Meeting Date: February 10, 2016

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1 Town of Moraga Ordinances, Resolutions, Requests for Action Agenda Item 11. B Meeting Date: February 10, 2016 TOWN OF MORAGA STAFF REPORT_ To: Honorable Mayor and Councilmembers From: Michelle Marchetta Kenyon, Town Attorney Ellen Clark, Planning Director Subject: Consider Resolution Approving an Agreement for Processing Future Grading Authorizations with Richfield Real Estate Corporation and Bigbury Company Regarding Palos Colorados Request Adopt a Resolution Approving an Agreement for Processing Future Grading Authorizations with Richfield Real Estate Corporation and Bigbury Company Regarding Palos Colorados. Background This item involves the approved Palos Colorados development and the Town s and developer s ongoing processing of the developer s Final Map in accordance with previous settlement agreements and land use approvals. The Palos Colorados development has been in various stages of the development process for decades. Following several years of litigation, on August 23, 1999 Lafayette, Moraga, and Bigbury Company (the property owner, and Richland (the developer entered into the Palos Colorados Settlement Agreement to resolve the litigation associated with the project (the 1999 Settlement Agreement. The 1999 Settlement Agreement provided for the development and established a process for obtaining the entitlements necessary for a 123-unit residential development project with an 18-hole golf course. Among other requirements, Richland agreed to the future golf course operator s payment of the Golf Course Municipal Fund. After six years of unsuccessful attempts to obtain state and federal agency approval of the golf course development, the developer filed an application for approval without the golf course. Litigation again ensued and Moraga, Richfield and Lafayette entered into a second Settlement Agreement dated February 14, 2007, to resolve all outstanding issues (the 2007 Settlement Agreement. As part of the 2007 Settlement Agreement, the developer agreed to make certain payments related to maintaining General Plan 1

2 consistency. The conditions on the developer s Vesting Tentative Map ( VTM, approved on May 7, 2007, required a similar condition that Developer pay the sum of $14.5 million dollars in four installments to maintain consistency with the Town of Moraga General Plan and satisfy various Town requirements, including recreational requirements applicable to the project necessitated by the replacement of the golf course with open space. The First Installment was already paid. The Second Installment of $3.5 million is due within 120 days of grading permit issuance. The developer received the last of its development plan approvals, a Precise Development Plan with associated design guidelines, on May 13, Richfield is now seeking ministerial approval of its Final Map in accordance with the 1999 and 2007 Settlement Agreements and the VTM approval. Since the approval of the land use applications, including the VTM and the Precise Development Plan, the Town has modified its grading permit authorization process so that the Final Map and grading permit are typically approved at the same time. Since the Town s new process was not contemplated by the 1999 or 2007 Settlement Agreements, the Town and Richfield were required to clarify requirements for processing of the Final Map and grading permit authorizations and have done so through the attached Agreement for Processing Future Grading Authorizations (the Agreement. Discussion The proposed Agreement restates the process for obtaining a grading permit for the development and addresses a few requirements that must be met prior to grading permit issuance and as the development progresses. These include ongoing stormwater, referred to as C.3, requirements and obligations regarding a bus shelter and Moraga Road traffic signal. The Agreement includes a waiver and release on behalf of all parties with respect to the Agreement. The Agreement also provides that the Town would receive a deposit of $2.5 million (the Deposit, $2.25 million of which would be applied to the $3.5 million Second Installment under the VTM map conditions and $250,000 of which would be applied to grading permit inspection fees. Payment would be made within 45 days after execution of the Agreement, provided that the Final Map is approved. The Deposit would be nonrefundable unless Moraga denies without good cause an extension of the Subdivision Improvement Agreements, which would be recorded along with the Final Map. Fiscal Impact The proposed Agreement provides that the Town would receive a deposit of $2.5 million to be applied to the Developer s obligations to make certain payments under the Vesting Tentative Map and as required for grading permit inspection, within 45 days of execution of the Agreement. Report reviewed by: Robert Priebe, Interim Town Manager Attachments 2

3 Resolution No Approving an Agreement for Processing with Richfield Real Estate Corporation and Bigbury Company Regarding Palos Colorados 2. Proposed Agreement for Processing Future Grading Authorizations with Richfield Real Estate Corporation and Bigbury Company Regarding Palos Colorados 3

4 ATTACHMENT A Resolution No Approving an Agreement for Processing with Richfield Real Estate Corporation and Bigbury Company Regarding Palos Colorados

5 BEFORE THE TOWN COUNCIL OF THE TOWN OF MORAGA In the Matter of: Approving an Agreement for Processing Future Grading Authorizations with Richfield Real Estate Corporation and Bigbury Company Regarding Palos Colorados Resolution No WHEREAS, the Palos Colorados development has been in various stages of the development process for decades; and WHEREAS, following several years of litigation, on August 23, 1999, Lafayette, Moraga, and Bigbury Company (the property owner, and Richland (the developer entered into the Palos Colorados Settlement Agreement to resolve the litigation associated with the project (the 1999 Settlement Agreement ; and WHEREAS, the 1999 Settlement Agreement provided for the development, established a process for obtaining the entitlements necessary for a 123-unit residential development project with an 18-hole golf course, including a requirement whereby Richland agreed to the future golf course operator s payment of the Golf Course Municipal Fund; and WHEREAS, after six years of unsuccessful attempts to obtain state and federal agency approval of the golf course development, the developer filed an application for approval without the golf course; and WHEREAS, litigation again ensued and Moraga, Richfield and Lafayette entered into a second Settlement Agreement dated February 14, 2007, to resolve all outstanding issues (the 2007 Settlement Agreement ; and WHEREAS, as part of the 2007 Settlement Agreement, the developer agreed to make certain payments with respect to the Golf Course Municipal Fund; and WHEREAS, the conditions on the developer s Vesting Tentative Map ( VTM, approved on May 7, 2007, required a similar condition that Developer pay the sum of $14.5 million dollars in four installments to maintain consistency with the Town of Moraga General Plan and satisfy various Town requirements, including recreational requirements applicable to the project necessitated by the replacement of the golf course with open space; and WHEREAS, the First Installment was already paid and the Second Installment of $3.5 million is due within 120 days of grading permit issuance; and Resolution No. XX February 10, 2016

6 WHEREAS, the developer received the last of its development plan approvals, a Precise Development Plan with associated design guidelines, on May 13, 2009; and WHEREAS, Richfield is now seeking ministerial approval of its Final Map in accordance with the 1999 and 2007 Settlement Agreements and the VTM approval; and WHEREAS, since the approval of the land use applications, including the VTM and the Precise Development Plan, the Town has modified its grading permit authorization process so that the Final Map and grading permit are typically approved at the same time; and WHEREAS, in order to provide for the processing of the Final Map in accordance with the 1999 and 2007 Settlement Agreements and the previous land use approvals and address the Town s current requirements regarding grading, the parties have negotiated a proposed Agreement for Processing Future Grading Authorizations (the Agreement. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Moraga that the Town Council authorizes and approves the Agreement, in substantially the form attached hereto as Exhibit A, as may be modified by the Interim Town Manager and Town Attorney. BE IT FURTHER RESOLVED that the Mayor is authorized and directed to execute the Agreement for and on behalf of the Town of Moraga. PASSED AND ADOPTED by the Town Council of the Town of Moraga at a regular meeting held on February 10, 2016 by the following vote: AYES: NOES: ABSTAIN: ABSENT: Attest: Michael Metcalf, Mayor Marty C. McInturf, Town Clerk Resolution No. XX February 10, 2016

7 ATTACHMENT B Proposed Agreement for Processing Future Grading Authorizations with Richfield Real Estate Corporation and Bigbury Company Regarding Palos Colorados

8 PALOS COLORADOS AGREEMENT FOR PROCESSING FUTURE GRADING AUTHORIZATIONS This Palos Colorados Agreement for Processing Future Grading Authorizations (the Agreement is entered into as of the day of February, 2016 by and between the TOWN OF MORAGA ( Moraga, RICHFIELD REAL ESTATE CORPORATION ( Richfield, and BIGBURY COMPANY ( Bigbury. Collectively, Moraga, Richfield, and Bigbury may be referred to as the Parties. RECITALS A. Richfield is successor-in-interest to Richland Development Corporation, the former developer of the Palos Colorados Project as further defined below. Richfield is now the developer and the agent for Bigbury with respect to the development of the property on behalf of Bigbury. Hereinafter, all references to Richfield refer to Richfield and Richland Development Corporation ( Richland unless otherwise noted. Richfield and Bigbury shall be collectively referred to as the Developer, unless otherwise noted below. B. Developer is completing the final map process for the Palos Colorados project on an approximately 460-acre site in the Town of Moraga involving the development of 123 homes and the preservation of more than 400 acres of habitat and open space (the Palos Colorados Project on the property legally described in Exhibit A attached hereto and incorporated herein by reference. C. Following several years of litigation, on August 23, 1999 Lafayette, Moraga, and Bigbury, and Richland entered into the Palos Colorados Settlement Agreement to resolve all litigation associated with the Palos Colorados Project (the 1999 Settlement Agreement. The 1999 Settlement Agreement provided for the development, and established a process for obtaining the entitlements necessary for a 123-unit residential development project with an 18- hole golf course. Among other requirements, Richland agreed to the future golf course operator s payment of the Golf Course Municipal Fund as further defined below in Recital J. D. For more than 6 years after entering into the 1999 Settlement Agreement, Developer attempted unsuccessfully to obtain approvals from the state and federal agencies related to the residential and golf course development. After its failed attempts to obtain agency approvals to proceed with the project, at the request of Moraga, Developer filed an application on March 15, 2006 for approval of a General Development Plan ( GDP for the Palos Colorados project without the golf course (hereinafter, the Project or Palos Colorados Project. E. Lafayette appealed Moraga s determination that elimination of the golf course was consistent with the 1999 Settlement Agreement in that it allowed Developer to proceed with a General Development Plan application, and on August 1, 2006, Lafayette filed a Petition for Writ of Mandate and Complaint in Contra Costa County Superior Court entitled City of Lafayette v. Bigbury Investment Corp., et al. (Case No. N alleging that Moraga violated the 1999 Settlement Agreement and Moraga s municipal ordinances in allowing Developer to proceed OAK # v4 1

9 with a General Development Plan application for the Project. On September 6, 2006, Developer filed a cross-complaint alleging that Lafayette s action constituted a breach of the 1999 Settlement Agreement. F. Moraga, Richfield and Lafayette then entered into a second Settlement Agreement on February 14, 2007 to resolve all litigation concerning the Palos Colorados Project (the 2007 Settlement Agreement, and in May 2006, Moraga adopted an Addendum to the Palos Colorados EIR and approved the General Development Plan for the Project (the General Development Plan for the 123-unit Palos Colorados Project. G. On May 7, 2007, Moraga approved the Palos Colorados Vesting Tentative Map with its adoption of Resolution 26-07PC (the Vesting Tentative Map which became effective on May 18, 2007, and includes conditions of approval that must be performed prior to Final Map, grading permit, building permit and specified certificates of occupancy pursuant to Moraga s approval processes set forth in the Moraga Code of Ordinances and in effect when the Vesting Tentative Map was approved. Subsequently, on May 13, 2009, Moraga approved the Palos Colorados Precise Development Plan with associated design guidelines by adopting Resolution No H. Consistent with the 2007 Settlement Agreement, Moraga imposed as a condition of approval of the Vesting Tentative Map, Condition GDPSA.6. entitled, The Golf Course Municipal Fund, as defined in the 2007 Settlement Agreement and incorporated by reference into the 2007 Settlement Agreement ( Golf Course Fund. This condition implemented and clarified the requirements of Section 11 of the 1999 Settlement Agreement and Condition 6 in Exhibit 2 of the 1999 Settlement Agreement which set forth the terms and conditions for the golf course operator s payment of the Golf Course Fund. I. In addition to the Golf Course Fund as defined in the 2007 Settlement Agreement, Moraga required as a condition of approval of the Vesting Tentative Map (see, Condition A.VTM.2 that Developer pay the sum of $14.5 million dollars in four installments (defined in Condition A. VTM.2 to maintain consistency with the Town of Moraga General Plan and satisfy any and all (1 Town-imposed development impact fees, (2 permit fees imposed solely by the Town with the exception of grading permit fees, (3 Town imposed exactions, and (4 any recreational requirements applicable to the Palos Colorados Project necessitated by the replacement of the golf course with open space as contemplated by the approved Palos Colorados General Development Plan. J. In accordance with Vesting Tentative Map Condition A.VTM.2, Developer paid the First Installment within 120 days of Vesting Tentative Map approval, and Developer is required to pay the Second Installment of $3.5 million within 120 days of grading permit issuance. Developer is required to pay the Third and Fourth Installments on a pro-rata basis at the time of issuance of each building permit and each certificate of occupancy for the Palos Colorados Project, respectively. K. Following the Town s approval of Precise Development Plan and after Developer commenced processing the Palos Colorados final map (the Final Map, the Town modified the grading authorization process so that the Town s approval of the improvement plans and final OAK # v4 2

10 map generally constitutes formal authorization to proceed with grading for many development projects. L. Although Developer is processing a Final Map with Moraga, Developer still must implement various state and federal permit conditions in order to commence grading in compliance with its approved permits. Because of the length of time it took Developer to obtain these permits, the corresponding impact on the Final Map process, and the potential conflict it would create with the State and Federal Permits and parcel creation should the Parties proceed with the grading permit at this time, the Parties desire to process the Final Map and Improvement Plans first and then proceed with the grading authorization pursuant to the approval processes in effect when Moraga approved the Palos Colorados Vesting Tentative Map. This approach maintains consistency with the prior approval processes in effect pursuant to the Moraga Subdivision Ordinance (referenced as a compilation of the County Subdivision Ordinance as adopted by Reference with Amendments, Additions and Deletions adopted by Ordinances Nos. 57, 74, 81 and 92 of the Town of Moraga and the Parkland Dedication Ordinance as adopted by Ordinance No. 77, (which superseded Ordinance No. 70 and the Moraga Grading Ordinance (Article 14 of the Code of Ordinances and as reflected in the 2007 Settlement Agreement and the Town s approved Palos Colorados Vesting Tentative Map, with the understanding that Developer has demonstrated its intent to proceed with a grading authorization at a later date and honor its obligations under the 2007 Settlement Agreement and the Vesting Tentative Map. Developer has agreed to fund a good faith deposit as evidence of this intent. NOW THEREFORE, in consideration of the above Recitals, which are an essential part of the Parties Agreement and are therefore incorporated by reference into the Agreement set forth below, and for other good and valuable consideration, the receipt and adequacy of which is acknowledged, it is hereby agreed as follows: AGREEMENT 1. Developer Payment of Good Faith Deposit 1.1 Amount of Deposit. Developer shall fund a nonrefundable deposit of a total amount not to exceed Two Million and Five Hundred Thousand Dollars ($2,500,000 ( Good Faith Deposit following the Town Council approval of the Final Map. The Good Faith Deposit shall consist of: (i Two Million and Two Hundred and Fifty Thousand Dollars ($2,250,000, which shall be credited against the Three Million and Five Hundred Thousand Dollars ($3,500,000 payment due as the Second Installment in accordance with Vesting Tentative Map Condition A.VTM.2, and (ii advance funding in the amount of Two Hundred and Fifty Thousand Dollars ($250,000 to be applied to the Palos Colorados Grading Permit Inspection Fees. 1.2 Timing of Deposit. No later than 45 days from the date that the following conditions are satisfied: (i the Effective Date of this Agreement, and (ii Developer s receipt of the fully executed Agreement from the Town Clerk, provided that the Town Council approves the Final Map and the associated subdivision improvement agreements on or before February 24, 2016, Developer shall deposit with the Moraga Town Manager the Good Faith Deposit in accordance with the terms of this Agreement. OAK # v4 3

11 1.3 Deposit to be Applied to Second Installment. Moraga shall fully apply Developer s Good Faith Deposit to the Second Installment required by Condition A.VTM.2 and the Grading Permit Inspection Fees required prior to issuance of the Grading Permit. 2. Developer Payment of Remaining Condition A.VTM.2 Installments 2.1 Remainder of Second Installment. Developer shall pay the remaining One Million and Two Hundred and Fifty Thousand Dollars ($1,250,000 of the Second Installment, pursuant to Condition A.VTM.2, after issuance of a Grading Permit. Upon Developer s payment to Moraga of the remaining One Million and Two Hundred and Fifty Thousand Dollars ($1,250,000 of the Second Installment, Developer shall have satisfied any and all obligations related to the funding of the Second Installment pursuant to Condition A.VTM.2, and Developer shall have no further obligations related to the funding of the Second Installment. 2.2 Third and Fourth Installments. In accordance with the terms and conditions set forth in Vesting Tentative Map Condition A.VTM.2, Developer shall fund the Third and Fourth Installments in the amounts and schedule set forth in Vesting Tentative Map Condition A.VTM.2. Except for the Good Faith Deposit to be paid in accordance with Section 1.2 of this Agreement, Developer shall have no obligation to pay any remaining portion of any of the remaining Installments under Condition A.VTM.2 until all local, state and federal permits including the Grading Permit as defined below in Section 3.2(a, but excluding design review and building permit, have been obtained as set forth in Vesting Tentative Map Condition A.VTM.2. Notwithstanding the foregoing, the Parties further agree that in the event Developer determines not to proceed with the Palos Colorados Project and does not apply for Grading Permit approval pursuant to Section 3, below, Developer shall have no obligation to fund the Third and Fourth Installments required by Condition A.VTM Refund of Deposit. The Parties further agree that in the event that Moraga denies any requested extension of one of the subdivision improvement agreements associated with the Final Map (collectively, the Subdivision Improvement Agreement, or rejects the Grading Permit, Developer shall have no obligation to pay the Condition A.VTM.2 Installments, except for those payments previously made upon approval of the Vesting Tentative Map for the Project pursuant to Section 2.2 of the Settlement Agreement and the Good Faith Deposit pursuant to Section 1.2, above. In the event that Moraga denies any requested extension of a Subdivision Improvement Agreement without good cause prior to issuance of a Grading Permit, Moraga shall refund the Good Faith Deposit to Developer pursuant to this Section 2.3 of this Agreement within 14 days of request from Developer following the Town s formal written denial of the requested extension. Denial for good cause shall include denial due to Developer s failure to provide bonds or other security as provided by the Subdivision Improvement Agreement for the extension term or to agree to reasonable terms and conditions of such Subdivision Improvement Agreement extension. 3. Conditions Related to Grading Permit Milestones 3.1 Grading Authorization. Grading of the Palos Colorados Project shall be processed in accordance with the Vesting Tentative Map conditions of approval, the Moraga OAK # v4 4

12 Grading Ordinance, the Moraga Subdivision Ordinance, and the 2007 Settlement Agreement, as described herein. (a For purposes of compliance with the Palos Colorados Project approvals, including but not limited to the Vesting Tentative Map, the 2007 Settlement Agreement, and the Precise Development Plan, the grading authorization process described herein shall constitute the Grading Permit. (b As set forth in Section of the Moraga Municipal Code, grading of the Palos Colorados Project shall be generally allowed except that a Grading Permit shall be required from the Town pursuant to Section of the Moraga Code of Ordinances prior to commencement of grading. (c The Parties acknowledge and agree that the Developer previously completed the design review process and the Town Council approved the Palos Colorados Design Guidelines and design review in conjunction with the Palos Colorados Precise Development Plan. Consequently, prior to the issuance of a Grading Permit, the Town Engineer shall process the application and issue the Grading Permit in accordance with Article of the Code of Ordinances. The Parties acknowledge that, in light of the prior approvals, the Grading Permit shall not require design review or any approval by the Design Review Administrator, Design Review Board, Planning Commission, or the Town Council with respect to any future design review processes. (d Developer shall fund any performance bonds, letters of credit or other form of security required as a condition of commencement of Project grading work at least 10 days prior to Moraga s issuance of the Grading Permit. 3.2 Timing. Following Final Map approval, Developer shall be required to prepare and submit for Town Engineer approval a Grading Permit application accompanied by detailed erosion control, grading plan information, and detailed retaining wall designs in accordance with the VTM Conditions of Approval D.VTM.45 and D.VI.20 prior to the Town Engineer s issuance of the Grading Permit. (a Developer shall exercise its best efforts to file with the Town Engineer an application for a Grading Permit in accordance with Section of the Moraga Code of Ordinances on or before December 31, 2017 provided that Developer shall have obtained any required agency authorizations necessary to commence grading prior to filing the Grading Permit application. In the event that such agency authorizations have not been obtained in order to commence grading or Developer has otherwise been delayed in initiating grading, Developer shall provide a status report to the Town Engineer regarding the expected timing for submittal of the Grading Permit application, provided however, that such delay shall not be used by Town to accelerate any Grading Permit obligations or otherwise prevent Developer from applying for a Grading Permit at a later date. 3.3 Landscaping Plans. Pursuant to Condition D.I.14, Developer is required to prepare a detailed landscape plan that includes the entry gateway and a combination of native plants and trees in sensitive biological habitats and native and ornamental plants and trees in OAK # v4 5

13 non-sensitive locations prior to issuance of the Grading Permit. However, Moraga considers landscaping to be an improvement subject to final map approval and to require surety for landscaping improvements as part of the final map process. In order to proceed with the Final Map, Developer has agreed to fund the security for the landscaping improvements (the Landscaping Letter of Credit based on cost estimates developed for the landscaping plans approved by the Design Review Board in conjunction with the Precise Development Plan and subsequently updated in the Landscape Estimate, dated revised January 15, The Parties further acknowledge and agree that in conjunction with the detailed landscaping plans prepared prior to Moraga s issuance of the Grading Permit, Developer shall revise the landscaping improvement estimates, and make any corresponding revisions to the cost estimates ( Revised Cost Estimates and the Landscaping Letter of Credit or other acceptable security subject to Moraga s review and approval prior to issuance of the Grading Permit. In the event that the Landscaping Letter of Credit funded prior to Final Map approval exceeds the Revised Cost Estimates, Developer shall have the right in Developer s sole discretion to substitute the Landscaping Letter of Credit with a new Landscaping Letter of Credit based on the Townapproved Revised Cost Estimates prior to Grading Permit issuance. 3.4 C.3 Requirements. The improvement plans are based on the 2008 Palos Colorados Stormwater Control Plan approved pursuant to the San Francisco Bay Regional Water Quality Control Board Section 401 Water Quality Certification identified as CIWQS Place No for the Palos Colorados Project. In order to provide Moraga an opportunity to review the bioretention facilities prior to implementation, the parties agree to the following measure: The amount of impervious surface within each sub-watershed area must be substantially consistent with that assumed for the same sub-watershed area in the Stormwater Control Plan. If the amount of impervious surface proposed within a given sub-watershed area is greater than that assumed in the Stormwater Control Plan for the same sub-watershed area, then the grading plans must show that the treatment IMP is adequately sized to treat the runoff from the additional impervious surface or the size of the bioretention basin serving that sub-watershed area may be increased or another BMP implemented to accommodate the increased runoff associated with the increase in impervious surfaces within that sub-watershed area subject to approval by the Town Engineer and the GHAD. 4. Post Final Map and Grading Permit Conditions 4.1 CC&Rs. Developer shall record the final approved covenants, conditions and restrictions ( CC&Rs following the Town s approval of the Final Map and the Bureau of Real Estate s ( BRE review and approval of the CC&Rs. 4.2 Summary of IMPs. As part of the preparation of the as-builts generated in the field during grading of the Palos Colorados Project, Developer shall prepare and submit a summary document containing supplemental information validating the nature of the Integrated Management Practices ( IMPs, to confirm that the IMPs are substantially consistent with the IMPs described in the document entitled Summary of Integrated Management Practices dated, 2016, to the Town Engineer within five days of completion of the Project grading. OAK # v4 6

14 4.3 Moraga Road Signal. Pursuant to Precise Development Plan Condition L.III.3.R-PDP, the Parties acknowledge and agree that neither the Vesting Tentative Map nor the Precise Development Plan require performance of this condition prior to Final Map approval. Notwithstanding the foregoing, Developer agrees to implement the Moraga Road Signal in accordance with timing set forth in Condition L.III.3.R-PDP, provided that the subsequent analysis required by Condition L.III.3.R-PDP demonstrates the need for the signal at that time. 4.4 Moraga Road Bus Stop and Shelter. Pursuant to Precise Development Plan Condition L.PDP.10, the Parties acknowledge and agree that neither the Vesting Tentative Map nor the Precise Development Plan require performance of this condition prior to Final Map approval. The Parties further agree that Richfield is required to locate the Bus Stop and Bus Shelter within the Moraga Road right of way outside of the Project site, and thus, the Bus Stop and Bus Shelter is not within the area subject to the Project Improvement Plans. Notwithstanding the foregoing, Developer has prepared a conceptual location of the Bus Stop and Bus Shelter on the east side of Moraga Road in the vicinity of the Project entrance as shown in the approximate and conceptual location attached to the Improvement Plans as Exhibit (the Bus Shelter. (a Developer shall deposit the cost of the installation of the Bus Shelter with the Town prior to issuance of the first certificate of occupancy for the Project. (b Construction of the Bus Shelter shall include: (i An ADA compliant bus pad, (ii A turnout to allow the bus to completely pull out of the way of the through vehicle traveled way, (iii A bench (type to be selected by the Town, and (iv A sidewalk from the bus stop to the curb return on the north side of the intersection as shown on the Improvement Plans. (c When the Town and County Connection agree to the maintenance entity for the Bus Shelter, the agencies will coordinate on the purchase and installation of the Bus Shelter using the funds Developer deposits with the Town pursuant to Section 4.4(a of this Agreement. Moraga and Richfield shall coordinate with County Connection regarding the review and approval of the Bus Shelter to assure the structure meets County Connection requirements within days prior to submittal of the plans for the building permit for the Project. 5. Moraga Obligations 5.1 Final Map Process. In light of the Parties understandings regarding Developer s Good Faith Deposit, Moraga hereby agrees to agendize the Palos Colorados Final Map for approval by the Town Council on or before February 24, OAK # v4 7

15 5.2 Grading Security. Moraga agrees to accept the provision of grading bonds and/or other form of security required to secure the performance of Project grading work in forms reasonably acceptable to Moraga during the Grading Permit process and prior to issuance of a Grading Permit. 5.3 Application of Deposit. Moraga acknowledges and agrees that $2.25 million of the Good Faith Deposit shall be applied as a deposit on the Second Installment and $250,000 of the Good Faith Deposit shall be applied as a deposit on the Grading Permit Inspection Fees. Notwithstanding the foregoing, Moraga acknowledges and agrees that the Developer shall not be obligated to fund the remainder of the Second Installment until Moraga issues the Grading Permit in accordance with the Developer s schedule and as further set forth in Vesting Tentative Map Condition A.VTM Cooperation. Moraga agrees that it shall exercise good faith efforts to process the Grading Permit and any required encroachment permits and authorizations and to coordinate with other involved public agencies in order to facilitate the completion of Bigbury s and Richfield s obligations set forth above. 6. Force and Effect 6.1 Effective Date. For purposes of this Agreement, the date on which the Town executes this Agreement and delivers the fully executed agreement to Developer shall be referred to as the Effective Date. 6.2 Force and Effect. This Agreement is of no force and effect unless fully executed by Richfield and Bigbury on or before February 10, 2016, and fully executed by the Town on or before February 11, Mutual General Release 7.1 Developer Release. Except as provided in this Agreement, Richfield and Bigbury, on behalf of their respective officials, officers, employees, agents, attorneys, representatives, assigns and successors-in-interest, hereby releases and forever discharges Moraga and its current and former officials, officers, employees, agents, attorneys, representatives, assigns, and successors-in-interest from any and all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, disputes, controversies, payments, costs and attorneys fees, of every kind and character, known or unknown, existing or contingent, latent or patent, including, but not limited to, any matter alleged in, arising from or related to this Agreement. 7.2 Moraga Release. Except as provided in this Agreement, Moraga, on behalf of its officials, officers, employees, agents, attorneys, representatives, assigns and successors-ininterest, hereby releases and forever discharges Bigbury and Richfield and their current and former officials, officers, employees, agents, attorneys, representatives, assigns, and successorsin-interest from any and all claims, causes of action, actions, damages, losses, demands, accounts, reckonings, rights, debts, liabilities, obligations, disputes, controversies, payments, costs and attorneys fees, of every kind and character, known or unknown, existing or contingent, OAK # v4 8

16 latent or patent, including, but not limited to, any matter alleged in, arising from or related to this Agreement. 8. Civil Code Release The Parties acknowledge that they are familiar with the provisions of California Civil Code Section 1542, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. The Parties acknowledge that they may have sustained damages, losses, costs or expenses that are presently unknown and unsuspected. Nevertheless, the Parties acknowledge that this Agreement has been negotiated and agreed upon in light of this situation, and hereby expressly waive any and all rights which they have under California Civil Code Section 1542 or any other statute or common law principle of similar effect. 9. Attorneys Fees If enforcement of this Agreement is required, the prevailing party shall be entitled to recover reasonable attorneys fees and costs. The Parties may agree to engage in mediation of any dispute in advance of litigation, but no pre-litigation mediation shall be required and this provision shall not prevent any party from seeking injunctive relief. 10. No Modification No addition to or modification of any term or provision of the Agreement shall be effective unless set forth in writing and signed by the Parties. 11. Entire Agreement The Parties agree that this Agreement sets forth the final entire agreement between them and relating to the subject matter and that this document merges and supersedes all prior discussions, agreements, understandings, representations, and all other communications between them relating to the subject matter of this Agreement. Notwithstanding the foregoing, this Agreement shall not supersede or replace any other written agreements between the Parties regarding any subject matter not otherwise covered by this Agreement. 12. Warranty of Authority Each Party represents and warrants that it has the right, power and authority to execute this Agreement. Each Party further represents and warrants that it has the exclusive right to prosecute and compromise the claims released by this Agreement and that it has neither made nor suffered to be made any sale, assignment, transfer, conveyance, pledge, hypothecation, or encumbrance of any kind whatsoever of any right, claim, demand, obligation, cost, expense, sanction, grievance, action, cause of action, controversy, debt, damage, arbitration, liability, OAK # v4 9

17 duty, penalty, attorney fee, charge, suit, punitive damage, injury, loss, agreement, contract, promise, or lien released, canceled, rescinded or discharged hereby, and that it is the sole and absolute legal and equitable owner thereof, free and clear of any interest of any other person or entity. Each Party represents and warrants that it has given any and all notices, and obtained any and all consents, powers and authorities, necessary to permit it, and the persons executing this Agreement for it, to enter into this Agreement. 13. Written Waiver A waiver of any Party s right to enforce any provision of this Agreement shall not be effective unless such a waiver is made expressly in writing. An express waiver of any one breach shall not be deemed a waiver of any other breach of the same or any other provision of this Agreement. 14. Legal Representation The Parties affirm that they have been represented by counsel of their own choosing regarding the preparation and negotiation of this Agreement and the matters and claims set forth herein, and that each of them has read this Agreement and is fully aware of its contents and its legal effect. Neither Party is relying on any statement of the other Party outside the terms set forth in this Agreement as an inducement to enter into this Agreement. 15. Joint Preparation The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any party. No presumptions or rules of interpretation based upon the identity of the party preparing or drafting the Agreement, or any part thereof, shall be applicable or invoked. 16. Equal Dignity This Agreement may not be altered, amended, modified or otherwise changed except in writing duly executed by an authorized representative of each of the Parties. 17. Transfers; Assignments Bigbury and Richfield may assign to successor developer(s or owner(s of the Property Bigbury or Richfield s rights and obligations under this Agreement with the prior written consent of Moraga, which consent shall not be unreasonably withheld. In the event that Moraga fails to timely respond within 30 days to a request by Bigbury or Richfield to consent to the transfer or assignment, such transfer or assignment shall be deemed valid. Bigbury or Richfield, as may be appropriate shall be released from any remaining obligations under this Agreement in the event of a transfer or assignment. 18. Binding on Successors and Assignees This Agreement shall be binding on and inure to the benefit of the heirs, successors and assigns of the Parties to the Agreement. OAK # v4 10

18 19. Joint and Several The obligations of Bigbury and Richfield (and of any successor to Bigbury under this Agreement shall be joint and several only as to Bigbury. 20. California Law This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to choice of laws principles. 21. Counterparts This Agreement may be executed in counterparts, each of which will be deemed an original. This Agreement shall be binding upon the receipt of facsimile signatures. 22. Captions Captions are included herein for ease of reference only. The captions are not intended to affect the meaning of the contents or scope of this Agreement. 23. Survival of Obligations None of the releases contained in this Agreement is intended to release any Party from any obligation or understanding to be performed pursuant to this Agreement, all of which obligations and understandings shall survive the execution hereof. 24. Recordation In conjunction with the recordation the Final Map, a Memorandum of Agreement shall be recorded in the Official Records of Contra Costa County in the form of the Memorandum of Agreement attached hereto and incorporated herein as Exhibit B. ////// ////// ////// ///// OAK # v4 11

19 IN WITNESS WHEREOF this Agreement is executed and agreed to by the following, as of the last date set forth below. It is so agreed. RICHFIELD REAL ESTATE CORPORATION, a Delaware Corporation By:, President Date: BIGBURY COMPANY By:, Attorney-In-Fact Date: TOWN OF MORAGA By: Name: Mayor of Town Council Date: APPROVED AS TO FORM: Town Attorney Town of Moraga Date: OAK # v4 12

20 Exhibit A Legal Description of Property OAK # v4 Exhibit A

21 Exhibit B RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Town of Moraga 329 Rheem Boulevard Moraga, CA Attention: Town Clerk (Space Above This Line for Recorder s Use Only Exempt from recording fee per Gov. Code MEMORANDUM OF PALOS COLORADOS AGREEMENT THIS MEMORANDUM OF PALOS COLORADOS AGREEMENT FOR PROCESSING ("Memorandum" is made on February, 2016, between Bigbury Company, a Delaware corporation ( Owner, Richfield Real Estate Corporation, a Delaware corporation ( Developer and the Town of Moraga, a California municipal corporation ("Moraga", who agree as follows: 1. Bigbury Company is the owner of that certain real property described in Exhibit A attached hereto (the Property. 2. Developer has submitted an application for a final subdivision map to Moraga for the subdivision of the Property for the development of the 123-lot Palos Colorados Project subdivision (the Final Map. 3. Owner, Developer and Moraga entered into the Palos Colorados Agreement for Processing bearing an Effective Date of day of February, 2016 (the Agreement which provides that in conjunction with Moraga s processing and approval of the Final Map, Owner and Developer have agreed to make a good faith deposit as further defined in the Agreement (the Deposit and in accordance with the terms and conditions set forth in the Agreement. 4. The purpose of this Memorandum is to give notice of the rights and obligations of the parties under the Agreement, the terms and conditions of which are incorporated herein by this reference as if the same were fully set forth herein. 5. This Memorandum is intended to be fully consistent with the Agreement. In the event of any conflict between any provision of the Agreement and any provision of this Memorandum, the provisions of the Agreement shall control. 6. This Memorandum shall automatically expire and be of no further force or effect from and following Owner and Developer s payment of the Deposit with respect to the portion of the real property described in Exhibit A. OAK # v4 Exhibit B-1

22 7. This Memorandum may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same Memorandum. 8. Subject to the terms and conditions of the Agreement, the Agreement and this Memorandum shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto. IN WITNESS WHEREOF, Owner, Developer and Moraga have executed this Memorandum as of the date first hereinabove written. RICHFIELD REAL ESTATE CORPORATION, a Delaware Corporation By:, President Date: BIGBURY COMPANY By:, Attorney-In-Fact Date: TOWN OF MORAGA By: Name: Mayor of Town Council Date: APPROVED AS TO FORM: Town Attorney Town of Moraga Date: OAK # v4 Exhibit B-2

23 EXHIBIT A Legal Description of the Property [to be inserted] OAK # v4 Exhibit B-3

24 ACKNOWLEDGEMENTS A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On, before me,, a Notary Public, personally appeared, who proved to me on the basis of satisfactory evidence to be the person(s whose name(s is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies, and that by his/her/their signature(s on the instrument the person(s, or the entity upon behalf of which the person(s acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature * * * * * * * * * * * * * A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On, before me,, a Notary Public, personally appeared, who proved to me on the basis of satisfactory evidence to be the person(s whose name(s is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies, and that by his/her/their signature(s on the instrument the person(s, or the entity upon behalf of which the person(s acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature OAK # v4 Acknowledgement

25 ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On, before me,, a Notary Public, personally appeared, who proved to me on the basis of satisfactory evidence to be the person(s whose name(s is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies, and that by his/her/their signature(s on the instrument the person(s, or the entity upon behalf of which the person(s acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature OAK # v4 Acknowledgment