall mean that the design or improvement complies with applicable written standards and specifications contained in the Applicable Law. To the extent there are no such standards or specifications applying to the improvement, or a portion thereof, satisfaction shall mean compliance with industry standards
.5.3 References to Parcels. Whenever in this Agreement a reference is made to a Parcel, and whether expressly stated or not, it shall mean a parcel to be shown on a final map that includes substantially the same property that is designated on the VTM as the referenced Parcel.
.5.4 Standard Conditions.
.5.4.1 For Residential Design Review. The City’s Standard Conditions of Approval for Residential Design Review included in the Applicable Law were incorporated into the Project Approvals, except as otherwise provided in this Agreement. Standard conditions number 1 shall not apply to the Project. Condition 19 shall apply only to the Active Adult units. Condition 24 shall apply to the Executive Lots; the Active Adult Lots may have a coverage up to 48%. Notwithstanding condition 29, the responsibilities identified in that condition shall be performed by the CFD rather than the LLD.
.5.4.2 For Tentative Maps. The City’s Standard Conditions of Approval for Tentative Subdivision Maps included in the Applicable Law were incorporated into the Project Approvals, except as otherwise provided in this Agreement. Standard conditions numbers 34, 51 (first sentence), and 62 shall not apply to the Project. Additionally, condition 73d shall apply only to the Senior Active Adult lots. Additionally, condition 73d shall apply only to the Executive Lot Area on the West side of Fairview Avenue, or to the East Side Executive Lot Area if lots are developed individually subject to the City’s individual home design review process, and shall be revised to read as follows: “ No elevation shall be duplicated within the Estate Home Lot Area.” And additionally, condition 74 shall be revised to read as follows: “A minimum of two points of paved vehicular access (including EVAS in the Phase 1 neighborhood to the north of Briones Valley Road) . . . .”. Notwithstanding condition 96 and 98, the responsibilities identified in that condition shall be performed by the CFD rather than the LLD.
.5.5 Substantial Conformance. When determining whether a final map is in substantial compliance with the VTM, the following shall be deemed to be substantial compliance (a) minor changes in lot lines, alignments and similar variations; (b) any reconfiguration of the lots within the Village Center necessary or desirable to accommodate the development, uses and tenants; (c) division of active adult lots to accommodate the construction and sale of duet units as provided above in Section 3.2.4(a); and (d) a lot line adjustment or division of Parcel NN to create a separate parcel for the amphitheater and associated facilities as described in Section 3.2.1, and the City shall not require any additional approval, application, submittal or approval because of such.
.5.6 Project Perimeter Fence. The intent of the Project Perimeter fence that is located at the boundary between the State Park and Project (not the backyard fences), is to eliminate the movement of domestic animals from the developed portion of the project into the State Park and habitat wildlands. The Tentative Map Condition of Approval describing that fence is intended to reasonably accomplish that intent. The Condition further states that revisions may be made to the design of the fence following Phase I of the Project if mutually agreed upon by the developer and the City Manager. The intent of the part of the Condition dealing with altering the design was to allow sufficient time to evaluate the look and effectiveness of the design. This evaluation and redesign may happen prior to the start of Phase I if test fencing is constructed to evaluate various barrier designs that might be less visible but still reasonably effective in eliminating the movement of domestic cats past the barrier fence. The City Manager has the authority to approve alternate fence designs prior to or following Phase I.
.6 Inspection and Approval of Improvements.
.6.1 Inspection. When The Vineyards deems the improvements, or a portion of the improvements (the Completed Work) complete, it shall notify the City Engineer who shall promptly inspect the Completed Work.
.6.2 Approval. If the Completed Work has been completed in accordance with the approved improvement plans and the applicable specifications, the City Engineer shall approve the Completed Work and communicate approval or disapproval to The Vineyards no later than 15 working days after notice from The Vineyards.
.6.3 Disapproval. If the Completed Work is not in accordance with the improvement plans or applicable specifications, the City Engineer may refuse to approve the Completed Work, but only by written notice that sets forth in detail that which must be done by The Vineyards to bring the Completed Work into conformance with the plans and/or specifications (the Corrective or Additional Work).
.6.4 Re-inspection. Thereafter, when The Vineyards deems the Corrective or Additional Work completed, it shall notify the City Engineer who shall again promptly inspect the Completed Work, but only to determine whether the Corrective or Additional work, as set forth in the written notice, has been completed. If it has, the City Engineer shall approve the Completed Work. If it has not, the City Engineer may refuse again to approve the Completed Work, but only by written notice that sets forth in detail the Corrective or Additional Work set out in the original notice that has not been performed. The City Engineer shall communicate approval or disapproval to The Vineyards no later than ten (10) working days after notice from The Vineyards. The City shall not withhold approval for any other reason or unreasonably refuse to approve the Completed Work. The Corrective or Additional Work in subsequent notices shall not include any work that was not included in the original notice, except subsequent notices may include Corrective or Additional Work made necessary by The Vineyard’s efforts to comply with a prior notice. The procedure shall be repeated as often as necessary to obtain approval.
Section 10.16 Public Art. The provisions of the Municipal Code requiring public art are satisfied as provided in Exhibit H. The provisions of the Municipal Code requiring a cash payment for administration shall be paid to the City at the time of the issuance of each building permit as provided in Exhibit H.
Section 10.17. Fairview Avenue Golf Cart Paths. The Vineyards shall construct golf cart paths generally as shown on Exhibit G, subject however to City Engineer’s approval of its design, including lighting standards for the path, and adoption of all ordinances necessary to permit use of such facilities by golf carts, as determined by the City Council in its sole discretion.
Section 10.18. Recreation Center. The Recreation Center in this application shall be built in accordance with the proposed photos as shown in the CD designed by Dahlin Group Architecture and Planning, for the Vineyards at Marsh Creek Workshop Presentation, date stamped January 6, 2004 ("Photographs"), and submitted with the Design Review request, to insure that the visual impact of the Recreation Center, as seen from Concord Avenue, is reduced to be similar to Photographs .

IN WITNESS WHEREOF, this Agreement has been entered into by and between The Vineyards and the City as of the day and year first above written.

“CITY”
City of Brentwood

By:
Mayor
Dated:
“THE VINEYARDS”
The Vineyards at Marsh Creek LLC
a California limited liability company

By:

Its:
Dated:
Approved as to form:

By:
City Attorney
Approved as to form:
Bingham McCutchen LLP

By:
Attorneys for The Vineyards
ATTEST

City Clerk
Dated:

30157433_15.DOC

ARTICLE 1 EFFECTIVE DATE, TERM AND VESTING DATE 3
Section 1.1 Condition Precedent 3
Section 1.2 Term 3
Section 1.3 Extensions 3
Section 1.4 Vesting Date. The Vesting Date shall be the Effective Date 3
ARTICLE 2 COVENANTS OF THE VINEYARDS 4
Section 2.1 Obligations of The Vineyards Generally 4
Section 2.2 Sale of Winery Parcels 4
Section 2.3 Dedication of Amphitheater Parcel, Agricultural Parcels and EMT Parcel 4
Section 2.4 Public Improvements 5
Section 2.5 Dedication of Easement on Parcels QQ and S 5
Section 2.6 Development Fees. 5
Section 2.6.1 Payment 5
Section 2.6.2 Inapplicability of Certain Statutes 5
Section 2.6.3 SR4 Bypass Fees 6
Section 2.6.4 Initial Funding for Pioneer State Park Master Plan, John Marsh Home and Amphitheater 6
Section 2.6.5 Fees for Winery Parcels 6
Section 2.7 Below Market Rate Dwelling Units 7
Section 2.7.1 Moderate Income Units 7
Section 2.7.2 Low Income Units 7
Section 2.7.3 Dedication of Land for BMR Units 7
Section 2.7.4 Housing Types; Densities, Timing of Construction 7
Section 2.7.5 Satisfaction of City Requirements 8
ARTICLE 3 COVENANTS OF THE CITY OF BRENTWOOD 8
Section 3.1 Obligations of City Generally 8
Section 3.2 Vested Development Rights 8
Section 3.2.1 The Winery Parcels and Event Center Parcel 8
Section 3.2.2 Lodge Parcel 9
Section 3.2.3 Village Center 9
Section 3.2.4 Residential Development 10
Section 3.2.4.1 Active Adult Units 10
Section 3.2.4.2 Market Rate Single Family Residences 10
Section 3.2.4.3 Multi-Family Residences 10
Section 3.3 Availability of Utility Services 11
Section 3.4 Processing Fees 11
Section 3.5 Credit for Infrastructure 11
Section 3.6 Use of Non-Potable Water 11
Section 3.7 Affordable Housing 12
Section 3.8 Compliance 12
ARTICLE 4 COOPERATION-IMPLEMENTATION 12
Section 4.1 Establishment of Districts 12
Section 4.2 Change of Organization of Various Governmental Entities 13
Section 4.3 Other Government Permits 13
Section 4.4 Timely Processing 13
Section 4.4.1 Submittals By The Vineyards 13
Section 4.4.2 Timely Processing By City 13
Section 4.5 Project Approvals; Subsequent Approvals; Implementing Approvals 14
ARTICLE 5 STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT 14
Section 5.1 Applicable Law 14
Section 5.2 Permitted Uses Vested by This Agreement 14
Section 5.3 Protection of Vested Rights 15
Section 5.4 No Conflicting Enactments 15
Section 5.5 Initiatives, Referenda and Moratoria 16
Section 5.5.1 Conflicting Laws 16
Section 5.5.2 No Growth Moratoria or Restrictions 17
Section 5.5.3 Cooperation 17
Section 5.5.4 No Actions to Violate 17
Section 5.5.5 Right to Challenge 17
Section 5.6 Further CEQA Review and Environmental Mitigation 17
Section 5.7 Life of Subdivision Maps, Development Approvals, and Permits 17
Section 5.8 Processing Applications for Implementing Approvals and Subsequent Approvals 17
Section 5.9 Review of Subsequent Approval Applications 18
Section 5.10 State and Federal Law 18
Section 5.11 Timing of Project Construction and Completion 18
Section 5.11.1 No Requirement 18
Section 5.11.2 Timing 18
Section 5.11.3 Subdivision and Other Agreements 19
Section 5.11.4 Exempting Fees Imposed by Outside Agencies 19
ARTICLE 6 AMENDMENT 19
Section 6.1 Amendment to Approvals 19
Section 6.1.1 Administrative Project Amendments 19
Section 6.1.2 Non-Administrative Amendments 19
Section 6.1.3 Non-Assuming Transferees 20
Section 6.2 Amendment of This Agreement 20
Section 6.2.1 Administrative Amendments 20
Section 6.2.2 Amendment Exemptions 20
ARTICLE 7 ASSIGNMENT, TRANSFER AND MORTGAGEE PROTECTION 20
Section 7.1 Assignment of Interests, Rights and Obligations 20
Section 7.2 Transfer Agreements 20
Section 7.2.1 Written Agreement 20
Section 7.2.2 Obligations To Construct Infrastructure Improvements 21
Section 7.2.3 Binding 21
Section 7.2.4 Liabilities 21
Section 7.3 Non-Assuming Transferees 21
Section 7.4 Mortgagee Protection 22
Section 7.4.1 Mortgage Protection 22
Section 7.4.2 Mortgagee Not Obligated 22
Section 7.4.3 Notice of Default to Mortgagee 22
Section 7.4.4 No Supersedure 22
Section 7.5 Notice of Compliance 23
Section 7.5.1 This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modifications; 23
Section 7.5.2 There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default; 23
Section 7.5.3 Any other information reasonably requested by The Vineyards 23
ARTICLE 8 COOPERATION IN THE EVENT OF LEGAL CHALLENGE 23
Section 8.1 Cooperation 23
ARTICLE 9 DEFAULT; TERMINATION; ANNUAL REVIEW 23
Section 9.1 Defaults and Notices to Cure 23
Section 9.2 Termination 24
Section 9.3 Annual Review 24
Section 9.3.1 Conducting the Annual Review 24
Section 9.3.2 Notice 24
Section 9.3.3 Good Faith Compliance 24
Section 9.3.4 Failure to Properly Conduct Periodic Review 24
Section 9.3.5 Written Notice of Compliance 25
Section 9.4 Excusable Delay; Extension of Time of Performance 25
Section 9.5 Legal Action 25
Section 9.6 California Law 25
Section 9.7 Resolution of Disputes 25
Section 9.8 Attorneys’ Fees 26
Section 9.9 Hold Harmless 26
Section 9.10 Non-Assuming Transferee 26
Section 9.11 No Cross-defaults 26
ARTICLE 10 MISCELLANEOUS 26
Section 10.1 Enforceability 26
Section 10.2 Severability 27
Section 10.3 Other Necessary Acts 27
Section 10.4 Findings 27
Section 10.5 Construction 27
Section 10.6 Other Miscellaneous Terms 27
Section 10.7 Covenants Running with the Land 27
Section 10.8 No Agency, Joint Venture or Partnership 28
Section 10.9 Notices 28
Section 10.10 Entire Agreement, Counterparts and Exhibits 29
Section 10.11 Recordation of Development Agreement 29
Section 10.12 Modification of Phasing 29
Section 10.13 Improvement of Trail 30
Section 10.14 Interpretation 30
Section 10.14.1 Approval of Third Parties 30
Section 10.14.2 Satisfaction 30
Section 10.14.3 References to Parcels 31
Section 10.14.4 Standard Conditions 31
Section 10.14.4.1 For Residential Design Review 31
Section 10.14.4.2 For Tentative Maps 31
Section 10.14.5 Substantial Conformance 31
Section 10.14.6 Project Perimeter Fence 31
Section 10.15 Inspection and Approval of Improvements 32
Section 10.15.1 Inspection 32
Section 10.15.2 Approval 32
Section 10.15.3 Disapproval 32
Section 10.15.4 Reinspection 32
Section 10.16 Public Art 32
Section 10.17 Fairview Avenue Golf Cart Paths 33
Section 10.18 Recreation Center 33
 

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