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CITY COUNCIL AGENDA ITEM NO. 20

Meeting Date: September 27, 2005

Subject/Title: Adopt a Resolution approving a Memorandum of Understanding between the City of Brentwood, East Bay Regional Park District, Save Mount Diablo and property owners regarding the Urban Limit Line Initiative and authorizing the Mayor to sign the Memorandum of Understanding.

Prepared by: Donna Landeros, City Manager

Submitted by: Brian Swisher, Mayor

RECOMMENDATION
Adopt a resolution approving the Memorandum of Understanding between the City of Brentwood, East Bay Regional Park District, Save Mount Diablo and property owners regarding the Urban Limit Line Initiative and authorize the Mayor to sign the Memorandum of Understanding.

PREVIOUS ACTION
On July 26, 2005, the City Council approved Resolution 2005-190 certifying the results of the petition, and calling and giving notice of a special municipal election to be held on November 8, 2005, relating to the City of Brentwood voter-approved Urban Limit Line (ULL) Measure (Measure L).

BACKGROUND
In November 2001, Brentwood citizens voted in favor of Measure J by an overwhelming 73 percent. A portion of the Measure J tax is a return-to-source of sales taxes for local transportation projects contingent on a voter-approved ULL. Measure J will go into effect in April 2009 and expire March 2034. The City estimates it will receive approximately $400,000 per year (in today’s dollars) in sales tax revenue generated in Brentwood being returned to Brentwood for the 25-year period.

On November 8, 2005, Brentwood residents will vote on Measure L, an initiative titled the “City of Brentwood Voter-Approved Urban Limit Line.” If adopted by the voters, the initiative will uphold and recognize the City’s General Plan by bringing in certain parcels of land that currently reside outside of the existing line, which was unilaterally changed by the County Board of Supervisors on August 1, 2000 and updated by the County Board of Supervisors on October 5, 2004.

City staff has been in discussions with the East Bay Regional Park District, Save Mount Diablo, as well as with local property owners involved with the ULL Initiative. The discussions have focused on finding mutual agreement and understanding regarding implementation of Measure L if approved by the voters. All of the parties involved in the discussions have agreed to a Memorandum of Understanding (MOU), attached as Exhibit A.

The MOU provides certainty to the City’s future vision as memorialized in the community-developed General Plan of 2001. An important goal for the City Council in implementing the General Plan is the preservation and conservation of open space and agricultural lands.

The MOU calls for a number of mitigations relative to preserving and conserving open space, buffers and agricultural lands. With the establishment of a voter-approved ULL, the MOU ensures that additional lands will be placed in permanent conservation, for both open space and agricultural easements to provide the necessary buffer between urban and restricted lands, including lands in the County’s agricultural core. The following ratios of dedicated land to developed land are:
 A 1 to 1 ratio for dedicated lands abutting the ULL;
 A 2 to 1 ratio for dedicated lands in the Ag Core but not abutting the ULL; and
 A 3 to 1 ratio for dedicated lands considered irrigated farm land in Eastern Contra Costa County. Further, a 3 to 1 ratio applies for the mitigation of endangered species, as well as an open space fee of $2,000 per dwelling on the included lands.

This MOU will only go into effect if the voters pass Measure L.

FISCAL IMPACT
The MOU does not have any fiscal impact.

Attachments:
Resolution
Memorandum of Understanding

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF BRENTWOOD, EAST BAY REGIONAL PARK DISTRICT, SAVE MOUNT DIABLO AND PROPERTY OWNERS REGARDING THE CITY OF BRENTWOOD’S URBAN LIMIT LINE AND AUTHORIZING THE MAYOR TO SIGN THE MEMORANDUM OF UNDERSTANDING

WHEREAS, in November 2001, Brentwood citizens voted in favor of Measure J by an overwhelming 73 percent. A portion of the Measure J tax is a return-to-source of sales tax for local transportation projects contingent on a voter-approved urban limit line. Measure J will go into effect in April 2009 and expire March 2034. The City estimates it will receive approximately $400,000 per year in Measure J return-to-source funds (in today’s dollars) for the 25-year period; and

WHEREAS, on November 8, 2005, Brentwood residents will vote on Measure L, an initiative titled the “City of Brentwood Urban Limit Line” (the “Initiative”) that will, among other things, implement the requirements of Measure J related to a voter-approved urban limit line; and

WHEREAS, if adopted by the voters, the Initiative will uphold and recognize the City’s General Plan by bringing in certain parcels of land that currently reside outside of the existing line which was unilaterally changed by the County Board of Supervisors on August 1, 2000 and updated by the County Board of Supervisors on October 5, 2004; and

WHEREAS, City staff has been in discussions with the East Bay Regional Park District, Save Mount Diablo, as well as with local property owners involved with the Initiative to find mutual agreement and understanding regarding implementation of Measure L if approved by the voters; and

WHEREAS, all of the parties to the above discussions have agreed to a memorandum of understanding that will ensure that additional lands be placed in permanent conservation, for both open space and agricultural easements, to provide the necessary buffer between urban and restricted lands, including lands in the County’s agricultural core, which will take effect if voters pass Measure L.

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

1) The Memorandum of Understanding between the City of Brentwood, East Bay Regional Park District, Save Mount Diablo and property owners regarding the Initiative is approved and the Mayor is authorized to sign the Memorandum of Understanding.

2) That this Resolution is effective upon adoption.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 27th of September of 2005 by the following vote:

MEMORANDUM OF UNDERSTANDING

This Memorandum of Understanding is made as of the effective date, and is among the City of Brentwood, East Bay Regional Park District, Save Mount Diablo and the undersigned property owners (“Property Owners”).

A. On November 8, 2005, an election will be held at which the voters of the City will vote on an Initiative entitled City of Brentwood Voter Approved Urban Limit Line.

B. The Initiative, if adopted by the voters, will establish the Urban Limit Line (“ULL”) and will bring within the ULL land outside of the County’s Urban Limit Line, located in the City’s Special Planning Areas (“SPAs”) G, H, and R, and along the west side of Sellers Avenue, north of Chestnut Street and south of Delta Avenue, as shown on Exhibit A attached. The portions of that land that are owned by the Property Owners are sometimes referred to below as the “Included Land.” The ULL will be subject to revision only by a vote of the electorate.

C. The parties desire that the ULL be a permanent line, beyond which no urban development will occur.

D. The parties desire to prevent the development of the area southerly of SPAs G and H, and to prohibit the extension of urban services across the southerly portions of SPAs G and H that are shown on Exhibit B attached (“Restricted Lands”). In aid of that objective, the parties desire to establish enforceable restrictions on the use of the Restricted Lands that are within the Included Land, which restrictions will prohibit the extension of urban services across the Restricted Lands to serve properties southerly of those SPAs.

E. The parties desire to prevent the development of the area east of Sellers Avenue from Chestnut Street north to the EBMUD aqueduct and, in aid of that objective, to extend the existing 300 foot wide buffer, established by the City along the west side of Sellers Avenue and now ending at Chestnut Street, north along the west side of Sellers Avenue to its intersection with the EBMUD aqueduct, and to establish enforceable restrictions on the use of the portions of the extended buffer within the Included Land that prohibit the extension of urban services across the buffer to serve properties east of Sellers Avenue. The extended buffer is shown on Exhibit C attached.

F. The parties desire to establish methods to mitigate for impacts on endangered species resulting from development of the Included Land.

G. The parties desire to express their support of the ULL, and to make certain binding commitments to implement the ULL in order to achieve the objectives of preventing urban development outside of the ULL and of protecting and preserving certain open spaces and agricultural areas now existing outside of the ULL.

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows, subject to adoption of the Initiative by the voters and certification of the results of the election as provided in Section 10 below:

1. The City will commence proceedings, as necessary and within a reasonable time in 2006, to implement the intent and objectives of this Memorandum and Action Program 2.1.6. (prohibiting urban development beyond the ULL, and specifically preventing the extension of urban utilities, services and other infrastructure across the Included Land to serve currently undeveloped lands beyond the ULL). Whenever in this Memorandum, City agrees to commence proceedings, the City does not commit or agree to any particular result of any such proceeding it commences and it expressly reserves the discretionary right, after all required notice and hearings, to adopt, modify or decline to adopt the proposal which is the subject of any such proceeding.

2. Within a reasonable time in 2006, the City will commence proceedings to amend its General Plan to provide that the City shall not propose any further amendment or revision to the ULL, except as expressly allowed by the amendment. The amendment shall expressly allow the City Council to place a measure that revises the ULL on the ballot for consideration by the voters at any time after January 1, 2020; provided (a) that the measure does not revise the ULL to include any additional land other than that bounded by Marsh Creek Road on the north, Vasco/Walnut Roads on the east, Kellogg Creek on the south, and the proposed SR4 Bypass/Marsh Creek interchange on the west (the “Additional Land”); (b) that the City has previously acquired easements or other enforceable restrictions on the land adjoining northerly and easterly boundaries of the Additional Land and those restrictions prohibit the extension of urban services and other infrastructure to the lands northerly and easterly of the Additional Land; and, (c) that the measure limits the urban uses of the Additional Land to job generating uses only.

3. Each Property Owner shall agree to, and accept, without protest, objection or litigation, conditions of approvals that require mitigation of development of its Included Land along Sellers Avenue between Chestnut Street and the EBMUD aqueduct by dedication of fee title or easements or other equivalent enforceable restrictions of land that limit the uses to agricultural and open space (collectively “dedicated land”) in accordance with the following ratios of dedicated land to developed land:
(a) if the dedicated land abuts the ULL, 1:1 (i.e., 1 acre mitigation land to each acre of land developed);
(b) if the dedicated land does not abut the ULL, but is within the Ag Core, 2:1; or
(c) if the dedicated land does not abut the ULL and is not within the Ag Core, but is irrigated farm agricultural land in eastern Contra Costa County, 3:1.

4. Each Property Owner shall agree to, and accept, without protest, objection or litigation, conditions of approvals that require mitigation of the impacts on endangered species from development of its Included Land within SPAs G, H, or R by providing dedicated land at a 3:1 ratio as required by the agency having jurisdiction of such species, including any required endowment for the maintenance of such dedicated land; provided any Property Owner may use portions of its Included Land, including areas dedicated pursuant to the first sentence of Section 5 below, to satisfy such conditions if said agency approves.

5. Each Property Owner shall dedicate fee title, or open space, conservation or other negative easements, or other equivalent enforceable restrictions of use (collectively “Restrictions”) that limit the uses of certain portions of the Included Land, shown on Exhibit B and owned by it, to agricultural and open space and that prohibit the extension of urban services across the Restricted Lands to serve properties southerly of SPAs G and H. Each Property Owner shall dedicate Restrictions that limit the use of certain portions of the extended buffer over the Included Land, shown on Exhibit C and owned by it, to agricultural and open space and that prohibit the extension of urban services across the extended buffer to serve properties east of Sellers Avenue. These dedications shall be made promptly upon the completion of annexation to the City of the property involved. The dedications shall be made to an entity described in subsections (a) or (b) of section 815.3 of the Civil Code (other than the City and the Brentwood Agricultural Trust) that is acceptable to all parties that are not Property Owners. If those parties do not agree and any one of them requests, the entity shall be selected by an arbitrator chosen by unanimous consent of those parties or, failing that, by the Presiding Judge of the Superior Court of this County.

6. Each Property Owner agrees to accept without protest, objection or litigation conditions of approvals, ordinances or other actions that require payment to East Bay Regional Park District of a fee of $2,000 per dwelling unit built on the Included Land to be used to acquire additional open space or for the maintenance of open space (“Open Space Fee”) provided all funds shall be used in the area of Contra Costa County lying east of a line running north-south through the base and meridian located on Mt. Diablo.

7. East Bay Regional Park District shall commence proceedings to enact the Open Space Fee and impose it on all dwelling units constructed on land added to the urban area by the Initiative (i.e., included within the ULL, but not within the County’s Urban Limit Line). In the event the District is unable to impose the fee, the City shall commence proceedings to do so. The parties shall support the imposition of the fee, and shall not advocate a higher or lower fee. If both efforts fail despite the best efforts of the parties, each Property Owner shall pay to the Regional Park Foundation the sum of $2,000 for each dwelling unit constructed on its Included Land no later than 30 days after issuance of the building permit for the unit.

8. The City will commence proceedings to extend the existing buffer north as described in Recital E. Each Property Owner who owns land on the west side of Sellers shall agree to, and accept without protest, objection or litigation, the extension of the existing 300 foot wide agricultural buffer along Sellers Avenue from Chestnut Street to the EBMUD aqueduct, and the enactment of any ordinance, condition or other requirement by the City to accomplish the extension. The east boundary of the extended buffer shall be the east edge of the Sellers Avenue right of way, the southerly boundary shall be the north edge of Chestnut Street, the west boundary shall be a line 300 feet west of, and parallel to the east boundary, and the north boundary shall be the south edge of the EBMUD right of way.

9. The parties shall not oppose the Initiative or participate in, or sponsor, encourage, fund, prepare, circulate, support or be a party to, any litigation or other activity or proceeding seeking to defeat, invalidate or prevent a vote on the Initiative. In addition, the parties shall not participate in, sponsor, encourage, fund, prepare, circulate, support or be a party to (a) any challenge, by referendum or litigation, to approvals of development of the Included Land (as defined in Recital B) or (b) any initiative that adversely affects development pursuant to such approvals or that, directly or indirectly, limits, reverses, voids, or further conditions any such approval. Provided, however, nothing in this Memorandum shall preclude the parties from using any other tool to influence the scope or conditions of development on the Included Land during any stage of the land use or entitlement process prior to approval, and nothing in this Memorandum shall preclude or limit the City’s discretion to approve or deny or conditionally approve land use entitlements. The parties shall not oppose annexations of that Land to the City or participate in, or sponsor, encourage, fund, prepare, circulate, support or be a party to, any litigation or other activity or proceeding seeking to defeat, invalidate or prevent such annexation. Upon request by any property owner, the City shall promptly commence proceedings necessary to place the issue of annexation before the Local Agency Formation Commission and shall cooperate with the owner to obtain a prompt decision. No property owner shall develop its Included Land or seek to annex that Land to another city, except for portions of that Land which the owner has sought unsuccessfully to annex to the City, e.g., because the City has failed to petition LAFCO or LAFCO has denied the requested annexation to the City.

10. Except for Sections 9 and 11, which shall be effective upon execution of this Memorandum by all parties expressly named below, this Memorandum shall be effective only if the Initiative is passed by the voters, and if that occurs, it shall be effective on the date the results of the election are certified and accepted by the City Council, as provided by law. This Memorandum shall not be effective unless it is signed by the persons and entities expressly named below. In addition, it may, but is not required to be executed by property owners or entities not expressly named below.

11. Each individual executing this Agreement on behalf of an entity represents and warrants that he or she is authorized to act on behalf of, and to bind that entity.
WHEREFORE, the parties have executed this Memorandum, effective as provided in Section 9 above.

CITY:

THE CITY OF BRENTWOOD,
a municipal corporation

By:

Name: Brian Swisher
Its: Mayor
Dated:

ATTEST:

City Clerk
Dated:

(Signatures continued on next page)
(Signatures continued from previous page)

EAST BAY REGIONAL PARK DISTRICT

By:
Name:
Its:
Dated:
I recommend that the Board of Directors approve this MOU.
_______________________________
(signature)
Dated:_______________, 2005 SAVE MOUNT DIABLO

By:
Name:
Its:
Dated:

PROPERTY OWNERS

(signature)
Ronald E. Nunn
(print name)
Dated: NUNN FAMILY FARMS

By:
(signature)
Ronald E. Nunn
(print name)
Its:
Dated:
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(Signatures continued from previous page)
(signature)
(print name)
Dated:
(signature)
(print name)
Dated:
(signature)
(print name)
Dated:
(signature)
(print name)
Dated:
(signature)
(print name)
Dated:
(signature)
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Dated:

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